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Organizations as subjects of commercial activity. Commercial organizations as a business entity

Commercial organization - entity , pursuing profit making as the main goal of its activities, in contrast to a non-profit organization, which does not aim to make a profit and does not distributes profits among participants

The main features of a commercial organization

Purpose of activity - Receiving a profit;

Well defined in law organizational and legal form;

Profit distribution between members of a legal entity.

Also, commercial organizations have all the features inherent in a legal entity:

Have separate property on the rights of ownership, economic management or operational management, other real right; the property may be leased;

Responsible for their obligations their property;

Acquire and exercise property and non-property rights on their own behalf; have responsibilities;

Can be a plaintiff and defendant in court.

Commercial organizations are divided into three large categories: organizations that unite individual citizens (individuals); organizations that unite capital and state unitary enterprises(Fig. 3.4). The former include business partnerships and production cooperatives. The Civil Code clearly distinguishes partnerships - associations of persons requiring the direct participation of founders in their activities, companies - capital associations that do not require such participation, but involve the creation of special management bodies. Business partnerships can exist in two forms: a general partnership and a limited partnership.

IN full partnership(PT) all its participants (general partners) are engaged in entrepreneurial activities on behalf of the partnership and bear complete liability for his obligations. Each participant may act on behalf of the partnership, unless otherwise established by the memorandum of association. General partnership profit distributed among the participants, as a rule, in proportion to their shares in the share capital. For the obligations of a general partnership, its participants bear joint and several liability with their property.

partnership in faith, or a limited partnership (TV or CT), such a partnership is recognized in which, along with full partners there are and participants-contributors (limited), which do not take part in business activities partnerships and have limited liability within the limits of their contributions. In essence, TV (CT) is a complicated type of PT.

In a general partnership and limited partnership, shares of property cannot be freely assigned, all full members bear unconditional and joint and several liability for the liability of the organization (they answer with all their property).

Business partnerships(ХТ), as well as economic companies (CO), are commercial organizations with authorized (reserve) capital divided into shares (contributions) of founders (participants). The differences between CHT and CW are manifested, in relation to their more specific forms, in the ways of their formation and functioning, in the characteristics of their subjects in terms of the degree of material responsibility of these subjects, etc. In the very general view all these differences can be interpreted in the context of the ratio of corporate partnerships.

Production cooperative(PK) is voluntary association of citizens on the basis of membership for a joint industrial or other economic activity based on their personal labor or other participation and the association of its members (participants) of property share contributions. The features of the CP are the priority production activities and personal labor participation its members, division of the property of the Governance Committee into shares of its members (Fig. 3.5).

Cooperatives and organizations with the participation of workers in management and profits, which served to spread in mixed economy, have certain advantages over entrepreneurial-type companies in labor productivity, social climate and labor relations, income distribution. The introduction of inherently socialist principles of organization into economic activity (participation of workers in management, in profits and in the ownership of shares) is seen as a means of overcoming the difficulties that entrepreneurial-type organizations constantly face: bureaucratization of management structures in large corporations; weak interest of workers in the success of the company (because their remuneration is still limited by salary); losses from strikes and labor conflicts; high turnover of the workforce, associated in the current conditions with especially high costs due to the growing costs of training workers for specific activities in this particular organization, etc.

But purely self-managed companies lose out to entrepreneurial ones in a number of ways: in addition to reacting weakly and possibly back to market signals in the short term, they are prone to “underinvestment,” i.e., eating away their profits; in the long run, they are conservative in risky projects and technical innovations.

Joint-Stock Company(AO) is a society, the authorized capital of which consists of the nominal value of shares company acquired by shareholders, and, accordingly, is divided into this number of shares, and its participants (shareholders) bear liability up to the value of their shares(Fig. 3.6). Joint-stock companies are divided into open and closed (JSC and CJSC). Members of JSC may dispose of their shares without the consent of others shareholders, and the company itself has the right to conduct an open subscription for issued shares and their free sale. In a CJSC, shares are distributed by closed subscription only among its founders or other predetermined circle of persons, and the number of founders in Russian legislation is limited to 50 persons.

But there is also a third, "hybrid" category - a limited liability company and a company with additional liability - which simultaneously applies to organizations that unite individuals and organizations that unite capital.

Limited Liability Company(LLC) is a company whose authorized capital divided into shares participants who bear liability only within the limits of Art. the value of their contributions. Unlike partnerships, an LLC creates an executive body that exercises current management of its activities.

Additional Liability Company(ODO) is essentially a type of LLC. Its features: joint and several subsidiary liability of participants for obligations ALC with its property in the same multiple for all to the value of their contributions, determined in the constituent documents; division in the event of bankruptcy of one of the participants in the ALC of his liability for the obligations of the company between other participants in proportion to their contributions.

to state and municipal unitary enterprises(UE) include enterprises that are not endowed with the right of ownership of the property assigned to them by the owner. This property is in state (federal or subjects of the federation) or municipal property and is indivisible. There are two types of unitary enterprises (Table 3.1):

1) based on law economic management(have broader economic independence, in many respects act as ordinary commodity producers, and the owner of property, as a rule, is not liable for the obligations of such an enterprise);

2) based on law operational management(state-owned enterprises) - in many ways resemble enterprises in a planned economy, the state bears subsidiary liability for their obligations in case of insufficiency of their property.

The charter of a unitary enterprise (UE) is approved by the authorized state (municipal) body and contains:

The name of the enterprise with an indication of the owner (for state-owned - with an indication that it is state-owned) and location;

The procedure for managing activities, the subject and goals of activities;

The size of the authorized fund, the procedure and sources of its formation.

The authorized capital of the UE is fully paid by the owner until state registration. The amount of the authorized capital is not less than 1000 minimum monthly wages as of the date of submission of documents for registration.

If the cost net assets at the end fiscal year less than the size of the authorized capital, then the authorized body is obliged to reduce the authorized capital, of which the enterprise notifies creditors.

The property rights of a unitary enterprise are presented in Table. 3.2. A unitary enterprise may create subsidiaries of the UE by transferring a part of the property to them for economic management.

4. Non-profit organizations as subjects of business law.

Legislation on non-profit organizations. Main regulations governing the legal status of non-profit organizations are the Civil Code of the Russian Federation and the Federal Law of January 12, 1996 No. 7-FZ "On non-profit organizations" (as amended on December 30, 2006 No. 276-FZ), providing general provisions that apply to all forms of non-profit organizations. Along with them, there is a list of special federal laws that contain additional regulation of certain forms of non-profit organizations.

These include: Law of the Russian Federation of June 19, 1992 No. 3085-1 "On consumer cooperation(consumer societies, their unions in the Russian Federation)" (as amended on March 21, 2002 No. 31-FZ), Federal Law of May 19, 1995 No. 82-FZ "On public associations"(as amended on February 2, 2006 No. 19-FZ). Special laws have been adopted for chambers of commerce and industry, non-state pension funds, Central Bank RF (Bank Russia), associations of employers. Relatively recently, on November 3, 2006, the Federal Law “On Autonomous Institutions” was adopted.

The list of federal laws defining the status of non-profit organizations could be continued. But this is not necessary. Another thing is important: the status of non-profit organizations as subjects of civil law is determined by acts of the federal level. According to the authors of the Concept for the Development of Corporate Legislation, currently open list organizational and legal forms of non-profit organizations has led to an unjustified increase in the number of types of non-profit organizations. Thus, the number of registered non-commercial organizations has already exceeded three times the number of established joint-stock companies.

The concept and features of a non-profit organization. In accordance with sp. 1 st. 50 of the Civil Code, a non-profit organization is a legal entity, not having as the main goal profit making and not distributing profits between participants.

Non-profit organizations can be created to achieve social, charitable, cultural, educational, scientific and managerial goals, protect the health of citizens, develop physical culture and sports, satisfaction of spiritual and other intangible x needs of citizens, protecting the rights and legitimate interests of citizens and organizations, resolving disputes and conflicts, providing legal assistance, as well as for other purposes aimed at achieving public benefits (clause 2, article 2 of the Law on non-profit organizations).

The legislator points to two main features of non-profit organizations. The first is the lack of profit making as the main goal of the activity. The second is that the profit received cannot be distributed among the participants of a non-profit organization.

In reality, it is sometimes impossible to distinguish the main goal of a non-profit organization from the non-main one. Many non-profit organizations they do not formally pursue profit as their main goal, but in fact they strive and receive huge incomes from entrepreneurial activity.

The literature indicates the inconclusiveness of the well-known method of dividing legal entities into commercial and non-profit organizations. It is noted that the problem is not so much in the choice suitable criteria distinctions, how much in their consistent application to certain types of legal entities. An example of such inconsistency of the legislator is a consumer cooperative. According to paragraph 5 of Art. 116 of the Civil Code, income received by a consumer cooperative from entrepreneurial activities carried out by it in accordance with the law and the charter is distributed among its members.

The listed shortcomings of the concept of a non-profit organization force scientists and practitioners to look for alternative constructions of their isolation, for example, division into entrepreneurial (profitable) and non-entrepreneurial (non-profit) organizations.

Organizational and legal forms of a non-profit organization. Non-profit organizations may be created in the organizational and legal forms provided for Civil Code RF and other federal laws (Clause 3, Article 50 of the Civil Code). This means that the list of organizational and legal forms of non-profit organizations is not exhaustive.

The Civil Code of the Russian Federation names five organizational and legal forms of non-profit organizations: consumer cooperatives, social and religious organizations (associations), foundations, institutions, associations of legal entities(associations and unions). Special laws significantly expand this list of organizational and legal forms.

Law on non-profit organizations supplements the list with three forms of non-profit organizations: state corporation, non-profit partnership, autonomous non-profit organization.

Law on consumer cooperation names non-profit organizations as independent forms consumer societies and consumer unions.

Law of the Russian Federation of February 11, 1993 No. 4462-1 "Fundamentals of Legislation Russian Federation on notaries” regulates the activities of notary chambers.

Determines the status of public organizations, movements, foundations, institutions, bodies of public initiative and political parties.

Federal Law of April 15, 1998 No. 66-FZ "About horticultural, horticultural and country non-profit associations citizens" allows the creation of horticultural, horticultural and dacha non-profit partnerships.

Federal Law of May 31, 2002 No. 63-FZ "On advocacy and advocacy in of the Russian Federation” determines the status of bar associations, bar associations of constituent entities of the Federation and the Federal Chamber of Lawyers of the Russian Federation.

The Housing Code of the Russian Federation regulates legal status of homeowners' associations.

Special laws have been adopted in relation to chambers of commerce and industry, non-state pension funds, the Central Bank of the Russian Federation (Bank of Russia), employers' associations, etc.

The organizational and legal form does not always reflect the commercial or non-commercial nature of the activities of a legal entity. For example, the form of a non-profit partnership seems to be quite close in nature to a limited liability company. At the same time, the form of a legal entity and the technical name of the organization should not be confused: stock exchange, commercial bank, center, etc. From this point of view, the stock exchange is not a legal form.

Legislation on non-profit organizations suffers from inconsistencies regarding the organizational and legal forms of non-profit organizations.

So, by virtue of paragraph 2 of Art. 50 of the Civil Code, non-profit organizations can be created in the form of public organizations (associations). In its turn, Law on public associations(Article 7) differentiates the organizational and legal forms of public associations. Public associations can be created in one of the following organizational and legal forms: public organization; social movement; public fund; public institution; body of public initiative; Political Party.

It is no coincidence that the concept for the development of corporate legislation clearly states the need to establish in the Civil Code an exhaustive list of organizational and legal forms of non-profit organizations. One may disagree with such a proposal, but facts are stubborn things. In this part of the regulation, disorder is found.

Classification of non-profit organizations. Non-profit organizations can be classified according to various criteria:

1. by form of ownership;

2. founders' rights(participants) in relation to non-profit organizations or their property;

3. stock membership institution;

4. the presence of a foreign element;

5. territorial area of activity. Briefly consider the main types of organizations.

According to the form of ownership, non-profit organizations are divided into public(state and municipal institutions, public corporations, Bank of Russia) and private (everyone else).

According to paragraph 2 of Art. 48 of the Civil Code, founders (participants) of a non-profit organization, as well as other legal entities, can have rights of obligation in relation to a non-profit organization or rights in rem rights to its property or not to have any property rights.

So, institutions and the Bank of Russia are not the owners of the property entrusted to them, the ownership right is retained by their founders. Members of consumer cooperatives and non-profit partnerships acquire rights of obligation in relation to the non-profit organizations themselves, while losing the right of ownership to the transferred property. The founders have neither rights in rem nor rights of obligation foundations and autonomous non-profit organizations.

Organizational and legal forms of consumer cooperatives, associations of legal entities (associations and unions), homeowners associations, other organizations imply membership their participants (founders), whereas, for example, in foundations and autonomous non-profit organizations such an institution is excluded.

The presence (absence) of a foreign element and its size makes it possible to single out national non-profit organizations with foreign participation, as well as foreign non-profit organizations.

Depending on the territorial scope of activity, some non-profit organizations (for example, public organizations) can be divided into international, all-Russian, interregional, regional and local.

Legal capacity of non-profit organizations. All non-profit organizations have special legal capacity. They may carry out one or more activities, not prohibited by law and, we emphasize, consistent with the goals activities provided for founding documents.

Thus, according to general rule scope of special legal capacity of each non-profit organization depends on the will of its founders, who determine the goals and activities non-profit organization. In practice, when creating a non-profit organization, there is often no clear idea about all the future directions of its activities. For this reason, the founders tend to indicate the maximum list of goals and activities, sometimes reaching the point of absurdity.

Legislation provides commercial organizations with ample opportunities in terms of choosing the most effective behavior from the point of view of the purpose of entrepreneurial activity (making a profit). Such opportunities are provided by giving commercial organizations a number of freedoms, and above all, broad, practically unlimited legal capacity. For legal entities created not for profit, the ability to have any rights and assume any obligations is not only unnecessary, but can be dangerous, because it creates potential conditions for evading them from the goals for which they were formed.

In addition, non-profit organizations are not professional members civil (let's add - entrepreneurial) turnover. Their performance as independent legal entities due primarily to the need for material support for the main activity, not connected Anna with the implementation of entrepreneurship.

The right of non-profit organizations (as well as commercial ones) to carry out activities for which a license is required arises from the moment such a license is received or within the period specified in it and terminates upon the expiration of its validity period, unless otherwise provided by law or other legal acts.

According to paragraph 3 of Art. 50 of the Civil Code, non-profit organizations have the right to engage in entrepreneurial activities with the obligatory observance of two requirements: a) such activities must serve the achievement of the goals for which they were created; b) the nature of the activity should correspond to these goals.

Incomes received as a result of entrepreneurial activities are directed to achieve the goals provided for by the constituent documents of a non-profit organization. We must agree that in modern conditions no legal entity can exist only on the contributions of the founders and donations. The profit received as a result of entrepreneurial activity is used by a non-profit organization to cover the costs associated with the non-entrepreneurial activity for which it was formed.

Developing the provisions of the Civil Code of the Russian Federation, the Law on Non-Commercial Organizations establishes that the entrepreneurial activity of a non-commercial organization is the profitable production of goods and the provision of services that meet the goals of creating an organization, as well as the acquisition and sale valuable papers, property and non-property rights, participation in business companies and limited partnerships as a contributor (clause 2, article 24). Non-profit organizations in the interests of achieving the goals provided for by their constituent documents have the right to create other non-profit organizations and join associations and unions (clause 4, article 24 of the Law).

The law may provide for restrictions on the types of activities that non-profit organizations are entitled to engage in, including regarding the implementation of entrepreneurial activities (clauses 1.2, article 24 of the Law on Non-Profit Organizations).

This rule corresponds with the norms of paragraph 3 of Art. 55 of the Constitution of the Russian Federation and paragraph 2 of Art. 1 of the Civil Code, establishing that civil rights may be limited on the basis of federal law and only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense of the country and the security of the state. All legal restrictions on entrepreneurial activities of non-profit organizations should be divided into two main groups: direct and indirect.

Direct restrictions imply the existence of clear regulatory prohibitions. For example, in accordance with paragraph 5 of Art. 9 of the Federal Law of July 11, 2001 No. 95-FZ “On Political Parties” does not allow the activities of political parties and their structural subdivisions in the bodies state power and bodies local government(with the exception of legislative (representative) bodies), the interference of political parties in studying proccess educational institutions.

Indirect restrictions, as a rule, exclude the possibility of non-profit organizations to perform certain actions (activities) by indicating an exhaustive list of other subjects of the relevant relations. So, non-profit organizations cannot be participants in general partnerships and general partners in limited partnerships (clause 4 of article 66 of the Civil Code), a party to a commercial concession agreement (clause 3 of article 1027 of the Civil Code) and simple partnership, concluded for the implementation of entrepreneurial activities (clause 2 of article 1041 of the Civil Code). The activity of non-profit organizations as a financial agent under a financing agreement against the assignment of a monetary claim is excluded (Article 825 of the Civil Code), as well as credit institution(Article 1 of the Law on Banks and Banking), etc.

Non-Profit Organizations is not entitled to make transactions that are contrary to the purposes and types their activities. Such transactions are void. on the basis of Article 168 of the Civil Code, and in some cases may serve as a reason for its forced liquidation(Clause 2, Article 61 of the Civil Code).

5. The Russian Federation, its constituent entities, municipalities, state authorities and local self-government in business legal relations.

Like individuals and legal entities, the starting point of the entrepreneurial legal personality of the state and municipalities is their status as subjects of civil law. At the same time, it should be emphasized that they do not use any prerogatives, benefits, etc. in civil legal relations compared to other “non-powerful” participants. Updated Russian legislation consistently stands on the position of inadmissibility of any confusion of the functions of the state as a powerful political organization expressing, representing, protecting the interests Russian people and acting on behalf of the people, with its participation as a partner in civil circulation, market relations. The Russian Federation, subjects of the Russian Federation: territories, regions, cities of federal significance, an autonomous region, autonomous districts, as well as urban, rural settlements and other municipalities, says paragraph 1 of Art. 24 of the Civil Code of the Russian Federation, act in relations regulated by civil law, on an equal footing with other participants in these relations - citizens and legal entities.

An essential feature of the state and municipalities as subjects of civil legal relations is that the possibility of being a party to such relations is not conditional on their status as a legal entity. The rules governing the participation of a legal entity in relations regulated by civil law apply to them by virtue of the very fact of entering into these relations. However, the state and municipalities themselves cannot enter into civil legal relations. The Russian Federation, any of its subjects are represented by many structural units, starting with presidents, heads of administrations, etc. A municipal entity, in accordance with Part 1 of Art. 131 of the Constitution of the Russian Federation and art. 1 of the Federal Law of August 28, 1995 No. 154-FZ "On general principles organizations of local self-government”, there is a city, rural settlement, several settlements united by a common territory, part of a settlement, other populated territory within which local self-government is exercised. Sukhanov E.A. Legal bases of business. - M.: Publishing house BEK, 2000. S. 5-39.

So who has the right to represent them in public relations regulated by civil law? The current legislation provides for two options for the possible participation of the state and municipalities in civil legal relations.

First, on behalf of the Russian Federation and the constituent entities of the Federation, as well as municipalities, they can, by their actions, acquire and exercise property and personal non-property rights and obligations, appear in court, respectively, state authorities and local self-government bodies within their competence established by acts defining the status of these bodies. For example, the President of the Russian Federation and the chambers of the Federal Assembly of the Russian Federation can act in the civil law sphere on the basis of the relevant provisions of the Constitution of the Russian Federation, the Government of the Russian Federation - on the basis of the Constitution of the Russian Federation and the Federal Constitutional Law "On the Government of the Russian Federation", etc.

No restrictions have been established for state bodies and local self-government bodies to participate in relations regulated by civil law. Only one thing is important: they can and should act only within the limits of their competence. This circumstance gives reason to assert that these bodies have special legal capacity. Transactions concluded by them with deviation from the established competence may be declared invalid.

It is necessary to emphasize the importance for the normal functioning of market relations and as an example for other participants civil law relations steady fulfillment by the Russian Federation, its constituent entities and municipalities of the obligations assumed. To be condemned, in particular, are the attempts of certain heads of executive power of the constituent entities of the Federation, who were elected to this position for the first time, to refuse to pay off the debts left over from the previous administration.

By such behavior, the subjects of the Russian Federation discredit themselves as participants in civil law relations. But it's not only that. Such a position of the heads of the constituent entities of the Russian Federation can give rise to a situation comparable to the insolvency (bankruptcy) of economic entities. In the Budget Code of the Russian Federation, paragraph 1 of Art. 112 “Exceeding the limits of expenses for servicing the state or municipal debt” establishes: if, during the execution of the budget of a constituent entity of the Russian Federation, the costs of servicing the public debt of a constituent entity of the Russian Federation exceed 15% of its budget expenditures, and also in case of exceeding the maximum amount of borrowed funds established by Art. 111 of the Budget Code of the Russian Federation, and at the same time the constituent entity of the Russian Federation is not able to ensure the servicing and repayment of its debt obligations, the authorized body of state power of the Russian Federation may transfer the execution of the budget of the constituent entity of the Russian Federation under the control of the Ministry of Finance of the Russian Federation. If a municipal formation finds itself in a similar position, then the execution of the local budget may be transferred under the control of the body executing the budget of the constituent entity of the Russian Federation.

Secondly, in cases and in the manner provided for by federal laws, decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation, regulations of the constituent entities of the Russian Federation and municipalities, state bodies, local governments, as well as legal entities can act on their behalf on special instructions. and citizens.

As subjects of civil law, the state and municipalities through their competent authorities enter into a variety of relationships. For example, the state and municipalities can be heirs by law and by will. Naturally, they can bequeath their property to them individual entrepreneurs. There are also extensive contractual and non-contractual relations with the participation of the state and municipalities. Thus, local governments, in accordance with the legislation of the Russian Federation, have the right to issue municipal loans and lotteries, receive and issue loans. Damage caused to a citizen or legal entity as a result of illegal actions (inaction) of state bodies, local government bodies or officials of these bodies, including as a result of the issuance of an act that does not comply with the law or other regulatory document, is subject to compensation government agency or local government. The harm is compensated at the expense of the treasury of the Russian Federation, the treasury of the subject of the Russian Federation or the treasury, respectively. municipality.

The participation of the state and municipalities in entrepreneurship is regulated in a completely different way. They clearly distinguish at least three areas of entrepreneurial activity. Shitkina I.S. Entrepreneurial activity of non-profit organizations.// Citizen and law. 2002. No. 4.

The first is participation in entrepreneurial activity through commercial and non-commercial organizations that are being created. There are three types of such organizations. These are, first of all, state and municipal unitary enterprises, to which property belongs on the basis of the right of economic management. Its owners, i.e. the state and municipalities, approve the charter of the enterprise, appoint its head and conclude a contract with him, determine the subject and goals of the enterprise, exercise control over the intended use and safety of the property belonging to the enterprise, have the right to receive part of the profit from the use of the property.

The other two types are state-owned enterprises and institutions, to which the property is assigned on the right of operational management. Property owners have the right to confiscate excess, unused or misused property and dispose of the confiscated property at their own discretion. The owner determines the procedure for distributing the income of the state-owned enterprise. If an institution, in accordance with the constituent documents, has been granted the right to carry out income-generating activities, then the income received from such activity and the property acquired at the expense of these incomes shall be at the independent disposal of the institution and recorded on a separate balance sheet.

The second direction of entrepreneurial activity is participation in the management of privatized state and municipal property. Let us dwell on the activities of representatives of the Russian Federation, its subjects and municipalities in the management bodies of open joint-stock companies, the shares of which are fixed in state or municipal ownership. Representatives may be appointed by state or municipal employees, as well as other persons who carry out their activities on the basis of a regulation approved by the Government of the Russian Federation. When using a special right - a "golden share" - representatives are appointed to the board of directors (supervisory board) and audit commission. Sukhanov E.A. Legal bases of business. - M.: Publishing house BEK, 2000. S. 5-39.

Representatives act on the basis of the Decree of the President of the Russian Federation dated June 10, 1994 No. 1200 “On certain measures to ensure government controlled economy”, resolutions of the Government of the Russian Federation and other authorities that empowered them. On May 21, 1996, the Government of the Russian Federation adopted Decree No. 625 “On Ensuring the Representation of State Interests in the Management Bodies of Joint-Stock Companies (Business Partnerships), Part of the Shares (Stakes, Contributions) of Which Are Fixed in Federal Property.” The Decree approved the Model Agreement for the Representation of the State's Interests in the Said Commercial Organizations and the Procedure for Concluding and Registering These Agreements. Attention should be paid to the requirements for professional training and qualifications of persons who

The concept of a legal entity? Types of legal entity? Commercial organizations? Organizational and legal form of a legal entity? General partnership? Faith partnership? Peasant (farm) economy? Business partnership? Limited Liability Company? Additional Liability Company? Joint-Stock Company? Types of joint stock company? Production cooperative? Unitary enterprises? Business associations? Holding? Subsidiary

Legal entities as participants in entrepreneurial activity

The citizen has the right to exercise entrepreneurial activity not only individually without forming a legal entity, but also by creating a legal entity.

Legal entities include organizations that have separate property in ownership, economic management or operational management and are liable for their obligations with this property, can acquire and exercise property and personal non-property rights on their own behalf, incur obligations, be a plaintiff and defendant in court. 48 GK).

Legal entities have property isolation. The property complex of the organization is separated (separated) from the property of other legal entities, citizens, including those who are participants (founders) of this organization; Russian Federation, its subjects, municipalities.

Different degrees of segregation of property are allowed. It can belong to the organization on the right of ownership, the right of economic management and the right of operational management. Most commercial organizations (with the exception of unitary enterprises) own, use and dispose of their property as an owner. Accounting for property owned by the organization is carried out by maintaining a balance sheet. The balance sheet is the main source of information about the financial position of a legal entity. The property of an individual entrepreneur acting without forming a legal entity shall not be separated from his personal property.

As a subject of business relations, a legal entity participates in the turnover on its own behalf through its bodies. The system of management bodies of an organization depends on the organizational and legal form of a legal entity, is provided for by law and constituent documents. A person acting on behalf of a legal entity must act in its interests, in good faith and reasonably. It is obliged, at the request of the founders (participants) of the legal entity, to compensate for the losses caused by them to the legal entity, unless otherwise provided by law or contract (clause 3, article 53 of the Civil Code).

When creating an organization, its founders have the right to choose the organizational and legal form that is best suited for conducting a certain kind entrepreneurial activity and corresponds to the goals of the founders.

In accordance with Art. 50 of the Civil Code, all legal entities are divided into two types. The basis for the distinction is the purpose of the activities carried out by the organization. Commercial legal entities have the main purpose of their activities to make a profit. Non-profit organizations are legal entities that do not pursue the goal of making a profit and do not distribute the profits received among the participants.

Commercial organizations, with the exception of unitary enterprises, are endowed with universal legal capacity. They may have the rights and bear the obligations necessary for the implementation of any activities not prohibited by law. Unitary enterprises and non-commercial organizations may have civil rights corresponding to the goals of their activity, provided for in the constituent documents, and bear obligations related to this activity. The legal capacity of these legal entities is recognized as special.

The Draft Civil Code provides for another distinction between legal entities: corporations and unitary organizations (Article 65.1 of the Draft).

Corporations include organizations whose founders (participants, members) have the right to participate in the management of their activities (the right of membership). Legal entities, the founders of which do not become their participants and do not acquire membership rights in them, are unitary organizations. Among the corporations are economic partnerships and companies, economic partnerships, production cooperatives. Unitary commercial legal entities are state and municipal enterprises.

Types of organizational and legal forms of commercial organizations are established in the Civil Code; their list is exhaustive.

The organizational and legal form of a legal entity is understood as a set of legally fixed features that characterize the procedure for the formation and legal regime of the organization's property, the method of its individualization, the ratio of the rights and obligations of participants and the economic entity to the property used, and the distinctive features of the internal organizational structure.

The choice of legal form depends on many factors:

goals and activities of the future organization;
the composition of the founders, their influence on the activities of the organization, the number of participants;
the legal status of participants, the scope of property rights and obligations of participants;
requirements for the minimum amount of "starting" capital;
the presence or absence of restrictions on the alienation of a share in the capital;
control systems;
features of taxation.

Commercial organization - legal a person pursuing making a profit as the main goal of its activity, in contrast to a non-profit organization, which does not have the goal of making a profit and does not distribute the profit received among the participants

The main features of a commercial organization

The purpose of the activity is to make a profit;

The organizational and legal form clearly defined in the law;

Distribution of profit between the participants of the legal entity.

Also, commercial organizations have all the features inherent in a legal entity:

Possess separate property on the rights of ownership, economic management or operational management, other property rights; the property may be leased;

Responsible for their obligations with their property;

Acquire and exercise property and non-property rights on their own behalf; bear obligations;

Can be a plaintiff and defendant in court.

Article 50 of the Civil Code of the Russian Federation provides an exhaustive list of organizational and legal forms of commercial legal entities. This means that without changing the Civil Code, other types of commercial legal entities cannot be introduced into civil circulation by any other laws.

Classification of commercial organizations by organizational and legal form in Russia

A business partnership is a commercial organization with an authorized capital divided into shares (contributions) of the founders (participants). federation).

General partnership

Limited partnership (limited partnership)

Peasant (farm) economy

Economical society

Joint-Stock Company

Public corporation

Closed Joint Stock Company

Limited Liability Company

Additional Liability Company

Production cooperative

unitary enterprise

Unitary enterprise on the right of economic management

Unitary enterprise on the right of operational management

Economic partnership

Classification of commercial enterprises by capital ownership

national enterprise

Foreign company

joint venture

multinational enterprise

Rights of participants in commercial organizations

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Questions answers. On the subject of Entrepreneurial Law of Entrepreneurial Activity of the Russian Federation

Commercial organizations are created to conduct entrepreneurial activities and, therefore, have the main goal of making a profit.

Commercial organizations: Business partnerships:one. General partnership 2. Limited partnership. Business companies:1.OOO. 2. Company with additional liability 3.JSC. 4. Closed joint-stock company 5. Open joint-stock company of workers (people's enterprise). Production cooperatives (artels). Unitary enterprises(state or municipal, state):1. Based on the right of economic management 2. Based on the right of operational management.

Economic partnership- this is a commercial organization with a share capital divided into shares (contributions) of the founders (participants), which was created as a contractual association of several persons for joint business activities. entrepreneurial activities on behalf of the partnership and are liable for its obligations not only in the amount of contributions to the share capital, but with all the property they own, that is, “full”, unlimited liability. A limited partnership is a commercial organization based on share capital , in which there are two categories of members: general partners and limited partners. General partners carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with all their property. Limited contributors are responsible only for their contribution.

Economic companies. 1. A limited liability company is a business company established by one or more legal entities and/or individuals, the authorized capital of which is divided into shares; the participants of the company are not liable for its obligations and bear the risk of losses associated with the activities of the company, to the extent of the value of their shares in the authorized capital of the company. 2. A joint-stock company is a commercial organization, the authorized capital of which is divided into a certain number of shares, certifying the obligations of the company's participants (shareholders) in relation to the company. The activities of a joint stock company in the Russian Federation are regulated by the Federal Law "On Joint Stock Companies". 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, to the extent of the value of their shares. Separate open and closed joint-stock companies. 3. Additional liability company - a company founded by one or more persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; the participants in such a company jointly and severally 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.

Production cooperative ( artel ) - a commercial organization created by voluntary association citizens on the basis of membership for joint production and other economic activities based on their personal labor and other participation and the association of its members (participants) of property share contributions. The charter of a production cooperative may also provide for the participation of legal entities in its activities. Members of a cooperative bear subsidiary liability for its obligations in the manner prescribed by its Charter. The total number of members of a production cooperative cannot be less than 5. Citizens of the Russian Federation, foreign citizens, stateless persons may be members of the cooperative. A legal entity participates in the activities of the cooperative through its representative in accordance with the Charter of the cooperative. The only founding document of a production cooperative is the Charter. The minimum size of the share fund of a production cooperative is not established by law. Members of a cooperative are required to pay at least 10% of their share contributions before the state registration of the cooperative, and the remaining part - within one year from the date of registration. A member of a cooperative has the right to transfer his share or part of it to another member of the cooperative, unless otherwise provided by law and the charter of the cooperative. The supreme governing body in a production cooperative is the general meeting of its members, which decides the most important issues of the cooperative's activities, including electing the permanent executive bodies of the cooperative - the board and/or the chairman of the cooperative. Executive bodies manage the activities of the cooperative between meetings, resolving issues that are not within the exclusive competence of the general meeting.

unitary enterprise- a commercial organization that is not endowed with the right of ownership of the property assigned to it by the owner. Only state and municipal enterprises can be created in this form. Property (respectively state or municipal) belongs to a unitary enterprise on the right of economic management. A unitary enterprise is liable for its obligations with all its property, but is not liable for the obligations of the owner of its property. The size of the authorized capital of a state unitary enterprise must be at least 5,000 minimum wages, for a municipal enterprise - at least 1,000 minimum wages. The founding document of a unitary enterprise is the charter.

The general allows the entrepreneur to carry out any legally permissible type of entrepreneurial activity. General competence is typical for most commercial organizations;

Limited. In the event that the founders determine the purpose of the firm in a particular area of business, they can establish the limited competence of such an organization, indicating this in the constituent documents of the firm (for example, restrictions on retail in the charter of the wholesale organization). Transactions made by an organization in contradiction to the objectives of its activities, which are specifically limited in the constituent documents, may be declared invalid by the court in the cases provided for in Art. 173 of the Civil Code of the Russian Federation. An explanation of this is given in clause 18 of Resolution No. 6/8 of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 “On Certain Issues Related to the Application of Part One of the Civil Code of the Russian Federation”;

Non-Profit Organizations, as a general rule, differ from commercial ones in that they have the right to carry out entrepreneurial activities only in so far as it is necessary to achieve their statutory goals. At the same time, they are not entitled to distribute the profits received among their participants (clause 1, article 50 of the Civil Code of the Russian Federation).

Non-profit organizations:

Consumer cooperatives. - Public and religious organizations (associations). - Funds. - Institutions. - Associations of legal entities (associations and unions). - Autonomous institutions. - Non-Profit Partnerships. - Self-regulatory organizations.

Non-profit organizations also have the right to engage in entrepreneurial activities. Self-regulatory organizations play an increasingly important role for entrepreneurs. According to Art. 2 of the Federal Law of 08.08.2001 No. 134-FZ “On the protection of the rights of legal entities and individual entrepreneurs during state control (supervision)”, a self-regulatory organization is a non-profit organization created by combining legal entities and (or) individual entrepreneurs and having its own the main goal is to ensure the conscientious implementation of professional activities by members of a self-regulatory organization. The most widespread self-regulatory organizations have received in the field of activity of arbitration managers, in the field of advertising and auditing.

In general, entrepreneurial activity by its nature must correspond to the goals of the activity of a non-profit organization in accordance with its charter. Only one kind of non-profit organizations cannot conduct commercial activities under any conditions - it is an association, or a union of legal entities. In order to carry out independent entrepreneurial activities, an association (union) of legal entities creates a business company, participates in a business company or is transformed into a business company or partnership (Article 121 of the Civil Code of the Russian Federation).

Economic competence.

Entrepreneur's legal capacity.

Quite well, the legal possibilities of doing business are characterized by the economic and legal competence of a legal entity. There are the following types of economic and legal competence:

The general allows the entrepreneur to carry out any legally permissible type of entrepreneurial activity. General competence is typical for most commercial organizations, except for unitary enterprises and individual entrepreneurs by virtue of the general norm;

Limited. In the event that the founders determine the purpose of the company in a particular area of business, they can establish the limited competence of such an organization, indicating this in the company's constituent documents (for example, restrictions on retail trade in the charter of a wholesale organization). Transactions made by an organization in contradiction to the goals of its activities, which are specifically limited in the constituent documents, may be declared invalid by the court in the cases provided for in Art. 173 of the Civil Code of the Russian Federation. An explanation of this is given in paragraph 18 of Resolution No. 6/8 of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 “On Certain Issues Related to the Application of Part One of the Civil Code of the Russian Federation”;

Special i.e. they exercise the powers corresponding to the goals of the activity provided for in the charter, and bear the duties associated with this activity (for example, state unitary enterprises for consumer services to the population) .;

exceptional, whose legal status can be characterized as exceptional due to the fact that the legislation allows them to conduct only the business activities specified in the license and the services related to this activity. The largest number of such restrictions in legislative framework governing the activities of financial institutions. For example, credit and insurance organizations are not entitled to engage in production and trade and intermediary business.

COMMERCIAL ORGANIZATION AS A SUBJECT OF BUSINESS ACTIVITY

Dzhigkaeva Fatima Zaurbekovna, competitor Sogu, teacher.

Annotation. The article discusses various approaches to the concept and form of commercial organizations as business entities in Russia.

Keywords Keywords: entrepreneurial activity, legal entity, commercial organization, form of commercial organization.

COMMERCIAL ORGANIZATION AS AN ENTREPRENEUR

Dzigkaeva Fatima Zaurbekovna, candidate degree seeker of the North-Ossetian State University, senior lecturer of Civil and Entrepreneurial Law Department.

Abstract. In article various approaches to concept and the form a commercial organization as subjects of enterprise activity in Russia are considered.

Keywords: enterprise activity, the legal body, the commercial organization, the form of the commercial organization.

According to paragraph 1 of Art. 30 and paragraph 1 of Art. 34 of the Constitution of the Russian Federation, the right to association, as well as the right to freely use one's abilities and property for entrepreneurial and other economic activities not prohibited by law, are constitutional and inviolable rights. The implementation of these rights occurs, in particular, through the creation of organizations (including organizations that pursue profit as the main goal of their activities). “The legal entity is used as a legal registration of the created organization in order to give it the necessary independence and ensure its participation in legal relations”1.

Civil law regulates relations between persons engaged in entrepreneurial activities and registered in this capacity in the manner prescribed by law, by virtue of Part 3, Clause 1, Art. 2 of the Civil Code of the Russian Federation. Entrepreneurial activity is carried out by a wide range of persons, including business partnerships and companies, production cooperatives, state and municipal unitary enterprises, holdings, branches, individual entrepreneurs and even non-profit organizations (under certain conditions), it is extremely difficult to find a general category for which, therefore, combining them according to the criterion general activities were performed quite successfully - "persons engaged in entrepreneurial activities" - this is a specific group of not always subjects of law, but "persons". The dichotomous nature of the division of persons (from the Latin "persona") into natural persons and persons called "legal" is generally recognized. such subjects of law that “do not fit the concept of a natural person, whose very personality

1 Yakushev V.S. The Institute of a Legal Entity in Theory, Legislation and Practice // Anthology of the Ural Civil Law. 1925 - 1989. M.: Statute, 2001. S. 391

created only in the name of law. However, in the context

Part 3, Clause 1, Art. 2 of the Civil Code of the Russian Federation, we believe it is possible to move away from the specified classification of persons as subjects of law. This rule assumes the need for two essential conditions for recognizing a person as a business entity: 1) carrying out entrepreneurial activities and 2) registering him as an entrepreneur. Thus, we come to the conclusion that the circle of persons engaged in entrepreneurial activity may be wider than the circle of business entities.

Please note that the condition for recognizing the legal personality of such persons is not just state registration, but registration as an entrepreneur. It should be noted that, according to the current legislation of the Russian Federation, this sign is applicable only to a citizen who has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur (clause 1, article 23 of the Civil Code of the Russian Federation). As for organizations, it is hardly possible to single out some special registration of an organization as a person engaged in entrepreneurial activity, provided for by the norms of the current legislation of the Russian Federation.

It seems that the legislator, defining the circle of subjects of entrepreneurial activity, intended to establish by this norm, in particular, for organizations required condition they have the right to carry out this activity as a result of registration of an organization established in the appropriate legal form as a legal entity. However, this conclusion is only thought as a result of a systematic interpretation of a number of provisions of the Civil Code, but does not follow directly from the meaning of the norm of the law. At the same time, in addition to legal entities created and registered in accordance with the requirements of the law, reality also gives rise to other forms of organizations that do not fit into the organizational and legal forms established by law, but are fully related to “entrepreneurship activities”. Such organizations with a complex and sometimes obscure internal structure, with a powerful concentrated economic potential, carry out entrepreneurial activities without worrying about state registration, because. the norms of the law make it possible to be satisfied with the registration of only individual, its essence, components. The organization itself creates its own essentially structural divisions (let's call them structural organizations) in established legal forms, and the state registers such structural organizations as legal entities - subjects of law. The norms of the law are not violated, however, the current situation certainly does not correspond to the goals set by the legislator when regulating the legal status of business entities.

The concept of "persons engaged in entrepreneurial activity", not limited by the requirement of state registration, includes absolutely all social entities operating in the field of entrepreneurship, and primarily commercial organizations. Consider which of

2 Meyer D.I. Russian civil law. M.: Statute. S. 136

social formations can be attributed to commercial organizations and what is supposed to be thought of under the concept of "commercial organization".

The use of this term in the singular is not quite traditional for civil law and is not common in science and legal practice. The reason for this is the emphasis of the legislator on the scope of this concept to the detriment of the content. In paragraph 2 of Art. 50 of the Civil Code of the Russian Federation indicates a closed list of possible organizational and legal forms in which legal entities that are commercial organizations can be created. The Code does not provide options for expanding this list without changing the wording of the above norm and describes in sufficient detail each organizational and legal form. It is the forms in which legal entities that are commercial organizations can be created that are the subject of detailed legal regulation. Hence the traditional use of the term "commercial organization" in the plural. The meaning of this term in the legislation lies rather in reflecting the essential feature (namely, the commercial nature of the activity) of a group of organizations, rather than in characterizing this special kind organizations and a systematic definition of its legal status.

The presence in the activities of the main target focus on making a profit underlies the division of organizations into commercial and non-commercial. We emphasize that the generic concept for commercial and non-commercial organizations is the concept of "organization"3, and not "legal entity". So, "legal entities can be organizations that pursue profit as the main goal of their activities (commercial organizations) or do not have profit as such a goal and do not distribute the profits among participants (non-profit organizations)". Indeed, according to scientific doctrine and legal conception, all legal entities are organizations4. At the same time, organizations, according to the criterion of recognition of their legal personality, are divided into organizations with the status of a legal entity and organizations without the status of a legal entity; and according to the criterion of the main target orientation of activity - to commercial organizations and non-commercial ones. Thus, the scope of the concept of "commercial organization" is not limited to the list of forms specified by the legislator, for the simple reason that this concept is not subordinate to the concept of "legal entity". In connection with the foregoing, it seems not entirely successful to reduce the concept of "commercial

3 An organization is a consciously coordinated social entity with defined boundaries that functions on a relatively permanent basis to achieve common purpose or goals. Milner B.Z. Organization theory. M.: Infra-M, 2000. S. 46

4 It should be noted the point of view of S.I. Arkhipov, who believes it is possible to apply the form of a legal entity in relation to the first person of a state, a constituent entity of the Russian Federation, a municipality, and not only and not so much for civil law purposes, but for general legal, intersectoral ones, and also noting the absence in theoretical terms of obstacles to legislative recognition as a legal entity of an individual entrepreneur. S.I. Arkhipov comes to the conclusion that it is artificial for civil legislation to impose certain forms on persons interested in such legal isolation. See about this: Arkhipov S.I. Subject of law. Theoretical study. SPb.: Publishing house

R. Aslanova "Legal Center Press", 2004. P. 354

organization with the status of a legal entity”, which is at the intersection of the concepts of “legal entity” and “commercial organization”, to the truncated, but legal term “commercial organization”5, within which only registered organizations created in the prescribed legal forms are considered in law.

The category of a commercial organization is not exclusively legal, unlike, for example, a legal entity, and therefore any researcher is free to interpret the understanding of its essence. We propose to consider the concept of a commercial organization in a broad and narrow sense. In the scope of the concept of a commercial organization in a broad sense, not limited to the framework established by the Civil Code, it is proposed to consider all organizations engaged in entrepreneurial activities, with the exception of non-profit organizations proper, which carry out entrepreneurial activities in the manner and under the conditions provided for by law and their constituent documents. In the scope of the concept of a commercial organization in the narrow sense, it is proposed to consider the traditional list of legal forms specified in paragraph 2 of Art. 50 of the Civil Code of the Russian Federation, namely business partnerships and companies, production cooperatives, state and municipal unitary enterprises.

To date, consideration of the legal status of a commercial organization in a broad sense, not limited by the concept of "legal entity" and the provided organizational and legal forms, is of particular interest due to its legal diversity with the concentration of the essential characteristics of the organization as a person engaged in entrepreneurial activity. The content and scope of the concept of a commercial organization in the broad sense are not defined and are subject to a thorough comprehensive study, in contrast to this concept in the narrow sense, which involves the study of only its scope, due, in turn, to the boundaries of the concept of "legal entity" and the organizational and legal ones proposed by the legislator. forms.

The content of the concept of a commercial organization in the broad sense, in connection with the proposed expansion of its scope, according to the logical law of inverse relationship between the scope and content of the concept, should “poor” those essential features that are leveled by expanding its scope. However, the provision of paragraph 1 of Art. 50 of the Civil Code of the Russian Federation fully corresponds to the proposed scope of the concept in a broad sense: a commercial organization is an organization that pursues making profit as the main goal of its activities. I think it would be correct to define a commercial organization in the narrow sense as an organization created in statutory organizational and legal form, providing for such an organization to make a profit as the main purpose of its activity, and registered in the manner prescribed by law as a legal entity.

5 One should agree with the position of I.P. Greshnikov, who notes that the formula “classification of legal entities” is an abbreviation of the formula “classification of organizations with the status of a legal entity”. See: Greshnikov I.P. Subjects of civil law. St. Petersburg: Legal Center Press, 2002. P. 168

The current situation, in which the scope of the concept does not coincide with its legal definition, seems unsatisfactory, because. introduces legal uncertainty into the terminology used. Moreover, according to the wording of paragraph 1 of Art. 50 of the Civil Code of the Russian Federation, the identified two types of organizations (commercial and non-commercial) “may be” legal entities, which is very similar to such a method of regulation as permission. It should be noted that the logic of the presentation of the above norm assumes that the legislator allows the existence of commercial organizations without the status of a legal entity in law. The problem of the possibility of recognizing legal personality (incomplete, truncated, limited, etc.) for such organizations is relevant to this day, because Legislation fragmentarily and not systematically regulates the peculiarities of the legal status of such organizations.

Multi-subject entrepreneurial formations (referred to in the legal literature as holdings, business associations, etc.), which are nothing more than organizations in the highest degree integrated and highly commercial, operating as a single organization outside the legal forms corresponding to it, due to the banal reason for their absence in law, fall entirely within the scope of the concept of a commercial organization in a broad sense. As for the legal personality of such organizations, with certain reservations and conventions, we consider it possible to consider them as part of business entities, agreeing with such scientists as V.S. Belykh, V.V. Laptev, I.S. Shitka-na, who in their studies, to some extent, note the elements of the legal personality of the above entities6. Such an approach is reasonable and justified when business entities (including commercial organizations in the broad sense) are considered as a complex, intersectoral concept, not limited by civil law.

The civilistic approach to the problem of recognizing the legal personality of an organization, in comparison with less traditional approaches, is associated with the ratio of British English, so impeccable and classical, with American simplified and derived from it. The former is becoming less and less in demand and more and more supplanted by the latter, as more dynamic and practical. With all due respect to the aesthetics of private law, we have to admit that law cannot be for the sake of law, and if in a certain part it does not cope with economic reality and stalls, using outdated forms, it is necessary to look at the problem from a different position, in this case - from positions of supporters of business law. And this view will reveal the following picture to us: organizations of a new type, shackled in the legal forms of legal entities, are legal werewolves, because. the law offers them no other fate in law. Time makes its own adjustments, and there comes a moment when the previously ideal legal constructions no longer reflect the essence of new phenomena, the former legal forms do not correspond to the new economic content.

6 Belykh V.S. Business entities: concept and types // Legal status of business entities. Collection of scientific papers. Ekaterinburg: U-Factoriya, 2002. S. 29; Laptev V.V. Shareholder law. M., 1999. S. 127; Shitkina I.S. Holdings. Legal and managerial aspects. M .: LLC "Gorodets-izdat", 2003. P. 23

niyu. Time requires new forms, and it is pointless to resist this demand: when the law is silent, life itself gives birth to these forms, and they are certainly viable, but far from always civilized.

Summarizing the above, one should pay attention to the logical chain of legal regulation of the process of the emergence of a commercial organization as a subject of law, guided by the provisions of Art. 50 of the Civil Code of the Russian Federation:

an organization pursuing profit as the main goal of its activity is a commercial organization;

a commercial organization (as well as a non-commercial one) can be a legal entity;

legal entities may be created in the organizational and legal forms established by law, and commercial ones - in the forms established by the Civil Code.

Without going into the issues of the theory of a legal entity, we consider it correct and justified in establishing the moment of the emergence of a legal entity as a subject of law to proceed not from its creation, but from the emergence as a result of registration of an organization in its chosen organizational and legal form as a legal entity. A legal entity appears as the legal status of an organization as a result of a state act of recognizing it as a subject of law. As for organizations, unlike a legal entity, they are created, and the legitimate creation of organizations is possible only in established organizational and legal forms. The choice of the appropriate form as a model provided for and regulated by law belongs to the organization and underlies the registration of the organization as a legal entity.

Summarizing the above arguments and substantiating the understanding of commercial organizations as persons engaged in entrepreneurial activities, it should be proposed:

To consider as part of the persons engaged in entrepreneurial activity, a circle of persons unlimited today by legal forms, including commercial organizations in the broadest sense.

Consider a legal entity as the legal status of an organization, namely the status of a subject of law that arises at the time of its registration in the organizational and legal form established by law.

Consider multi-subject entrepreneurial formations (or otherwise referred to as "holdings", " business associations", etc.) as part of the scope of the concept of "commercial organization" in the broadest sense.

To provide in the law organizational and legal forms for such entrepreneurial formations and, guided by the criteria for separating which as a type, to establish the distinctive and characteristic features and properties of such formations.

Given the current volume and content of legal regulation, it must be stated that the forms proposed by the legislator do not cope with the rapidly developing reality and do not reflect the actual features of the content of actually existing commercial organizations, while, on the contrary, they purposefully distort this content, offering the choice of such organizations other ones that do not correspond to the existing ones. the content of the form. In assessing the feasibility of legal

regulation should be based on the unconditional value of clarity, accuracy and clarity in determining the legal status of persons engaged in entrepreneurial activities. This approach is the key to the government-demanded transparency and integrity of business activities in the Russian Federation.

Bibliography:

1. Arkhipov S.I. Subject of law. Theoretical study. St. Petersburg: R. Aslanov Publishing House "Legal Center Press", 2004.

2. Belykh V.S. Business entities: concept and types // Legal status of business entities. Collection of scientific papers. Yekaterinburg: U-Factoria, 2002.

3. Greshnikov I.P. Subjects of civil law. St. Petersburg: Legal Center Press, 2002.

4. Laptev V.V. Shareholder law. M., 1999.

5. Meyer D.I. Russian civil law. M.: Statute. 2001

6. Milner B.Z. Organization theory. M.: Infra-M, 2000.

7. Shitkina I.S. Holdings. Legal and managerial aspects. M.: LLC "Gorodets-izdat", 2003.

8. Yakushev V.S. The Institute of a Legal Entity in Theory, Legislation and Practice // Anthology of the Ural Civil Law. 1925 - 1989. M.: Statute, 2001.

REVIEW

to the article by Jngkasvoy F.Z. "COMMERCIAL ORGANIZATION AS

SUBJECT OF BUSINESS ACTIVITY»

The article is written on a topic that is quite relevant at the moment, affecting the definition of the concept and forms of existence of entrepreneurial activity in the Russian Federation.

In the article, the author concludes that entrepreneurial activity is carried out by a wide range of persons, including business partnerships and companies, production cooperatives, state and municipal unitary enterprises, holdings. affiliates, individual entrepreneurs and even non-profit organizations (under certain conditions). In this regard, it should be noted that the legislator, defining the circle of subjects of entrepreneurial activity, had the goal of this norm to establish a mandatory condition for them to have the right to carry out this activity as a result of registration of an organization established in the appropriate legal form as a legal entity. At the same time, the concept of "persons engaged in entrepreneurial activities", not limited by the requirement of state registration, includes absolutely all social entities operating in the field of entrepreneurship, and primarily commercial organizations.

The author in the article emphasizes the need to expand the interpretation of a commercial organization, based on the provisions of Art. 50 of the Civil Code of the Russian Federation: a commercial organization is an organization that pursues profit as the main goal of its activities.

The author investigates the issue of multi-subject organizations, which in their essence are also commercial, but are not included in the list, statutory Russia. Based on the results of the study, the author develops proposals for improving the current legislation of the Russian Federation in this area. For the above reasons, the article deserves close attention to a wide audience and can be recommended for publication.

Reviewer: Ph.D.

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