Classification of legal entities on various grounds.

I. In the current civil legislation, all legal entities, depending on the nature of their activities, are divided primarily into commercial and non-commercial organizations.

Commercial organizations include organizations that have profit as the main goal of their activities (clause 1, article 50 of the Civil Code). They further distribute the profit received in one way or another among their participants (founders).

These are business partnerships and companies, production cooperatives, state and municipal unitary enterprises. Commercial organizations cannot be created in any other organizational and legal forms, except for those mentioned (clause 2, article 50 of the Civil Code). Thus, the legislator deliberately limited the list of permanent, professional participants in the turnover. The status of a commercial organization allows a very broad participation in civil circulation (in particular, on the basis of general, and not special legal capacity, which is granted to all such organizations, with the exception of unitary enterprises), but it also entails the presentation of increased requirements for the activities of the corresponding legal entity (for example, from the point of view of the terms of property liability).

The main purpose of the activity of non-profit organizations is to satisfy the spiritual, everyday and other non-commercial needs, or members of these organizations (consumer cooperative), or a certain social group(fund), or the population as a whole (educational institution).

Non-profit organizations include consumer cooperatives, public and religious organizations (associations), institutions, foundations and other types of legal entities expressly provided for by law (for example, chambers of commerce and industry and non-profit partnerships). The Civil Code does not contain an exhaustive list of non-profit organizations, but provides for the possibility of their appearance only in the forms established by law (clause 3, article 50 of the Civil Code). Non-profit organizations have the right to carry out entrepreneurial activities (i.e., make a profit), which, however, must meet two conditions: serve to achieve the non-commercial goals set for the organization and correspond to these goals by its nature (for example, a public organization has the right to carry out profitable publishing activities, but is not entitled to engage in trade and intermediary activities). In addition, a non-profit organization cannot distribute the profit received among its participants (founders), but must direct it to achieve the goals set for it by the founders.

II. Depending on the rights of the founders (participants) of a legal entity to its property, the law divides all legal entities into three groups. The first group consists of legal entities - owners, on the property of which their founders (participants) have only obligation rights of claim (hence losing the ownership of the property transferred by them to the legal entity, unless, of course, the latter is directly transferred to the created organization only for temporary use) . These include the majority of commercial organizations (with the exception of unitary enterprises - non-owners), i.e. partnerships, societies and production cooperatives, and from among non-profit - consumer cooperatives (clause 2 of article 48 of the Civil Code) and non-profit partnerships.

The second group includes legal entities - non-owners, on whose property the founders retain either the right of ownership (unitary enterprises and institutions), or another (limited) property right (subsidiary unitary enterprises) (paragraph 2 of article 48 of the Civil Code). The existence of such legal entities is not typical of normal property turnover and, as noted, is a consequence of the transitional nature of the domestic economy and the legal order based on it.

The third group includes legal entities - owners, on the property of which their founders (participants) do not retain either obligations or rights in rem. These are the majority of non-profit organizations (with the exception of consumer cooperatives, institutions and non-profit partnerships) - public and religious associations, foundations, associations (unions), etc.

The difference in the status of these types of legal entities is manifested, for example, when they are liquidated or a participant (founder) leaves them. In the first case, he has the right to demand the transfer to him of a part of the property due to his share (in case of liquidation - a part of the corresponding balance). In the second case, the owner receives the entire balance of the property of the legal entity upon its liquidation or remains the owner upon its reorganization. In the third case, a participant (founder) of a legal entity does not receive any rights to property either upon leaving the organization or upon its liquidation.

Currently, the legal classification of legal entities is based on the preservation of its legal force and significance in the form of ownership, within which a legal entity is created and formed.

A legal entity, being a very complex legal phenomenon by its nature, can be considered in a variety of aspects. Therefore, there can be more different classifications of legal entities, the wider the list of legal entities and the more significant the differences between some organizations from others.

Legal entities can be classified:

• 1. By form of ownership. Depending on the form of ownership underlying the legal entity, the following are distinguished: a) state legal entities. State (in the broad sense, that is, including municipal) include all unitary enterprises, as well as some institutions. The significance of such a division becomes clear if we take into account that state legal entities (even of a commercial nature) must necessarily pursue national interests, which determines the specificity of their legal regulation. In this classification, one can see a direct analogy with the division of the organization into legal entities of public and private law adopted abroad; b) private (non-state) legal entities.
• 2. According to the goals of the activity, they are divided according to the division of the main goals of their activity: making profit, as well as its distribution among the participants, or other goals not related to entrepreneurship: a) commercial organizations - have as their goal making a profit; b) non-profit organizations.

By general rule, non-profit organizations have the right to carry out entrepreneurial activities only insofar 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).

• 3. Depending on the composition of the founders, it is possible to single out legal entities whose founders can be only legal entities (unions and associations), only the state (unitary enterprises and state corporations) or any, with certain exceptions, subjects of law (all other legal entities) .
• 4. By the nature of the rights of participants. The different nature of the rights of participants in relation to the property of a legal entity makes it possible to single out: a) organizations on whose property the founders have the right of ownership or other real right: state and municipal unitary enterprises, as well as institutions; b) organizations in respect of which their participants have rights of obligation: business partnerships and companies, cooperatives, non-profit partnerships, state corporations; c) organizations in respect of which their participants do not have property rights: public associations, religious organizations, foundations, associations of legal entities and autonomous non-profit organizations.
• 5. Depending on the amount of property rights of the organization. Depending on the scope of the rights of the legal entity itself to the property used by it, one can distinguish: a) legal entities that have the right to operational management of property: institutions and state-owned enterprises; b) legal entities that have the right of economic management of property: state and municipal unitary enterprises (except for state-owned ones); c) legal entities owning the property: all other legal entities.
• 6. Depending on personal or property participation. Business partnerships and companies can be classified according to what is more important for the participants to combine their personal efforts to achieve entrepreneurial goals (partnerships) or to pool capital (societies). Along with this, according to the degree of increase in the entrepreneurial risk of participants, business companies and partnerships can line up in the following chain: general partnership, limited partnership, limited liability company, joint-stock company.
• 7. The procedure for the creation (formation) of a legal entity can also act as a classification criterion: in this case, legal entities are divided into those formed in a permissive or regulatory order.
• 8. According to the composition of constituent documents. According to the composition of constituent documents, they are distinguished:
  • a) contractual legal entities
  • c) statutory legal entities - business partnerships

There is another classification of legal entities - depending on the rights of the founders (participants) of the legal entity to its property:

• 1. Legal entities - owners. The participants in such a legal entity have only the right to claim for obligations (that is, the right of one person (creditor) to demand from another person (debtor) the commission certain actions property (for example, transfer of a thing, payment of money) or refraining from any action) on property, and the ownership of this property is lost, unless, of course, it is directly transferred to the organization only for temporary use. These include the majority of commercial organizations (with the exception of unitary enterprises - not owners), i.e. partnerships, societies and production cooperatives, and from among non-profit - consumer cooperatives (Article 50 of the Civil Code of the Russian Federation) and non-profit partnerships.
• 2. Legal entities - not owners. The participants in such a legal entity retain either the right of ownership (typical for unitary enterprises and institutions), or another (limited) property right (for example, for subsidiaries and unitary enterprises) (Article 50 of the Civil Code of the Russian Federation). The existence of such legal entities is not characteristic of normal property turnover and is characteristic of the transitional stage of the domestic economy and the legal order based on it.
• 3. Legal entities - owners. Participants do not retain any obligations or real rights to the property of such a legal entity. These include the majority of non-profit organizations (with the exception of consumer cooperatives, institutions and non-profit partnerships) - public and religious associations, foundations, associations (unions), etc.

The difference in the status of these legal entities is manifested, for example, when they are liquidated or a participant (founder) leaves them. In the first case, he has the right to demand the transfer to him of a part of the property that is due to his share (in case of liquidation - a part of the corresponding balance). In the second case, the participant receives the entire balance of the property of the legal entity in the event of its liquidation or remains the owner during its reorganization. In the third case, a participant (founder) of a legal entity does not receive any rights to property either upon leaving the organization or upon its liquidation. In addition to the legal entity, there is also another form of conducting entrepreneurial activity- an enterprise without formation of a legal entity or individual entrepreneurship.

Summing up, I would like to say that the presented classification of legal entities is not exhaustive. This is due to the fact that you can always find criteria by which it will be possible to select certain types legal entities in one category or another, but it is the most common.

Based on the organizational, functional and other qualities and differences of legal entities, it is possible to classify their entire set according to various criteria.

Depending on the purpose of the activity, legal entities can be divided into commercial and non-commercial. Commercial organizations include those whose purpose is to extract profit and distribute it among the participants of such an organization. Non-commercial, although they have the right to carry out entrepreneurial activities, but only to the extent necessary to achieve their statutory goals. At the same time, they are not entitled to distribute the profits received among their participants [according to paragraph 1 of Article 50 of the Civil Code].

Depending on the form of ownership underlying the legal entity, it is possible to distinguish public and private (non-state) legal entities (Fig. 1). All unitary enterprises, as well as some institutions, are among the state enterprises (which, in this regard, should pursue national interests, which determines the specifics of their legal regulation).

The composition of the founders can also be attributed to the number of criteria by which legal entities should be classified. Here you can distinguish legal entities, the founders of which can only be legal entities. Such organizations are called unions and associations. Unitary enterprises are established by the state. All other legal entities can be established by any (with certain exceptions) subjects of law.

The different nature of the rights of participants in relation to a legal entity makes it possible to classify: organizations on whose property the founders have the right of ownership or other real right (state and municipal unitary enterprises, as well as institutions); organizations in respect of which their participants have rights of obligation (economic partnerships and companies, cooperatives); organizations in respect of which their participants do not have property rights (public associations and religious organizations, foundations and associations of legal entities).

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Depending on the scope of property rights (the rights of the legal entity itself to the property used by it), one can distinguish: legal entities that have the right to operational management of property (institutions and state-owned enterprises); legal entities that have the right of economic management of property (state and municipal unitary enterprises); legal entities that have the right to own property (all other legal entities).

Business partnerships and companies can also be classified according to what is more important for their participants: the combination of their personal efforts to achieve entrepreneurial goals (partnerships, personal participation) or the pooling of capital (companies, property participation).

According to the composition of constituent documents, contractual legal entities are distinguished - business partnerships, contractual and statutory companies with limited or additional liability, associations and unions, as well as statutory legal entities.

And, finally, another criterion for the classification of legal entities, traditional for the doctrine of pandect law (say, in Germany), but practically not used in our country, is the difference between corporations or unions, characterized by the presence of membership, a common goal for many participants, and the independence of their existence. from the change of participants, and institutions. Institutions, as opposed to corporations (unions), are usually created by one founder, who himself determines both the goals of the legal entity and the composition of the property necessary to achieve them. The meaning of such a classification lies in the fact that in this case there is a difference in interests, in the first case these are collective interests, in the second - personal ones.

All legal entities can be divided into four broad categories:

a) business partnerships and companies,

b) production cooperatives,

c) state and municipal enterprises,

d) non-profit organizations.

You can also mention branches and representative offices of legal entities.

Business partnerships are contractual associations of several persons for joint business activities under common name. Economic companies differ from partnerships in that several persons combine their property to conduct entrepreneurial activities. Certain types of business partnerships and companies have the following features:

1) General partnership. Participants in such an organization bear subsidiary (additional) liability for its obligations with all their property.

2) Fellowship in faith. This partnership consists of two categories of participants: general partners (or otherwise complementary partners), jointly and severally bearing subsidiary liability for its obligations with all their property, and fellow contributors (limited partners) who are not liable for the obligations of the enterprise.

3) Limited Liability Company. This company is a commercial organization, the authorized capital of which is divided into shares of predetermined sizes, formed by one or more persons who are not liable for its obligations.

4) Company with additional liability. This commercial organization has an authorized capital divided into shares of predetermined sizes. One or more persons who formed it bear subsidiary liability for its obligations in the amount of a multiple of the value of their contributions to the authorized capital.

5) Joint stock company - a commercial organization formed by one or more persons who are not liable for its obligations, with an authorized capital divided into equal shares, the rights to which are certified by securities - shares.

Production cooperatives are another type of legal entity. Production cooperatives are associations of persons for the joint conduct of entrepreneurial activities on the basis of their personal labor or other participation, the initial property of which consists of shares of the members of the association.

A special type of commercial organizations are state and municipal enterprises. The specificity of these subjects of civil legal relations lies in the fact that their property is respectively in state or municipal ownership and belongs to such an enterprise on the right of economic management or operational management.

We will also briefly consider certain types of such legal entities as non-profit organizations - organizations that do not pursue the goal of making profit as the main goal of their activities and do not distribute profits among their participants. Such organizations can be divided into:

1) Consumer cooperatives. A consumer cooperative is an association of persons on the basis of membership in order to meet their own needs for goods and services, the initial property of which consists of share contributions.

2) Public associations - a non-profit association of persons based on the commonality of their interests for the implementation of common goals. There are such varieties public associations as public organizations social movements, public funds and some others.

3) Religious organizations - an association of citizens whose main goal is the joint confession and dissemination of faith and has signs corresponding to these goals.

4) Foundation - a non-profit organization founded to achieve socially useful goals through the use of property transferred to its ownership by the founders.

5) Institutions. This is an organization created by the owner to perform functions of a non-commercial nature, and financed by him in whole or in part.

6) Associations of legal entities. It is a non-profit organization formed by several legal entities to conduct activities in their interests.

From the list above, it can be seen that there are a great many organizational and legal forms of enterprises (Fig. 2). Quite difficult without qualified legal advice choose a more acceptable form for the future enterprise.

Topic 1.4. "Legal entities"

1. The concept of a legal entity, its features.
2. Legal capacity of a legal entity. Bodies of a legal entity.
3. Classification of legal entities.
4. Organizational and legal forms of legal entities.
5. Formation of legal entities. Constituent documents.
6. State registration.
7. Reorganization of a legal entity.
8. Liquidation of a legal entity.

The concept of a legal entity, its features.

According to Art. 48 G to the Russian Federation legal entity an organization is recognized that has separate property and is liable for its obligations, can, on its own behalf, acquire and carry out civil rights and bear civic obligations, be a plaintiff and a defendant in court.

Signs of a legal entity:

*organizational unity, i.e. a legal entity as an organization is a single entity capable of solving certain tasks, has a clear internal structure, management bodies, constituent documents.

*presence of separate property is expressed in an independent balance sheet, on which the fixed property is listed. The property is separated from the property of its founders and participants, the state, any other subjects of civil law.

The property isolation of a legal entity is expressed in the presence of its authorized capital (fund). According to the Civil Code, the property of a legal entity must belong to it by the right of ownership or by another limited real right - economic management or operational management. This means that the possibility of a legal entity functioning solely on the basis of property received under a lease or property lease, or on the basis of borrowed funds, is excluded, in the absence of contributions from the founders to its authorized capital.

*independent property liability. AT any organization that is a legal entity is responsible for the results economic activity. In accordance with Art. 56 of the Civil Code, a legal entity is liable for its obligations with all its property (general rule). An exception to the general rule is provided for institutions and religious organizations. An institution shall be liable for its obligations with the funds at its disposal, and in cases established by law, also with other property. In case of insufficiency of the indicated Money or property, subsidiary liability for the obligations of the institution shall be borne by the owner of the relevant property (Article 123.21). A religious organization is liable with all its property, with the exception of property for liturgical purposes, which cannot be levied on the claims of their creditors. The list of such property is determined in accordance with the procedure established by the law on freedom of conscience and on religious associations (Article 123.28).

The property independence of the organization has the consequence that, as a general rule, neither its founders nor its participants are responsible for its debts with their property. Only in case of a lack of property owned by a legal entity, the founders or participants can be held liable for its debts as an exception, directly provided for by law or the charter. For example, participants in a general partnership bear subsidiary liability for the obligations of the partnership with their personal property.

*the ability to act in property turnover on one's own behalf means that legal entities have the right to conclude civil law contracts on their own behalf or otherwise acquire rights and incur obligations.

In this regard, the position of a legal entity is strikingly different from other organizations that do not have the status of a legal entity (branches and representative offices, Article 55 of the Civil Code).

Civil rights acquired by a legal entity are subject to protection by the methods provided for by the Civil Code (Article 12 of the Civil Code).

2 . Legal capacity of a legal entity. Bodies of a legal entity.

The legal capacity of a legal entity can be universal (general) and special.

Universal legal capacity, i.e. a legal entity has the ability to carry out any type of activity not prohibited by law.

Special legal capacity, i.e. a legal entity has rights in accordance with the objectives of its activities, fixed in its constituent documents

The principle of special legal capacity is characteristic of strictly centralized system farm management. This situation fetters the initiative of enterprises, makes it impossible to respond quickly to changing demand for a particular product, and hinders the development of scientific and technological progress.

In a market economy, strict regulation of the special legal capacity of a legal entity does not meet the requirements of the new economic mechanism.

Therefore, the Civil Code establishes that commercial organizations, with the exception of unitary enterprises, may carry out any type of activity that is not prohibited by law.

The legal capacity and legal capacity of a legal entity are implemented by the bodies of the legal entity (Scheme 1.).

The head decides all issues of the organization's activities, with the exception of those within the competence of the founders or the general meeting. He acts on behalf of the organization without a power of attorney, represents its interests, concludes contracts, etc. In relations with other organizations, a legal entity may also act through its representatives, who act on the basis of a power of attorney issued by the head.

Some legal entities may acquire civil rights and assume obligations through their participants (general partnership, limited partnership).

The Civil Code contains norms that ensure the protection of the interests of a legal entity from abuse by those persons who, by virtue of law or constituent documents, act on behalf of a legal entity and must act in the interests of the represented legal entity in good faith and reasonably. Otherwise, the founders of the legal entity have the right to demand compensation from the said persons for the damages caused (Article 53.1 of the Civil Code).

Classification of legal entities.

Legal entities are classified on various grounds - criteria. All criteria are legal significance, i.e. subdivide the relevant organizations into one or another group, depending on the characteristics of their legal status.

Legal entities are classified:

1. by nature (purpose) of activity

a) commercial, for which the main purpose of the activity is to make a profit

b) non-commercial, for which making a profit is not the main goal.

2. by organizational and legal form, which determines the nature of the relationship between the founders, the regime of property liability for the obligations of the organization, the minimum amount required when creating the authorized capital, the degree of protection of the interests of creditors, the procedure for management, distribution of profits, possible sources of financing activities, etc. (Scheme 2.3 in the notebook).

3. by forms of ownership (origin of the authorized capital)

a) legal entities based on private property (individual property of citizens or collective property - a limited liability company (LLC), a production cooperative)

b) legal entities based on state or municipal property (unitary enterprises, institutions);

c) legal entities founded by combining property that was in various forms property

*mixed, where the share of public (state, constituent entities of the Russian Federation, municipalities) and private (citizens and legal entities) entities;

* joint, where the share of foreign capital.

4. by the nature of the rights of the founders to the property of a legal entity

a) legal entities where the founders (participants) have corporate rights (corporate organizations);

b) legal entities where the founders have property rights (unitary enterprises, institutions);

5. in order of education

a) formed voluntarily (by the will of the founders);

b) formed in an administrative order (by decision

the owner or a body authorized by him).

6. according to the peculiarities of the legal status

a) national (residents);

b) foreign (non-residents).

7. by membership

a) corporations - formed on the basis of membership (business partnerships and societies, peasant (farm) enterprises, economic partnerships, production and consumer cooperatives, public organizations, social movements, associations (unions), partnerships of property owners, Cossack societies entered in the state register Cossack societies in Russian Federation, as well as communities of indigenous peoples of the Russian Federation);

b) unitary legal entities - founders do not become participants and do not acquire membership rights in them (state and municipal unitary enterprises, foundations, institutions, autonomous non-profit organizations, religious organizations, public companies).

Classification of legal entities

Legal entities can be classified on various grounds:

By forms of ownership (state, municipal, private);

According to the purpose of the activity (commercial and non-commercial);

By the degree of separation of property (having the right of ownership, economic management or operational management of property);

By organizational structure(simple and complex);

According to the degree of mutual participation of legal entities in the authorized capital of each other (main, dependent, subsidiaries);

According to the peculiarities of the organizational and legal form (economic companies and partnerships, unitary enterprises, production cooperatives, public organizations, institutions, funds, etc.).

The most important in this classification is the division of legal entities according to the features of the legal form and the purpose of their activities.

Yes, to commercial organizations are organizations whose main purpose is to make a profit. To non-profit- organizations that do not have as their main goal the extraction of profit and do not distribute the profit received among the participants.

All legal entities (both commercial and non-commercial) are divided into corporations and unitary legal entities (Article 65.1 of the Civil Code of the Russian Federation) (see Table 1)

Table 1

Corporations are organizations whose founders (participants) have the right to participate (membership) in them and form their supreme body in accordance with paragraph 1 of Art. 65.3 of the Civil Code of the Russian Federation as amended by Law N 99-FZ. These organizations include all commercial legal entities (with the exception of unitary enterprises), as well as a number of non-profit ones:

consumer cooperatives;

Public organizations;

Associations (unions);

Associations of property owners;

Cossack societies included in the relevant state register;

Communities of indigenous peoples.

In turn, legal entities whose founders do not become their participants and do not acquire membership rights in them are unitary organizations. These include state and municipal unitary enterprises (which are commercial organizations), as well as the following non-profit organizations:

Public, charitable and other foundations;

State institutions(including state academies Sciences), municipal and private (including public) institutions;

Autonomous non-profit organizations;

Religious organizations;

Public law companies.

The provisions relating to corporations (including non-commercial ones) establish uniform rights for participants and management rules (Articles 65.2 and 65.3 of the Civil Code of the Russian Federation). There is no similar general part in the norms on unitary legal entities.

A legal entity must be registered with the Unified State Register of Legal Entities in one of the organizational and legal forms provided for by the Civil Code of the Russian Federation, and no exceptions are made for non-commercial legal entities, the organizational and legal forms of which are also defined in the Code. Thus, in relation to non-profit legal entities, the principle of numerus clausus is introduced - a closed list.

The possibility of creating companies with additional liability and closed joint-stock companies has been excluded.

The list of organizational and legal forms of commercial legal entities has not undergone significant changes (clause 2, article 50 of the Civil Code of the Russian Federation). From the number possible forms business companies, an additional liability company (ALC) is excluded. In addition, there is no model of a closed joint stock company (CJSC).

From September 1, 2014, the provisions of the Civil Code of the Russian Federation on limited liability companies (Articles 87 - 90, 92 - 94) apply to ALCs created earlier, and the norms of Ch. 4 of the Civil Code of the Russian Federation on joint-stock companies. The provisions of the Law on Joint Stock Companies relating to CJSCs shall apply to them until the first amendment of the articles of association. Re-registration of previously created ALCs and CJSCs in connection with the entry into force of Law N 99-FZ is not required.

A new organizational and legal form has been created non-profit organization- association of property owners.

A partnership of real estate owners is a voluntary association of owners of immovable things (premises in a building, including apartment building, or in several buildings, residential buildings, country houses, horticultural, horticultural or summer cottages land plots etc.), created for joint possession, use and, within the limits established by law, for the disposal of property (things), which by virtue of the law is in their common ownership and (or) in common use, as well as to achieve other goals provided for by laws (Clause 1, Article 123.12 of the Civil Code of the Russian Federation).

In essence, a partnership of real estate owners is a generic concept that includes such varieties as, in particular, partnerships of homeowners (Section VI of the Housing Code of the Russian Federation) and gardening, gardening or country non-profit partnerships, whose activities are regulated federal law dated 15.04.1998 N 66-FZ "On horticultural, gardening and country non-profit associations of citizens".

The value of membership in the SRO is determined.

Prior to the adoption of Law N 99-FZ, the right to carry out certain types of activities only subject to the condition of membership in a self-regulatory organization (SRO) was provided for by separate federal laws. There were no such norms in the Civil Code of the Russian Federation, it only established the obligation to have a license in cases where statutory(paragraph 2, clause 3, article 49 of the Civil Code of the Russian Federation in the previous version). This norm was supplemented, now it states, in particular, that the right to carry out activities for which it is necessary to be a member of an SRO arises from the moment of joining this organization (clause 3, article 49 of the Civil Code of the Russian Federation).

A commercial organization pursues the extraction of profit as the main goal of its activities, and the profit received is distributed among its participants. To achieve the main goal, a commercial organization is engaged in entrepreneurial activities.

General partnership- a business partnership, the participants of which jointly and severally bear subsidiary liability for the obligations of the partnership with all their property. concept subsidiary (additional) liability in the conditions of a full partnership means that, first of all, creditors must make claims against the partnership itself, and only if these claims are not satisfied at the expense of its property, creditors can levy execution on the personal property of the participants in the partnership. concept joint duty (responsibility) means that, firstly, the participants in a full partnership are equally liable for its obligations (moreover, even if a participant is not a founder, he is on an equal footing and liable for the obligations of the partnership, including those that arose before his entry into partnership); secondly, the creditor has the right to demand the fulfillment of the obligation of the partnership both from all participants jointly, and from any of them separately, moreover, both in full and in part of the debt (the debtor who has fulfilled the joint and several obligation has the right of regressive claim to the rest of the debtors in equal shares minus the share that falls on him).

The founders of a general partnership may be individuals engaged in entrepreneurial activities, as well as commercial legal entities. The management of the activities of a general partnership is carried out by common agreement of all participants. A special management body is not created, so any of the participants in a general partnership can act on its behalf and conduct business of the partnership. Entrusting the conduct of business to one or more participants is possible only on the basis of an agreement drawn up by participants who do not wish to take part in the conduct of business.

The property of a general partnership is formed from the contributions of all participants, as well as income received and other legal sources, and belongs to all its participants on the basis of common shared ownership. This means that the property of the participants, although common, but taking into account the shares of each in proportion personal contribution in share capital partnerships. Profits and losses of a general partnership are also distributed among the participants in proportion to their share in the share capital. If, as a result of losses incurred by the partnership, the value of its net assets will smaller size cumulative capital, then the profit received is not distributed until the value of net assets exceeds the amount of cumulative capital.

To create a general partnership, it is enough to draw up a memorandum of association. The law does not provide for the existence of a charter for a general partnership. The founding agreement of a general partnership must contain: 1) the business name of the partnership, which must include the names of all participants or the name of one of the participants with the addition of the words "... and company" to it (for example: "Smirnov and company general partnership"; 2 ) the contribution of each of the participants to the share capital; 3) the nature of the distribution of profit and loss between the participants in the partnership; 4) the term of the partnership.

A participant in a general partnership is obliged to make at least half of his contribution to the share capital of the partnership by the time of its registration. The rest must be paid within the terms established by the memorandum of association. In case of failure to fulfill this obligation, the participant must pay to the partnership 10% per annum from the unpaid part of the contribution and compensate for the losses caused.

The introduction of a new participant into the composition of a general partnership, as well as withdrawal from its composition, is possible only with the consent of all participants in the partnership. A participant wishing to withdraw from a general partnership must declare this at least 6 months before the actual withdrawal from the partnership. The retired participant is paid the value of the part of the property corresponding to the share of this participant in the share capital. However, even if a participant withdraws from the general partnership, he is liable for the obligations of the partnership that arose before the moment of his withdrawal, on an equal basis with the remaining participants for two years from the date of approval of the report on the activities of the partnership for the year in which he withdrew from the partnership.

A full partnership is liquidated on a general basis or (if it is provided for by the founding agreement) in the event of the withdrawal or death of any of the participants in the partnership. The number of participants in a general partnership is usually small (from two to five). When one participant remains in the partnership, he has the right to transform it into a business company within six months.

Limited partnership (limited partnership)) - a business partnership consisting of two categories of participants: general partners who are jointly and severally liable for its obligations with their property, and contributors (limited partners) who are not liable for the obligations of the enterprise. The rights and obligations of general partners, as participants in a limited partnership, are the same as those of participants in a general partnership.

The specifics of a partnership on faith is special group members named "commandists. Limited partners are members of a limited partnership who only make a certain contribution to the joint capital of the partnership and are entitled to receive a certain share of the profits received from the activities of the partnership. By not taking part in the activities of the partnership, they only bear the risk of loss (ie the risk of losing their contribution). Investors do not have the right to participate in the management, in the conduct of business of the partnership, and they also do not have the right to challenge the actions of general partners. The investor has the right to get acquainted with the annual reports and balance sheets of the partnership. In addition, investors have the right to dispose of their contributions completely independently of general partners. The investor may transfer (sell) his share (or part thereof) in the share capital to another investor or a third party. He can withdraw from the partnership, but will receive back his contribution and interest on it only at the end of the financial year.

To create a limited partnership, it is sufficient to have at least one general partner and one contributor. The law allows the subjects of civil law relations to be a full partner of only one full partnership or only. one partnership in faith. Although paragraph 3 of Art. 82 of the Civil Code of the Russian Federation prohibits a participant in a general partnership from being a general partner in a limited partnership; there is no prohibition on his participation in a partnership as a contributor.

Just like a general partnership, a limited partnership operates on the basis of a memorandum of association (a charter is not required). The memorandum of association is usually signed by the general partners. In addition to the provisions that are provided for the foundation agreement of a general partnership, the foundation agreement of a limited partnership must contain provisions on the amount of contribution to the share capital of each of the general partners and the amount of the general contribution of the general partners with the distribution of shares; on the amount of contributions of each of the limited partners, as well as the procedure and conditions for the distribution of profits on the contributions made.

Thus, the memorandum of association is a document confirming the contribution to the share capital of the partnership and giving the right to receive profit. That is why, although the law does not oblige limited partners to sign a memorandum of association, they have the right to do so in order to ensure more reliable protection of their interests. The contribution made by the limited partner may be certified by a certificate issued to the investor by the partnership. However, such evidence does not apply to the number of securities.

A limited partnership is called a limited partnership precisely because the investor, firstly, trusts the general partners to manage their money and other property transferred to the partnership; secondly, it entrusts general partners with the right to carry out entrepreneurial activities for the purpose of making a profit. A limited partnership can be considered a kind of general partnership, in which it becomes possible to use additional capital.

A limited partnership terminates its activities either when all general partners leave it, or when all investors leave it. In the second case, the remaining general partners, instead of liquidating a limited partnership, may transform it into a general partnership. In the liquidation of a limited partnership, including in the event of bankruptcy, investors have a priority right to receive contributions from the property of the partnership after satisfying the claims of its creditors.

2. Business companies- commercial organizations that create on the basis of pooling the capital of participants. Business companies can be created in the form of:

a) limited liability companies;

b) companies with additional liability;

c) joint-stock company.

Limited Liability Company a commercial organization is recognized, the authorized capital of which is divided into shares determined by the constituent documents, and formed by one or more persons who are not liable for the obligations of this organization.

Members of a limited liability company bear only the risk of losing their share contributed to the authorized capital. At the time of the establishment of the company, each of the participants is obliged to contribute to the authorized capital of this company at least 50% of their share, the amount of which is determined by the constituent documents. The remaining part of their share, the participants are obliged to contribute during the first year of the company's activity. The size of the authorized capital of the company must be at least one hundred times the minimum wage established by federal law on the date of submission of documents for state registration of the company. In case of violation of this obligation, the company must either announce a reduction in its authorized capital, notifying its creditors about it, or terminate its activities through liquidation.

In accordance with the Law of the Russian Federation "On Limited Liability Companies" dated February 8, 1998 No. 14-FZ (as amended on March 21, 2002 No. 31-FZ), the constituent documents of a limited liability company are the charter and (if the founders are at least two ) memorandum of association. The supreme governing body of a limited liability company is the general meeting of its participants. At the same time, a collegial or sole executive body of management of the company, accountable to the general meeting of participants, may be created.

The founders of a limited liability company are not required to personally participate in its activities. A participant in a limited liability company has the right to withdraw from the company at any time, regardless of the consent of other participants, and at the same time, he must be paid the value of a part of the property corresponding to his share in the authorized capital of the company. it brings the participants together this society with the investors of a limited liability partnership, with the only difference that the participants of a limited liability company, being investors, are at the same time the founders of the company, participate in the management of its affairs and, if they wish, can participate in the activities of this company. And this already brings them closer to the participants in a full partnership.

Joint-stock company(JSC) - the most common form of economic society. A joint-stock company is an organization established on the basis of an agreement between persons who have pooled their funds by issuing shares, and which aims to make a profit. Stock securities certifying the right to receive part of the profit of the joint-stock company in the form of dividends, to participate in the management of the affairs of the joint-stock company and to part of the property remaining after the liquidation of the enterprise.

There are two groups of participants in a joint-stock company:

a) founders who are jointly and severally liable for obligations that arose before the state registration of the company;

b) shareholders (shareholders) who are not liable for the obligations of the company, but only bear the risk of POSSIBLE losses associated with the activities of the company within the value of their shares.

Since the founders are shareholders at the same time, they are also not liable for the obligations of the joint-stock company after its state registration.

The Civil Code of the Russian Federation contains only general provisions about joint-stock companies. The main regulation of the legal status of JSCs is contained in the Federal Law of the Russian Federation "On Joint Stock Companies" dated December 26

A joint stock company may be created by one or more persons (individuals or legal entities). If there are more than two founders, they must conclude a written agreement on the establishment of a joint-stock company. The decision to establish a joint-stock company must be taken by the constituent assembly unanimously. The agreement on the establishment of a joint-stock company is not a constituent document of the company. The founding document of a joint-stock company is its charter, which must also be adopted at constituent assembly unanimously.

Federal Law No. 99-FZ of May 5, 2014 (hereinafter referred to as 99-FZ) amended Chapter 4 “Legal Entities” of Part One of the Civil Code of the Russian Federation and invalidated certain provisions of legislative acts of the Russian Federation.

I. Among the innovations special place occupy:

1) refusal from September 1, 2014 from the legal form Closed Joint Stock Company(CJSC), which, according to the legislator, “did not justify themselves and almost completely duplicate LLC”;

2) introduction from September 1, 2014 of division into Public and Non-Public Societies(Article 66.3 of the Civil Code) (see Table 2)

table 2

Table 3

III. It should be noted that no amendments have been made to the JSC Law regarding the abandonment of CJSCs and the introduction of the concept of “public / non-public joint-stock companies”, as well as amendments to the LLC Law regarding “non-public companies”.

As a general rule, until laws are brought into line with the Civil Code of the Russian Federation, laws are applied to the extent that they do not contradict the Civil Code of the Russian Federation. It is to be expected that the JSC and LLC Laws will be amended.

Please note from September 01, 2014 economic societies can be created in organizational and legal form:

Joint-stock company ( JSC) (Article 87-94 of the Civil Code of the Russian Federation),

Limited Liability Company ( OOO) (Article 96-104 of the Civil Code of the Russian Federation).

Since it is not possible to create a CJSC since September 1, 2014, we will make a brief comparison JSC and LLC:

Table 4

In this way:

Now and after 09/01/2014, there is no need to change anything in the documents of existing CJSCs. This can be done when making any changes to the constituent documents in the future.

Please note that the adoption of decisions by shareholders/participants and the composition of shareholders/participants of the company who were present at its adoption, from 01.09.2014, must be confirmed by a third party - a notary or a registrar.

For an LLC, the charter can provide for another method of confirmation - signing of the protocol by all participants or part of the participants; using technical means, allowing to reliably establish the fact of the decision; in any other way that is not contrary to the law. For an LLC, it is possible to amend the charter of the company so as not to invite a notary to draw up the decision of the participants.

The nominal value of the placed preferred shares must not exceed 25% of the authorized capital of the company. The authorized capital of any joint stock company is divided into a predetermined number of shares. The number of shares to be issued must correspond to the number of these shares. All shares (common and preferred) have the same par value. A joint stock company has the right to reduce its authorized capital by reducing the value of shares or reducing their number. The actual rate of buying and selling shares may be different. It can rise and far exceed the par value of the shares, or it can fall, becoming below the par value. But in any case, the real value of a preferred share must be lower than the value of a common share.

The difference between ordinary and preferred shares is not only their real value. A common share allows you to receive income depending on the results of the production activities of a joint-stock company, and a preferred share allows you to receive income in the form of a predetermined amount. Dividends on preferred shares are paid out of the company's reserve fund. A common share gives its holder the right to vote at a general meeting of shareholders. Each ordinary share is one vote. A preferred share does not give voting rights to its holder. Therefore the cost is privileged. shares below simple. But a preferred share has one more advantage: in the event of liquidation of the enterprise (after satisfying the requirements of creditors), payments of accrued but not paid dividends are first made to holders of preferred shares, and then to holders of ordinary shares. The rights of shareholders - owners of ordinary and preferred shares - are set out in detail, respectively, in Art. 31 and 32 of the RF Law "On Joint Stock Companies".

The supreme governing body of a joint-stock company is the meeting of shareholders. At the meeting of shareholders, the executive body of the company is elected by a majority of three-quarters of votes, which can be collegiate (board, directorate) or sole (director). In a joint-stock company with more than fifty shareholders, a board of directors (supervisory board) is created. The director of the joint-stock company carries out the current management of the company and is accountable to the board of directors and the meeting of shareholders.

The charter of a joint-stock company may establish restrictions on the acquisition of ordinary shares. The acquisition by one person of 30 percent or more of the company's ordinary shares is allowed by decision of the general meeting of shareholders. A person who intends to acquire 30 percent or more of shares is obliged to send a written application to the company no later than 30 days before the date of acquisition of shares.

Reorganization and liquidation of a joint-stock company may take place in the manner prescribed by civil law. A joint stock company has the right to be transformed into a limited liability company, a business partnership or a production cooperative.

Business companies may have subsidiaries and dependent companies with the rights of a legal entity.

Society is recognized child , if another (main) economic company, by virtue of the predominant participation in its authorized capital or in accordance with the agreement concluded between them, has the ability to determine the decisions made by such a company.

Society is recognized dependent , if another (predominant) company has more than 20% of the voting shares of the first company. The subsidiary is not liable for the debts of the parent company. The parent company, which has the right to give obligatory instructions to the subsidiary, is jointly and severally liable with the subsidiary for its transactions. In case of insolvency (bankruptcy) of a subsidiary due to the fault of the main company, the latter bears subsidiary liability for its debts.