Article 50 of the Civil Code of the Russian Federation:

1. Legal entities may 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).

2. Legal entities that are commercial organizations, can be created in the form business partnerships and companies, production cooperatives, state and municipal unitary enterprises.

3. Legal entities that are non-profit organizations, can be created in the form consumer cooperatives, public or religious organizations (associations), institutions, charitable and other foundations, as well as in other forms provided by law.

Non-commercial organizations can carry out PD only insofar as it serves the achievement of the goals for which they were created, and corresponds to these goals.

4. Creation of associations of commercial and (or) non-commercial organizations in the form of associations and unions is allowed.

PrD is carried out by persons registered in the manner prescribed by law (registration is constitutive, has legal significance as a legal fact, on the basis and from the moment of which a legal entity arises and acquires the corresponding status of an individual entrepreneur).

Order state registration of the subjects of the DRP is determined Federal Law No. 129-FZ of 08.08.2001 “On state registration of legal entities and individual entrepreneurs” (regulates relations arising in connection with state registration of legal entities during their creation, reorganization, liquidation, amendments to their constituent documents, in connection with state registration of a f / l as an individual entrepreneur and state registration upon termination of a f / l of activity as an individual entrepreneur, in connection with the maintenance of state registers - the Unified State Register of legal entities and the Unified State Register of IP).

Depending on whose will and how, the subjects of PP are created, it is customary to single out:

founding-administrative way – used to create state and municipal unitary enterprises, which are created on the basis of a decision on their establishment, adopted by the Government of the Russian Federation, a federal executive body, an authorized body state power a constituent entity of the Russian Federation or a local self-government body in accordance with the acts defining the competence of such bodies;

constituent, contractual-constituent method - it is used when creating commercial organizations by one participant, as well as when acquiring the status of an individual entrepreneur;

constitutive method - used when creating commercial organizations with several participants.

permissive-constituent way - involves the coordination of the creation of a subject of entrepreneurial law with a state body (the Central Bank of the Russian Federation, the Federal Antimonopoly Service and others).

Creation of a legal entitystarts from the choice by the founders of its organizational and legal form, the development of constituent documents, which are the legal basis for the activities of the organization along with the norms of the current legislation. The composition of the constituent documents for different types legal entities is different: limited or additional liability companies operate on the basis of a memorandum of association and a charter. The legal basis for the activities of business partnerships is the founding agreement. For other commercial organizations, the charter is provided as the only constituent document. The constituent agreement of a legal entity is concluded, and the charter is approved by its founders. A legal entity created by one founder acts on the basis of the charter approved by him.

At the first stage, in addition to the development of draft constituent documents, the organization's founders are recruited, the size of the organization's authorized (reserve) capital (fund) is determined, and, if necessary, the monetary value of the founders' contributions in the form of material assets, the transfer of property rights and the right to use intellectual property. The decision to establish an organization, the approval or signing of constituent documents, the election of the management team and the adoption of decisions on other necessary issues, as a rule, takes place at the constituent assembly. The minutes of the constituent assembly is a document fixing these actions. In the case when the founder of the organization is one person, the relevant questions are drawn up by the decision of the founder.

At this stage, the formation should also begin authorized capital a limited liability company, a unit fund of a production cooperative, the share capital of the partnership can be formed. Thus, the founders of a limited liability company are required to pay at least 50% of the authorized capital at the time of state registration of the company. Payment for the authorized capital of a joint-stock company and the authorized fund of state and municipal unitary enterprises is made after their state registration.

The main stages of the creation of the subjects of the DRP:

1) Commercial organization founders(a business company can be created by 1 person; the founder of a business company cannot be another business company consisting of 1 person; the number of shareholders of a CJSC should not exceed 50 (otherwise - transformation into a JSC or liquidation); general partners in general partnerships and limited partnerships may be IP and commercial organizations, participants in business partnerships and contributors in limited partnerships - citizens and legal entities).

2) Organizational and legal form(the founders can create a commercial organization in any organizational and legal form, except for cases established by law (legislative acts establish prohibitions or restrictions; requirements for the conduct of certain types of activities by organizations created in certain organizational and legal forms).

3) Constituent documents(depending on the chosen organizational and legal form, the constituent documents may be - the charter (( unitary enterprises, cooperatives, JSC); memorandum of association and articles of association (LLC and ALC); memorandum of association (partnership)).

Memorandum of association (obligation to create a legal entity, determination of the order joint activities on its creation, the conditions for transferring its property to it, the procedure for distributing profits and losses, the procedure for managing activities, the withdrawal of participants from its composition).

Charter - establishes the legal status of the organization - the organizational and legal form of the commercial organization, its name, location, size of the authorized capital, the responsibility of the participants for violation of obligations to pay the authorized capital, the composition and competence of the management bodies, the procedure for making decisions by them are determined; goals and subject of activity are defined).

4) Name of commercial organization(should contain an indication of its organizational and legal form; an indication of the nature of the activity should be present only in the names of unitary enterprises, as well as in other cases provided for by law; a special procedure for including the words "Russia", "RF" and the words formed on their basis and phrases) (the right to a company name is equated in the legal regime with intellectual property).

5) Location of the organization(the location of the legal entity is determined by the place of its state registration, which is carried out at the location of its permanent executive body).

6) Formation of authorized (share) capital, authorized (share) fund:

a) business companies - authorized capital(the totality of contributions (shares, shares at par value) of the founders (members) of the organization registered in the constituent documents; represents the monetary value of the totality of contributions made by the participants);

b) business partnerships - share capital(is not a minimum guarantee of the rights of creditors; the amount is established in the memorandum of association when creating a partnership);

in) production cooperatives - share fund(formed at the expense of share contributions, assessed during the formation of a cooperative by mutual agreement of its members on the basis of prices prevailing on the market, upon entry of new members - by a commission);

G) state and municipal enterprises on the right of economic management - statutory fund(the size is determined by the owner of the enterprise; must be fully formed within 3 months from the date of state registration; is indivisible, cannot be distributed among deposits (shares, shares)).

Authorized (share) capital, authorized (share) fund may be formed at the expense of money, securities, other things, property and other rights that have a monetary value (in some cases, the evaluation must be carried out by an independent appraiser).

7) State registration(carried out by the Federal Tax Service of the Russian Federation; term - no more than 5 working days; documents are submitted (application, decision on creation, constituent documents, extract from the register of foreign legal entities, document on payment of state duty) (decision on state registration - the basis for making an entry in the relevant state register (the moment of entry into the register is the moment of state registration).

Registration with the tax authority carried out simultaneously with the state registration.

Registration with state social funds (within 5 days from the date of registration, the registering authority provides information on registration to state bodies according to the list determined by the Government of the Russian Federation; funds carry out registration; control over the correct calculation and payment of UST is carried out by tax authorities).

Denial of state registration is allowed in cases (failure to submit the necessary documents; submission of documents to an improper registration authority; if the founder of the legal entity is a liquidated legal entity or if the legal entity arises as a result of the reorganization of a liquidated legal entity).

8) Prints(the company must have a round seal containing its full company name in Russian and an indication of its location; it is possible to indicate the name in a foreign language or the language of the peoples of the Russian Federation; a special procedure has been established for reproducing the State Emblem of the Russian Federation).

9) Registration with statistical authorities(when identifying a legal entity, the codes assigned to it during registration by the Federal State Statistics Service (OKVED, OKOGU, OKATO, OKONH, OKFS, OKOPF) are used).

10) Opening a bank account(an account is opened upon submission of an application, a copy of the certificate of registration and constituent documents, signature samples of the head and chief accountant and a seal; within 10 days from the date of opening the account, the organization is obliged to report this to the tax authority).

One of the main conditions for the implementation of the PD is its legitimacy , that is, state confirmation of the legality of the rights and powers of subjects of PD, their entry into economic circulation. The word "legitimate" comes from the Latin legitimus, meaning "legitimate, in accordance with the law or constitution." Legitimation, respectively, can be defined as the process of acquiring a legal status by the subject of law, which consists in the totality of his rights and obligations.

Just as citizens - individuals are individualized according to their place of residence and their name, the individualization of a legal entity, i.e. its selection from the mass of all other organizations is carried out by determining its location and assigning a name to it.

The exact location of the legal entity is important for correct application to him acts of local authorities, filing claims, fulfilling obligations, etc. The location of a legal entity is determined by the place of its state registration (clause 2, article 54 of the Civil Code of the Russian Federation). When determining the location of a legal entity, it is necessary to be guided by the norms of the Law on State Registration of Legal Entities and Individual Entrepreneurs. It should be noted that the place of state registration is not a specific address or name of the registration authority; the place of state registration is the territory of the corresponding subject of the Russian Federation. At the same time, during state registration, a specific address is indicated, which is understood as the location of the permanent executive body, at which communication with the legal entity is carried out. When changing the location of the executive body of a legal entity, its re-registration is allowed.

It is not allowed to register legal entities at the addresses of residential apartments, since, in accordance with paragraph 3 of Art. 288, paragraph 2 of Art. 671 of the Civil Code of the Russian Federation, residential premises can only be used for living of citizens.

Legal entity that is a commercial organization, must have brand name. The procedure for its state registration and use is determined by law and other legal acts (Article 54 of the Civil Code of the Russian Federation). However, there is no special law on the procedure for registering company names in our country, so company names are registered as part of the constituent documents of a legal entity. The company name of a legal entity must necessarily include an indication of its organizational and legal form. The trade name refers to the objects of exclusive rights, therefore, it cannot be repeated. At the same time, the use of the same name is not a violation of exclusive rights. legal entities having different organizational and legal forms.

Currently created Unified State Register of Legal Entities (EGRLE), which is a federal information resource. This register is maintained Federal Tax Service of the Russian Federation simultaneously on paper and electronic media. It would seem that in such a Register, registration of identical company names in different subjects of the Russian Federation is excluded. However, today the tax authorities do not require applicants to provide certificates of verification of the novelty of the company name, so the emergence of a large number of duplicate organizations is quite possible.

The current legislation does not allow refusal of state registration of a legal entity on the grounds of the inappropriateness of its creation (clause 1, article 51 of the Civil Code of the Russian Federation). This approach is used in most cases. It is called the normative registration procedure, i.e. registration of a legal entity does not require the consent of third parties, including government agencies. When registering, the constituent documents of a legal entity should only be checked for compliance with the requirements of the current legislation of the Russian Federation. But, unfortunately, now the registration authorities have actually withdrawn from checking documents for compliance with regulations.

In some cases, the state registration of a legal entity is carried out according to a complicated procedure. For example, due to the fact that the creation of a unitary enterprise is directly related to the allocation of state or municipal property to it, an appropriate order of a state authority or LSG is required. Therefore, unitary enterprises are created not in a regulatory, but in an administrative order.

Some legal entities require (as opposed tolegal registration ) consent of public authorities or third parties . Thus, a credit institution is registered after the decision of the Central Bank of the Russian Federation on the possibility of issuing a license (permit) to carry out banking operations.

The term of state registration is 5 working days , the powers to carry out registration actions belong to the tax authorities. For state registration of a legal entity an application is submitted in a unified form. It confirms that the constituent documents submitted for registration comply with the requirements established by law, are reliable, and that the procedure for creating a legal entity of this organizational and legal form has been followed (the required approvals have been received, the authorized capital has been paid, etc.).

The applicant for state registration is an individual whose signature on the application must be notarized. For example, the applicant may be one of the founders, the head of the executive body of the founding organization, a general partner, if a business partnership is being created.

The application shall be accompanied by a decision to establish a legal entity in the form of a protocol or agreement, constituent documents, an extract from the register of foreign legal entities of the respective country of origin, if one of the founders is a foreign organization. For registration actions, a state fee of 2 thousand rubles is charged, and if changes are registered in the constituent documents or the liquidation of a legal entity - in the amount of 400 rubles. (Article 333.33 of the Tax Code of the Russian Federation).

Legal basis for the activities of a legal entity - its constituent documents, the composition of which is different for different types of organizations. Organizations operating on the basis of one constituent document - charter, are joint-stock companies, production cooperatives (artels), state and municipal unitary enterprises (statutory organizations). Organizations acting solely on the basis of memorandum of association, are business partnerships - a general partnership and a limited partnership (contractual organizations). Legal entities that have both a charter and a memorandum of association include LLCs and ALCs (charter-contractual organizations).

Commercial are those who pursue profit as the main goal of their activities.

Non-Profit Organizations do not set as their goal the extraction of profit and its distribution among the participants.

Commercial organizations can be created in the form of:

• business partnerships and companies;
• production cooperatives;
• state and municipal unitary enterprises.

Business partnerships and companies, in turn, exist in the following forms:

• general partnership;
• limited partnership (limited partnership);
• limited liability company;
• additional liability company;
• joint-stock company(open and closed);
• subsidiaries and affiliates.

Complete a partnership is called, the participants of which (general partners) are engaged in entrepreneurial activities and are liable with their property. Profits and losses of a full partnership are distributed among its participants in proportion to their shares in the total, share capital.

Limited partnership (limited partnership) a partnership is called a partnership in which, along with general partners, there are one or more contributors (limited partners) who bear the risk of loss only within the limits of the amounts they have contributed and do not take part in entrepreneurial activity this partnership. Limited partners receive a part of the profits of the partnership due to their share in the share capital.

AT limited liability company its participants bear the risk of losses only to the extent of the value of their contributions.

AT additional liability company its participants are liable in the same for all multiples of the value of their contributions. In case of bankruptcy of one of the participants, its liability is distributed among the others in proportion to their contributions.

Joint-stock company- a company whose authorized capital is divided into a certain number of shares. Shareholders bear the risk of loss only to the extent of the value of their shares.

Public corporation has the right to conduct an open subscription and sale of shares issued by it.

Closed Joint Stock Company A joint-stock company is called, the shares of which are distributed only among its founders.

Subsidiary business company is a company whose capital does not prevail in the authorized capital of the whole company. Therefore, it does not have the ability to determine the decisions of this society. The subsidiary is not liable for the debts of the parent company.

The status of a dependent company implies a situation in which the parent company has more than 20% of the voting shares of the JSC.

A production cooperative is a voluntary association of citizens for joint production or other activities based on their personal labor and the pooling of their share contributions.

A unitary enterprise is a commercial organization that does not have the right of ownership to the property assigned to it by the owner. Only state and municipal enterprises are created in the form of unitary enterprises.

Non-Profit Organizations can be created in the form of consumer cooperatives, public or religious organizations, charitable and other foundations.

consumer cooperative called a voluntary association of citizens on the basis of share contributions in order to meet material and other needs. Income of consumer cooperatives from entrepreneurial activity is distributed among its members.

Public and religious organizations are voluntary associations of citizens on the basis of their common interests to meet spiritual or other non-material needs. They are non-commercial, but can carry out entrepreneurial activities only to achieve the goals for which they were created (for example, candles, crosses, chains in churches, etc.).

Members of these organizations have no right to the property of these organizations.

Fund is a non-profit organization established on the basis of voluntary property contributions, which has social, charitable, cultural, educational or other goals. The Foundation may engage in entrepreneurial activities necessary to achieve the socially beneficial goals for which it was created.

Commercial and non-commercial organizations may form associations and unions.

Depending on the differences in legislative regulation related to the forms of ownership, as well as the characteristics of the organization, legal entities are divided as follows (Fig. 1).

Rice. one.

First of all, legal entities are divided into commercial and non-commercial organizations.

Commercial organizations are recognized as pursuing profit as the main goal of their activities and having the right to distribute this profit at their own discretion among the participants.

Non-profit organizations do not have the primary purpose of making a profit; their main task is to achieve the statutory goals. At the same time, they do not have the right to distribute the profits received among the participants at their own discretion.

Commercial organizations are created in the form of business partnerships, business companies, production cooperatives, state and municipal enterprises.

Non-profit organizations are created in the form of consumer cooperatives, public and religious organizations and associations, institutions and various foundations.

Non-commercial organizations can engage in entrepreneurial activity only if it corresponds to the statutory goals and contributes to their achievement.

Commercial and non-commercial organizations jointly or separately may form associations and unions.

First, we characterize the main forms of commercial organizations.

Business partnership - it is a commercial organization with a common (so-called share) capital divided into shares of participants. The property that is created at the expense of the contributions of the participants, as well as the property produced and acquired by the partnership in the course of its activities, belongs to it by the right of ownership.

Business partnerships are created in the form of general partnerships and limited partnerships (limited partnerships).

General partnership - one in which the participants (they are called "general partners"), in accordance with the agreement concluded between them, are engaged in entrepreneurial (commercial) activities on behalf of the partnership and are liable for its obligations with all their property. Profits and losses are distributed among general partners, as a rule, in proportion to their shares in the share capital. Agreements to eliminate any of the participants from participation in profits or losses are not allowed. The partners are jointly and severally liable for the obligations of the partnership.

Faith partnership, or limited partnership, one in which, along with general partners conducting entrepreneurial activities on behalf of the partnership and liable for its obligations, there is one or more participants who have made contributions, but are not liable for the obligations of the partnership with their property and are not participating in its entrepreneurial activities. These special participants (they are called limited partners) bear the risk of losses associated with the activities of the partnership, only within the limits of their contributions. As for general partners, they act and bear responsibility according to the rules for general partnerships.

Participants in general partnerships and general partners in limited partnerships can be either individual entrepreneurs, and commercial organizations, but individuals and legal entities can be contributors to limited partnerships.

An individual or legal entity may be a participant in only one general partnership, as well as a general partner in a limited partnership.

Economical society is a commercial organization with a common (so-called authorized) capital divided into contributions of the founders. The property that is created at the expense of the contributions of the participants, as well as produced and acquired by the company in the course of its activities, belongs to it by the right of ownership.

Business companies are created in the form of joint-stock companies, limited liability companies and additional liability companies.

Joint-stock company - such, the authorized capital of which is divided into a certain number of shares.

Stock - a security that gives the right to receive a certain share of profit (dividend).

Members of a joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses on the company's activities only to the extent of the value of their shares.

The founders of a joint-stock company conclude an agreement in writing between themselves (the so-called memorandum of association), which determines the procedure for creating a company, the size of its authorized capital, the shares of participants, the nature and value of shares.

Joint-stock companies are divided into open (JSC) and closed (CJSC).

Open Societies - those in which participants can freely, without the consent of other shareholders, sell their shares. An open society conducts an open subscription to the shares it issues and puts them on free sale.

Closed societies - those in which the shares are distributed only among its founders or other pre-established narrow circle of persons. Members closed society have a pre-emptive right to purchase shares sold by other members of the company. The number of participants in a closed society should not exceed fifty people.

Limited Liability Company - such, the authorized capital of which is divided into shares determined by the constituent documents. Having contributed his share, a member of the company receives the right to receive a certain part of the profit. The participants of the company are not liable for its obligations and bear the risk of losses on the activities of the company within the limits of their contributions. The number of participants in a limited liability company must not exceed fifty people.

Additional Liability Company operates under the same general rules as a limited liability company. The difference lies in the fact that the participants in this society are jointly and severally liable for its obligations with their property in the same multiple for all of the value of their contributions. This means, in particular, that in the event of the bankruptcy of one of the participants, his liability is distributed among the other participants in proportion to their contributions.

Limited companies and companies with additional liability do not issue shares. Members of companies of all forms can be both individuals and legal entities.

State bodies and local self-government bodies do not have the right to be participants in economic companies and investors in limited partnerships.

Contributions to the property of business partnerships and business companies are money, securities, things, property or other rights having a monetary value.

Participants of business partnerships and business companies have the right to:

Participate in the management of a partnership or company, having, when making decisions, the number of votes proportional to its share in the share capital or the number of shares or shares in the authorized capital;

Participate in the distribution of profits;

In the event of liquidation of the organization, receive their share of the property remaining after settlements with creditors;

Get all the information about the state of affairs in the organization and get acquainted with its accounting and other documents.

Participants of business partnerships and business companies are obliged to:

On time and in in due course make due contributions;

Do not disclose confidential commercial and other information.

From all of the above, it follows that the main difference between business partnerships and business companies is due to the fact that, in essence, partnerships are associations of persons, and companies are associations of capital.

The association of persons in a partnership presupposes their personal participation in its affairs and, above all, in its entrepreneurial activity. To do this, the participant must be registered as a commercial organization or individual entrepreneur. Hence the requirement to be a member of only one partnership, as well as the fact that the partnership is not entitled to include non-profit organizations or citizens who are not engaged in entrepreneurial activities.

As for business companies, the pooling of capital in them does not provide (although it does not prohibit) the personal participation of founders, participants, shareholders in the commercial entrepreneurial activities of the organization. Hence, simultaneous participation in several companies, and not only entrepreneurs, is possible.

The most important difference between partnerships and companies is that the participants in partnerships (except for limited partnerships) bear full, unlimited liability for their obligations, debts with all their property. In companies, the participants are not liable for debts, but only bear the risk of losses within the limits of their contributions (the only exception is companies with additional liability).

It is worth noting that the impossibility of answering with the same property for the debts of several organizations is another explanation for the fact that the law prohibits the participation of one person in several partnerships.

Production cooperative(or artel) is a voluntary association of individuals and legal entities on the basis of membership for a joint production or other economic activity involving personal labor and other participation.

Members of a production cooperative make share contributions established by the charter, which, together with earned property, constitute the property of the cooperative. A certain part of this property is formed by indivisible funds. A member of a cooperative can withdraw from it at will at any time. At the same time, he can receive the share due to his share from the part of the cooperative property remaining after the allocation of indivisible funds from it. Members of a production cooperative shall bear certain personal responsibility for its obligations, provided for by law and the charter of the cooperative. The profit of the cooperative is distributed among its members, as a rule, in accordance with their labor contribution. The number of members of the cooperative must be at least five. This is the minimum from which the artel can work fruitfully.

Unlike business partnerships and business companies, a cooperative brings together citizens who participate in its activities through personal labor. At the same time, the size of the share contribution does not affect the number of votes attributable to its owner when making management decisions and on the profit share they receive: each member of the cooperative has one vote, and the profit is distributed among the members of the cooperative in accordance with their labor contribution.

Commercial organizations - state and municipal enterprises are created in the form of so-called unitary enterprises.

unitary enterprise- this is an organization that is not endowed by the owner with the right to property transferred by him to the enterprise. The property of a unitary enterprise is indivisible. It cannot be divided by contributions, shares or shares (including between employees of the enterprise). The state or municipal property transferred to a unitary enterprise may belong to this enterprise on the right of economic management or on the right operational management which have already been discussed. The owner of the property of a unitary enterprise based on the right of economic management (the state) is not liable for the obligations of this enterprise, and the unitary enterprise is not liable for the obligations of the owner. A unitary enterprise based on the right of economic management is liable for its obligations with all its property.

Unitary state enterprises based on the right of operational management, created on the basis of federal property, are called state-owned enterprises. These are enterprises of the defense complex, communications enterprises, enterprises that print money, etc.

The right of operational management, more than the right of economic management, limits the independence of the enterprise, its commercial opportunities. But the state is responsible for its obligations.

The main criterion by which legal entities are classified in Russian legislation is established in Art. 50 of the Civil Code, which considers commercial and non-profit organizations.

Both groups are full-fledged participants in civil circulation. However, there are significant differences between them, which determine the special legal status of each.

The concept and main features of commercial organizations

The law does not contain the concept of a commercial organization, close to scientific, but its main features are formulated in Art. 48, 49 of the Civil Code, as well as in parts 1 and 2 of Art. 50 GK.

Signs of commercial organizations:

• The main objectives of the activities of such legal entities are to make a profit. This means that the charter of the organization must contain a corresponding provision. Officials may pay attention to its presence or absence during registration. His absence serves as a basis for denial of it.
• Commercial organizations, as a rule, have a general legal capacity. This means that such legal entities have legal grounds for engaging in any type of non-prohibited activity. The exception is municipal and state unitary enterprises. They can carry out activities within the framework of the purposes for which they were created. Legislation governing the position of market participants in various fields economy, can also set limits. Examples can be found in the financial sector. Organizations performing the functions of banks or insurance companies may not engage in other activities.
• Mandatory state registration. Only after that the legal entity becomes a participant in civil circulation.

The concept of a commercial organization

The characteristic of commercial organizations according to the main features allows us to formulate the concept of this legal entity.

A commercial organization should be understood as a legal entity, main goal which is the extraction of profit, capable, as a rule, of carrying out any activity not prohibited by legal norms.

The concept and main features of non-profit organizations

The above articles of the Civil Code contain a description of commercial and non-profit organizations. This classification makes it possible to distinguish the latter by a number of features.

• The main distinguishing feature is the purpose of establishing non-profit organizations. Such a structure performs other functions than a commercial legal entity and they are not related to making a profit. Humanitarian, social, political and other aspirations can serve as goals.
• Nonprofit organizations have limited legal capacity. It is determined by the purpose of creation. At the same time, entrepreneurial functions that meet this requirement are also possible.
• Another sign is the inability to distribute profits among the founders. If there is one, it serves as an additional financial basis for achieving the goals for which such an organization was created.
• Special organizational and legal forms. As in the case of commercial legal entities, there is a closed list that defines the types of these organizations.
• To start activities, state registration is required. In some cases, it is much more complex and involves large quantity necessary actions. An example is the registration of political parties carried out in the Ministry of Justice.

The concept of a non-profit organization

The provisions of the law characterizing these legal entities, allow us to derive the most complete concept.

Non-profit organizations should be understood as duly registered legal entities of certain organizational and legal forms, the goals of which are to achieve results in the public, humanitarian, political and other spheres that are not related to making a profit, capable of performing functions within the specified framework and not distributing the received financial resources between founders.

How to distinguish a for-profit organization from a non-profit?

Such a classification of legal entities can be carried out according to their main features.

The characteristics of for-profit and non-profit organizations paint a clear picture of how one differs from the other.

Differences can be found in the text of the founding document. Comparison of their initial sections will help establish the goals of creating organizations. The difference will be in the presence or absence of profit making as the main one.

However, not every citizen has access to documents of organizations. In this case, types of organizational and legal forms will help. It is by their name that the organization can be classified as commercial or non-commercial.

Forms of commercial organizations

The list of types of commercial organizations is given in Part 2 of Art. 50 GK. These include:

• Economic companies. This is the most common form. Among them there are joint-stock companies, including public and non-public (PJSC and CJSC, respectively) and limited liability companies.
• production cooperatives. Their peak came in the perestroika years. However, today it is a rare type of commercial organization.
• Economic partnerships, which are even rarer than production cooperatives.
• Business partnerships.
• Municipal and state unitary enterprises.
• Peasant (farming) farms.

Forms of non-profit organizations

Legislation provides a large number of forms of such legal entities (part 3 of article 50 of the Civil Code). Therefore, it is easier to act by elimination method.

Non-commercial organizations should include all legal entities that are not related to commercial ones. In practice, one often encounters forms such as political parties, funds, public organizations, consumer cooperatives, HOA, bar associations and education.

Creation of a legal entity or subdivision Semenikhin Vitaly Viktorovich

Differences in the forms of commercial legal entities

As a result of the implementation of fundamental changes in political and economic life Russian Federation, as well as as a result of the constant, minute-by-minute dynamics of development and improvement of the legal system in the conditions of the current democratic state, there have been and continue to be significant changes in property relations and organizational and legal forms commercial activities.

Describing the features of the legal status of certain types of legal entities, Russian civil law uses such concepts as:

– type of legal entity;

- the form of creation of a legal entity;

- organizational and legal form of a legal entity.

An analysis of the norms of Chapter 4 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) "Legal Entities" allows us to conclude that these three concepts are used as synonyms. Despite the fact that the content and scope of these terms are not officially defined, in our opinion, it seems possible, when considering the issue of certain types of legal entities, to analyze the features of their organizational and legal forms. AT scientific literature the organizational and legal form is understood as a type of legal entity that differs from another type in the way of creation, the amount of legal capacity, the management procedure, the nature and content of the rights and obligations of the founders (participants) in relation to each other and the legal entity.

Article 50 of the Civil Code of the Russian Federation distinguishes all legal entities into commercial and non-commercial. There are many classifications of legal entities for various reasons, but this division is well-known and generally accepted, even, to some extent, fundamental. According to paragraph 1 of Article 50 of the Civil Code of the Russian Federation, legal entities may be organizations that pursue profit making 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 participants (non-profit organizations). Main criterion distinctions in this case- the main purpose of the activity and absolutely does not matter either the form of ownership, or the legal form, or other circumstances.

In accordance with paragraph 2 of Article 50 of the Civil Code of the Russian Federation, legal entities that are commercial organizations can be created in the form of:

– business partnerships and companies;

– production cooperatives;

– state and municipal unitary enterprises.

Let us dwell in more detail on the above forms of commercial legal entities and analyze the main points that you should pay attention to when comparative characteristic data forms of commercial organizations.

In accordance with the Civil Code of the Russian Federation, there are two types of business partnerships: a general partnership and a limited partnership.

The participants in the partnership as a whole are obliged to directly participate in its activities, as a result of which this activity is a joint action of the participants in the partnership, they actually conduct independent business activities on behalf of the partnership. And, in part, therefore, only individual entrepreneurs can be participants in general partnerships, since only these persons have the right to engage in entrepreneurial activities. In accordance with paragraph 1 of Article 69 of the Civil Code of the Russian Federation, a partnership is recognized as a full partnership, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with their property. The status of a general partnership is most suitable for commercial organizations with a small number of participants. The minimum number of participants is two, the maximum is unlimited.

A limited partnership is, in accordance with paragraph 1 of Article 82 of the Civil Code of the Russian Federation, such a partnership, which includes two types of participants:

- one or more general partners who carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with all their property (as in a full partnership);

- and one or more contributors who do not participate in the management of the partnership and bear the risk of losses associated with the activities of the partnership only within the limits of the amounts of their contributions.

A limited partnership is also called a limited partnership, and contributors are called limited partners.

As in a general partnership, in a limited partnership, strict control is exercised over the change in the composition of general partners. A limited partnership, like a general partnership, may be liquidated by decision of its participants or by a court decision. In addition, a limited partnership is subject to liquidation upon the retirement of all investors participating in it.

The main disadvantage of a partnership seems to be the liability of its members. Due to these circumstances, it is preferable to create partnerships in areas of entrepreneurial activity that are inherently associated with low risk, mainly business partnerships are a form for small businesses.

A voluntary association of citizens on the basis of membership for joint production or other economic activities is called a production cooperative or artel. The production cooperative operates in accordance with the law, including the Federal Law of May 8, 1996 No. 41-FZ “On Production Cooperatives” and its founding document, which for the artel is the charter approved by all members of the cooperative. Like business partnerships, a production cooperative is an association of persons and their property shares, and involves the personal participation of its members in the activities of the cooperative. Unlike business partnerships, which have a simple and flexible management scheme, direct management of the cooperative's activities is entrusted to its executive bodies - the board and its chairman. The supreme governing body of the cooperative is general meeting its members, the exclusive competence of which includes the solution of the most basic and essential organizational issues.

A production cooperative may, like a business partnership, be liquidated by a decision of its members or by a court decision.

The most popular today are commercial organizations such as business companies. In practice, they are often confused with business partnerships. Meanwhile, an integral feature of any partnership is the direct participation in its activities of the persons who founded the partnership, while the property of the founders (their capital) is combined in the company. There may not be a union of the property of the founders (we are not talking about the share capital, but other property). Along with this, the participants in the company, in parallel with the pooling of their capitals, may or may not take part in its activities.

Business companies are classified into limited liability companies, additional liability companies and joint-stock companies. Their activities are regulated, among other things, by special laws: Federal Law No. 14-FZ of February 8, 1998 “On Limited Liability Companies” and Federal Law No. 208-FZ of December 26, 1995 “On Joint Stock Companies”.

Commercial organizations established by one or more persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents, are called limited liability companies (LLC) or additional liability companies (ALC). What is the fundamental difference, you ask? And the difference is just obvious! The difference lies in the scope of responsibility of the participants in these economic companies. Members of a limited liability 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 contributions. And the participants in a company with additional liability jointly and severally bear subsidiary liability for its obligations with their property in the same multiple for all to the value of their contributions, determined by the constituent documents of the company. In addition, in the event of bankruptcy of one of the participants, his liability for the obligations of the company of such organizational and legal form is distributed among the remaining participants in proportion to their contributions, unless otherwise established by the constituent documents. That is, the founders of a limited liability company are not liable, unlike the participants in a company with additional liability, for its obligations - their risk is limited only to the loss of property contributed as a contribution to the authorized capital of such a company.

However, please note that the amount of liability of participants in a company with additional liability is still limited: it does not concern all of their property, which is typical for general partners, but only part of it - the same multiple for all participants in the amount of their contributions. From this point of view, this society occupies, as it were, an intermediate position between societies and partnerships.

It makes sense to create limited liability companies to carry out activities involving significant risk. Among the advantages of this form of commercial organizations for those who create it are:

- the ability of members of the company to take a direct part in its entrepreneurial activities;

– limited quantitative composition participants and the ability to control changes in their composition;

- lack of liability for the obligations of the company (as general rule) and risk limited to the extent of the equity interest assumed.

Joint-stock companies are companies whose authorized capital is divided into a certain number of shares. Members of a joint-stock company are called shareholders. They are not liable for the obligations of the company and bear the risk of losses associated with its activities, within the value of their shares.

Depending on the procedure for the distribution of shares and the circle of persons between whom this distribution takes place, two types of joint-stock companies are distinguished:

– open joint stock company (OJSC);

– Closed Joint Stock Company (CJSC).

Joint-stock companies are recognized as open, the participants of which can alienate their shares without the consent of other shareholders (clause 1 of article 97 of the Civil Code of the Russian Federation; clause 2 of article 7 of the Federal Law of December 26, 1995 No. 208-FZ "On Joint-Stock Companies"). Such a joint-stock company has the right to conduct an open subscription for shares issued by it and their free sale on the terms established by law and other legal acts.

Joint-stock companies are recognized as closed, the shares of which are distributed only among the founders or other predetermined circle of persons (paragraph 2 of article 97 of the Civil Code of the Russian Federation; paragraph 3 of article 7 of Federal Law No. 208-FZ of December 26, 1995 "On Joint-Stock Companies"). Such a company is not entitled to conduct an open subscription for shares issued by it or otherwise offer them for purchase to an unlimited number of persons.

We also note that the legislator determines maximum amount participants included in the joint-stock company closed type. Clause 3 of Article 7 of Federal Law No. 208-FZ of December 26, 1995 “On Joint Stock Companies” states that the number of shareholders of a closed company should not exceed fifty. If the number of shareholders of a closed company exceeds the established limit, the said company must be transformed into an open company within one year. If the number of its shareholders is not reduced to the limit established by law, the company is subject to liquidation in a judicial proceeding. The number of shareholders of an open joint stock company is not limited.

For doing business in the field of small and medium-sized businesses, the most preferred organizational and legal forms of commercial organizations and enterprises are a closed joint-stock company and a limited liability company.

These forms of business entities have much in common, including:

- the same procedure and conditions for conducting economic and financial activities and taxation;

- the same amount of the minimum authorized capital (at least one hundred times the minimum wage established on the date of submission of documents for state registration of the company) and the procedure for its formation;

- the same restrictions on the number of founders (from one to fifty persons, both legal entities and individuals).

But there are fundamental differences that should be taken into account when choosing between these two organizational and legal forms. We are talking about greater protection of the property interests of a member of a limited liability company in comparison with the shareholders of a closed joint stock company. When leaving a limited liability company, its participant is paid the actual value of his share in the property (determined on the basis of data financial statements) in cash or, with the consent of the withdrawing participant, he is given in kind property of the same value. In a closed joint-stock company, property and assets can be distributed among shareholders only in the event of its liquidation, and the exiting shareholder has the right to sell his shares at a market value that, despite a significant amount of net assets this society, may be quite small. On the other hand, these circumstances make the closed joint-stock company itself as a whole, in comparison with a limited liability company, more secure, due to the lower probability and possibility of “pulling away” the property of the company by the outgoing shareholders “in pieces”.

From the point of view of the prevailing psychological and everyday perception of a limited liability company and a closed joint-stock company as subjects of market relations, a closed joint-stock company is considered an enterprise with a higher status and is perceived with great respect and trust, both by business partners and, often, by officials of various levels.

An open joint stock company has practically the same differences from a limited liability company as a closed joint stock company. If we compare the types of joint-stock companies with each other, then we can say that an open joint-stock company is perceived as an organization of a higher business status than a closed joint-stock company.

There are also specific forms of commercial activity that are applicable only in the public sector of the economy - state and municipal unitary enterprises. The legal status of this organizational and legal form of commercial legal entities is regulated federal law dated November 14, 2002 No. 161-FZ "On State and Municipal Unitary Enterprises" (hereinafter - Law No. 161-FZ).

Unitary enterprises are commercial organizations that are not endowed with the right of ownership of the property assigned to them by the owner. The property of a unitary enterprise is indivisible and cannot be distributed among contributions (shares, shares), including between employees of the enterprise (paragraph 1 of Article 113 of the Civil Code of the Russian Federation).

Note that only state and municipal enterprises can be created in the form of unitary enterprises.

According to paragraph 2 of Article 113 of the Civil Code of the Russian Federation, the property of state or municipal unitary enterprises is in state or municipal ownership, respectively, and belongs to such enterprises on the basis of the right of economic management or operational management.

We can conditionally distinguish the following types of state and municipal unitary enterprises:

- a unitary enterprise based on the right of economic management;

- a unitary enterprise based on the right of operational management, called a state-owned enterprise.

In modern civil law, unitary enterprises have established a reputation as a “transitional form”, they close the list of commercial organizations in the Civil Code of the Russian Federation, and in the future, the term “enterprise”, according to forecasts, should finally move to the section of the Civil Code of the Russian Federation on objects of civil rights, namely, to Article 132 of the Civil Code of the Russian Federation .

Unitary enterprises remain today the only type of commercial organizations with limited (target) legal capacity. Such enterprises cannot independently manage real estate, as well as many other transactions. As you know, "no one can transfer more rights to another than he himself has." But the activity of state enterprises distorts the classical postulates and constructions in civil law.

Foreign legislation does not know an analogue of the right of economic management. In some countries, state-owned enterprises act as owners. In common law countries, the theory of trust property (trust) is recognized, but our legislation does not know such a possibility of splitting property rights. In general, state policy is now aimed at narrowing the independence of unitary enterprises. The ultimate goal is the exclusion of the right of economic management from the domestic legal order and the consolidation of non-privatized state property on the right of operational management.

Also at present, there is a widespread point of view according to which some unitary enterprises, namely those based on the right of operational management, that is, state-owned factories, for example, should be recognized as non-profit organizations in accordance with the goals of their creation. It seems that there is still a rational grain in this position, apparently, it is advisable to distinguish between legal entities not according to the goals of their activities, but according to the goals of their creation. After all, making a profit is not the main goal of the activities of state-owned enterprises, and, moreover, the existence of some of them is initially considered unprofitable. So, according to paragraph 4 of article 8 of Law No. 161-FZ, the purpose of creating a state-owned enterprise may be, for example, the implementation of subsidized activities and the conduct of unprofitable industries. In general, the main task of such enterprises is to meet government needs.

In conclusion, we note that commercial organizations of any organizational and legal forms have civil rights that correspond to the goals of their activities provided for in their constituent documents, and bear the obligations associated with this. Commercial organizations can carry out any types of activities that are not expressly prohibited by law, they are endowed with general legal capacity, and it does not matter whether these types of activities are enshrined in the constituent documents of the organization or not. The current Russian legislation establishes the principle that legal entities can only be created in any of the organizational and legal forms provided for by law. For commercial organizations, an exhaustive list of such forms is contained in the Civil Code of the Russian Federation. The founders of a commercial legal entity must "dress" their nascent "brainchild" in one of the forms provided for by law, and they have no right to come up with something that is not provided for by law. This principle of the so-called vicious circle» legal entities is directly opposed to the principle of an unlimited range of rights arising from the principle of freedom of contract, and has great importance. This circumstance makes it possible to exclude the emergence of unreliable commercial organizations that do not have constructive stability, and also provides the possibility of state control over economic turnover.

Any enterprise, as a legal entity, in accordance with the Civil Code of the Russian Federation, regardless of the organizational and legal form, has the same rights as other enterprises. The differences, and very significant ones, lie in the rights of the founders (participants, shareholders) of such enterprises. It is this set of rights that seems to be decisive. The choice of the form of a commercial legal entity directly depends on the extent to which legislative regulation corresponds to the preferences of the founders, and, of course, on their personal sympathies, desires and aspirations. At the same time, one should not forget that none of the organizational and legal forms is something frozen, given once and for all. Under certain conditions and certain rules each of them is capable of transforming into other forms.