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? Society with limited liability? 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
A citizen has the right to carry out entrepreneurial activities not only on an individual basis 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. Property Complex 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 financial position 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 (paragraph 3 of 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 maintaining a certain type of entrepreneurial activity and consistent with the goals of the founders.
In accordance with Art. 50 GK 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-profit organizations may have civil rights corresponding to the objectives of the activity provided for in the constituent documents, and to bear the obligations associated with 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 an economic entity to the property used, features 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.
According to Art. 48 of the Civil Code of the Russian Federation, a legal entity is an organization that has separate property and is liable for its obligations, can, on its own behalf, acquire and exercise civil rights and bear civil obligations, be a plaintiff and defendant in court.
The legal capacity of a legal entity arises from the moment of its creation, that is state registration(clause 3, article 49 and clause 2, article 51 of the Civil Code of the Russian Federation), and terminates at the time of its exclusion from the unified state register of legal entities (clause 9, article 63 of the Civil Code of the Russian Federation).
There are two types of legal capacity of legal entities:
· General (universal) legal capacity. It means the possibility of participation of a legal entity in any legal relationship, that is, to carry out any type of activity that is not prohibited by law.
· Special (target) legal capacity. It assumes that a legal entity has only such rights and obligations that correspond to the goals of its activities, defined by law or constituent documents.
According to paragraph 1 of Art. 49 of the Civil Code of the Russian Federation “a legal entity may have civil rights corresponding to the objectives of the activity provided for in its constituent document, and bear the obligations associated with this activity. Commercial organizations, with the exception of unitary enterprises and other types of organizations provided for by law, may have civil rights and bear civil obligations necessary to carry out any type of activity not prohibited by law.
Thus, all commercial legal entities have general legal capacity, with the exception of state unitary enterprises and organizations for which special legal capacity is defined by law (for example, insurance companies). All other legal entities have special legal capacity.
The founders of a commercial legal entity can endow the organization they create with special legal capacity by defining in the constituent documents a list of the types of activities that it will carry out. However, such self-limitation of legal capacity will be valid for other participants in the turnover if they were aware of such a limitation. So, according to Art. 173 of the Civil Code of the Russian Federation, a transaction made by a legal entity in contradiction with the objectives of the activity, specifically limited in its constituent documents, may be declared invalid by the court at the suit of this legal entity, its founder (participant) or another person in whose interests the restriction is established, if it is proved that that the other party to the transaction knew or should have known of such limitation.
The legal capacity of a legal entity may be limited by the state. For example, the types of activities for which a license is required can be carried out by an enterprise only after obtaining it, regardless of whether the possibility of carrying out this type of activity is recorded in the constituent documents of a legal entity. The current legislation provides for the licensing of insurance, banking, transportation, construction activities, dealership, brokerage and some other professional types activities in the securities market and some other activities.
In order to ensure normal economic turnover, the legislation provides for the individualization of a legal entity.
The individualization of a legal entity is its separation from the total mass of all other organizations. It is carried out by determining its location and giving it a name. The means of individualization of a legal entity make it possible to clearly determine which organization is a party in a civil legal relationship or in a litigation, which particular legal entity owns certain subjective rights and obligations.
Name of the legal entity. A legal entity must have a full name in Russian. In addition, it may additionally have a full name in one of the languages of the peoples of the Russian Federation and (or) in foreign language, as well as the abbreviated name. It must necessarily contain an indication of its organizational and legal form (a business partnership or a business company of a certain type, a unitary enterprise, an institution, etc.).
The name of a commercial organization is called a trade name (or firm). The right to a company, that is, the use of a company name in civil circulation, arises from the moment of its state registration. Such registration is carried out simultaneously with the state registration of the legal entity itself by entering the company name in the unified state register. The right to a company belongs to the category of personal non-property rights and is absolute. It is protected by law from violations.
Location of the legal entity is determined by the place of its state registration (clause 2, article 54 of the Civil Code of the Russian Federation) and must be indicated in its constituent documents.
State registration of a legal entity is carried out at the location of its permanent executive body, and in the absence of such, another body or person entitled to act on behalf of the legal entity without a power of attorney (Article 8 of the Federal Law
dated 08.08.2001 “On State Registration of Legal Entities and Individual Entrepreneurs”). When the location of a legal entity changes, the registering authority at the previous location shall make an appropriate entry in the register and forward the registration file to the registration authority at the new location.
Legal entities can be organizations that pursue profit as the main goal of their activities ( commercial organizations) or do not have profit making as such a goal and do not distribute the profit received among the participants ( non-profit organizations).
Legal entities that are commercial organizations can be created in the organizational and legal forms of economic partnerships and companies, peasant (farm) enterprises, economic partnerships, production cooperatives, state and municipal enterprises. (Clause 2, Article 50 of the Civil Code of the Russian Federation).
In addition, according to the Federal Law No. 99-FZ of May 5, 2014, effective September 1, 2014, Article 65.1 of the Civil Code of the Russian Federation provides for the division of legal entities into corporate (corporations) whose founders (participants) have the right to participate (membership) in them and form their supreme body and unitary ones, the founders of which are not their participants and do not acquire membership rights in them.
Corporate legal entities include economic partnerships and companies, peasant (farm) enterprises, economic partnerships, production and consumer cooperatives, public organizations, associations (unions), partnerships of property owners, Cossack societies entered in the state register of Cossack societies in the Russian Federation, as well as communities of indigenous peoples of the Russian Federation.
Unitary legal entities are created in the form of state and municipal unitary enterprises, funds, institutions, autonomous non-profit organizations, religious organizations, public law companies.
Let us characterize some of the listed organizational and legal forms of legal entities - commercial organizations.
Business companies and partnerships are commercial corporate organizations and have a lot in common. They are formed, as a rule, by several founders (citizens and (or) legal entities) for joint economic activities on the basis of an agreement between them.
The property of a business company or partnership (their authorized or share capital) is created at the expense of the contributions of the founders and participants, and is also produced or acquired in the course of the activity of the company or partnership. Money can be an investment securities, other property, as well as other rights having a monetary value, including rights to objects intellectual property(for example, invention, trademark, trade name, etc.).
As stated in Art. 66 of the Civil Code of the Russian Federation, the authorized or share capital of a company or partnership is divided into shares (contributions) of the founders (participants), however, the property constituting the authorized (share) capital does not become the shared property of the founders (participants). This property is the property of the company or partnership, i.e. each founder or participant, after making his share in the authorized (share) capital, loses the right of ownership to his share. This share, like all the others, becomes the property of the company (partnership). The division of the authorized (share) capital into shares is necessary because the scope of the powers of the participants is determined in proportion to their shares in authorized capital company, economic company some of the rights and obligations of the founder (participant) in relation to the company (partnership) depends on the amount of the contribution made by him to the authorized (share) capital. For example, the founders (participants) have the right: to take part in the distribution of profits, and the share of profits is usually proportional to the size of the contribution; in case of liquidation of the company (partnership), to receive a part of the property remaining after settlements with creditors. The size of this part, as a rule, also depends on the contribution to the authorized (share) capital.
These rights, which the founders (participants) acquire in relation to the company (partnership) in exchange for the lost ownership of their contribution, are called obligations. The rights of founders (participants) also include: the right to participate in managing the affairs of the organization, the right to receive information about the activities of the company or partnership, and other rights provided for by law or constituent documents.
In paragraph 2 of Art. 67 of the Civil Code of the Russian Federation states that a participant in a business partnership or company, along with the obligations provided for participants in corporations in paragraph 4 of Art. 65.2 of the Civil Code of the Russian Federation is also obliged to make contributions to the authorized (share) capital of a partnership or company, of which he is a member in the manner, amount, and methods provided for by the founding document of a business partnership or company, and contributions to other property of a business partnership or company. Participants in business partnerships and companies may also bear other obligations stipulated by law and their constituent documents.
At the same time, business companies and business partnerships have significant differences. The main difference between them is that partnerships are associations of persons and capitals, and societies are only associations of capitals. Therefore, the main obligation of the participants in partnerships is, in addition to making a contribution to the share capital, also personal participation in the activities of the partnership. Therefore, a citizen or legal entity can be a member of only one partnership. Since members of a society are not obliged to participate in its affairs, they can simultaneously be members of several companies. In addition, only citizens registered as entrepreneurs and commercial organizations can be participants in the partnership, since the entrepreneurial activities of the partnership are carried out directly by its participants. Any able-bodied citizens and legal entities can participate in companies, with the exception of state, municipal legal entities and institutions that are required to obtain the consent of the owner of the property.
Business partnerships are of two types - full
partnerships and limited partnerships (limited partnerships).
A general partnership is one whose participants (they are called full partners) are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with their personal property (Article 69 of the Civil Code of the Russian Federation). As a rule, the form of partnership is used for the implementation of family business.
The management of the affairs of the partnership is characterized by a number of
features. Firstly, each participant has the right to act on behalf of the partnership, i.e. transactions concluded by a general partner entail the emergence of rights and obligations for the partnership itself. According to
Art. 73 of the Civil Code of the Russian Federation, the participation of a general partner in the affairs of the partnership is not only his right, but also his obligation. In this regard, no management bodies are created in the partnership, so there is no need for a charter. However, the memorandum of association on the basis of which a full partnership operates may establish that the affairs of the partnership are conducted jointly by all the partners, or that the affairs of the partnership are entrusted to one participant. In case of joint conduct of partnership affairs by its participants, the consent of all participants in the partnership is required for the completion of each transaction. If the conduct of business is entrusted by the participants to one participant or some of them, the remaining participants, in order to make transactions on behalf of the partnership, must have a power of attorney from the participant (participants) who is entrusted with the conduct of the affairs of the partnership (Article 72 of the Civil Code of the Russian Federation).
Secondly, the activities of the partnership are based on personal trust relationships. According to paragraph 1 of Art. 75 of the Civil Code of the Russian Federation, participants in a general partnership bear joint and several liability with their property for the obligations of the partnership. If there is a shortage of property to pay off his debts, creditors have the right to demand satisfaction from the personal property of any participant in the partnership. In this regard, it is possible that other participants will be responsible for transactions concluded by one participant. The participants cannot, by their agreement, limit or eliminate the full liability for the debts of the partnership. In addition, full responsibility will be borne by those participants who are not its founders, but joined the partnership after its registration. If a partner withdraws from the partnership, he continues to be liable for the obligations of the partnership that arose before the moment of his withdrawal, within two years from the date of approval of the report on the activities of the partnership for the year in which he left the partnership. Such a serious responsibility of the participants in a general partnership is a reliable guarantee of the rights of its creditors, therefore, for a general partnership, the law does not establish a minimum amount of its share capital, but, nevertheless, a general partnership as a legal entity must still have its own property. Therefore, one of the most important obligations of general partners is the obligation to make at least half of their contribution to the share capital of the partnership by the time of its registration. The rest must be paid within the terms specified in the memorandum of association, otherwise the obligation arises to compensate the partnership for the losses caused.
Profits and losses of a general partnership are distributed among the participants in proportion to their contributions, unless another ratio is established by the memorandum of association (Article 74 of the Civil Code of the Russian Federation).
The rule that a person can be a participant in only one general partnership also follows from the full liability of the participants for the debts of the partnership, since only in this case the full liability of the partners will be real, and not turn into a fiction.
Each of the participants has the right to withdraw from the general partnership. This intention must be declared by the participant at least 6 months before the actual withdrawal from the partnership. However, if the partnership is established for a certain period, then voluntary withdrawal from it is allowed only for a good reason.
In the event of the exit (or death) of a participant, a general partnership can be liquidated, since a partnership is, first of all, an association of persons, not capital, and the personal element is very important here. Due to the increased responsibility that the participants bear for the debts of the partnership, they must trust each other. Therefore, sometimes it is very difficult to replace a retired participant. If the activities of a general partnership can nevertheless be continued, the partnership is not liquidated.
A participant in a general partnership may be expelled from the partnership in court by a unanimous decision of all the other participants if there are serious reasons, in particular due to gross violation by this participant of his duties or his revealed inability to reasonably conduct business.
A participant who withdraws from a general partnership is paid the value of the property, which is his share in the joint capital of the partnership. If some property in kind was contributed as a share, it can be returned only with the consent of all participants in the partnership. In the event of the death (or reorganization) of a participant in a full partnership, his heir (legal successor) may join the partnership, but only with the consent of the other participants. Otherwise, he is paid the value of the inherited (in the order of succession) share.
A participant in a general partnership may transfer his share in the share capital to other persons with the consent of all other participants. When a share is transferred to a new participant, the rights and obligations of the withdrawn participant are also transferred. If the only participant remains in the partnership, the partnership must be liquidated or transformed into a business company within 6 months.
A limited partnership, or limited partnership (Art. 82-86 of the Civil Code of the Russian Federation) has much in common with a general partnership. A partnership based on faith is also, first of all, an association of persons, not capitals. Therefore, a personal moment is also very important here: the general partners of a limited partnership are liable for the obligations of the partnership with all their property. Their duties are not limited to making a contribution to the property of the partnership, they are also obliged to participate in the affairs of the partnership. Therefore, special bodies that exercise the powers of a legal entity are not created in a limited partnership. All general partners are entitled to this, unless otherwise provided by the memorandum of association (as in a full partnership). This explains the fact that a limited partnership (like a general partnership) does not have a charter, but operates only on the basis of a constituent agreement. In order for the increased liability of general partners for the debts of the partnership not to become a fiction, Art. 82 of the Civil Code of the Russian Federation establishes following rules: a person can be a general partner in only one limited partnership; a general partner in a limited partnership cannot be a participant in a general partnership; A participant in a general partnership cannot be a general partner in a limited partnership.
The peculiarity of a limited partnership is that, along with general partners, it includes one or more participants - contributors (limited partners), who bear the risk of losses associated with the activities of the partnership, within the limits of the amounts of their contributions.
In connection with limited liability for the debts of the partnership, the participants - investors (limited partners) do not participate in the management and conduct of the affairs of the partnership and can act on behalf of the partnership only by proxy. The investor of a limited partnership has only one obligation - to contribute to the share capital. The participation of limited partners in a partnership is a way to raise additional funds.
Due to the lack of the right to manage the affairs of the partnership, limited partners are forced to trust general partners in terms of the appropriateness of using their contributions. That's why this species partnerships also have such names as “limited” and “partnership in faith”, which reflect these features. In Art. 85 of the Civil Code of the Russian Federation lists the rights of a limited partner. He has the right to receive a part of the partnership’s profit due to his share in the share capital, to get acquainted with the annual reports and balance sheets of the partnership, and at the end of the financial year to withdraw from the partnership and receive back either the value of the contribution, or a contribution in kind, if this is provided for by the founding agreement. He may also transfer his share or part of it to another contributor or a third party, and the contributors shall enjoy the right of purchase of this share prior to third parties. This means that in the event of the sale of his share, the investor must first offer it to other investors, and only if they refuse - to third parties. Full partners do not enjoy such a privilege.
Upon liquidation of a limited partnership, the investors have
the pre-emptive right to receive back his contribution from the property that remains after the payment of the partnership's debts. The property remaining after this is distributed among general partners and investors in accordance with the memorandum of association (most often in proportion to their shares in the share capital). A limited partnership is preserved if it has at least one general partner and one contributor. If from it
all investors leave, the partnership must be liquidated or transformed into a general partnership. A limited partnership may also be liquidated in the event of the withdrawal of one of the general partners. However, if the activities of the partnership can be continued after that, it is not liquidated.
For the rest, the rules governing the activities of a general partnership are applied to the activities of a limited partnership (Articles 82, 86 of the Civil Code of the Russian Federation).
Clause 1 of Article 66.3 of the Civil Code of the Russian Federation establishes the division of companies into public And non-public.
A public company is a joint-stock company whose shares and securities convertible into its shares are publicly placed (by open offering) or publicly traded. The rules on public companies also apply to joint-stock companies, the charter and company name of which contain an indication that the company is public.
A limited liability company and a joint-stock company that does not meet the characteristics of a public joint-stock company are recognized as non-public.
Legal status of a limited liability company,
features of its activities are determined by the Civil Code of the Russian Federation
(Art. 87-94) and the Federal Law "On Limited Liability Companies". According to Art. 87 of the Civil Code of the Russian Federation, a limited liability company is a company established by one or more persons, authorized capital which is divided into shares of sizes determined by the constituent documents.
A limited liability company may be created by one, two or more participants, which may be individuals (citizens) and legal entities. However, a limited liability company cannot have as its sole participant another economic company consisting of one person. At the same time, the mentioned Federal Law determines that the number of participants in a limited liability company cannot exceed 50. If the limit specified in the Law is exceeded, it is subject to transformation into a joint-stock company or a production cooperative within a year. If, after a year, the number of participants in a limited company
liability will not be reduced to statutory limit, it is subject to liquidation in a judicial proceeding.
A member of a limited liability company may be a foreign legal entity or individual, subject to the specifics determined by applicable law. For example, in accordance with Art. 2 of the Federal Law “On Foreign Investments in the Russian Federation”, foreign investors can be:
· a foreign legal entity whose civil legal capacity is determined in accordance with the legislation of the state in which it is established, and which is entitled, in accordance with the legislation of the said state, to invest in the territory of the Russian Federation;
a foreign citizen, civil legal capacity and
whose legal capacity is determined in accordance with
the law of the state of his citizenship and who is entitled, in accordance with the law of that state
to invest in the territory of the Russian Federation.
Additional requirements to create credit institutions
with the participation of foreign investors, Art. 17, 18 of the Federal Law "On banks and banking activities".
Not entitled to act as members of companies, unless otherwise
prescribed by law, government bodies and bodies local government. Institutions financed by owners may be participants in economic companies only with the permission of the owner, unless otherwise provided by law.
By general rule, the constituent documents of a limited liability company are the constituent agreement signed by its founders and the charter approved by them. However, if the company is founded by one person, then the memorandum of association is not drawn up, and the founder makes a decision to create a limited liability company, which is not considered as a constituent document.
Unlike partnerships in a limited company
liability is the authorized capital, not the share capital. The authorized capital, like the share capital, is the total monetary value of the contributions of the company's participants and is divided into shares of the sizes and their nominal value predetermined by the constituent documents. Moreover, these shares correspond to the contributions of the company's participants. The authorized capital, as well as all other property of the company, is the property of the company itself, and not of its participants. Participants have the right to claim against the company, commensurate with their contribution, but not the right of ownership of the share contributed to the authorized capital, i.e. they do not have a property right to the contributed share.
The contribution of participants to the authorized capital of the company can be cash, buildings, structures, equipment, land and others material values. As a contribution to the property of a limited liability company, property rights or other rights, but having a monetary value, may be made. In this regard, such a contribution cannot be an object of intellectual property (a patent, an object of copyright, including a computer program, etc.) or know-how. However, the right to use such an object transferred to the company in accordance with a license agreement, which must be registered in the manner prescribed by law, may be recognized as a contribution.
The monetary value of non-monetary contributions to the authorized capital of the company, made by the company's participants and third parties accepted into the company, is approved by the decision of the general meeting of the company's participants, adopted by all participants of the company unanimously. If the face value (increase face value) the share of a member of the company in the authorized capital of the company, paid for by a non-monetary contribution, exceeds 200 minimum wages established by federal law as of the date of submission of documents for
state registration of the company or relevant changes in the charter of the company, such a contribution should be assessed independent appraiser. The charter of the company establishes the types of property that cannot be a contribution to the authorized capital of the company.
The authorized capital of a limited liability company must be at least half paid by its participants at the time of registration. The remaining unpaid part of the authorized capital of the company is subject to payment by its participants during the first year of the company's activity. In case of violation of this obligation, the company must either declare a decrease in its authorized capital and register its decrease in the prescribed manner, or terminate its activities through liquidation. It is not allowed to release a participant in a limited liability company from the obligation to make a contribution to the authorized capital of the company, including by offsetting claims against the company.
In Art. 90 of the Civil Code of the Russian Federation and Art. 20 of the Federal Law "On Limited Companies"
responsibility” provides that if at the end of the second or each subsequent financial year the value of the net assets of a limited liability company is less than the authorized capital, the company is obliged to declare a decrease in its authorized capital and register its decrease in the prescribed manner. If the value of the specified assets of the company becomes less than the minimum amount of the authorized capital determined by law, the company is subject to liquidation.
In order to protect the interests of the company's creditors and guarantee their rights
Art. 90 of the Civil Code of the Russian Federation establishes that a decrease in the authorized capital of a limited liability company is allowed after notification of all its creditors. In this case, creditors have the right to demand early termination or performance of the relevant obligations of the company and compensation for their losses. An increase in the authorized capital of a company is allowed only after all its participants have made contributions in full.
Despite the fact that this economic company is called a limited liability company, its participants are not liable for its debts, and they bear only "the risk of losses associated with the activities of the company, within the value of their contributions" (clause 1, art. 87 of the Civil Code of the Russian Federation and clause 1, article 2 of the Federal Law “On Limited Liability Companies”).
It should be noted that the participants of the company who have made contributions not in full are jointly and severally liable for its obligations within the value of the unpaid part of the contribution of each of the participants.
Each participant has the right to leave the company at any time, regardless of the consent of its other participants. Upon withdrawal, he is paid the actual value of a part of the property corresponding to his share in the authorized capital of the company, in the manner, way and within the time limits provided for by the Federal Law "On Limited Liability Companies" and the constituent documents of the company (Article 94 of the Civil Code of the Russian Federation, Article 26 of the Federal Law ). A participant leaving the company is paid a share of the profit due to him based on the results of the company's work, the cost of his contribution to the company's authorized fund and the value of a part of the property proportional to this contribution. The size of the share is determined on the basis of the balance sheet drawn up at the end of the year in which the participant left the company.
Provided by Art. 94 of the Civil Code of the Russian Federation and Art. 26 of the said Federal Law, the provision on the right of a participant to leave the company at any time, regardless of the consent of its other participants, is an imperative norm. Therefore, the conditions of constituent documents depriving a participant of this right or limiting it should be considered as void, i.e. without legal consequences.
According to Art. 93 of the Civil Code of the Russian Federation and Art. 21 of the Federal Law "On Limited Liability Companies", a member of the company has the right to sell or otherwise assign his share in the authorized capital of the company or part of it to one or more participants in this company. As a general rule, the conclusion of such a transaction does not require the consent of the company or other participants in the company. However, the charter of the company may provide that the other participants must agree (for example, unanimously) to the sale or assignment in any other way of the specified share. Sale or assignment in any other way by a participant of his share or part thereof to a third party, i.e. not a member of the company and not the company itself, is possible, if it is not prohibited by the charter of the company. For example, the charter of the company may provide that the sale or assignment in any other way of a share (part of a share) to third parties is not allowed or that a share in the authorized capital of the company can be transferred to third parties by a decision taken by all participants
society unanimously.
In accordance with Art. 93 of the Civil Code of the Russian Federation and Art. 21 of the said Federal Law, the participants in the company enjoy the pre-emptive right to acquire a share (part of the share) of a member of the company at the offer price to a third party in proportion to the size of their shares. The company's charter or agreement of the company's participants may provide for a different procedure for exercising this right, for example, disproportionately to the size of the shares of the company's participants.
In the event that the participants in the company do not use their pre-emptive right within one month from the date of notification or within another period determined by the charter of the company or by agreement of its participants, the share of the participant may be alienated to a third party. If this is not possible, and other participants in the company refuse to purchase the specified share, the company is obliged to pay the participant its actual value or to give him property in kind corresponding to such value.
The company's charter may provide for the company's pre-emptive right to acquire a share (part of a share) sold by its participant, if other participants in the company have not used their preemptive right purchase of a share (part of a share). In this case, the company during the year is obliged to sell it to other participants or third parties, for example, to distribute it among all participants in the company in proportion to their shares in the authorized capital of the company; sell to all or some members of the company and / or third parties, unless this is prohibited by the charter of the company. The undistributed or unsold part of the share must be redeemed with a corresponding reduction in the authorized capital of the company.
Shares in the authorized capital of a limited liability company are transferred to the heirs of citizens and legal successors of legal entities that are participants in the company, unless the company's constituent documents provide that such a transfer is allowed only with the consent of the other participants in the company. Refusal of consent to the transfer of a share entails the obligation of the company to pay the heirs (successors) of the participant its actual value or to give them in kind property for such a value in the manner and on the conditions provided for by the Federal Law "On Limited Liability Companies" and the constituent documents of the company.
Joint responsibility means responsibility according to the principle “one for all, all for one” (Article 323 of the Civil Code of the Russian Federation).
A joint stock company is determined by the Civil Code of the Russian Federation
(Article 96) and the Federal Law "On Joint Stock Companies" (Article 2) as an economic company, the authorized capital of which is divided into a certain number of shares; participants 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 their shares.
The main legal acts that determine the activities of joint-stock companies are the Civil Code of the Russian Federation (Articles 96-104), the Federal Law "On Joint-Stock Companies", other laws and by-laws. Features of the creation and legal status of joint-stock companies in some property areas (for example, banking, investment and insurance activities) are determined by federal laws, for example, the Federal Law “On Banks and Banking Activity”.
A joint stock company, like a limited company
liability is the pooling of capital. The authorized capital of the company is made up of the nominal value of the shares of the company.
According to Art. 25 of the Federal Law "On Joint Stock Companies", all shares of the company are registered. The Company has the right to place ordinary shares, as well as one or more types of preferred shares.
A public joint-stock company is obliged to submit for inclusion in the Unified State Register of Legal Entities (EGRLE) information on the company's company name, containing an indication that such a company is public.
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 aim to make 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 Civil Code 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 legal form in the Russian Federation
Economic partnership- a commercial organization with an authorized capital divided into shares (contributions) of the founders (participants). .
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 commercial enterprises by ownership of capital
national enterprise
Foreign company
multinational enterprise
Rights of participants in commercial organizations
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Business Law
Questions answers. By subject Business Law entrepreneurial activity of the Russian Federation
A commercial organization is a legal entity that pursues profit making as the main goal of its activities, in contrast to a non-profit organization that does not aim to make 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; have responsibilities;
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 legal form in the Russian Federation
A business partnership is a commercial organization with an authorized capital divided into shares (contributions) of founders (participants). Property created at the expense of contributions of participants, as well as produced and acquired by a business partnership or company, is owned by it (the definition is enshrined in Article 66 of the Civil Code of the Russian Federation).
Business partnerships: general partnership; fellowship of faith. Business companies: OOO; ODO; JSC; COMPANY.
The founders of both a general partnership and a limited partnership have the right to participate in the management of the affairs of the partnership (except for contributors); receive information about the activities of the partnership and get acquainted with accounting and other documentation. The obligation is to make contributions and not to disclose confidential information about the activities of the association. Any economic company or partnership is a voluntary contractual association of its participants with common goal– receiving profit and distributing this profit among the founders.
Business partnerships. General partnership- consists of full partners ( individual entrepreneurs, commercial organizations, unitary enterprises- as commercial organizations have the right to be a general partner, but with the prior consent of the owner or a person authorized by him). A person may be a participant in only one full partnership. A general partnership is created and operates on the basis of a founding agreement. The memorandum of association is signed by all its members. The management of the activities of a general partnership is carried out by common agreement of all participants. The founding agreement of a partnership may provide for cases where the decision is taken by a majority vote of the participants. Each participant in a full partnership has the right to act on behalf of the partnership, unless the founding agreement establishes that all its participants conduct business jointly, or the conduct of business is entrusted to individual participants. In case of joint conduct of partnership affairs by its participants, the consent of all participants in the partnership is required for the completion of each transaction. If the management of the affairs of the partnership is entrusted by its participants to one or some of them, the remaining participants, in order to make transactions on behalf of the partnership, must have a power of attorney from the participant (participants) entrusted with the conduct of the affairs of the partnership. A participant in a full partnership is obliged to participate in its activities in accordance with the terms of the founding agreement. A general partnership is liquidated: 1. the exit or death of any of the participants, the recognition of one of them as missing, incapacitated, or of limited capacity, or insolvent (bankrupt), the opening of one of the participants in reorganization procedures by a court decision, the liquidation of a participant in the partnership of a legal entity or the creditor of one of the participants foreclosure on a part of the property corresponding to his share in the share capital, the partnership may continue its activities if this is provided for by the founding agreement of the partnership or by agreement of the remaining participants; 2. when only one participant remains in the partnership; 3. on other grounds specified in the Civil Code of the Russian Federation. Fellowship in faith general partners are present, as well as contributors. The same conditions as for a general partnership. Contributors can be any subjects of civil legal relations. They do not have the right to participate in the activities of the partnership and participate in matters of its management. They are not liable for the obligations of the partnership, but risk their contribution. The memorandum of association is signed by all its participants, the contributors do not participate in the signing of the agreement. The agreement does not specify the size of each depositor's contribution. The contribution is certified by a certificate. In the event of liquidation of a limited partnership, including in the event of bankruptcy, investors have a preferential right over general partners to receive contributions from the property of the partnership remaining after satisfaction of the claims of its creditors. The same liquidation conditions. Economic companies. OOO - 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; participants in a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their contributions. A limited liability company cannot have as its sole participant another economic company consisting of one person. It can be established by one participant or several persons. No more than 50 participants. Exceeding this figure entails either liquidation or transformation into an open joint-stock company or a production cooperative. The founding documents of a limited liability company are memorandum of association, signed by its founders, and the charter approved by them. If a company is founded by one person, its founding document is the charter. ODO - 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 of such a company jointly and severally bear subsidiary liability for its obligations with their property in the same for all multiples of the value of their contributions, determined by the constituent documents of the company. The conditions are the same as LLC. One difference of the ALC is based on the property liability of the ALC participants for the company's debts. AO - a company whose authorized capital is divided into a certain number of shares; participants 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. JSC - has the right, without the consent of other shareholders, to alienate their shares to an indefinite circle of persons. Not limited. COMPANY - shareholders can distribute their shares either to other shareholders or among a certain circle of persons. No more than 50 participants. JSC participants can be any entity, both engaged in entrepreneurial activity and not an entrepreneur, state bodies, local governments can act. The founding document of a joint-stock company is its charter, approved by the founders. Production cooperative- This is another organizational and legal form of commercial organizations. A production cooperative (artel) is a voluntary association of citizens on the basis of membership for a joint production or other economic activity(production, processing, marketing 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 the pooling of property share contributions by its members (participants). Members of the cooperative are individuals and legal entities expressly provided by law. The founding document of a production cooperative is its charter, approved by the general meeting of its members. The number of members of the cooperative must not be less than five. The supreme governing body of a cooperative is the general meeting of its members. A member of a cooperative has the right to withdraw from the cooperative at his own discretion. A production cooperative may be voluntarily reorganized or liquidated by decision general meeting its members. A production cooperative, by unanimous decision of its members, may be transformed into a business partnership or company. State and municipal unitary enterprises - this is another organizational and legal form of commercial organizations. A unitary enterprise is a commercial organization that is not endowed with the right of ownership of the property assigned to it by the owner. The property of a unitary enterprise is indivisible and cannot be distributed among contributions (shares, shares), including among employees of the enterprise. Only state and municipal enterprises can be created in the form of unitary enterprises. The property of a state or municipal unitary enterprise is, respectively, in state or municipal ownership and belongs to such an enterprise on the basis of the right of economic management or operational management. A unitary enterprise is liable for its obligations with all its property. A unitary enterprise shall not be liable for the obligations of the owner of its property.
Commercial organizations are created to conduct entrepreneurial activities and, therefore, have the main goal of making a profit.
Commercial organizations: Business partnerships:1. 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. Limited liability company - established by one or more legal and / or individuals a business company, 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. Company with additional liability - 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; the participants of such a company jointly and severally bear subsidiary liability for its obligations with their property in the same for all multiples of the value of their contributions, determined by the constituent documents of the company.
Production cooperative ( artel ) - a commercial organization created by a voluntary association of 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 shares. 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. Minimum size 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. supreme governing body in production cooperative is the general meeting of its members, which decides the most important issues of the cooperative, including electing the permanent executive bodies of the cooperative - the board and / or the chairman of the cooperative. The 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 statutory fund 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 typical for most commercial organizations;
Limited. In the event that the founders determine the purpose of the company in a certain 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 in the charter of the 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 Supreme Court Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of July 1, 1996 "On some issues related to the application of the first part 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. An increasingly important role for entrepreneurs is played by self-regulatory organizations. 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 purpose of ensuring the fair implementation professional activity 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 activities.
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 type of non-profit organization cannot lead commercial activity under no circumstances is it an association or 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 business area, 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 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”;
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 entrepreneurial activity specified in the license and the services related to this activity. Largest number similar restrictions in legislative framework regulating the activities financial institutions. For example, credit and insurance organizations are not entitled to engage in production and trade and intermediary business.
