Types of legal entities The division into and non-commercial is carried out depending on the availability during creation and activity, as the main purpose of creating commercial organizations is: making a profit, while non-commercial can engage in entrepreneurial activity; profit between commercial organizations is divided between their participants; the profits of non-profit organizations are used to achieve the goals for which they were created; an organization has general legal capacity, a non-profit organization has special legal capacity; commercial organizations can be created only in the form of economic partnerships and companies, production cooperatives, state municipal unitary enterprises; non-commercial can be created in the forms provided for by the Civil Code of the Russian Federation and other laws. Legal entities, depending on the nature of the rights of founders.
What is a Community Based Nonprofit Organization?
The concept of "socially oriented non-profit organizations" was introduced by the Federal Law of 05.04.2010 No. 40-FZ
"On Amendments to Certain Legislative Acts of the Russian Federation on the Issue of Supporting Socially Oriented Non-Profit Organizations"
These changes directly affected 4 federal laws: “On non-profit organizations”, “On general principles of organization of legislative (representative) and executive bodies of state power of the constituent entities of the Russian Federation”, “On general principles of organization of local self-government in the Russian Federation” and “On protection competition ".
Lecture number 8
1. Commercial According to the Civil Code of the Russian Federation, all legal entities are divided into commercial and non-commercial.
Commercial legal entities have profit making as the main goal of their activities.
Non-commercial legal entities do not have the main purpose of making profit and do not distribute it among the participants. The following are classified as commercial legal entities by civil legislation: 1) full partnerships; 2) limited partnerships (limited partnerships); 3) limited liability companies; 4) additional liability companies; 5) joint stock companies; 6) production cooperatives; 7) state and municipal unitary enterprises.
A general partnership is created by the participants on the basis of the memorandum of association.
Which organizations are commercial?
which organizations are commercial?
dINAMOVETS By spirit Higher Mind (143782) 7 years ago
Commercial organizations are organizations that pursue profit as the main goal of their activities.
For commercial ones, the Civil Code of the Russian Federation gives a complete closed list of types of organizations, i.e.
e. commercial organizations of other types cannot be created. Legal entities that are commercial can be created in the form of:
1. business partnerships and companies:
general partnership
partnership of faith
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oZAO, OJSC
2. production cooperatives,
3. state and municipal unitary enterprises.
The most commonly used forms are LLC, JSC (JSC and JSC).
astas Guru (2752) 7 years ago
the organization of the action (work) which makes a profit are commercial
Allocation of direct and indirect costs
How to allocate expenses to direct and indirect for the purpose of calculating income tax? Can everything be attributed to indirect costs?
If the taxpayer determines income and expenses on an accrual basis, production and sales expenses are determined taking into account the provisions of Article 318 of the Tax Code. Recall that costs must be divided into direct and indirect (clause 1 of article 318 of the Tax Code of the Russian Federation)
Commercial and non-commercial organizations
The Civil Code of the Russian Federation divides all legal entities into commercial and non-commercial (Art.
50 of the Civil Code of the Russian Federation) The main purpose of the activities of commercial as subjects of civil turnover is to make a profit and distribute the profit among its participants (shareholders, equity holders, shareholders, members).
Discussions
What type of market does the sphere of commodity circulation belong to, which reflects the economic relations between a commodity producer and a consumer ?: - the market of means of production. 2. What definition reveals the concept of "market capacity": - potential revenue, i.e. product of the price of the product by the estimated sales volume; 3.
As you know, all organizations in Russia can be divided into three sectors: government, commercial and non-commercial. And if everything is clear with the first two types, then the latter makes us think about it. What objects are classified as non-profit organizations? We invite you to reflect on this further.
Non-profit organizations include ...
First the definition. An NPO, a non-profit organization is a structure that does not set as its main task the receipt of profit, and also does not distribute it among its members.
The goals of creating an NPO are as follows:
- cultural;
- social;
- charitable;
- scientific;
- educational;
- managerial;
- political;
- health protection of citizens;
- development of sports, physical education;
- satisfaction of non-material (spiritual) needs;
- protection of the legitimate interests of individuals and legal entities;
- legal assistance;
- other things useful to society.
Objects that belong to non-profit organizations have the right to engage in entrepreneurial activity. But only if it is aimed at achieving the main social goal.
It is important to note that non-profit organizations that perform certain functions of self-government bodies, the state and, at the same time, do not resort to the help of them, are called non-governmental.
Characteristics of NPO
In order to brighten up the structures that are related to NPOs, we suggest that you familiarize yourself with the following characteristic:
- Founder: any person.
- Personnel: recruited staff and involved persons.
- Monetary remuneration of participants: full-time employees - salary, work of volunteers, volunteers is not paid, services of involved persons - a service agreement.
- The main goals of the activity: as a rule, socially significant.
- Sources of financing: state budget (but only if the founder of the organization is the state), debt capital, proceeds from entrepreneurial activities (with a number of restrictions), investments and donations. There are also membership fees. Moreover, the overwhelming majority of NGOs exist at their expense, without referring to the above sources. Grants are often used, including state ones. Also, quite a few NPOs allocate them as their only source of funding.
Types of NPO
Non-profit organizations include:
- Cooperatives: garage construction, consumer (credit, housing, agricultural, marketing, horticultural, supply, livestock, gardening, processing).
- Unions.
- Associations.
- Universities.
- Autonomous non-profit associations.
- State corporations.
- Charity organisations.
- State-owned companies.
- Cossack societies.
- Natural, national parks, reserves.
- Municipal and state budgetary, state and autonomous formations.
- Non-governmental associations.
- Non-profit partnership.
- HOA, GC, LCD.
- Various kinds of social associations: political parties, public funds, movements, organizations, trade unions, public initiative funds.
- Associations of legal entities.
- Mutual insurance societies.
- Employers' unions.
- Small indigenous communities.
- Religious association, group, organization.
- Countryside, vegetable gardening, garden non-profit association.
- Territorial public association.
- Chamber of Commerce and Industry.
NCO hybrid forms
Speaking about which organizations belong to non-profit, it is important to note hybrid forms with commercial (private) structures. These include:
- Public Interest Companies (UK).
- Public Benefit Corporation (USA).
- Low-income limited liability company (USA).
- Corporation for Public Benefits (Germany).
- Charitable Society with Limited Liability (Germany).
NGOs in Russia
In Russia, more than 30 types of NPOs belong to the forms of non-profit organizations. Many of them have similar functions, but the differences are only in the names. All associations are regulated by the Civil Code of the Russian Federation (Chapter 4, paragraph 6), the Federal Law "On Non-Commercial Organizations". The specific activities of individual NPOs are controlled by the relevant legislative acts.
Let's list some features of the activities of these organizations in the Russian Federation:
- Received foreign grants are tax-free.
- Since 2008, special grants from the President have been allocated to support NGOs.
- In 2015, the so-called register of unwanted organizations was introduced. Any international or foreign NPO that poses a threat to the Russian state system can get there.
- In 2017, a decree was issued prescribing the issuance of grants to those non-profit organizations that conduct socially significant, civic activities.
NPOs in our country are a fairly widespread type of associations, numbering more than a dozen forms. They are united by common goals, a collective characteristic of NGOs. In relation to such organizations, both general regulatory norms and specific ones apply.
The Civil Code of the Russian Federation classifies legal entities into commercial and non-profit organizations.
Commercial organizations- these are legal entities that pursue profit as the main goal of their activities.
Non-profit organizations- these are legal entities that do not have profit-making as such a goal and do not distribute the received profit among the participants. commercial organizations, with the exception of unitary enterprises and other organizations provided for by law, are endowed with general legal capacity (Art.49 of the Civil Code of the Russian Federation) and can carry out any types of entrepreneurial activity not prohibited by law, if the constituent documents of such commercial organizations do not contain an exhaustive (complete) a list of the types of activities that the relevant organization is entitled to engage in. Unitary enterprises, as well as other commercial organizations in respect of which the law provides for special legal capacity (banks, insurance organizations and some others), are not entitled to conclude transactions that contradict the goals and subject matter of their activities, determined by law or other legal acts. Such transactions are void. Transactions made by other commercial organizations, in contradiction with the goals of activity, definitely limited in their constituent documents, may be recognized by the court as invalid in the cases provided for in Article 173 of the Civil Code.
Another classification of legal entities,stipulated by the Civil Code of the Russian Federation, is based on the specifics of the rights of the founders (participants) of a legal entity to the property of a legal entity. Legal entities in relation to which their participants have rights of obligation include business partnerships and companies, production and consumer cooperatives. Legal entities, to whose property their founders have the right of ownership or other property rights, include state and municipal unitary enterprises, as well as institutions financed by the owner. Legal entities in respect of which their founders (participants) do not have property rights (neither property rights, nor obligations) include public and religious organizations, charitable and other foundations, associations of legal entities.
A. Commercial organizations
The Civil Code of the Russian Federation exhaustively defines the types of commercial organizations. These include:
business partnerships and companies,
state and municipal unitary enterprises,
production cooperatives .
Business partnerships and companies
Business partnerships and companiescommercial organizations are recognized with the authorized (pooled) capital divided into shares (contributions) of the founders (participants). TO business partnershipsrelate:
full partnerships,
limited partnerships (limited partnerships).
TO business entitiesrelate:
joint-Stock Company,
limited liability company,
additional liability company.
Participants in general partnerships and general partners in limited partnerships may be:
individual entrepreneurs,
and / or commercial organizations.
Members of business companies and contributors to limited partnerships can be:
citizens
and legal entities.
State bodies and bodies of local self-government shall not have the right to act as participants in business companies and as investors in limited partnerships, unless otherwise provided by law. Institutions financed by the owners may be members of business companies and investors in partnerships with the permission of the owner, unless otherwise provided by law. The law may prohibit or limit the participation of certain categories of citizens in business partnerships and companies, with the exception of open joint stock companies. TO common features of business partnerships and companiesrelate:
Division of the authorized (joint-stock) capital into shares (units).
A contribution to property can be money, securities, other things or property rights or other rights that have a monetary value. The monetary assessment of the contribution of a participant in a business company is made by agreement between the founders (participants) of the company and, in the cases provided for by law, is subject to an independent expert review.
The same type of management structure, the highest governing body of which is the general meeting of participants.
Business partnerships and companies may be founders (participants) of other business partnerships and companies, with the exception of cases stipulated by the Civil Code of the Russian Federation and other laws.
Rights and obligations of participants
Full partnership -a partnership, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activity on behalf of the partnership and are responsible for its obligations with property belonging to them (Article 69 of the Civil Code of the Russian Federation). The liability of the participants in a full partnership is joint and subsidiary. Fellowship of faith(limited partnership) - a partnership in which, along with the participants who carry out entrepreneurial activities on behalf of the partnership and are responsible for the obligations of the partnership with their property (general partners), there is one or more participants-investors (limited partners) who bear the risk of losses associated with the activities partnerships, within the amount of their contributions and do not take part in the partnership's entrepreneurial activities. A general partnership and limited partnership are created on the basis of the memorandum of association. Limited liability company- a company founded by one or several persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; members of a limited liability company are not liable for its obligations and bear the risk of losses associated with the company's activities, within the value of their contributions. The constituent documents of a limited liability company are:
memorandum of association,
If the company is founded by one person, its constituent document is the charter. The number of participants in a limited liability company must not exceed 50 participants. Otherwise, it is subject to transformation into a joint stock company within a year, and after this period - liquidation in court, if the number of its participants does not decrease to the limit established by law. The supreme body of a limited liability company is the general meeting of its participants. The company's charter may provide for the formation of the board of directors (supervisory board) of the company. In a limited liability company, an executive body (collegial and (or) sole) is created, which exercises the current management of its activities and is accountable to the general meeting of its participants. The sole governing body of the company may also be elected not from among its members. The legal status of limited liability companies is regulated by the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies" 13. An overview of issues of judicial practice in cases related to the activities of limited liability companies is given in the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of December 9, 1999 No. 90/14 "On some issues of the application of the Federal Law" On limited companies responsibility "14.
Additional liability company- a company established by one or more persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; participants of such a company jointly bear subsidiary liability for its obligations with their property in the same multiple for all to the value of their contributions, determined by the constituent documents of the company. In the event of the bankruptcy of one of the participants, his liability for the company's obligations is distributed among the other participants in proportion to their contributions, unless a different procedure for the distribution of liability is provided for by the company's constituent documents. The limited liability company rules apply to the subsidiary company.
Joint-Stock Company -a company whose authorized capital is divided into a certain number of shares; members of a joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of the shares they own. The main feature of a joint stock company is the division of the authorized capital into shares. Shares can only be issued by a joint stock company. The legal status of joint stock companies is regulated by federal laws dated December 26, 1995 No. 208-FZ "On joint stock companies" 15, dated July 19, 1998 No. 115-FZ "On the peculiarities of the legal status of joint stock companies of workers (people's enterprises)" 16. An overview of judicial practice in cases related to the activities of joint-stock companies is given in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 18, 2003 N 19 "On some issues of the application of the Federal Law" On joint-stock companies ".
Types of joint stock companies:
Public corporation;
Closed Joint Stock Company;
Joint-stock company of workers (people's enterprise).
Unlike an open joint stock company closed joint stock companyis not entitled to conduct an open subscription to the shares issued by him or otherwise offer them for purchase to an unlimited number of persons. The shareholders of a closed joint stock company have the pre-emptive right to purchase shares sold by other shareholders of this company. The number of members of a closed joint stock company must not exceed 50 members. Joint Stock Company of Workers (People's Enterprise)- a joint-stock company, whose employees own the number of shares of the people's enterprise, the par value of which is more than 75 percent of its authorized capital. Subsidiary business company -this is a business company in respect of which another (main) business company or partnership, due to the prevailing participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise, has the ability to determine the decisions made by such a company. A subsidiary company is not liable for the debts of the parent company (partnership). The parent company (partnership), which has the right to give instructions to a subsidiary, including under an agreement with it, instructions binding on it, shall be liable jointly and severally with the subsidiary for transactions concluded by the latter in pursuance of such instructions. Dependent business company- a business company in respect of which the other (dominant, participating) company has more than:
or twenty percent of the authorized capital of a limited liability company.
A business company that has acquired more than twenty percent of the voting shares of a joint-stock company or twenty percent of the charter capital of a limited liability company is obliged to immediately publish information about this in the manner prescribed by the laws on business companies.
Production cooperative (artel)Is a voluntary association of citizens on the basis of membership for joint production or other economic activities (production, processing, sale of industrial, agricultural and other products, performance of work, trade, consumer services, provision of other services) based on their personal labor and other participation and unification by its members (participants) of property share contributions. The law and the constituent documents of a production cooperative may provide for the participation of legal entities in its activities.
To the main features of a production cooperative include the following:
a production cooperative is based on membership principles,
is a commercial organization,
represents not only the association of the property of the participants, but also the association of personal labor participation,
distribution of profits depends on labor participation,
the minimum number of participants is five members,
members of a production cooperative shall bear subsidiary responsibility for the obligations of the cooperative in the amount and in the manner prescribed by the law on production cooperatives and the charter of the cooperative.
The legal status of production cooperatives is regulated by federal laws dated May 8, 1996 No. 41-FZ "On production cooperatives" 18, dated December 8, 1995 No. 193-FZ "On agricultural cooperation" 19. State and municipal unitary enterprisesIs a commercial organization that is not endowed with ownership of the property assigned to it by the owner. The property of a unitary enterprise is indivisible and cannot be distributed by contributions (shares, shares), including among the employees of the enterprise. Types of unitary enterprises: 1. A unitary enterprise based on the right of economic management. The company is not entitled to dispose of real estate without the consent of the owner. The owner of the property of an enterprise based on the right of economic management is not liable for the obligations of the enterprise. 2. A unitary enterprise based on the right of operational management (state enterprise) A unitary enterprise is not entitled to dispose of both movable and immovable property without the consent of the owner. In this case, the owner can seize unnecessary, unused or misused property. The owner of the property of a state-owned enterprise bears subsidiary liability for the obligations of such an enterprise if its property is insufficient. The legal status of unitary enterprises is regulated by the Federal Law of November 14, 2002 No. 161-FZ "On State and Municipal Unitary Enterprises".
B. Non-profit organizations
Non-profit organizationis an organization that does not have profit making as the main goal of its activities and does not distribute the received profit among its participants. Non-profit organizations can be created in the form of:
public or religious organizations (associations),
non-profit partnerships,
institutions,
autonomous non-profit organizations,
social, charitable and other funds,
associations and unions,
as well as in other forms provided for by federal laws.
Non-profit organizations can be created to achieve the following goals: social, charitable, cultural, educational, scientific and managerial, as well as to protect the health of citizens, develop physical culture and sports, meet the spiritual and other intangible needs of citizens, protect the rights and legitimate interests of citizens and organizations, the resolution of disputes and conflicts, the provision of legal assistance, as well as for other purposes aimed at achieving public goods.
Consumer cooperative- voluntary association of citizens and legal entities on the basis of membership in order to satisfy the material and other needs of the participants, carried out by combining property shares by its members. The members of the consumer cooperative are obliged to cover the resulting losses through additional contributions within three months after the approval of the annual balance sheet. In case of failure to fulfill this obligation, the cooperative may be liquidated in court at the request of creditors. Members of the consumer cooperative jointly bear subsidiary liability for its obligations within the unpaid part of the additional contribution of each member of the cooperative. The income received by the consumer cooperative from entrepreneurial activity is distributed among its members. The legal status of consumer cooperatives is regulated by the Federal Law of July 11, 1997 No. 97-FZ "On Amendments and Addenda to the Law of the Russian Federation" On Consumer Cooperation in the Russian Federation "21 and other regulatory legal acts. Public and religious organizations -voluntary associations of citizens, in the manner prescribed by law, united on the basis of their community of interests to meet spiritual or other non-material needs. Public and religious organizations (associations) have the right to carry out entrepreneurial activities consistent with the goals for the achievement of which they were created. Participants (members) of public and religious organizations (associations) do not retain the rights to property transferred by them to these organizations, including membership fees. Participants (members) of public and religious organizations (associations) are not liable for the obligations of these organizations (associations), and these organizations (associations) are not responsible for the obligations of their members. The legal status of these organizations is governed by federal laws dated September 26, 1997 No. 125-FZ "On freedom of conscience and on religious associations", dated January 12, 1996 No. 7-FZ "On non-profit organizations", dated May 19, 1995 No. 82-ФЗ "On Public Associations" and other regulatory legal acts. Fund -non-membership non-profit organization established by citizens and (or) legal entities on the basis of voluntary property contributions and pursuing social, charitable, cultural, educational or other socially useful goals. The property transferred to the foundation by its founders (founder) is the property of the foundation. The founders are not responsible for the obligations of the foundation they have created, and the foundation is not responsible for the obligations of its founders. The foundation uses the property for the purposes determined by the charter of the foundation The foundation has the right to engage in entrepreneurial activities that are consistent with these goals and necessary to achieve socially useful goals for which the foundation was created. In order to carry out entrepreneurial activities, foundations have the right to create economic companies or participate in them. The foundation is obliged to publish annual reports on the use of its property. The decision to liquidate a foundation can only be made by a court upon the application of interested parties. The fund can be liquidated in the following cases:
if the fund's property is not enough to fulfill its goals and the probability of obtaining the necessary property is unrealistic;
if the objectives of the foundation cannot be achieved and the necessary changes to the objectives of the foundation cannot be made;
in case of deviation of the foundation in its activities from the purposes provided for by the charter;
in other cases provided by law.
InstitutionIs a non-profit organization created by the owner for the implementation of managerial, socio-cultural or other functions of a non-profit nature and financed in whole or in part by this owner. The property of the institution is assigned to it on the basis of the right of operational management. The institution is responsible for its obligations with the funds at its disposal. If they are insufficient, the owner shall bear subsidiary responsibility for the obligations of the institution. The institution is not entitled to dispose of both movable and immovable property. This is the prerogative of the owner. However, the institution has the right to engage in independent activities that generate income, and dispose of them independently. Commercial organizations, in order to coordinate their business activities, as well as represent and protect common property interests, may, by agreement between themselves, create associations in the form of associations or unions,which are non-profit organizations. If, by the decision of the participants, the association (union) is entrusted with the conduct of entrepreneurial activity, such an association (union) is transformed into a business company or partnership or may create a business company for carrying out business activities or participate in such a company. Nonprofit organizations can voluntarily form associations (unions) of nonprofit organizations. Association (union)non-profit organization is a non-profit organization. Members of an association (union) retain their independence and rights of a legal entity. Association (union) is not responsible for the obligations of its members. Members of an association (union) bear subsidiary responsibility for the obligations of this association (union) in the amount and in the manner prescribed by its constituent documents. Members of an association (union) have the right to use its services free of charge. A member of an association (union) has the right, at his discretion, to withdraw from the association (union) at the end of the financial year. In this case, a member of the association (union) bears subsidiary liability for its obligations in proportion to its contribution within two years from the date of exit. A member of an association (union) may be expelled from it by decision of the remaining members. Non-profit partnership -is a membership-based non-profit organization established by citizens and / or legal entities to assist its members in carrying out activities aimed at achieving social, charitable, cultural, educational, scientific and other goals. Autonomous non-profit organization- this non-profit organization is recognized as a non-profit organization without membership, established by citizens and (or) legal entities on the basis of voluntary property contributions in order to provide services in the field of education, healthcare, culture, science, law, physical culture and sports and other services. The property transferred to an autonomous non-profit organization by its founders (founder) is the property of the autonomous non-profit organization. The Civil Code of the Russian Federation does not contain an exhaustive list of non-profit organizations that can be created in other forms provided for by federal legislation.
Commercial organizations include a production cooperative (artel). The cooperative is formed by decision of the founders. The number of members of the cooperative assumes at least five people. Individuals can be members (participants) of the cooperative. A legal entity participates in the activities of the cooperative through its representative in accordance with its charter. The members of the cooperative are obliged to make the share contribution established by the charter of such a commercial organization. Its size and procedure for its introduction is determined by the charter. Foreign citizens and stateless persons can be members of the cooperative on an equal basis with citizens of Russia. The number of members of the cooperative who have made a share contribution, participating in the activities of this legal entity, but not taking personal labor participation in its activities, cannot exceed 25% of the number of members of the cooperative taking personal labor participation in its activities. is designed not so much for the consolidation of the property of the participants, as for their joint, personal labor participation in the activities of the established commercial organization. The only constituent document of the cooperative is the charter. The supreme body is the general meeting of the members of the cooperative, which has the right to consider and make a decision on any issue of its formation and activities. Each member of the cooperative, regardless of the size of his share, has one vote. The members of the cooperative who take personal labor participation in the activities of the cooperative have the right to receive payment for their work in cash and (or) in kind.
The main duties of the members of the cooperative:
- make a share contribution;
- to participate in the activities of the cooperative by personal labor or by making an additional share contribution, the minimum amount of which is determined by the charter of the cooperative;
- comply with the internal regulations established for members of the cooperative who take personal labor participation in the activities of the cooperative;
- bear subsidiary liability for the debts of the cooperative provided for by the legislation of the Russian Federation and the charter of the cooperative.
The property owned by the cooperative is divided into shares of the members of the cooperative in accordance with the charter.
Unitary enterprises
The following types of unitary enterprises operate in Russia:
1) unitary enterprises based on the right of economic management - a federal state enterprise, a state enterprise of a constituent entity of the Russian Federation, a municipal enterprise;
2) unitary enterprises based on the right of operational management - a federal state enterprise, a state enterprise of a constituent entity of the Russian Federation, a municipal state enterprise.
The founder of a unitary enterprise may be the Russian Federation, its constituent entity or municipal entity. The federal state-owned enterprise is established by the decision of the Government of the Russian Federation.
A state or municipal enterprise can be created if:
- the use of property, the privatization of which is prohibited, including property necessary to ensure the security of the Russian Federation;
- carrying out activities in order to solve social problems (including the sale of certain goods and services at minimal prices), as well as organizing and conducting procurement and commodity interventions to ensure the food security of the state;
- performance of activities provided for by federal laws exclusively for state unitary enterprises;
- implementation of scientific and scientific-technical activities in the industries related to ensuring the security of the Russian Federation;
- development and manufacture of certain types of products that are in the sphere of interests of the Russian Federation and ensure its safety;
- production of certain types of products withdrawn from circulation or with limited circulation.
A state-owned enterprise can be created in the case of:
- if the predominant or significant part of the products manufactured, the work performed, the services rendered are intended for federal state needs, the needs of a constituent entity of the Russian Federation or a municipal formation;
- when using property, the privatization of which is prohibited, including property necessary to ensure the security of the Russian Federation, the functioning of air, rail and water transport, the implementation of other strategic interests of the state;
- carrying out activities for the production of goods, performance of work, provision of services sold at prices established by the state in order to solve social problems;
- development and production of certain types of products that ensure the country's security;
- production of certain types of products, withdrawn from circulation or with limited circulation;
- implementation of certain subsidized types of activities and unprofitable production; activities provided for by federal laws exclusively for state-owned enterprises.
The only constituent document of a unitary enterprise is the charter. The property of a unitary enterprise is formed at the expense of the sources assigned to it on the basis of the right of economic management or on the right of operational management by the owner of the property, the income of the unitary enterprise from its activities, and other sources that do not contradict the legislation.
A state or municipal enterprise disposes of movable property belonging to it on the basis of the right of economic management independently, with the exception of cases established by the legislation of Russia. A state or municipal enterprise does not have the right to sell its immovable property, lease it out, pledge it, make a contribution to the authorized (joint-stock) capital of a business partnership or company (or otherwise dispose of such property without the consent of the owner of the property of a state or municipal enterprise ).
The state enterprise has the right to alienate or otherwise dispose of the property belonging to it only with the consent of the owner. At the same time, a state-owned enterprise can dispose of its property only within the limits that do not deprive it of the opportunity to carry out activities, the subject and purpose of which are determined by the charter of such an enterprise. The activities of the state enterprise are carried out in accordance with the estimate of income and expenses approved by the owner of the property of the state enterprise.
The sole executive body of a unitary enterprise is its head (director, general director), who is appointed by the owner of the property of the unitary enterprise and is accountable to him.
Also, Russian legislation provides for the creation of non-commercial legal entities.
Non-profit organizations can be created to achieve social, charitable, cultural, educational, scientific and managerial goals, in order to protect the health of citizens, develop physical culture and sports, meet the spiritual and other intangible needs of citizens, protect the rights, legitimate interests of citizens and organizations, resolve disputes and conflicts, the provision of legal assistance, as well as for other purposes aimed at achieving public goods.
Non-profit organizations are allowed to engage in entrepreneurial activity, provided that it serves the achievement of the goals for which it was created and corresponds to them. Such activities are recognized as the profitable production of goods and services, as well as the purchase and sale of securities, property and non-property rights, participation in business companies and limited partnerships as a contributor.
Types of non-profit legal entities
The list of non-profit organizations contained in clause 3 of Art. 50 HK is not exhaustive. This is due to the fact that for them a legal personality has an auxiliary meaning, therefore non-profit organizations can exist in the forms provided for by both the Civil Code and other laws. However, without limiting the list of forms of non-profit organizations in the Civil Code, we received a huge variety of non-profit structures. Today, after the adoption of a large number of laws regulating the activities of non-profit organizations, many organizational and legal forms have appeared, both really new and those that in fact are not such, or differ from each other only in insignificant nuances that have no formative significance.
Division of organizations into commercial and non-commercial is carried out depending on the availability during the creation and activities of the organization, as the main purpose of creating commercial organizations is:
making a profit, while non-profit can do business;
profit between commercial organizations is divided between their participants;
the profits of non-profit organizations are used to achieve the goals for which they were created;
a commercial organization has general legal capacity, a non-commercial organization has special legal capacity;
commercial organizations can be created only in the form of economic partnerships and companies, production cooperatives, state municipal unitary enterprises;
non-commercial can be created in the forms provided for by the Civil Code of the Russian Federation and other laws.
Depending on the nature of the rights of the founders, legal entities, in respect of which their founders have property and liability rights, have no rights. Thus, in order to resolve the issue of choosing a form of activity in any area, it is necessary to study all aspects of legislation that determine the position of legal entities in particular, as well as organizational and legal forms. Legal entities differ depending on whether their founders (participants) retain any rights in relation to the property of the established organization. The founder is the entity (individual or legal entity) that creates this organization and transfers it to ownership, economic management or operational management of part of its property. In fact, the founder is the person or persons who signed the constituent documents of the legal entity being created.
According to this criterion, legal entities are divided into four types:
1) organizations, to whose property the founders (participants) do not retain any rights (all types of non-profit organizations, with the exception of non-profit partnerships),
2) organizations in respect of whose property the founders (participants) retain their rights of obligation (partnerships and societies, cooperatives, non-commercial partnerships),
3) organizations in respect of whose property the founders retain the right of economic management (subsidiaries),
4) organizations in respect of whose property the founders retain the right of ownership (state and municipal unitary enterprises, federal state enterprises, institutions).
Depending on the methods of creation and goals of activity, legal entities are subdivided into public and private. It is customary to refer to legal entities of public law as those organizations that are created against the will of private individuals, through the issuance of legal acts by state authorities and administration. First of all, this is the treasury of the Russian Federation (represented by the Ministry of Finance of the Russian Federation), as well as state (municipal) enterprises and institutions, which are usually created in accordance with presidential decrees, government decrees, orders of state property management committees and state property funds. So, in clause 1 of article 115 of the Civil Code it is directly stated that a federal state-owned enterprise is formed only by decision of the Government of the Russian Federation. Legal entities are divided into commercial and non-commercial organizations. Commercial legal entities are those whose purpose is to make a profit by carrying out any activity not prohibited by law.
Commercial organizations include the following:
Business partnerships - contractual associations of several persons for joint business activities under a common name.
A general partnership is a business partnership, the participants of which jointly bear subsidiary liability for its obligations with all their property.
A limited partnership is a business partnership consisting of two categories of participants: general partners (complements) who jointly bear subsidiary responsibility for its obligations with their property, and fellow contributors (limited partners) who are not responsible for the obligations of the enterprise.
The basis for the creation of general and limited partnerships, limited and additional liability companies, non-profit associations of legal entities (associations and unions) and non-profit partnerships is the founding agreement, through which non-governmental institutions, foundations and autonomous non-profit organizations can also be created if their founders are two or several individuals (legal entities). In accordance with the memorandum of association, the parties (founders) undertake to each other to create a legal entity, determine the procedure for joint activities for its creation, the conditions for transferring their property into its ownership (full economic management or operational management), the procedure for withdrawing from it and accepting it into the structure associations of new participants and other conditions for their participation in the activities of this organization. If the profit received by a legal entity is subject to distribution among the founders, they establish the procedure for the distribution of this profit. At the same time, the agreement defines the conditions and procedure for the distribution of losses from the activities of the organization between the founders (clause 2 of article 52 of the Civil Code of the Russian Federation). The memorandum of association differs from an agreement on joint activities in that its effect does not end after the registration of a legal entity, but continues throughout the entire existence of the organization. Thus, the memorandum of association, which determines the internal relations between the members of the association, operates in parallel with the charter, which in this case is considered as an integral part of the agreement on the creation of a legal entity.
Business companies - these are organizations created by one or more persons by combining (separating) their property to conduct business.
Limited liability company - a commercial organization, the authorized capital of which is divided into shares of certain sizes, formed by one or more persons not liable for its obligations. A feature of this form is that the registration of an LLC is carried out in the tax authority with simultaneous tax registration
Additional liability company - a commercial organization, the authorized capital of which is divided into shares of predetermined sizes, formed by one or more persons jointly bearing subsidiary liability for its obligations in an amount that is a multiple of the value of their contributions to the authorized capital.
Joint-Stock Company - a commercial organization formed by one or more persons not liable for its obligations, with the authorized capital divided into shares, the rights to which are certified by securities - shares.
Closed JSC - distributes the issues of new shares among specific previously known persons. The number of members is not more than 50, shareholders have the right of pre-emptive purchase of shares alienated by other shareholders.
People's enterprise - joint stock company of employees.
Open JSC - has the right to offer shares for purchase to an unlimited number of persons.
The founders of joint-stock companies, production and consumer cooperatives, public organizations conclude an agreement on joint activities with each other, the purpose of which is to jointly carry out a single operation - the creation and registration of a legal entity. In the agreement, the founders determine the legal form of the future organization, determine the subject and goals of its activities, establish their rights and obligations to create an organization and form its property base, distribute among themselves the costs associated with the development of constituent documents and registration of a legal entity. However, this order is not always observed. In practice, the agreement of the founders on joint activities to create these types of organizations can be concluded orally. Most often, all the necessary preparatory process is carried out by an initiative group of several people, and formally, the decision to create a legal entity is made by the general meeting of founders, which also approves the charter (a prepared draft) and selects the governing bodies of the future association.
In either case, after the adoption of the charter and registration of the created organization, the agreement on joint activities becomes invalid, and all relationships between the founders (participants) are determined in accordance with the charter.
Production cooperative (artel) - This is an association of persons for joint business activities on the basis of their personal labor and other participation, the initial property of which consists of the share contributions of the members of the association.
State (municipal) enterprise - a legal entity established by the state or local self-government body for entrepreneurial purposes or for the release of especially significant goods (production of work or provision of services), the property of which is state (municipal) property.
A unitary enterprise based on the right of economic management.
A unitary enterprise based on the right of operational management (federal government enterprise).
Commercial organizations can be created only in the forms expressly provided for by the Civil Code. This list is exhaustive (Articles 50, 114 of the Civil Code, Clause 1 of Article 6 of the Law on the Enactment of Part One of the Civil Code of the Russian Federation). Commercial organizations are endowed with general legal capacity, i.e. can engage in any type of entrepreneurial activity not prohibited by law. However, the founders of any organization can establish in its constituent documents restrictions on engaging in certain types of activity, or indicate an exhaustive list of these types. In addition, for the implementation of certain types of activities, the list of which can only be established by law, it is required to obtain a special permit - a license (Article 49 of the Civil Code). Consequently, a commercial organization, the constituent documents of which do not contain an exhaustive list of activities and there are no prohibitions, has the right to demand a license to engage in the relevant type of activity, and it cannot be refused on the grounds that this type of activity is not mentioned in its charter.
Non-profit organizations are called organizations that do not pursue the extraction of profit as the main goal and do not distribute the profit received between the participants (Article 50 of the Civil Code). Non-profit organizations can be created in any form provided by law. Non-profit organizations include:
1. Consumer cooperatives - association of persons on the basis of membership in order to meet their own needs for goods and services, the initial property, which consists of shares.
2. Homeowners' associations - non-profit association of persons - owners of premises for the joint management and operation of a single complex of real estate (condominium).
3. Public associations - a non-profit association of persons based on their community of interests for the implementation of common goals.
3.1. Public organizations are associations based on membership.
In cases where two or more persons unite among themselves to achieve property and personal efforts of a certain goal, we are dealing with an organization or association of persons. Such are all types of business partnerships and companies (except for companies consisting of one person); cooperatives; membership-based public and religious organizations, non-profit partnerships, associations of legal entities. A distinctive feature of the union is the presence in it of a certain composition of participants or members.
If the association is formed by means of a memorandum of association, then the composition of the founders always coincides with its participants, since in the event of the withdrawal or admission of new members, the memorandum of association is renewed (the old one is destroyed and a new one is signed). It turns out that the association is created as if anew, with a new composition, although this does not entail either reorganization or liquidation of the legal entity. If an organization is created by means of an agreement on joint activities, then the composition of its founders, as a rule, does not coincide with the number of future participants, which usually becomes much more. The exit and admission of new members is not reflected in any way in the constituent documents of the organization, which in fact only keeps records of the available number of its members (for example, the register of shareholders). Accordingly, the procedure for exit and acceptance is quite simple (sale or purchase of shares in an open joint-stock company, decision-making by a majority of votes of the members present at the general meeting of the cooperative, etc.).
3.2. Social movements - mass associations that do not have membership.
3.3. Public funds - non-membership associations, the purpose of which is to form property and use it for socially useful purposes.
3.4. Public institutions - non-membership organizations whose purpose is to provide a specific type of service in the interests of members.
If one or even several founders separate part of their property and assign it to the created entity for the purpose of solving any problems not directly related to the personal interests of the founders who allocated this property, such legal entities are called institutions. These should include state and municipal enterprises, subsidiaries; all types of institutions proper (which can be both public and private); non-membership autonomous non-profit organizations and foundations. The peculiarity of these organizations is that they were all created by someone, established, but they have neither participants nor members. In essence, they are "targeted" or "personalized" property dedicated to a generally useful purpose. In some cases, even changing the constituent documents of such an organization is very difficult. For example, if the charter of a foundation does not provide for the possibility and procedure for changing it, then the charter can only be changed in court at the request of the bodies of the foundation or a body authorized to supervise its activities.
3.5. Bodies of public initiative are non-membership associations, the purpose of which is to jointly solve various social problems of citizens at the place of residence, work or study.
4. Religious organization - an association of citizens, which has the main goal of the joint confession and dissemination of faith and has characteristics corresponding to these goals (ceremonies, religious education, religious education).
6. Institution - an organization created by the owner to carry out functions of a non-commercial nature and financed by him in full or in part (they have the right of operational management of the property, the owner bears subsidiary responsibility).
Subsidiaries, funds and institutions are most often created by unilateral expression of will (unilateral transaction) of a separate founder - a legal entity or an individual. The founder decides on the establishment of the organization, approves its charter and submits an application to the appropriate state body with a request to register it in the prescribed manner. A similar procedure is performed if a limited liability company or joint-stock company is created, consisting of only one person, provided for by Article 88 of the Civil Code of the Russian Federation and the legislation of many European countries.
7. State corporation - a non-profit organization established by the Russian Federation through the publication of a special law for the implementation of social, managerial or other socially useful functions.
8. Non-profit partnership - a non-profit organization, whose members retain the rights to its property, created to assist its members in conducting generally useful activities (state registration of a non-profit partnership).
9. Autonomous non-profit organization - a non-profit organization established on the basis of voluntary property contributions, with the aim of providing services to all interested parties.
10. Association (association or union) of legal entities - a non-profit organization formed by several legal entities to conduct activities in their interests.
Thus, when deciding on the choice of a form of activity in a particular area (to carry it out as a citizen - an individual or to create an organization - a legal entity), it is necessary to first study all the features of the legislation that determine the position of legal entities in general (as subjects of civil rights and duties), and the rules relating to individual organizational and legal forms of legal entities. Such knowledge is also important for those who, in the course of their activities, come across a legal entity in order to correctly determine its legal status, the procedure and conditions for its participation in commercial turnover, the responsibility that the legal entity and / or participants in the legal entity will bear for its obligations.
Considering all of the above, it is possible to characterize a legal entity as an organization recognized by the state as a subject of law, which owns, economically or operatively manages, separate property, is independently responsible for this property for its obligations, can acquire and exercise property and personal non-property on its own behalf. rights, bear obligations, be a plaintiff and a defendant in court.
Always your business partner,
"Joint Registrar"
