Variants of organizational and legal forms of enterprises. Organizational and legal forms of enterprises: how to make a choice

In the civil law understanding, organizations are treated as legal entities. Article 48 of the Civil Code provides the main features of this legal structure. The decisive one is property isolation. It is precisely this that is expressed by what is contained in Art. 48 an indication that the legal entity "owns, manages or manages separate property." In this case, "separate property" means property in its broad meaning, which includes things, rights to things and obligations regarding things. This rule assumes that property legal entity is separated from the property of its founders, and if we are talking about an organization built on the basis of membership, that is, a corporation, from the property of its members. Property isolation finds its concrete expression in the fact that a legal entity, depending on its type, must either have an independent balance ( commercial organization), or an independent estimate (non-profit organization).

The second essential feature of a legal entity is its independent property liability. A legal entity is liable for its obligations with its property. Unless otherwise provided by law or constituent documents, neither the founders nor the participants of a legal entity are liable for its debts, and in the same way, a legal entity is not liable for the debts of founders (participants).

The third sign of a legal entity is an independent act in civil circulation on its own behalf. It means that a legal entity can, on its own behalf, acquire and exercise property and personal non-property rights, bear obligations, be a plaintiff and a defendant in court. organization management legal form

Finally, the fourth feature is organizational unity. It follows from this that the legal entity has an appropriate stable structure. The performance of a legal entity as a whole is ensured by the fact that at the head of the relevant entity are bodies endowed with a very specific competence, which carry out internal management of the legal entity and act on its behalf outside. Those who are inside the legal entity - managers, employees, should know what the relevant entity is, what it will do, who manages it and how, what constitutes its property, etc. This is also important for those who enter or only intends to enter into legal relations with this entity.

According to Article 50 of the CG, there are two types of organizations:

• 1. Commercial organizations. Their form of existence:
  • - business partnerships and companies;
  • - production cooperatives;
  • - state and municipal unitary enterprises.
• 2. Non-profit organizations. Their form of existence:
  • - consumer cooperatives;
  • - public or religious organizations;
  • - charitable and other foundations;
  • - institutions.

Based on the ratio of the rights of the founders (participants) and the legal entity itself, three models of legal entities can be distinguished.

The essence of the first model is that the founders (participants) with the transfer of the relevant property to the legal entity completely lose their property rights to it. They do not have such rights in relation to the acquired property. Accordingly, the property transferred by the founders (participants) and acquired by the legal entity itself is recognized as belonging to it on the basis of ownership rights. Losing rights in rem, the founder (participant) in return acquires the rights of obligation - the right to claim against a legal entity. It implies, in particular, the rights belonging to a member of the organization: to participate in its management, receive dividends, etc.

This model is used to build business partnerships and business companies, as well as production and consumer cooperatives, that is, legal entities - corporations.

The second model differs in that the founder, transferring the relevant property to the legal entity for possession, use and disposal, continues to be its owner. The founder is recognized as the owner of everything that the legal entity acquires in the future in the course of its activities. Thus, the founder-owner and the legal entity itself, to which the property belongs on the right of economic management derived from ownership, have the rights to the same property. operational management. This applies to state and municipal unitary enterprises, as well as to owner-funded institutions, in particular in cases where the owner is Russian Federation, a subject of the Federation or a municipality (meaning ministries, departments, schools, institutes, hospitals, etc.).

The third model assumes that a legal entity becomes the owner of all property belonging to it. At the same time, unlike the first and second models, in this case, the founders (participants) do not have any property rights in relation to the legal entity - neither liability nor property rights. Such legal entities include public and religious organizations (associations), charitable and other foundations, associations of legal entities (associations and unions).

The difference between these three models is clearly manifested, in particular, at the time of liquidation of a legal entity. Participants in a legal entity built according to the first model have the right to claim a part of the remaining property, which corresponds to their share (half, quarter, etc.). The founder of a legal entity built according to the second model receives everything that is left after settlements with creditors. Under the third model, the founders (participants) do not acquire any rights to the remaining property at all.

Business partnerships and companies are the most common form of collective entrepreneurial activity, within which production, trade, intermediary, credit and financial, insurance and other organizations can operate. The Civil Code defines the possibility of the existence of the following types of partnerships and companies:

• - full partnership;
• - partnership on faith;
• - limited liability company;
• - open and closed joint-stock company;
• - subsidiary and dependent company.

Partnerships and societies have many common features. All of them are commercial organizations that set the main task of making a profit and distributing it among the participants. Companies and partnerships are formed under the agreement of their founders (first participants), that is, on a voluntary basis. The participants in these organizations themselves determine the structure of the legal entities they create and control their activities in accordance with the procedure established by law.

The differences between companies and partnerships lie in the fact that partnerships are considered as an association of persons, and companies - as an association of capital. The association of persons, in addition to property contributions, involves their personal participation in the affairs of the partnership. And since we are talking about participation in entrepreneurial activity, its participant must have the status of either a commercial organization or individual entrepreneur. Consequently, an entrepreneur can be a member of only one partnership, and the partnership itself can only consist of entrepreneurs (that is, it cannot include non-profit organizations or citizens who are not engaged in entrepreneurial activities).

In contrast to this, companies, as associations of capital, do not imply (although they do not exclude) the personal participation of the founders (participants) in their affairs, and therefore allow:

• - simultaneous participation in several companies, including those of a homogeneous nature (which reduces the risk of property losses);
• - participation in them of any persons, and not just professional entrepreneurs.

In addition, participants in partnerships bear unlimited liability for their debts with all their property (with the exception of investors in a limited partnership), while in companies participants are not liable at all for their debts, but only bear the risk of losses (loss of contributions made), except for participants in companies with additional responsibility. Since it is impossible to guarantee the same property twice for the debts of several independent organizations, such liability also testifies in favor of the impossibility of the simultaneous participation of an entrepreneur in more than one partnership.

A general partnership is a commercial organization whose participants (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities and bear full responsibility for all their property. The activities of general partnerships are characterized by two features:

• - the entrepreneurial activity of its participants is considered to be the activity of the partnership itself;
• - when concluding a transaction on behalf of the partnership by one participant, property liability (in the event of a lack of partnership property) may be borne by the other participant with his personal property.

A limited partnership, or limited partnership, is distinguished by the fact that it consists of two groups of participants. Some of them carry out entrepreneurial activity on behalf of the partnership and at the same time bear additional unlimited liability with their personal property for its debts, that is, in fact they are full partners and, as it were, constitute a full partnership within a limited partnership. Other participants (contributors, limited partners) make contributions to the property of the partnership, but do not answer with their personal property for its obligations. Since their contributions become the property of the partnership, they only bear the risk of losing them and therefore do not risk as much as participants with full responsibility. Therefore, limited partners are suspended from doing business as limited partners. Retaining primarily the right to receive income from their contributions, as well as to information about the activities of the partnership, they are forced to fully trust the participants with full responsibility in regard to the use of property. Hence the traditional Russian name Limiteds are a partnership based on faith.

A limited liability company (LLC) is a type of capital association that does not require the personal participation of its members in the affairs of the company. Characteristic features This commercial organization is the division of its authorized capital into shares of participants and the absence of liability of the latter for the debts of the company. Company property, including authorized capital, belongs to him by right of ownership as a legal entity and does not form an object of shared ownership of the participants. Participants are not liable for the company's debts, but only bear the risk of losses (loss of deposits). Society can be created by one person. The total number of participants in an LLC must not exceed 50.

An additional liability company (ALC) is a type of LLC. Distinctive feature The ALC is that if the property of such a company is insufficient to satisfy the claims of its creditors, the participants in the company with additional liability can be held liable for the debts of the company with their personal property, and in joint and several order. However, the amount of this liability is limited: it does not concern all of their personal property, as in a general partnership, but only part of it - the same multiple for all of the amount of contributions made (for example, three times, five times, etc.). Thus, this company occupies, as it were, an intermediate position between partnerships with their unlimited liability of participants and companies that generally exclude such liability.

A joint stock company (JSC) is a commercial organization, the authorized capital of which is divided into a certain number of shares, each of which is represented by a security-share. Owners of shares - shareholders - are not liable for the obligations of the company, but only bear the risk of losses - the loss of the value of their shares.

Registration of the rights of a shareholder by shares (securities) means that the transfer of these rights to other persons is possible only through the transfer of shares. Therefore, when leaving a joint-stock company, its participant cannot demand from the company itself any payments or extraditions due to its share. After all, this exit can be carried out in only one way - by selling, assigning or otherwise transferring your shares (or a share) to another person. Consequently, a joint-stock company, unlike a limited liability company, is guaranteed against a decrease in its property when its participants leave it. Other differences between these companies are associated with a more complex management structure in a joint-stock company. These differences are due to attempts to prevent abuse, great opportunities for which this organizational and legal form of entrepreneurship provides. The fact is that the leaders of such a company, in the presence of a huge number of small shareholders, who, as a rule, are incompetent in entrepreneurial activity and are only interested in receiving dividends, acquire, in fact, uncontrolled possibilities for using the capital of the company. This explains the emergence of rules on the public conduct of affairs of a joint-stock company, on the need to form in it a permanent controlling body of shareholders - a supervisory board, etc.

It must be borne in mind that a joint-stock company as a form of capital pooling is designed for large businesses and is usually not used by small companies. Therefore, a joint-stock company is not limited by the number of participants.

Joint-stock companies are divided into open (JSC) and closed (CJSC). An open joint-stock company distributes its shares among an indefinite circle of persons, and therefore only it has the right to conduct an open subscription for its shares and their free sale. Its shareholders freely alienate their shares, which makes the membership of such a company variable. OJSCs are obliged to conduct business in public, that is, to publish annually for general information the annual report, balance sheet, profit and loss account.

In contrast, a closed joint-stock company distributes its shares only among the founders or other predetermined circle of persons, that is, it is characterized by a constant composition of participants. Therefore, it is deprived of the right to conduct an open subscription for its shares or offer them for purchase to other persons in any other way. The participants in such a company enjoy the right of pre-emption to purchase shares sold by other shareholders, which is designed to preserve their pre-limited composition. Therefore, the number of participants in a closed joint stock company should not exceed limit value, which is established by the law on joint-stock companies.

The supreme body of a joint-stock company is the general meeting of its shareholders. It has exclusive competence, which cannot be transferred to other bodies of the company even by decision of the general meeting. It includes: changing the charter of the company, including changing the size of its authorized capital, election of the supervisory board (board of directors), audit commission (auditor) and executive bodies of the company (unless the latter issue is within the exclusive competence of the supervisory board), as well as approval of annual reports and balance sheets of the company, distribution of its profits and losses and decision on the issue of reorganization or liquidation of the company. In large joint-stock companies with more than 50 shareholders, a supervisory board must be created, which is a permanent collective body that expresses the interests of shareholders and controls the activities of the executive bodies of the company. In cases of its creation, the exclusive competence of this body is determined, which also under no circumstances can be transferred to the executive bodies. In particular, it may include consent to the company's major transactions equivalent to a significant part of the value of the company's charter capital, as well as the appointment and recall of the company's executive bodies.

The audit commission of the company, which in small companies can be replaced by an auditor, is created only from among the shareholders, but is not a management body of the company. Its powers to control the financial documentation of the company and the procedure for their implementation are determined by the law on joint-stock companies and the charters of specific companies.

The executive body of the company (directorate, board) has "residual" competence, that is, it decides all issues of the company's activities that are not within the competence of the general meeting or the supervisory board. The Civil Code allows the transfer of powers of the executive body not to elected shareholders, but to a management company or a manager (individual entrepreneur). Another economic company or partnership or production cooperative may act as a management company. Such a situation is possible by decision of the general meeting, in accordance with which management company(or individual manager) concludes a special agreement providing for mutual rights and obligations, as well as responsibility for their non-compliance

Another way to control the activities of the company's executive bodies is an independent audit. Such an audit may be carried out at any time at the request of shareholders whose aggregate share in the authorized capital of the company is at least 10%. An external audit is also obligatory for open joint-stock companies that are obliged to conduct business publicly, because here it serves as an additional confirmation of the correctness of the company's published documents.

A subsidiary economic company does not constitute a special organizational and legal form. In this capacity, any economic company can act - joint-stock, with limited or additional liability. The peculiarities of the position of subsidiaries are related to their relationship with the "parent" (controlling) companies or partnerships and possible emergence liability of controlling companies for the debts of subsidiaries.

A company may be recognized as a subsidiary if at least one of the following three conditions is met:

• - prevailing in comparison with other participants of participation in its authorized capital of another company or partnership;
• - an agreement between the company and another company or partnership on managing the affairs of the first;
• - another opportunity for one company or partnership to determine decisions made by another company. Thus, the presence of the status of a subsidiary does not depend on strictly formal criteria and can be proved, for example, in court in order to use the appropriate legal consequences.

The main consequences of recognizing a company as a subsidiary are related to the emergence of liability to its creditors on the part of the controlling ("parent") company, which is responsible, however, not for all transactions made by the subsidiary, but only in two cases:

• - when concluding a transaction at the direction of the controlling company;
• - in case of bankruptcy of a subsidiary and it is proved that this bankruptcy was caused by the execution of the instructions of the controlling company.

The subsidiary company itself is not liable for the debts of the main (controlling) company or partnership.

The main ("parent") and subsidiary (or subsidiaries) companies constitute a system of interconnected companies, which received the name "holding" in American law, and "concern" in German law. However, neither the holding nor the concern itself is a legal entity.

Dependent companies are also not a special organizational and legal form of commercial organizations. Various business companies act in this capacity. We are talking about the ability of one society to significantly influence the decision-making of another society, and that, in turn, to exert a similar (non-determining) influence on the decision-making of the first society. This possibility is based on their mutual participation in each other's capital, which, however, does not reach the degree of a "controlling stake", that is, it does not allow one to speak of such relationships as relations between subsidiaries and "parent" companies.

In accordance with paragraph 1 of Art. 106 of the Civil Code, a company is recognized as dependent, in the authorized capital of which another company has more than 20% participation (voting shares or shares in the capital of a limited liability company). Dependent companies often mutually participate in each other's capital. At the same time, the shares of their participation can be the same, which excludes the possibility of unilateral influence of one company on the affairs of another.

Production cooperative - an association of citizens who are not entrepreneurs, which was created by them for the joint economic activity on the basis of personal labor participation and the association of certain property contributions (shares). Members of the cooperative bear additional responsibility for its debts with their personal property within the limits established by law and the charter of the cooperative.

A non-owner commercial organization is recognized as a unitary enterprise. Such a special organizational and legal form is reserved only for state and municipal property. Since December 8, 1994, the right to create non-owner commercial organizations (that is, "enterprises") has been reserved only for state and municipal entities. Such organizations are declared "unitary" by law, which implies the indivisibility of their property into any contributions, shares or shares, including its employees, since it belongs entirely to the owner-founder. Unitary enterprises can act in two forms - based on the right of economic management and the right of operational management, or state-owned. A unitary enterprise is not liable for the obligations of its founder-owner. The latter, however, is not liable with its property for the debts of a unitary enterprise based on the right of economic management, but may be held additionally liable for the debts of an enterprise based on the right of operational management (“public”).

Institutions are the only type of non-profit organization that is not the owner of its property. Institutions include a large number of varied non-profit organizations: bodies of state and municipal government, institutions of education and enlightenment, culture and sports, social protection etc.

Being a non-owner, the institution has a very limited right of operational management of the property transferred to it by the owner. It does not imply the participation of such an organization in business relations, with the exception of certain cases provided for by its constituent documents. But if the institution lacks funds for settlements with creditors, the latter have the right to make claims against the founder-owner, who in this case is fully liable for the debts of his institution. In view of this circumstance, the law does not provide for the possibility of bankruptcy of institutions.

The main source of property of the institution is the funds received by it according to the estimate from the owner. The owner can finance his institution and partially, giving him the opportunity to receive additional income from the entrepreneurial activity permitted by the owner.

The main criterion for the classification of legal entities is the main purpose of their activities, according to which they are divided into commercial and non-commercial organizations.

Commercial organizations. Business partnerships and companies are commercial organizations with authorized (reserve) capital divided into shares (contributions) of founders (participants). Partnerships are predominantly associations of persons, and companies - associations of capital. The partnerships include a general partnership and a limited partnership, the companies include a limited liability company, an additional liability company and a joint-stock company.

General partnership a partnership is recognized, 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 (Article 69 of the Civil Code).

General partners may be an individual entrepreneur or a commercial organization, and they cannot become participants in another general partnership or limited partnership. The affairs of a general partnership are conducted by all its participants, that is, each general partner may conclude transactions on behalf of the general partnership, unless the memorandum of association provides for a different procedure for conducting business - by one or more participants or by common agreement.

The founding document is the memorandum of association. The company name of a general partnership must contain either the names (names) of all its participants and the words "general partnership", or the name (name) of one or more participants with the addition of the words "and the company" and the words "general partnership".

Limited partnership (limited partnership)- this is a partnership in which, along with participants carrying out entrepreneurial activities on behalf of the partnership and liable for the obligations of the partnership with their property (general partners), there are one or more participants - investors (limited partners) who bear the risk of losses associated with the activities of the partnership, in within the limits of the amounts of contributions made by them and do not take part in the implementation of entrepreneurial activities by the partnership (Article 82 of the Civil Code). Otherwise, the legal status of a limited partnership is identical to the legal status of a general partnership.

Limited Liability Company (LLC) is a company established by one or more persons, the authorized capital of which is divided into shares determined by the constituent documents of the size. 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, within the value of their contributions (Article 87 of the Civil Code, Article 2 federal law"On Limited Liability Companies").

The supreme governing body is the general meeting of participants, which elects the executive bodies of the company (collective or sole). The number of participants in a limited liability company must not exceed fifty. The founding documents of a limited liability company are the memorandum of association and the charter. The business name of a limited liability company must contain the name of the company and the words "limited liability".

Additional Liability Company(ODO) is a company established by one or more persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; the participants in such a company jointly and severally bear subsidiary liability for its obligations with their property in the same multiple for all of the value of their contributions, determined by the constituent documents of the company (Article 95 of the Civil Code). With the exception of the provision on the subsidiary liability of its participants, the legal status of limited and additional liability companies is identical.

Joint-stock company(JSC) is a company whose authorized capital is divided into a certain number of shares; participants in a joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, to the extent of the value of their shares (Article 96 of the Civil Code, Article 2 of the Federal Law "On Joint-Stock Companies").

The founding document of a joint-stock company is the charter. The supreme management body is the general meeting of shareholders, which elects the board of directors (supervisory board), which is the supervisory body, and executive bodies (collective or sole). The trade name of a joint-stock company must contain its name and an indication that the company is a joint-stock company, as well as an indication of its type. Joint stock companies are divided into two types: open joint stock companies (JSC) and closed joint stock companies (CJSC).

Public corporation has the right to make an open subscription for the shares it issues, its shareholders have the right to alienate their shares without the consent of other shareholders. The maximum number of shareholders of an open joint stock company is not limited. Every year it is obliged to publish for general information the annual report, balance sheet, profit and loss account, as well as other information. The size of the authorized capital of an open joint stock company must be at least a thousand times the amount of the minimum wage.

Closed Joint Stock Company distributes shares exclusively among the founders or among a predetermined circle of persons. Shareholders of a closed joint stock company have the pre-emptive right to acquire shares sold by other shareholders of this company.

The maximum number of shareholders of a closed joint stock company must not exceed fifty. A closed joint stock company may be obliged to publish data on its activities in cases established by the federal executive body regulating the securities market. The size of the authorized capital of a closed joint stock company must be at least one hundred times the amount of the minimum wage.

Production cooperative (artel)- this is a voluntary association of citizens on the basis of membership for joint production or other economic activities based on their personal labor and other participation and the association of property shares by its members (participants) (Article 107 of the Civil Code, Article 1 of the federal law "On production cooperatives "). A production cooperative is a special organizational and legal form of commercial organizations.

Participants in a production cooperative may also be legal entities that pool their share contributions, if this is provided for by its charter. The number of members of a production cooperative must be at least five, and the number of members of the cooperative who do not take personal labor participation in its activities cannot exceed twenty-five percent of the number of members of the cooperative who take personal labor participation in its activities.

The supreme governing body of a production cooperative is the general meeting of its members, which elects a supervisory board (if the number of members of the cooperative exceeds fifty) and executive bodies (collegiate or sole). The company name of a cooperative must contain its name and the words "production cooperative" or "artel".

State and municipal unitary enterprises. A unitary enterprise is a commercial organization that is not endowed with the right of ownership of the property assigned to it by the owner. The owner of the property is the state or a municipality, and this property is indivisible and cannot be distributed among contributions (shares, shares), including among employees of the enterprise. Unitary enterprises have property assigned to them on the basis of the right of economic management or operational management.

Non-Profit Organizations

Consumer cooperatives- organizations whose members have pooled their property shares to meet their material and other needs. To the number consumer cooperatives include housing construction, garage, dacha and other cooperatives.

Public and religious organizations- voluntary associations of citizens united on the basis of their common interests to meet spiritual or other non-material needs. Religious organizations are distinguished by the fact that they are created for the joint confession and dissemination of faith and have the following features: the presence of religion; performing divine services, other religious rites and ceremonies; teaching religion and religious education of their followers.

Fund- a non-profit organization without membership, established by citizens and (or) legal entities on the basis of voluntary property contributions, pursuing social, charitable, cultural, educational or other socially useful goals. Liquidation of the fund is possible only in court.

institution- an organization created by the owner to carry out managerial, socio-cultural or other functions of a non-commercial nature and financed by him in whole or in part. The institution has property on the right of operational management.

Associations (unions)- associations of commercial or non-commercial organizations to coordinate their activities, represent and protect their interests.

Public entities (state and municipalities)

Under public entities in civil law are understood political structures companies with public authority and participating in civil legal relations, such as: the Russian Federation, subjects of the Russian Federation and municipalities. Public entities act in civil legal relations on an equal footing with other participants in these relations - citizens and legal entities and are not entitled to use their powers of authority, since when participating in civil legal relations they are equated in their legal status to private individuals.

Civil legislation extends the rules governing the participation of legal entities in civil legal relations to public entities, unless otherwise follows from the law or the characteristics of these entities. Legal capacity and legal capacity are considered to be inherent in public entities by virtue of their status. On behalf of the Russian Federation and the constituent entities of the Russian Federation, bodies act in civil legal relations state power within the limits of their competence established by the acts defining the status of these bodies. Local self-government bodies act on behalf of municipalities in civil legal relations within the framework of their competence established by acts defining the status of these bodies.

Public entities are liable for their obligations with property belonging to them on the basis of ownership, except for property assigned to legal entities created by them on the basis of the right of economic management or operational management (the so-called distributed property), as well as property that can only be in state or municipal ownership.

Public entities are not liable for the obligations of each other, as well as for the obligations of legal entities created by them. The exception is cases where the obligation of property liability is directly indicated in the law, as well as cases where a public entity accepts a guarantee (guarantee) for the obligations of another public entity or legal entity.

The organizational and legal form of the enterprise affects its legal status and nature of property relations. Most often, entrepreneurs choose LLC or IP. However, the law provides for other options.

The concept of OPF, the main features and principles of classification

The organizational and legal form of an enterprise (OPF) is a form fixed by law that determines different kinds activities: entrepreneurial, economic, etc. It fixes the property relations of the enterprise, the goals of its activities and the legal status. The main points on the regulation of organizational and legal issues are contained in Chapter 4 of the first part of the Civil Code of the Russian Federation. In addition to the Civil Code, OKOPF, the all-Russian classifier of OPF, participates in the classification of organizations.

To distinguish between types of organizational legal forms There are three basic criteria:

1. Goals. When classifying by purpose, two main questions are addressed: does the association pursue profit as a main goal or not.
2. Forms of property management on the balance sheet of the enterprise.
3. Composition, rights and obligations of the founders.

The classification of organizational and legal forms can also be carried out according to the status of a legal entity:

1. There is a legal entity. For example, these are companies in the form of LLC, JSC, other options.
2. Without the status of a legal entity: individual entrepreneur, branch, etc.

According to property relations, companies are classified in accordance with Part 1 of Art. 65.1 of the Civil Code:

1. corporate organizations. Members of the corporation have the right to participate in it and the right to form the highest governing body. Corporations are most of OPF, including non-profit associations.
2. unitary organizations. Participation in the formation of unitary enterprises does not provide the founders with membership in them, without granting any membership rights. Most of this category is made up of MUPs created on the initiative of the municipality or local authorities of the constituent entities of the Russian Federation. A typical image of a unitary enterprise is MUE Vodokanal.

Types of organizational and legal forms of legal entities, their brief description

In Art. 50 of the Civil Code of the Russian Federation, two main types of organizational and legal forms are fixed:

1. Commercial associations. The main purpose of such enterprises is to extract profit from the activities of the company. For example, OAO Gazprom or ZAO Tander.
2. non-profit companies. As the main goal of the Tax Code, activities that are not related to making a profit are fixed. Upon receipt of income, it is distributed to the statutory purposes of the Tax Code. For example, various funds that distribute profits to charitable projects. Entrepreneurial activity is possible in accordance with the stated objectives of the NC.

Most often, the organizational and legal form for a new enterprise is chosen for conducting commercial activities Let's take a closer look at what it is. In the Russian Federation, there are 6 types of commercial organizations formed with the creation of a legal entity.

Business partnerships

Business partnerships are commercial associations with an authorized capital divided into shares of participants. Activities are regulated by Art. 66-86 of the Civil Code of the Russian Federation. The property of the partnership belongs to its members on the right of ownership. The volume of rights of each member is calculated in proportion to its share in the authorized capital. The scope of powers is changed according to the provisions of the agreement or the charter.

Articles 69, 82 of the Civil Code of the Russian Federation establish the existence of two types of business partnerships: general partnerships and partnerships based on faith. The main difference is in the degree of responsibility of the participants. In a full partnership, liability extends to all property of the members. In a limited partnership, there is another principle - liability applies only to the contributions of the participants.

Limited liability companies

A limited liability company (LLC) is a business company, the right to form which has both individual as well as the company. The authorized capital is divided among the members of the LLC by shares. Participants are not responsible for the obligations of the LLC, they are liable only within the value of their shares. The bankruptcy of an LLC causes subsidiary liability of the participants. The main issues of regulating the activities of LLCs are enshrined in the Federal Law "On Limited Liability Companies", as well as in Art. 87-94 GK. Until 2014, there were also ALCs in Russia - additional liability companies. For ALCs created before the change in legislation, the rules of Ch. 4 of the Civil Code of the Russian Federation.

Joint stock companies

A joint-stock company is a type of business company that has an authorized capital. It is divided into a specific number of shares. The liability of JSC members is determined by the number of shares held by the member. JSC activities are regulated by the Civil Code of the Russian Federation and the Federal Law “On Joint Stock Companies”.

Since 2014, the type of JSC has changed in Russia. Previously, JSCs were divided into closed and open, since 2014 they have been divided into public and non-public:

1. Public JSCs. The public form of a joint-stock company secures the right of shareholders to transfer their own shares to third parties that are not related to the joint-stock company. For PJSC, it is obligatory to place shares and securities in the public domain. One of the main conditions is an unlimited number of potential shareholders.
2. Non-public AO. Unlike PJSC, non-public shares are distributed among the founders or a certain circle of persons. A non-public joint-stock company is not obliged to publish financial statements in the public domain. Participants in a non-public JSC have a pre-emptive right to purchase JSC shares.

Production cooperatives

A production cooperative is a commercial organization formed by association of citizens. Membership is determined by the personal participation of each member and the pooling of available shares. The participation of legal entities in matters of the cooperative is regulated by the charter. The number of members should not exceed 5 members.

Peasant farms

Peasant (farm) economy (KFH) - an association created by citizens for economic or production activities. The property of the KFH is jointly owned by all members and belongs to them on the basis of ownership. All its members have the right to manage in the KFH. Head of KFH after passing state registration association is considered to be an individual entrepreneur. The activities of the KFH are regulated by Art. 86.1 of the Civil Code and the Federal Law "On the peasant (farm) economy."

Business partnerships

A business partnership is a commercial organization formed by several participants. In control economic partnership its members participate, and third parties may also participate. Participation in management matters of third parties is determined by the internal agreement of the partnership.

How to choose the right OPF for your company

Important points for choosing the legal form:

1. Will it be necessary to finance the enterprise by third parties, or investment only at the expense of the owner? If there is a need for outside investment, consider an LLC or one of the forms of JSC.
2. Will the participation of additional specialists (accountant, lawyer, etc.) and hired workers be required? If a minimum of employees and simple reporting are expected, choose an individual entrepreneur.
3. Is it expected to make a profit? If the company does not aim to make a profit from its activities, it is necessary to choose the legal form from non-profit organizations.
4. What is the expected monthly and annual turnover?
5. Are you planning to sell the business? Please note - according to the law, IP cannot be sold. Only the sale of IP property and intellectual property products is possible: logo, slogan, etc.
6. What payment method will be preferable: cash or non-cash?

The most popular commercial legal form is LLC. As of January 1, 2018, 3,240,219 LLCs were officially registered in Russia, while total number Russian commercial organizations amounted to 3,287,615.

For small businesses, most businessmen prefer LLC or IP. IP is easier to create, and the status of an individual entrepreneur makes it possible to avoid complex reporting, providing more freedom in cash flow. Opening an LLC will require authorized capital and a more complicated registration procedure, but the status of an LLC gives more freedom in property relations.

3.3. Organizational and legal forms of enterprises in the Russian Federation

Organizational and legal form is a form of business organization, fixed in a legal way. It defines responsibility for obligations, the right to deal on behalf of the enterprise, the management structure and other features of the economic activity of enterprises. The system of organizational and legal forms used in Russia is reflected in the Civil Code of the Russian Federation, as well as in the regulations arising from it. It includes two forms of unincorporated entrepreneurship, seven types of commercial organizations and seven types of non-profit organizations.

Let us consider in more detail the organizational and legal forms of legal entities that are commercial organizations. Entity- an organization that has separate property in ownership, economic management and operational management, is liable for its obligations with this property and can acquire and exercise property rights and incur obligations on its own behalf.

Commercial called organizations that pursue profit as the main goal of their activities.

Economic partnership is an association of persons directly involved in the activities of the partnership, with the share capital divided into shares of the founders. The founders of a partnership may be members of only one partnership.

Complete a partnership is recognized, the participants of which (general partners) are engaged in entrepreneurial activities on behalf of the partnership. If the property of the partnership is insufficient to pay off its debts, creditors have the right to demand satisfaction of claims from the personal property of any of its participants. Therefore, the activity of the partnership is based on the personal and trusting relationships of all participants, the loss of which entails the termination of the partnership. The profits and losses of the partnership are distributed among its participants in proportion to their shares in the share capital.

Faith partnership(limited partnership) - a kind of general partnership, an intermediate form between a general partnership and a limited liability company. It consists of two categories of participants:

General partners carry out entrepreneurial activities on behalf of the partnership and are fully and jointly and severally liable for obligations with all their property;

Investors make contributions to the property of the partnership and bear the risk of losses associated with the activities of the partnership within the limits of the amounts of contributions to the property.

Economical society Unlike a partnership, it is an association of capital. The founders are not required to directly participate in the affairs of the company, members of the company can simultaneously participate in property contributions in several companies.

Limited Liability Company (LLC) – an organization created by agreement between legal entities and citizens by combining their contributions for the purpose of carrying out economic activities. Mandatory personal participation of members in the affairs of the LLC is not required. Members of an LLC are not liable for its obligations and bear the risk of losses associated with the activities of the LLC to the extent of the value of their contributions. The number of participants in an LLC should not be ^1 be more than 50.

Additional Liability Company (ALC) – type of LLC, so it is subject to all general rules OOO. The peculiarity of ALC is that in case of insufficiency of property this society in order to satisfy the claims of its creditors, the participants in the company may be held liable, and jointly and severally with each other.

Joint Stock Company (JSC)- a commercial organization, the authorized capital of which is divided into a certain number of shares; JSC participants are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their shares. Open Joint Stock Company (JSC)- a company whose members can alienate their shares without the consent of other members of the company. Such a company has the right to conduct an open subscription for shares issued by it in cases established by the Charter. Closed Joint Stock Company (CJSC)- a company whose shares are distributed only among its founders or other specific circle of persons. CJSC is not entitled to conduct an open subscription for its shares or otherwise offer them to an unlimited number of persons.

Production cooperative (artel) (PC)- voluntary association of citizens for joint activities based on their personal labor or other participation and the association of property shares by its members. The profit of the cooperative is distributed among its members in accordance with their labor participation, unless otherwise provided by the charter of the PC.

unitary enterprise- a commercial organization that is not endowed with the right of ownership of the property assigned to it. The property is indivisible and cannot be distributed among contributions (shares, shares), including between employees of the enterprise. It is respectively in state or municipal ownership and is assigned to a unitary enterprise only on a limited property right (economic management or operational management).

unitary enterprise on the right of economic management- an enterprise that is created by decision of a state body or local government. Property transferred unitary enterprise, is credited to its balance sheet, and the owner does not have possession and use rights in relation to this property.

unitary enterprise on the right of operational management- This is a federal state-owned enterprise, which is created by decision of the Government of the Russian Federation on the basis of property that is in federal ownership. State-owned enterprises are not entitled to dispose of movable and immovable property without special permission from the owner. The Russian Federation is liable for the obligations of a state-owned enterprise.

Any organization seeking to participate in a commercial, civil or political life states must be formalized. That is (YUL). But since different types activities have their own differences and features, then the organizational and legal forms of legal entities also differ.

Types of legal entity

The status of a legal entity is determined by Article 48 of the Civil Code of the Russian Federation. He suggests:

• Separate property.
• Acquisition of civil rights.
• Opportunity to be represented in court.
• Registration in the state register under one of the forms recognized by law.

It follows that in order to legitimize its existence, each association must choose a form that corresponds to the goals of its life.

There are several qualitative differences between legal entities. Here they are.

• In relation to property:
  • Private.
  • State.
• According to the objectives of the activity:
  • Commercial production.
  • Non-commercial.
• According to the founders:
  • Unitary (state) companies.
  • The founders are only legal entities.
  • Mixed composition.
• In relation to participants in property rights:
  • With real (absolute) right to property.
  • With a liability (arising in connection with participation in the company) right to property.
  • Without any right to property.
• In relation to the right to own property:
  • Own.
  • Operational management.
  • Business management.

The concept, functions, examples of types of legal entities are given in this video:

Organizational and legal forms of legal entities

Depending on this division, organizational and legal forms of divisions and companies are formed.

OPF YUL

Institutions

• Participation in business development (reserve or target).
• Implementation of charity or social programs(non-commercial).
• investment programs.

Why accumulate cash and distribute them in accordance with the goals declared during creation. The capital of the funds (and property) is formed by the participants on the basis of voluntary law.

OOO

The most common type of business entity. main feature- minimal risks for participants, since in the case, the founders are liable only in the amount of. Which is formed by the participants of the society during its creation. LLC can be:

• (up to 50).
• Established by individuals only.
• Or legal entities different forms property.
• Have a mixed membership.

Religious associations

• Innovation activity.
• Work not related to direct production.
• And projects with a risky outcome.

Production cooperatives

Created by the founders for economic activities, the participants of which:

• They contribute their shares or replace them with personal participation in the production of products.
• Participate in the ownership of the enterprise in proportion to their contribution.
• I only make decisions general meeting(with the exception of those delegated to governing bodies).
• They are responsible not only for the share, but also for personal property.

General partnerships

OPF, in which each member of the partnership is liable, regardless of the degree of his participation and the length of stay in the company. characterized by the ability to quickly attract third-party capital. The size of the contribution of the founders to the creation of the company is not limited, but the profit is divided in accordance with the amount of invested funds.

Faith partnerships

The composition of the participants of which is represented by two unequal categories:

• Complete comrades. These are individual entrepreneurs or firms that are fully involved in the management of the partnership and can act on its behalf, but are liable with all personal property.
• Limited partners. They make their financial contribution and receive part of the profits, but do not participate in the work of the partnership. Responsibility is only a contribution.

Companies with additional liability

In the case of the liability of the company's participants, in comparison with the LLC, it is strengthened, and extends to:

• Own property.
• In addition, they are liable for the debts of the company and co-founders in proportion to their shares.

Although such harsh measures are attractive to investors.

Non-public joint-stock companies

Or simply this form by the fact that the entire block of shares of the company is distributed only among the co-founders. That is:

• They cannot bid.
• But they can be resold among the founders through a regular transaction.
• Decisions on revaluation, issue or reduction in the number of shares are taken at the general meeting.

The differences between commercial legal entities and non-commercial ones are described in this video: