What is entrepreneurship? This is a special type of economic activity, and it should be understood as an expedient activity organized for profit and based on own initiative, entrepreneurial idea and responsibility. In the context of the current market economy it is difficult to conduct entrepreneurial (economic) activities without understanding the basic concepts and principles, first of all, these are objects and subjects of entrepreneurship.

Business entities. These are such subjects in civil legal relations that carry out activities at their own peril and risk. Such activities are aimed at making a profit by using property, performing any work, selling goods, and also providing services. Business entities must be officially registered and can operate both as natural or private, and legal entities, as well as state, municipal organizations and bodies that issue permits for the right to engage in entrepreneurship.

Individuals. Important business entities are citizens, they are also individuals who are engaged in commercial activities by registering themselves in tax authorities in the status of individual entrepreneurs.

Legal persons. Enterprises or organizations engaged in entrepreneurship are formed and operate in various organizational and legal forms, such as joint-stock companies, business partnerships and companies (the most common form), as well as production cooperatives (based on membership, share contributions) and unitary enterprises (there are state or local government).

Associations of business entities. In practice, along with legal entities, entrepreneurs and foreign companies, in Russia there are also such business entities as associations of business entities. They cannot be called a separate organizational and legal form, although they act as a special way of organizing commercial activities.

Unions, associations, financial and industrial groups. Among associations of business entities, unions and associations are of particular importance, which are associations of several legal entities based on corporate principles to coordinate their work and protect the interests of participants. Separately, it should be said about financial and industrial groups - these are associations of enterprises that operate as one main and one or more subsidiaries, or can fully or partially combine their intangible and tangible assets by signing an appropriate agreement.

Business objects. The types of activities that entrepreneurs are engaged in are called business objects. In this case, the activity can be any, if it is not prohibited by law. Some types of commercial activities require special permits from local governments, such as a qualification certificate. Objects and subjects of entrepreneurship are inherently different parties one and the same process - the process of making a profit. The subjects are the entrepreneurs themselves, and the objects are what they do.

As an economic category, entrepreneurship is characterized by the establishment of subjects and objects. Entrepreneurship in a market economy can be carried out in three forms: individual, collective and state. If the first means its implementation by citizens, that is, individuals, “by their own will and in their interest”, citizens who are “free to establish their rights and obligations on the basis of an agreement and to determine any conditions of the agreement that do not contradict the law”, then the second the form of entrepreneurship - collective - presupposes. In this case, entrepreneurial activity is already carried out on the basis of and within the limits of those tasks and powers that are reflected in the constituent documents and the charter of the relevant forms of enterprises. The subjects of individual activity are private individuals (organizers of sole, family and larger production), the subjects of the collective form of entrepreneurship are business partnerships (general and limited), companies (limited liability, joint-stock), production cooperatives. State and municipal unitary enterprises are subjects of state entrepreneurial activity.

Business objects are, firstly, innovative (research, development, technical services), secondly, production (for the production of goods and services), and thirdly, trade and intermediary activities.

Objects entrepreneurial activity are products manufactured, work performed or services rendered , that is, what can satisfy someone's need and what is offered on the market for purchase, use and consumption.

Those. Objectsentrepreneurial activity is anything that can be profitable. These are property, goods (things and services), money and securities, information, results of intellectual activity (patents, licenses, works of science, literature, know-how).

Objects entrepreneurial activities, as a rule, can be sold and bought freely. As an exception, the sale and purchase of individual objects may be prohibited or restricted by law (for example, trade in weapons, drugs, poisons, natural resources of territorial waters and the continental shelf).

Objects entrepreneurial work are also enterprises, property complexes, carrying out entrepreneurial activities.

Under enterprise in Russia it is understood as an independent economic entity created in the manner prescribed by law for the production of products, the performance of work and the provision of services in order to meet public needs and make a profit. The enterprise independently carries out its activities, disposes of the products produced, the profit received, remaining after taxes and other obligatory payments. The main features of the enterprise are:

A certain isolation;

legal status;

The name of the enterprise and its legal form.

The enterprise, therefore, is an independent economic entity with the status of a legal entity and separate property.

The activities of an enterprise (any entrepreneurial) are regulated in Russia by the following set of documents: the Civil Code, the law on limited liability companies, the law on joint-stock companies, the law on consumer protection, the regulation on licensing certain types of activities, the law on production cooperatives, the law on cooperation and others

To carry out entrepreneurial activity (to be engaged in entrepreneurship) can:

a) Russian citizens who are not limited in their rights;

b) citizens of foreign states and stateless persons within the powers established by the laws of the Russian Federation;

c) associations of citizens - collective entrepreneurs (partners).

Russian legislation prohibits military personnel, officials of the prosecutor's office, the court and other law enforcement agencies from engaging in entrepreneurial activities, persons called upon in the system of state authorities to exercise control over the activities of organizations, as well as persons who are prohibited from engaging in this activity by a court verdict.

Entrepreneurial activity can be carried out both by the owner himself and by the person managing his property on the right of economic management.

Subjects entrepreneurial activities are persons who can engage in this activity. Entrepreneurial activity can be carried out by any citizen, not limited in rights; any foreign citizen and a stateless person within the powers established by law Russian Federation, associations of citizens - collective entrepreneurs (partners). The status of an entrepreneur is acquired through the state registration of an entrepreneur in the manner prescribed by the legislative acts of the Russian Federation. Carrying out entrepreneurial activity without registration is prohibited.

A business entity is any person whose activities are directly or indirectly aimed at generating business income and legal status which is governed by business law.

The following groups of business entities are distinguished:

1) the main ones: commercial organizations (economic partnerships and societies, production cooperatives, state and municipal, unitary enterprises) and individual entrepreneurs. The purpose of the activities of non-profit organizations is the conduct of non-economic, non-profit-making activities. In order to achieve their goals, they can engage in entrepreneurship, but the legal personality of such persons is severely limited.

Individual entrepreneurs in terms of state regulation of activities, registration procedures are largely subject to the same rules as commercial organizations. Also, their role is similar in terms of pooling and using capital and using other types of material resources. Business entities include citizens who, without registration, provide services, produce goods, use their property independently and on an ongoing basis in order to generate income. In the event of a dispute, the court will consider such citizens as a business entity and apply the rules on obligations associated with the implementation of entrepreneurial activities.

2) other business entities:

branches

representations

and other structural divisions of commercial organizations.

Branches like separate divisions perform some or all of the functions commercial organization at their location, so the results of their activities and efficiency are assessed both consolidated and separately from other divisions. Representative offices represent and protect the interests of a commercial organization outside the location of its management bodies. The very fact of opening a representative office testifies to the constancy and long-term interests of the organization at the location of the representative office.

Production economic complexes (financial and industrial groups, holdings), simple partnerships and other associations that do not have the status of a legal entity. Entrepreneurial associations occupy a special place among business entities, because they ensure the concentration of capital and its use in some interests through the conclusion of a civil law contract or through the predominant part of one person in the capital of others. In this case, there are relations of economic control, subordination and subordination between external and dependent legal entities.

3) entities that are part of the market infrastructure and create political, legal, organizational conditions for the functioning of the economy: commodity stock exchanges, non-state pension funds, authorities and local governments, etc.

Legitimation of entrepreneurial activity

The legal conditions for doing business are essentially restrictions.

These include:

1) the presence of a citizen or a commercial organization of civil legal personality. Legal personality - consists of the legal capacity of a citizen and legal capacity.

2) state registration of business entities. The requirement of state registration applies to both the organization and the citizen. State registration is necessary to keep records of entrepreneurs and ensure the rights and interests of their creditors.

The procedure for registering a legal entity is governed by the Federal Law on State Registration of Legal Entities, as well as the Federal Law on Limited Liability Companies, joint-stock companies, civil code. When creating a commercial organization, state registration is carried out at the location of the permanent executive body of the commercial organization on the basis of a decision on the creation of constituent documents and an application for registration. State registration is carried out within a period of not more than 5 days from the date of submission of the specified documents plus a receipt for payment of the state fee.

The law provides for the possibility of a court decision declaring registration illegal and invalid.

Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 9, 2000 No. 54 on the transactions of a legal entity whose registration was declared invalid by the court.

There are cases when a condition for the registration of commercial organizations is the consent of the federal antimonopoly authority or its subsequent notifications.

3) obtaining a special permit for certain types of activities (licensing). A license is a permission for an entrepreneur to carry out a certain type of activity on the terms specified in a formally defined document. Licensing is understood as the activity of the state represented by licensing authorities in issuing, suspending or revoking special permits to supervise compliance with their conditions. some activities subject to licensing are contained in Art. 17 of the Licensing Act. The list of licensed activities is dynamically changing, therefore, the law sets out general principles and licensing requirements.

The main principles for the implementation of licensing are:

Ensuring the unity of the economic space on the territory of the Russian Federation

Establishment of a unified list of licensed activities

Openness and publicity of licensing

implementation of legality in the implementation of licensing

· Establishment of licensing requirements and conditions by regulations on licensing specific types of activities.

The license is issued for a period of 5 years. In case of detection repeated violations conditions, the licensing authority may suspend licenses. Cancellation of a license is carried out in court on the basis of an appeal from the licensing authority if the licensee has not eliminated the violation within the prescribed period (up to 6 months), as well as if the violation by the licensee of license requirements and conditions has caused damage to the rights, legitimate interests, health of citizens, defense of the country and the security of the state.

Responsibility of the entrepreneur for the improper exercise of his rights and performance of duties.

The basis of the entrepreneur's liability is the presence of a set of legal facts, which constitutes an offense and includes the unlawfulness of the entrepreneur's behavior, violation of public interests in the form of legal requirements or the legal rights and interests of individuals, a causal relationship between the illegality of behavior and violation of the legal rights of individuals; the guilt of offenders.

There are several common essential features of the concept of responsibility in the business sphere:

The application of liability measures is always coercive.

coercion is expressed mainly in the norms of law established by the state

Responsibility is always accompanied by a sanction of a property nature

Responsibilities can be divided into 2 groups:

1) property sanctions

2) sanctions in the form of restriction or termination of the right of subjectivity of the entrepreneur, although this indirectly affects property interests

Not all sanctions in business law are measures of legal responsibility. For example: the seizure of property from someone else's illegal possession or the reimbursement by the seller to the buyer of his expenses to eliminate deficiencies.

Responsibility in the field of entrepreneurship is a set of measures of state coercion provided for by the law and entailing for the entrepreneur Negative consequences in the form of deprivation of rights and property as a result of violation of the right of order or legal rights and interests of other persons in the course of entrepreneurial activities.

Introduction

First of all, it should be said that under entrepreneurship (often, along with the term entrepreneurship, the English equivalent is used - business) in the Republic of Kazakhstan is understood as the initiative activity of citizens and legal entities, regardless of the form of ownership, aimed at obtaining net income by satisfying the demand for goods (works , services) based on private property.

Entrepreneurial activity is carried out on behalf of, at risk and under the property liability of the entrepreneur (Article 10 of the Civil Code of the Republic of Kazakhstan).

Subjects of private entrepreneurship can be classified as: -subjects of small business;

• -subjects of medium business;
• - subjects of large business.

Small business entities - legal entities, can exist only in the following organizational and legal forms: * General partnership * Limited partnership * Limited liability partnership * Additional liability partnership * Production cooperative.

Business entities

• 1. A production cooperative is a voluntary association of citizens on the basis of membership for joint entrepreneurial activity based on their personal labor participation and the association of property contributions by its members. There must be at least two members of the cooperative. Members of a production cooperative bear additional (subsidiary) liability for the obligations of the cooperative. A production cooperative has the right to carry out any type of entrepreneurial activity not prohibited by legislative acts for private entrepreneurship. (Art. 1, 2, "On the production cooperative").
• 2. A business partnership is a commercial organization divided into shares (contributions) of founders (Chapter 2. Establishment of a company. Article 5. Founders of a company. Law of the Republic of Kazakhstan

A business partnership may be created by one person who becomes its sole participant. Only citizens can be participants in a general partnership and full partners in a limited partnership. The main features of certain types of economic partnerships are as follows.

A partnership is recognized as full, the participants of which, in case of insufficiency of the property of the general partnership, bear joint and several liability for its obligations with all the property belonging to them. The participants in a general partnership form authorized capital, the amount of which must be at least twenty-five sizes of the calculated indicator, legislatively established in the Republic of Kazakhstan at the time of the participants' contributions to the authorized capital.

A partnership is recognized as a limited partnership, which includes, along with one or more participants bearing additional liability for the obligations of the partnership with all their property (general partners), also one or more participants, whose liability is limited to the amount of their contribution to the property of the partnership (contributors) and who do not accept participation in the partnership's business activities. The authorized capital of a limited partnership is made up of contributions from general partners and investors and must be at least fifty sizes of the monthly calculation index legally established in the Republic of Kazakhstan at the time the participants make contributions to the authorized capital.

• 3. A limited liability partnership is a partnership established by one or more persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; participants in a limited liability partnership are not liable for its obligations and bear the risk of losses associated with the activities of the partnership, to the extent of the value of their contributions. The number of participants in a limited liability partnership must not exceed one hundred. A limited liability partnership cannot have as its sole participant another business partnership consisting of one person. The initial size of the authorized capital of the LLP is equal to the sum of the contributions of the founders and cannot be less than the amount equivalent to one hundred monthly calculation indices as of the date of submission of documents for the state registration of the partnership.
• 4. A partnership with additional liability is recognized as a partnership, the participants of which are liable for its obligations with their contributions to the authorized capital, and if these amounts are insufficient, with additional property belonging to them in an amount that is a multiple of their contributions. The maximum amount of liability of participants is provided for in the charter. In case of bankruptcy of one of the participants, his liability for the obligations of the partnership is distributed among the other participants in proportion to their contributions, unless a different procedure for the distribution of liability is provided for by the constituent documents. As for the rest, the rules of this Code on a limited liability partnership shall apply to a partnership with additional liability, unless otherwise provided by this article.

The average annual number of employees of small business entities is determined taking into account all employees, including those working under a contract and work contracts, part-time employees, employees of branches, representative offices and other separate divisions of this entity.

In the event that a small business entity exceeds these restrictions, it is deprived of the benefits provided for by the current legislation of the Republic of Kazakhstan. Small business entities can carry out any type of entrepreneurial activity in accordance with the current legislation of the Republic of Kazakhstan.

Also, the legislation of the Republic of Kazakhstan provides for the concept of individual entrepreneurship, that is, initiative activity individuals aimed at generating income based on the property of individuals themselves and carried out on behalf of individuals, at their risk and under their property liability.

The subjects of individual entrepreneurship are individuals engaged in entrepreneurial activities without forming a legal entity and in the absence of signs of a legal entity.

Types of individual entrepreneurship are personal entrepreneurship and joint entrepreneurship.

Personal entrepreneurship is carried out by one citizen independently on the basis of property belonging to him by the right of ownership, as well as by virtue of another right that allows the use and (or) disposal of property (Article 7 "On Private Entrepreneurship").

• § In the case of personal entrepreneurship by an individual who is married, without mentioning the other spouse as an entrepreneur, the consent of this spouse to carry out entrepreneurial activities is not required.
• § In cases where an individual uses the common property of the spouses for the implementation of personal entrepreneurship, the consent of the other spouse is required for such use, unless otherwise provided by laws or the marriage contract or other agreement between the spouses.

Individual entrepreneurship based on joint entrepreneurship is carried out by a group of individuals (individual entrepreneurs) on the basis of property belonging to them on the basis of common ownership, as well as by virtue of another right that allows joint use and (or) disposal of property (Article 7 "On Private Entrepreneurship" ).

In a joint venture, all transactions related to private business are made, and rights and obligations are acquired and exercised on behalf of all participants in the joint business. Joint entrepreneurship is carried out by a group of citizens (individual entrepreneurs) on the basis of property belonging to them on the basis of common ownership, as well as by virtue of another right that allows joint use and (or) disposal of property.

The forms of joint entrepreneurship are: 1) entrepreneurship of spouses, carried out on the basis of the common joint property of the spouses; 2) family entrepreneurship, carried out on the basis of the common joint property of a peasant (farm) economy or common joint property of a privatized dwelling; 3) a simple partnership in which the entrepreneurial activities are carried out on the basis of common shared ownership.

Thus, the organizational and legal form of legal entities established in Kazakhstan depends on the type of activity that entrepreneurs intend to carry out in Kazakhstan.

• 5. Joint stock company - a legal entity that issues shares in order to raise funds to carry out its activities (Chapter 4. Articles 12, 13, 14, 15. These articles are discussed in more detail below).
• 6. Closed company - a company whose shares are distributed only among its founders and a predetermined circle of persons, in the manner prescribed by this article. A closed company has the right to place on shares issued by it only by a closed method, with the exception of cases provided for by this Law. The number of shareholders of a closed company must not exceed one hundred, unless closed society is a non-profit organization.
• 7. An open company - a joint-stock company, the participants of which have the right to alienate their shares without the consent of other shareholders, is an open company. An open company has the right to place shares in closed, private and open way. The number of shareholders of an open company is not limited (Art. 3, 5, 6, "On Joint Stock Companies"). 8. Religious associations - local religious associations (communities), religious administrations (centers) and their structural subdivisions, as well as spiritual educational establishments and monasteries.
• § Local religious associations (communities) in the Republic of Kazakhstan are voluntary formations of citizens formed for the purpose of joint satisfaction of religious interests and needs.
• § Religious administrations (centers), in accordance with their registered statutes (regulations), have the right to found religious educational institutions, monasteries and other religious associations acting on the basis of their statutes (regulations). (Article 1, “On Freedom of Religion and Religious Associations”).

Individuals - citizens of the Republic of Kazakhstan, citizens of other states, as well as stateless persons. (Art. 12, Civil Code of the Republic of Kazakhstan).

Legal entity - an organization that has the right of ownership, economic management or operational management separate property and is liable with this property for its obligations, may acquire and exercise property and personal non-property rights and obligations on its own behalf, be a plaintiff and defendant in court. A legal entity must have an independent balance sheet or estimate.

• § A legal entity can be an organization that pursues profit making as the main goal of its activities (commercial organization) or does not have profit making as such a goal and does not distribute profits among participants (non-profit organization).
• § A legal entity that is a commercial organization can only be created in the form state enterprise, business partnership, joint-stock company, production cooperative. A legal entity that is a non-profit organization may be created in the form of an institution, public association, consumer cooperative, a public fund, a religious association and in another form provided for by legislative acts. A non-profit organization may engage in entrepreneurial activity only insofar as it corresponds to its statutory goals.
• § A legal entity that is a non-profit organization and is maintained only at the expense of the state budget can be created exclusively in the form public institution(Article 33, 34, Civil Code of the Republic of Kazakhstan).

The category "entrepreneurial entities" appeared in scientific circulation relatively recently. It owes its birth largely to the Law of the RSFSR of December 25, 1990 No. 4451 “On Enterprises and Entrepreneurial Activities” (hereinafter referred to as the Law on Enterprises), in the preamble of which it was written: “The provisions of this Law are valid throughout the territory of the RSFSR in relation to all subjects of entrepreneurial activity and enterprises, regardless of the form of ownership and field of activity. However, the said Law does not contain a definition of the term “entrepreneurship entities”. In Art. 2, only a list of business entities is given, and Art. 3 is devoted to forms of entrepreneurship. This situation is hardly accidental. The fact is that the category under consideration, despite the abundance of publications, has been studied insufficiently and even superficially.

Civil scientists (for obvious reasons) avoid using this concept in their scientific research. The science of civil law operates with such categories as "subjects of civil law", "citizens", "legal entity". The question of the relationship between the concepts of "subject of civil law" and "subject of civil legal relations" is still controversial. Similarly, there is no unity of views among scientists about the content of the category "subject of law".

Representatives of the science of economic (entrepreneurial)
law propose to distinguish between the concepts of "subjects of business law" and "subjects of entrepreneurial activity".

Subjects of entrepreneurial law - bearers of rights and obligations in the field of implementation and regulation of entrepreneurial activity2. These include: individual entrepreneurs; commercial organizations; non-profit organizations carrying out entrepreneurial activities; public entities (state, subjects of the Russian Federation, municipalities). The subjects of entrepreneurial law are also state bodies exercising the functions of management and regulation of entrepreneurial activity.

According to the supporters of the concept of business law, divisions of enterprises occupy a special place among the subjects of business law. These are internal subdivisions (workshop, department, etc.), as well as external (separate) ones - representative offices and branches. Such a conclusion is based on the assertion that intra-company (corporate) relations are included, along with horizontal and vertical relations, in the subject matter of business law. This opinion is far from certain.

Holdings, financial-industrial groups (FIGs) and other integrated structures are called among the subjects of business law. The latter also do not have the status of a legal entity.

Those scientists who profess the ideas of commercial law (V. F. Popondopulo, B. I. Puginsky, V. V. Rovny) base their views on the civilistic doctrine of persons. So, VF Popondopulo writes: “... an entrepreneur is a person who carries out entrepreneurial activity. The fact that a person carries out entrepreneurial activity is the basis for recognizing him as a subject of civil law - an entrepreneur and determines the need for the legislator to present special requirements to him and his activities. The circle of entrepreneurs is strictly limited: these are individuals and legal entities (primarily commercial organizations).

In our opinion, business entities are primarily individual entrepreneurs and commercial organizations whose main goal is to make a profit. Further, among them it is necessary to name non-profit organizations that carry out entrepreneurial activities only insofar as it serves to achieve the goals for which they were created (paragraph 3 of article 50 of the Civil Code). At the same time, we note that the specified classification of legal entities into commercial and non-commercial organizations, taking into account such a criterion as a commercial orientation, causes significant difficulties in practice. In reality, it is sometimes impossible to distinguish the main goal of an activity from the non-main one. Thus, many non-profit organizations do not formally pursue profit as their main goal, but in fact they strive and receive huge incomes from entrepreneurial activities.

The subjects of entrepreneurial activity are collective entities that do not have the status of a legal entity. These include financial and industrial groups, holdings, etc.

The status of FIGs (holdings) is very indicative: it is unacceptable to reduce all collective formations to the civil law category of "legal entity". The subjects of law, including civil law, may be entities that do not have the features of a legal entity.

From the point of view of civil law (Article 55 of the Civil Code), representative offices and branches are not legal entities, and therefore cannot act as carriers of the corresponding rights and obligations. On behalf of a legal entity, the heads of representative offices and branches act on the basis of its power of attorney.

At the same time, representative offices and branches are endowed with the property of the legal entity that created them. Moreover, the property of representative offices and branches is reflected in a separate (separate) balance sheet. There is a problem of proprietary ownership of property assigned to a representative office and a branch. The Civil Code keeps a "vow of silence" on this score. Article 216 provides a non-exhaustive list of rights in rem. In particular, the Code lists (in addition to property rights related to ownership land plots, the right of economic management and operational management) and other real rights, for example, the right to use the living quarters of the owner's family members.

Another question: representative offices and branches have the right to have current, settlement and other accounts in credit institutions. At the same time, the head of the representative office (branch) performs the functions of disposing of funds on the basis of the issued power of attorney.

And, finally, by virtue of paragraph 5 of Art. 36 of the APC "a claim against a legal entity arising from the activities of its separate subdivision is presented at the location of the separate subdivision." However, in these cases, the party to the case is a legal entity, the recovery is made by the court from it or in favor of it. A representative office and a branch, not possessing the characteristics of a legal entity (Article 48 of the Civil Code), are not a procedural party in court.

The former tax legislation considered representative offices and branches as income tax payers, i.e. subjects of tax law. With the adoption of the new Tax Code of the Russian Federation (Article 19), the situation has changed: branches and representative offices of Russian organizations fulfill the obligations of the latter to pay taxes and fees at the location of branches (representative offices).

The legal status of representative offices and branches in the context of the Tax Code of the Russian Federation creates additional difficulties in interpreting and applying Art. 19 NK. On the one hand, the Tax Code establishes that branches and other separate subdivisions of Russian organizations perform the duties of these organizations in the manner prescribed by the Code;
on the other hand, the Code does not contain any rules regarding such an order1. There are other practical difficulties as well.

So, branches and representative offices are business entities. However, we do not share the opinion that the internal structural units (workshop, department) of a commercial organization can also be attributed to business entities.

Public entities, as well as state and local authorities, cannot engage in entrepreneurial activities. This claim is sometimes disputed in the legal literature. So, S. E. Zhilinsky considers public entities as subjects of civil law and subjects of entrepreneurial activity2. In his opinion, there are three areas of entrepreneurial activity with the participation of public entities: a) participation in entrepreneurship through commercial and non-commercial organizations being created (for example, unitary enterprises);
b) participation in the affairs of privatized state and municipal property; c) engaging in entrepreneurial activity directly by the bodies of state and local self-government. In the latter case, an example is given: by virtue of Art. 7 of the Federal Law of July 21, 1997 No. 123FZ “On the Privatization of State Property and on the Basics of Privatization of State Property in the Russian Federation”1 the state property management body on behalf of the Russian Federation is the founder of open joint-stock companies created in the process of privatization, and exercises the rights a shareholder (participant) of economic companies, the shares (stakes in the authorized capital) of which are in federal ownership. We cannot agree with such conclusions.

Here there is a mixture of two different, but intersecting concepts - "subjects of civil law" and "subjects of entrepreneurial activity". Public formations are indeed subjects of civil law (Chapter 5 of the Civil Code). In accordance with paragraph 2 of Art. 124 of the Civil Code, public entities are subject to the rules that determine the participation of legal entities in relations regulated by civil law, unless otherwise follows from the law or the characteristics of these entities. At the same time, the relevant authorities act on behalf of public entities. state power and local governments (Article 125 of the Civil Code).

To be a subject of entrepreneurial activity means that the state, the subjects of the Federation and municipalities should be engaged in entrepreneurial activities on a professional and permanent basis in order to systematically profit from the sale of products (performance of work, provision of services). Participation of public entities in economic activity through the creation of commercial and non-commercial organizations (similarly, participation in the affairs of privatized state and municipal property) cannot, in our opinion, be assessed as participation in entrepreneurship. Shareholders participating in general meeting companies and receiving dividends on shares, do not directly carry out entrepreneurial activities. The status of a shareholder, his rights and obligations are defined in the Law on Joint Stock Companies.

The above applies equally to the founders (participants) of limited liability companies (LLC). Member 000 and entrepreneur are not the same thing.

The conclusion about the impossibility of public entities to engage in entrepreneurial activities follows from the provisions of the Constitution of the Russian Federation. Thus, in the ruling of the Constitutional Court of the Russian Federation dated October 1, 1998 No. 1450 “At the request of the Legislative Assembly Nizhny Novgorod region on the verification of the constitutionality of the first part of Article 6 of the Code of the RSFSR on administrative offenses» the following legal position is formulated:
“For the purposes of the Constitution of the Russian Federation (Article 34, Part 1), one and the same person cannot combine power activities in the sphere of state and municipal government and entrepreneurial activity aimed at the systematic receipt of profit. The definition also notes that constitutional norms predetermine the special nature of the legal capacity of public law entities: the Russian Federation, its subjects, municipalities participate in civil legal relations as entities with special legal capacity, which, due to their public law nature, does not coincide with the legal capacity of other subjects of civil law - citizens and legal entities. Therefore, they (public entities) cannot, in the opinion of the Constitutional Court of the Russian Federation, also act as trustees, since such activities involve the receipt of remuneration, the submission of reports to the founder of the trust (Articles 1018 and 1023 of the Civil Code), which contradicts the public law nature of these entities.

The public law nature of the state, constituent entities of the Federation and municipalities is stated in the ruling of the Constitutional Court of the Russian Federation dated December 4, 1997 No. 1390 “On the refusal to accept for consideration the request of the Federation Council to verify the constitutionality of the Federal Law “On a transfer and promissory note”.

This constitutional provision has been developed in the current legislation. In particular, Federal Law No. 135FZ of July 26, 2006 “On Protection of Competition” (Clause 3, Article 15) prohibits combining the functions of federal executive authorities, executive authorities of constituent entities of the Federation, local governments with the functions of business entities, as well as vesting economic entities with the functions and rights of these bodies.

Russian legislation prohibits state authorities and local governments from engaging in entrepreneurial activity, i.e., being subjects of entrepreneurial activity. Moreover, a number of federal laws on business entities contain a ban on the participation of state bodies and local governments as founders of a company, unless otherwise provided by federal laws (clause 1, article 10 of the Federal Law of December 26, 1995 No. 208FZ "On Joint-Stock Companies” (as amended on July 27, 2006 No. 155FZ1), paragraph 2 of Article 7 of the Federal Law of February 8, 1998 No. 14FZ “On Limited Liability Companies” (as amended on July 27, 2006 No. 138FZ)2.

There is a ban on combining entrepreneurship with the functions of public servants. Law of the Russian Federation of July 31, 1995 No. 119FZ “On the Basics public service Russian Federation” (Article 11) provides that a civil servant is not entitled to engage in entrepreneurial activities personally or through proxies3. Relevant legal prohibitions are contained, for example, in federal laws dated January 10, 1996 No. 5FZ “On Foreign Intelligence” (Article 18) (as amended on August 22, 2004 No. 122FZ), dated April 18, 1991 No. 10261 “On Police” (Article 20) ( as amended on December 18, 2006 No. 232FZ) and others.

And in conclusion, a few words about the relationship between the concepts of "business entities" and "economic entities". In our opinion, these are not coinciding concepts. They are related to each other in the same way as economic (economic) and entrepreneurial activity are related. Business entities do not always acquire the status of entrepreneurs. For example, non-profit organizations are generally not engaged in entrepreneurship, although they do economic activity. As already noted, in accordance with Art. 11 of the Law on the Securities Market, a stock exchange may be established in the form non-profit partnership and does not pursue the goal of obtaining its own profit. Exchange activity cannot be attributed to either charity or socio-cultural, etc.

Therefore, the term "economic activity" should be used here.