17. Associations of legal entities (associations and unions)
For the purpose of coordinating their entrepreneurial activities, as well as representing and protecting common property interests, commercial organizations may, by agreement among themselves, create associations in the form of associations or unions that are non-profit organizations.
If, by decision of the participants, the association (union) is entrusted with conducting entrepreneurial activities, such an association (union) is transformed into a business company or partnership in the manner prescribed by law, or it can create a business company to carry out entrepreneurial activities or participate in such a company.
Public and other non-profit organizations, including institutions, may voluntarily unite into associations (unions) of these organizations.
The association (union) of non-profit organizations is a non-profit organization. Association (union) is a legal entity. Members of an association (union) retain their independence and the rights of a legal entity.
The association (union) is not responsible for the obligations of its members. Members of an association (union) bear subsidiary liability for its obligations in the amount and in the manner prescribed by the founding documents of the association.
The founding documents of an association (union) are the foundation agreement signed by its members and the charter approved by them.
The constituent documents of an association (union) must contain conditions on the composition and competence of the governing bodies of the association (union) and the procedure for making decisions by them, including on issues decisions on which are taken unanimously or by a qualified majority of votes of the members of the association (union), and on the distribution procedure property remaining after the liquidation of the association (union).
A member of an association (union) has the right to use its services free of charge. A member of an association (union) has the right, at its own discretion, to withdraw from the association (union) at the end of the financial year. In this case, he bears subsidiary liability for the obligations of the association (union) in proportion to his contribution within two years from the date of withdrawal, if these obligations arose during his membership in the association. A member of an association (union) may be expelled from it by decision of the remaining participants in the cases and in the manner established by the constituent documents of the association (union). With regard to the property contribution and liability of the expelled member of the association (union), the rules relating to withdrawal from the association (union) shall apply. With the consent of the members of the association (union), a new member may enter it. Joining an association (union) of a new member may be conditioned by its subsidiary liability for the obligations of the association (union) that arose prior to its entry.
18.Non-profit organizations
Non-profit organizations include consumer cooperatives, public and religious associations, charitable and other foundations, etc.
Non-profit organizations can carry out business. activity only insofar as it is necessary for their statutory purposes for which they were created, and corresponds to these purposes. For otd. types of non-commercial org-tsy legislature established rules providing for their right to engage in business. activities only through the formation or participation in the formation of commercial organizations.
consumer cooperative a voluntary association of citizens and legal entities on the basis of membership is recognized in order to meet the material (property) and other needs of participants, carried out by combining its members with property shares.
Members of a consumer cooperative are obliged, within three months after the approval of the annual balance sheet, to cover the resulting losses through additional contributions. In case of failure to fulfill this obligation, the cooperative may be liquidated in court at the request of creditors.
Members of a consumer cooperative shall bear subsidiary liability for its obligations within the limits of the unpaid part of the additional contribution of each of the members of the cooperative.
Income (profit) received by a consumer cooperative cannot be distributed among its members.
Public and religious organizations Voluntary associations of citizens who, in accordance with the procedure established by law, have united on the basis of their common interests to satisfy spiritual or other non-material needs, are recognized.
Members of public and religious organizations do not retain the rights to property transferred by them to these organizations, including membership fees. They are not liable for the obligations of public and religious organizations in which they participate as their members, and these organizations are not liable for the obligations of their members.
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 is recognized. The property transferred to the foundation by its founders is the property of the foundation. The founders are not liable for the obligations of the fund they have created, and the fund is not liable for the obligations of its founders. The Foundation uses the property for the purposes specified in its charter. The Foundation has the right to engage in entrepreneurial activities necessary to achieve the socially useful goals for which it was created, and corresponding to these goals. In order to carry out entrepreneurial activities, foundations have the right to create business companies or participate in them.
The Foundation is required to publish annual reports on the use of its assets.
The procedure for managing the fund and the procedure for forming its bodies is determined by the charter of the fund, approved by its founders.
The charter of the foundation may be amended by the bodies of the foundation, if the charter provides for the possibility of changing it in such a manner.
The decision to liquidate the foundation can only be taken by the court upon the application of interested persons. The fund may be liquidated:
if the property of the foundation is not sufficient for the implementation of its goals and the probability of obtaining the necessary property is impossible;
if the goals of the fund cannot be achieved and the necessary changes to the goals of the fund cannot be made;
in case of deviation of the fund in its activities from the goals provided for by the charter;
in other cases stipulated by the legislation.
In case of liquidation of the fund, its property remaining after the satisfaction of creditors' claims is directed to the purposes specified in the charter of the fund.
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 is recognized.
The institution is responsible for its obligations with the funds at its disposal. In case of their insufficiency, the owner of the relevant property bears subsidiary liability for its obligations.
The institution is not entitled, without the consent of the owner, to alienate or otherwise dispose of the property assigned to it, acquired at the expense of funds allocated to it according to the estimate.
If, in accordance with the constituent documents, the institution is granted the right to carry out income-generating activities, then the income received from it and the property acquired at the expense of them come to the independent disposal of the institution and are taken into account on the separate. balance.
Question No. 19: Legal basis for banking and non-banking financial institutions. Banking system of the Republic of Belarus.
The legal basis for the den-cred policy of the Republic of Belarus is the main directions of the den-cred policy of the Republic of Belarus, annually approved. President of the Republic of Belarus on the proposal of the National Bank and the Government of the Republic of Belarus.
The main directions of the monetary policy of the Republic of Belarus determine the goals, objectives and priorities of the state's monetary policy and provide for a set of measures that ensure the achievement of these goals, mechanisms of regulation and control.
Banking system of the Republic of Belarus - an integral part of the financial and credit system of the Republic of Belarus. The banking system of the Republic of Belarus is two-tier and includes the National Bank, other banks and non-bank financial institutions.
Subjects banking legal relations are NB, banks and non-bank financial institutions. Participants in banking legal relations may be state bodies, local government and self-government bodies, individuals and legal entities.
Objects banking legal relations are money (currency), securities, and currency values. NB - Central Bank of the Republic of Belarus. He is a reg-t credit. rel. and den. circulation, determines the order of settlements. The National Bank has the exclusive right to issue money and performs a number of other functions. Bank - legal a person who has the exclusive right to carry out the following banking operations in the scoop: attracting money. Wed-in physical. and/or legal persons in deposits (deposits); wed-in on its own behalf and at its own expense on the terms of return, payment, urgency; opening and maintaining bank accounts of individuals. and legal persons.
Non-bank financial institution - legal a person who has the right to certain banking operations and activities, with the exception of those listed above.
banking - a set of banking operations carried out by banks and non-banking financial organizations aimed at making a profit
Question No. 20: The National Bank of the Republic of Belarus. Its functions, purposes, rights and operations carried out by it.
NB is a single centralized organization consisting of a central office, structural divisions and organizations located on the territory of the Republic of Belarus and beyond. NB yavl. legal entity and is accountable to the President of the Republic of Belarus. The functions and rights of the National Bank, as well as the goals and principles of its organization and activities are determined by the Constitution of the Republic of Belarus, the Banking Code, other laws of the Republic of Belarus and the Charter of the National Bank.
The main objectives of the NB are 1) protecting and ensuring the stability of the Belarusian ruble exchange rate against foreign currencies; 2) developing and strengthening the banking system of the Republic of Belarus; 3) ensuring the effective, reliable and safe functioning of the payment system.
Received profits not yavl. main goal of the NB.
NB performs the followingfunctions :
1) developed and jointly with the Government of the Republic of Belarus conducts a single money-credit. the policy of the Republic of Belarus; 2) the implementation of the issue of money; 3) the regulation of money. circulation; 4) regulate t credit e rel.; 5) carry out foreign exchange regulation; 6) create gold and foreign exchange reserves, gold reserves and manage them; 7) carry out state. registration of banks and non-banking credit-finance organizations, issues them licenses to carry out banking operations, as well as supervises their activities. Etc..
NB rights follow from the functions it performs (see above).
The property of the NB is in the ownership of the Republic of Belarus and is assigned to it on the basis of the right of operational management. The National Bank has the authority to own, use and dispose of the property assigned to it in accordance with the objectives of the activity and the charter of the National Bank. The size of the authorized capital of the NB is determined by the Charter of the NB. To perform its functions, the NB may open its representative offices in foreign states.
To operations implemented by the NB include:
settlement and cash services for the Government of the Republic of Belarus and other state institutions. organs;
collection and transportation of cash, currency and other valuables;
1) acceptance of valuables for storage; 2) currency transactions;
3) purchase, sale and exchange in the Republic of Belarus and abroad of precious metals in the form of ingots, nuggets, coins, as well as precious stones. 4) Operations for servicing the public debt of the Republic of Belarus.
NB carries out operations for a fee, unless otherwise provided by law.
Question No. 21: Commercial banks of the Republic of Belarus(organizational and legal forms, procedure for creation, registration, opening of branches and representative offices, grounds and procedure for liquidation, main types of operations).
Bank is a commercial organization registered in accordance with the procedure established by the Banking Code and having, on the basis of a license issued by the National Bank, the exclusive right to carry out banking operations in the aggregate. The bank may be established form a joint-stock company or a unitary enterprise, as well as a specialized bank whose activities are aimed at the implementation of certain operations.
The Bank, in order to achieve the goals and objectives, in agreement with the NB, has the right to act as the owner of the property (founder, participant) of commercial organizations in the manner and on the terms determined by the Banking Code and the legislation of the Republic of Belarus.
The authorized capital of a bank consists of the value of the contributions of its founders (participants). The minimum size of the bank's authorized capital is established by the NB. The UV of the bank must be formed in full before the state registration of the bank.
State registration. For the state When registering a bank, the following documents are submitted to the NB:
statement about the state registration;
bank charter
documents confirming the formation of the statutory fund in full;
copies of constituent documents and certificates of state. registration;
an extract from the minutes of the general meeting of founders on the approval of the charter of the bank and candidates for positions;
certificate of the tax authority on the amounts to be declared
information about the founders;
a document confirming the right to place the bank at its location;
payment document confirming the payment for the state. bank registration. NB in the event of a decision on the state. registration of the bank notifies its founders within 3 days. The NB, on the basis of the decision made, makes an entry in the Unified State Register of Legal Entities and Individual Entrepreneurs. Within 15 days from the date of making the entry, the NB reports data on the state. registration with tax authorities, state authorities. statistics.
Grounds for refusal in the state. registrations:
if the authorized fund of the bank is not formed;
if one of the founders on the date of filing the application for state bank registration:
is a founder (participant) of 3 or more legal entities, with the exception of JSCs carrying out production activities;
has arrears in wages and payments to the budget;
is a public association pursuing political goals;
limited in the right to carry out entrepreneurial activities by a court decision;
the presence of an outstanding or unexpunged criminal record;
if inaccurate information is found in the documents submitted for state registration.
The National Bank, when making a decision to refuse state registration of a bank, notifies its founders in writing within fifteen days, indicating the reasons for the refusal.
The procedure for opening separate divisions of banks.
Branch of the bank - a separate subdivision located outside the location of the bank and carrying out on its behalf all or part of the banking operations provided for by the license for banking operations. A branch of a bank is not a legal entity and operates on the basis of a mandate approved by the bank that created it. The property of a bank branch is formed by transferring a part of the property to it by the bank. The head of a bank branch is appointed by the head of the bank.
To create a bank branch, the National Bank provides:
statement;
an extract from the minutes of the general meeting of founders on the decision to establish a branch of the bank;
statement about the branch of the bank;
information about the professional suitability of the head and Ch. accountant
The NB shall notify the bank in writing of the decision taken within three days. The data is then reported to the tax and statistics authorities.
Grounds for refusal:
the bank's unprofitability during the last 3 months before the day of submission of documents for the establishment of a branch;
non-compliance of the policy on the branch of the bank with the requirements of the legislation of the Republic of Belarus and the charter of the bank;
violation of the established procedure for its creation;
lack of qualifications of the head and Ch. accountant.
A representative office of a bank is a separate subdivision located outside the location of the bank, representing its interests and protecting them. The representative office of the bank carries out its activities on the basis of the regulations approved by the bank that created it. The representative office of the bank is not a legal entity.
Operations carried out by commercial banks:
Attracting deposits of funds of individuals;
opening and maintaining bank accounts of individuals and legal entities;
implementation of settlement and cash services, etc.
Question No. 22: Liquidation of a commercial bank.
The Bank may be liquidated by the decision of the geo-founders (participants), the Economic Court and the NB.
In case of liquidation at the initiative of its founders, an application to the National Bank, as well as a decision of the founders of the bank on its liquidation. The decision on liquidation can be made only after the bank fulfills all existing obligations to depositors and creditors of the bank. Liquidation is carried out with the written consent of the NB.
The body that made the decision to liquidate bank, in 10 days. term after the consent of the NB creates a liquidation commission, appoints its chairman, and also establishes. the procedure and terms for the liquidation of the bank. The NB contributes to the Unified State. register of legal entities and individual entrepreneurs information that the bank is in the process of liquidation.
The liquidation commission, within 30 days, evaluates the financial condition of the bank and, in case of insufficient property to pay off creditors' claims and debts on payments to the budget, submits to the household. court filing for bankruptcy of a bank.
The bank is considered liquidated from the moment the relevant entry is made in the Unified State. register. The bank is obliged to cease its activities from the moment of the decision to liquidate it and within two months to withdraw from the founders of other legal entities.
The order of satisfaction of the requirements of depositors and creditors:
on deposits of individuals and accrued% on them, as well as claims for compensation for harm caused to their life and health; allowances; 3) debt on payments to the budget; 4) for obligations secured by the property of a bank in liquidation; 5) deposits of legal entities; 6) NB requirements for loans provided to the bank in the order of refinancing; 7) requirements of other creditors. Treb-I depositors and creditors of each trace. turn satisfied-Xia after full satisfaction-I Treb th depositors and creditors prev. queues.
Unions and associations are associations of commercial organizations created by them under an agreement in the form of associations and unions in order to coordinate their business activities, as well as to represent and protect their property interests.
Along with "institutions" (as well as "enterprises"), these associations and unions are generalizing categories, which, although they are of a non-commercial nature, are created and operate in the field of commercial relations, are on the verge of them (especially since the "coordination" of commercial activity can be profitable).
However, as defined in Art. 121 of the Civil Code of the Russian Federation, if an association or union directly carries out entrepreneurial activities, they are transformed into business companies or partnerships.
At present, such associations as holdings (holding companies) are becoming more and more widespread, which, not being a legal entity according to the Civil Code of the Russian Federation, are to a large extent commercial in nature and find legal justification through the definition of the main and subsidiary business companies.
An association or union may have its own property, created from the contributions of the commercial organizations that formed the association. The association (union) is not liable for the obligations of its members, but the latter bear subsidiary liability for the obligations of the association in the amount and in the manner prescribed by the constituent documents of the association - the constituent agreement. In Art. 122 and 123 of the Civil Code of the Russian Federation characterize the constituent documents (agreement) of associations and unions, as well as the rights and obligations of their members. Among other things, it is provided that members of the association (union) have the right to use its services free of charge.
Autonomous non-profit organization- non-membership non-profit organization established by citizens and / or legal entities on the basis of voluntary property contributions for the purpose of providing services in the field of education, life support, healthcare, culture, science, law, physical culture and other services.
Features of functioning:
1. Property transferred into the possession of an autonomous non-profit organization by its founders (founder) is the property of the autonomous non-profit organization. The founders of an autonomous non-profit organization do not retain the rights to the property transferred by them to the ownership of this organization.
2. The founders of an autonomous non-profit organization are not liable for the obligations of the autonomous non-profit organization founded by them, and it is not liable for the obligations of its founders.
3. An autonomous non-profit organization has the right to carry out income-generating activities corresponding to the goals for the achievement of which this autonomous non-profit organization was created.
4. Supervision over the activities of an autonomous non-profit organization is carried out by its founders in the manner prescribed by its constituent documents.
5. The founders of an autonomous non-profit organization may use its services only on equal terms with other persons.
39. Concept and types of institutions.
An institution is an organization created by the owner (a body exercising power) to carry out managerial, socio-cultural and other functions of a non-commercial nature and financed by him in whole or in part.
Along with the fact that an institution can be considered as one of the varieties of non-profit organizations, there are sufficient grounds to see them as a generalizing category, which is paired with another generalizing category of the same order - "enterprise".
The property basis of an institution is a property right in the form of operational management of the property assigned to it - a form similar (but not identical) to the property basis of state-owned enterprises. It can be assumed that the category "institution" may later become more widespread, for example, in the organization of economic life in the area of natural monopolies.
The institution is responsible for its obligations with the funds at its disposal. In case of their insufficiency, the owner of the relevant property bears responsibility for its obligations in a subsidiary manner.
A state or municipal institution may be a budgetary or autonomous institution. If a budgetary institution is subject to the general rules of subsidiary liability of the owner of property, then autonomous institutions for the obligations of the latter are not subject to liability of the owner (Article 120 of the Civil Code of the Russian Federation).
40. State and municipalities as subjects of civil law: legal capacity, forms and procedure for participation in civil circulation, civil liability.
The peculiarity of the state as a participant in civil legal relations lies in the fact that it is the bearer of political power and sovereignty and therefore can determine in a normative manner the nature and procedure for the participation of subjects of law in civil legal relations (including the state itself as a participant in these relations). However, in civil legal relations, the state does not use power: it acts on an equal footing with its counterparties. The state acts in civil legal relations through its bodies: the Federal Assembly, the President of the Russian Federation, federal executive authorities (ministries, departments, etc.).
The state acts both in real and contractual legal relations. Thus, the state is the subject of property rights, including the subject of exclusive property rights (for example, for subsoil). Management and disposal of state property is carried out through the Ministry of State Property. Transactions on behalf of the state during the alienation of state property in the process of privatization are carried out on behalf of the Russian Federal Property Fund.
The state acts in the following legal relations of obligations.
1) loan relations (when issuing bonds and other securities);
2) in relations for the supply of products for federal state needs;
3) in contract relations for state needs;
4) in donation relations (when property is donated to the state).
The Russian Federation may be the subject of inheritance legal relations. In particular, it inherits the so-called escheated property, i.e. property that has no heirs or the heirs have refused to accept the inheritance.
The state is the subject of liability for harm caused by illegal actions of bodies of inquiry, preliminary investigation, prosecutor's office or court.
The Russian Federation can act in foreign circulation, concluding any civil law contracts with foreign contractors. The most common are loan agreements, as well as granting loans. Such agreements are concluded on behalf of the Government of the Russian Federation. In some cases, foreign trade transactions are concluded by Russian trade missions, but the state bears responsibility for them.
Subjects of the Russian Federation can also act as subjects of civil legal relations: republics, territories, regions, autonomous regions, autonomous districts, cities of federal significance. Legislative assemblies, regional dumas, presidents, governments, etc. can act on behalf of the subjects of the Federation in civil legal relations. The subjects of the Federation shall exercise the rights of ownership to the property that is the property of these subjects. Subjects of the Federation may act as state customers in relation to the supply of goods for state needs. It is also possible for the subjects of the Federation to participate in other contractual legal relations, provided that they do not go beyond their legal capacity. Subjects of the Federation may also be testamentary heirs.
Municipal formations are urban, rural settlements, other populated territories within which local self-government is carried out, there are municipal property, local budget and elected bodies of local self-government. They enter into civil legal relations through elected bodies of local self-government, heads of municipalities. They exercise the powers of the owner in relation to municipal property, they can enter into contractual relations within the scope of their powers.
Local self-government bodies have the right to transfer objects of municipal property for temporary and permanent use to individuals and legal entities. Lease, alienate in accordance with the established procedure, as well as make other transactions with property in municipal ownership, determine in contracts the conditions for the use of objects being privatized or transferred for use.
Municipal bodies have the right to issue local loans and lotteries, receive and issue loans.
"Tax planning", 2006, N 2
Commercial organizations, by agreement among themselves, may create associations in the form of associations or unions, which are non-profit organizations.
Federal Law No. 7-FZ of January 12, 1996 "On Non-Commercial Organizations" (hereinafter referred to as the Law on Non-Commercial Organizations) does not make a clear distinction between "association" and "union". Both are considered as varieties of associations of legal entities.
According to some authors, it is more correct to consider an association as an association of the same type of commercial organizations, and unions as an association based on other motives (for example, a territorial community, a common product sales market).
An association of commercial organizations is created to coordinate economic activities, to represent and protect the common property interests of the members of the association.
Coordination of economic activities involves the provision of management powers to the association (union). These powers must be clearly defined in the founding documents of the association.
In accordance with Art. 122 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the constituent documents should include conditions on the composition and competence of the governing bodies and the procedure for making decisions by them.
Decisions made by the association's bodies are binding on all its members.
The constituent documents should provide for the procedure for financing the activities of the association at the expense of its members, since the association itself, being a non-profit organization, does not have the opportunity to "earn" funds for its needs.
If, by decision of the participants, the association (union) is entrusted with conducting entrepreneurial activities, such an association (union):
- transformed into a business company or partnership;
- may establish an economic company for the implementation of entrepreneurial activities;
- can participate in such society.
It should be noted that the transformation is possible both in a business company and in a business partnership.
Only a business entity has the right to establish an association (union). The fact is that a partnership cannot be established by one person, while a business company can (Articles 87 and 98 of the Civil Code of the Russian Federation).
Non-profit organizations may voluntarily unite into associations (unions) of non-profit organizations.
The association (union) of non-profit organizations is a non-profit organization.
Association of non-profit organizations also arises on a voluntary basis.
The law does not put forward any restrictions on the types of organizations that unite: it is permissible to create mixed unions, for example, religious organizations and charitable foundations.
Non-profit associations (unions) may be transformed into economic partnerships and companies on the same terms as associations of commercial organizations.
Members of an association (union) retain their independence and the rights of a legal entity.
This means that joining an association (union) does not entail a change in the content of the legal capacity of members, with the exception of the powers voluntarily transferred to the association.
The association (union) is not liable for the obligations of its members, but the members of the association (union) bear subsidiary liability for the obligations of the association. This provision arises from the fact that the activity of the association (union) is financed by its members.
The amount of responsibility and the procedure for its implementation are determined by the constituent documents of the association.
The name of the association (union) must contain an indication of the main subject of activity of the members of this association (union) with the inclusion of the words "association" or "union".
Members of an association (union) have the right to use its services free of charge.
In essence, associations and unions are formed precisely to receive such services, the activities of which are financed by the property contributions of the participants. In this regard, the free provision of services should be understood as the free of charge of a particular service, which, however, is ultimately paid for by the property contribution of a member of the association.
It should also be borne in mind that the receipt of a specific service is not formalized by a paid civil law contract (for example, an agreement on paid services), but directly follows from the rights of a member of the association provided for by the constituent documents.
A member of an association (union) has the right, at its own discretion, to withdraw from the association (union) at the end of the financial year. In this case, he bears subsidiary liability for its obligations in proportion to his contribution within two years from the date of withdrawal.
The possibility of free withdrawal from the association (union) should not cause harm to other members of the association. Therefore, the law allows withdrawal from the association at the discretion of a member of the association only at the end of the financial year.
In accordance with paragraph 3 of Art. 48 of the Civil Code of the Russian Federation, when leaving the association (union), its member does not have the right to return his property contribution.
A member of an association (union) may be expelled from it by decision of the remaining members in cases and in the manner recommended to be established by the founding documents of the association (union). With regard to the liability of an expelled member of an association (union), the rules relating to withdrawal from the association (union) shall apply.
To accept a new member, the consent of the full members of the association (union) is required. The rules on the procedure for admission, on the property rights and obligations of the newly admitted should be included in the founding documents of the association, in particular, the issue of the possible subsidiary liability of the newly admitted under the law for the obligations of the association (union) that arose before its entry has been resolved.
The general procedure for the creation, reorganization and liquidation of non-profit organizations is established in Ch. III of the Law on non-profit organizations.
A non-profit organization may be specially established, as well as created as a result of the reorganization of an existing non-profit organization.
The establishment of a non-profit organization is carried out by the decision of the founders (founder).
When creating a non-profit organization, constituent documents must be developed and approved (concluded) - the charter and the constituent agreement.
The constituent documents of non-profit organizations of all forms must define the following elements:
- the name of the non-profit organization, containing an indication of the nature of its activities and legal form;
- the location of the non-profit organization;
- activity management procedure;
- the subject and goals of the activity;
- information about branches and representative offices;
- rights and obligations of members;
- conditions and procedure for admission to membership in a non-profit organization and withdrawal from it (if the non-profit organization has membership);
- sources of formation of the property of a non-profit organization;
- the procedure for amending the constituent documents of a non-profit organization;
- the procedure for the use of property in the event of liquidation of a non-profit organization and other provisions provided for by law.
In the foundation agreement, the founders determine the procedure for joint activities to create a non-profit organization, the conditions for transferring their property to it and participation in its activities, as well as the conditions and procedure for the withdrawal of founders (participants) from its composition.
| Form non-profit organizations | Content of constituent documents | |
| Charter | Constituent treaty |
|
| Consumer cooperative | Not concluded | |
| Public organization | Approved by the founders or participants. Peculiarities content of the statute and memorandum of association public organizations defined in the relevant federal law | Not concluded |
| Fund | Approved by the founders or participants. Must contain the name of the fund, including the word "fund", information about the purpose of the fund; instructions on the bodies of the fund, including on guardianship advice and order their formation, about the order appointment of officials persons of the fund and their release, about the location of the fund, on the fate of the fund's property in case of liquidation | Not concluded |
| non-commercial partnership | Approved by the founders or participants. Must contain terms and conditions and competences of their bodies management, the order of adoption their decisions, including on issues that are resolved adopted unanimously or qualified majority vote, and about the order of distribution property left after liquidation | Conclusion not necessary, but acceptable |
| institution | Approved by the owner | Does not consist but necessary solution owner about the creation |
| Autonomous non-profit organization | Approved by the founders or participants | Conclusion not necessary, but acceptable |
| Associations and unions | Approved by members of the union or associations. Must contain terms of composition and competence their governing bodies, order their decision-making including on issues decisions on which adopted unanimously or qualified majority vote, and about the order of distribution property left after liquidation |
The founders of a non-profit organization, depending on its organizational and legal forms, may be citizens and (or) legal entities. The number of founders of a non-profit organization is generally not limited.
A non-profit organization may be founded by one person, with the exception of the establishment of non-profit partnerships, associations (unions) and other cases provided for by federal law.
In other words, public organizations, foundations and autonomous non-profit organizations can be created by one founder.
Institutions must be created by one founder - the owner of the property. If there are several owners of property, then the created organization is unlikely to meet the characteristics of an institution.
The founders of state and municipal institutions are state authorities and local self-government bodies, which assign property to the institutions created by them on the basis of the right of operational management in accordance with the Civil Code of the Russian Federation and carry out their full or partial financing.
State authorities and local governments, within their competence, may provide economic support to non-profit organizations in various forms, including:
- granting, in accordance with the law, benefits for the payment of taxes, customs and other fees and payments to non-profit organizations established for charitable, educational, cultural and scientific purposes, in order to protect the health of citizens, develop physical culture and sports, and other purposes established by law, taking into account organizational -legal forms of non-profit organizations;
- providing non-profit organizations with other benefits, including full or partial exemption from fees for the use of state and municipal property;
- placement among non-profit organizations on a competitive basis of state and municipal social orders;
- providing, in accordance with the law, tax benefits to citizens and legal entities that provide financial support to non-profit organizations.
At the same time, it is not allowed to provide tax benefits on an individual basis to individual non-profit organizations, as well as to individual citizens and legal entities that provide material support to these non-profit organizations.
As already noted, non-profit organizations are classified as legal entities. To acquire the rights of a legal entity, non-profit organizations are subject to state registration in accordance with Federal Law No. 129-FZ of 08.08.2001 "On State Registration of Legal Entities and Individual Entrepreneurs" (hereinafter - Federal Law No. 129-FZ).
A few words should be said about the peculiarities of registration of non-profit organizations with foreign capital.
As a rule, non-profit organizations with foreign capital are created to achieve a specific socially useful goal, including educational, charitable, scientific or religious.
Legal relations connected with the creation of such organizations are regulated by the legislation of the Russian Federation on non-profit organizations.
Thus, by virtue of Federal Law No. 82-FZ of May 19, 1995, "On Public Associations," a non-profit organization with foreign capital is subject to state registration in the manner prescribed by Federal Law No. 129-FZ for state registration of public associations.
The special procedure for state registration of public associations with the participation of foreign capital is that the decision on state registration of such organizations is made not by the registering (tax) body, but by the federal justice body or its territorial body.
After the decision is made, the documents are sent to the registration authority.
According to these documents, the registration authority, no later than five days from the date of their receipt, makes an appropriate entry in the Unified State Register of Legal Entities (EGRLE). Not later than the working day following the day of making an entry on the state registration of a legal entity, the registering body sends a document confirming the fact of making an entry in the state register to the federal justice body or its territorial body that made the decision on the state registration of the legal entity for issuance to the applicant.
For one reason or another, non-profit organizations can be reorganized. The main reason for this may be a change in the goals and objectives of the non-profit organization.
The reorganization of non-profit organizations is understood as their merger, accession, separation, separation and transformation.
A non-profit organization is considered to be reorganized, except for cases of reorganization in the form of affiliation, from the moment of state registration of the newly established organization (organizations).
When a non-profit organization is reorganized in the form of a merger with another organization, the first of them is considered reorganized from the moment an entry is made in the Unified State Register of Legal Entities on the termination of the activities of the affiliated organization.
State registration of an organization (organizations) that has arisen as a result of reorganization and an entry in the Unified State Register of Legal Entities on the termination of the activities of the reorganized organization (organizations) is carried out in the manner established by Federal Law N 129-FZ.
The transformation of the organization is a special case of its reorganization.
A non-profit organization may be liquidated on the basis and in the manner provided for by the Civil Code of the Russian Federation, the Law on Non-Profit Organizations and other federal laws.
According to Art. 61 of the Civil Code of the Russian Federation, the liquidation of a legal entity entails its termination without the transfer of rights and obligations by way of succession to other persons.
The same article defines the grounds on which the organization can be liquidated.
Any legal entity (including a non-profit organization) may be liquidated:
- by decision of its founders (participants) or a body of a legal entity authorized to do so by constituent documents, including in connection with:
- with the expiration of the period for which the legal entity was created;
- with the achievement of the purpose for which it was created;
- with the court declaring the registration of a legal entity invalid due to violations of the law or other legal acts committed during its creation, if these violations are of an irremediable nature;
- by a court decision in the event of carrying out activities without a proper permit (license), activities prohibited by law, or with other repeated or gross violations of the law or other legal acts.
Article 61 of the Civil Code of the Russian Federation specifically stipulates that a public or religious organization, charitable or other foundation may be liquidated in the event of the systematic implementation of activities that contradict their statutory goals.
The initiator of judicial consideration on the liquidation of a non-profit organization may be state bodies or bodies of local self-government, which are entitled by law to present such a claim.
The court may impose the obligation to carry out the liquidation of a legal entity on its founders (participants) or the body authorized to carry out the liquidation of a legal entity in accordance with its constituent documents.
A legal entity acting in the form of a consumer cooperative, charitable or other foundation is also liquidated in accordance with Art. 65 of the Civil Code of the Russian Federation due to its recognition as insolvent (bankrupt).
If the value of the property of such a legal entity is insufficient to satisfy the claims of creditors, then this legal entity may be liquidated only in the manner prescribed by Art. 64 of the Civil Code of the Russian Federation.
According to the Law on Non-Commercial Organizations, the decision to liquidate a foundation can only be made by a court upon application by interested parties.
The fund may be liquidated:
- if the property of the fund is not enough to achieve its goals and the probability of obtaining the necessary property is unrealistic;
- if the goals of the fund cannot be achieved and changes to the goals of the fund cannot be made;
- in case of deviation of the fund in its activities from the goals provided for by its charter;
- in other cases.
Article 33 of the Law on Non-Commercial Organizations establishes that if a non-commercial organization has committed actions that contradict its goals and federal legislation, then it may be issued a written warning by the body responsible for the state registration of legal entities, or by the prosecutor. If a non-profit organization issues more than two warnings in writing or requests to eliminate violations, it may be liquidated by a court decision.
The founders (participants) of a non-profit organization or the body that made the decision to liquidate it, appoint, in agreement with the body that carries out state registration of legal entities, a liquidation commission (liquidator) and establish the procedure and terms for liquidating the non-profit organization.
From the moment of appointment of the liquidation commission, the powers to manage the affairs of the non-profit organization are transferred to it. The liquidation commission, on behalf of the liquidated non-profit organization, acts in court.
The procedure for the liquidation of a non-profit organization is established by Art. 19 of the Law on non-profit organizations.
The liquidation commission publishes in the press information on the liquidation of the non-profit organization, the procedure and deadline for filing claims by its creditors. The deadline for filing claims by creditors may not be less than two months from the date of publication of information on the liquidation of a non-profit organization.
During these two months, the liquidation commission takes measures to identify creditors and collect receivables, and also notifies creditors in writing of the liquidation of the non-profit organization.
At the end of the term for the presentation of claims by creditors, the liquidation commission draws up an interim liquidation balance sheet, which contains information on the composition of the property of the non-profit organization being liquidated, the list of claims submitted by creditors, as well as the results of their consideration.
The interim liquidation balance sheet is approved by the founders (participants) of the non-profit organization or the body that made the decision to liquidate it.
If the funds available to a liquidated non-profit organization (with the exception of institutions) are not sufficient to satisfy the claims of creditors, the liquidation commission shall sell the property of the non-profit organization at public auction in the manner established for the execution of court decisions.
If the liquidated institution has insufficient funds to satisfy the claims of creditors, the latter have the right to apply to the court with a claim to satisfy the remaining part of the claims at the expense of the owner of this institution.
Payment of sums of money to creditors of a non-profit organization being liquidated is made by the liquidation commission in the order of priority established by the Civil Code of the Russian Federation, according to the interim liquidation balance sheet starting from the date of its approval, with the exception of creditors of the fifth priority, payments to which are made after a month from the date of approval of the interim liquidation balance sheet.
According to Art. 64 of the Civil Code of the Russian Federation, the claims of creditors of a liquidated organization are satisfied in the following order:
- first of all, the claims of citizens to whom the liquidated legal entity is liable for causing harm to life or health are satisfied through the capitalization of the corresponding time payments;
- in the second place, settlements are made for the payment of severance pay and wages with persons working under an employment contract, including under a contract, and for the payment of remuneration under copyright agreements;
- in the third place, the claims of creditors for obligations secured by the pledge of property of the liquidated legal entity are satisfied;
- in the fourth place, debts on obligatory payments to the budget and extra-budgetary funds are repaid;
- in the fifth place, settlements with other creditors are made in accordance with the law.
If the liquidation commission refuses to satisfy the creditor's claims or evades their consideration, the creditor has the right to file a lawsuit against the liquidation commission before the approval of the liquidation balance sheet of the legal entity (clauses 4 and 5 of article 64 of the Civil Code of the Russian Federation). By a court decision, the creditor's claims may be satisfied at the expense of the remaining property of the liquidated legal entity.
Claims of a creditor filed after the expiration of the period established by the liquidation commission for their presentation shall be satisfied from the property of the liquidated legal entity remaining after satisfaction of creditors' claims filed on time.
After completion of settlements with creditors, the liquidation commission draws up a liquidation balance sheet, which is approved by the founders (participants) of the non-profit organization or the body that made the decision to liquidate the non-profit organization.
Thus, in the process of liquidation of a non-profit organization, at least two balance sheets must be drawn up:
- intermediate, on the basis of which the amount of money and the value of property to be transferred to creditors are determined;
- liquidation, which fixes the state of the property of a non-profit organization as of the moment when settlements with creditors are completed.
In addition to the above, it is advisable to draw up two more balances:
- before making a decision on liquidation (before clarifying the amounts of creditors' claims), which will allow determining the financial condition of the organization for a given period, clarifying the grounds for its liquidation, as well as establishing the amount of possible payments and the value of property that may remain after satisfaction of creditors' claims;
- after satisfying the claims of the creditors of the fourth priority, which will make it possible to establish the amount of payments due to the creditors of the fifth priority. It is very likely that in the month that has passed since the approval of the interim liquidation balance sheet, significant changes may occur in the size and structure of the assets of the liquidated non-profit organization.
The procedure for the use of property remaining after the satisfaction of creditors' claims is regulated by Art. 20 of the Law on non-profit organizations.
Such property can be used for the purposes for which the non-profit organization was created, or for charitable purposes.
If the use of property in the above areas for any reason is not possible, it turns into state revenue.
An exception is made for non-profit partnerships and institutions.
Upon liquidation of a non-commercial partnership, the property remaining after the satisfaction of creditors' claims is subject to distribution among the members of the non-commercial partnership in accordance with their property contribution, the amount of which does not exceed the amount of their property contributions, unless otherwise established by federal laws or the constituent documents of the non-commercial partnership. Property in the part exceeding the amount of property contributions is directed to the purposes for which this partnership was created, for charitable purposes or is turned into state revenue.
The property of the institution remaining after satisfaction of creditors' claims shall be transferred to its owner, unless otherwise provided by laws and other legal acts of the Russian Federation or the constituent documents of the institution.
An entry on the termination of the activities of a non-profit organization is made by the body carrying out state registration of legal entities upon submission of the following documents:
- an application for making an entry on liquidation (in the event of voluntary liquidation) or on termination of the activities of a non-profit organization, signed by a person authorized by the non-profit organization;
- decisions of the relevant body on the liquidation or termination of the activities of a non-profit organization;
- the charter of the non-profit organization and the certificate of its state registration;
- liquidation balance sheet, or deed of transfer, or separation balance sheet;
- a document on the destruction of the seal of a non-profit organization.
Federal Law N 129-FZ establishes a strict sequence of actions for founders or participants in interaction with registration authorities.
The founders (participants) of a legal entity or the body that made the decision to liquidate the legal entity are obliged to notify in writing the registration authority at the location of the legal entity being liquidated within three days, attaching the decision on its liquidation.
The registering authority makes an entry in the state register that the legal entity is in the process of liquidation. From this moment, state registration of changes made to the constituent documents of the liquidated legal entity, as well as state registration of legal entities, the founder of which is the above legal entity, or state registration of legal entities that arise as a result of its reorganization, are not allowed.
The founders (participants) of the legal entity or the body that made the decision to liquidate the legal entity shall notify the registering body of the formation of a liquidation commission or the appointment of a liquidator, as well as of the preparation of an interim liquidation balance sheet.
For state registration in connection with the liquidation of a legal entity, the following documents are submitted to the registering authority:
- an application for state registration signed by the applicant in the form approved by the Government of the Russian Federation. The application confirms that the procedure for liquidating a legal entity established by federal law has been observed, settlements with its creditors have been completed and the issues of liquidating a legal entity have been agreed with the relevant state bodies and (or) municipal bodies in cases established by federal law;
- liquidation balance;
- document confirming the payment of the state fee.
These documents are submitted to the registration authority after the completion of the process of liquidation of the legal entity.
State registration upon liquidation of a legal entity is carried out by the registering body at the location of the liquidated legal entity.
The liquidation commission (liquidator) notifies the registration body of the completion of the process of liquidation of the legal entity not earlier than two months from the moment the liquidation commission (liquidator) publishes the publication on the liquidation of the legal entity in the press.
State registration upon liquidation of a legal entity is carried out no later than five working days from the date of submission of documents to the registration authority.
The liquidation of a non-profit organization is considered completed, and the non-profit organization - ceased to exist after an entry about this is made in the Unified State Register of Legal Entities. The registering authority publishes information on the liquidation of a legal entity.
Note! Federal Law No. 83-FZ of July 2, 2005 (hereinafter referred to as Federal Law No. 83-FZ) amended Art. Art. 5, 22 of the Federal Law N 129-FZ, the title of Ch. VII and introduced additional art. 21.1 "Exclusion of a legal entity that has terminated its activities from the unified state register of legal entities by decision of the registering authority."
In the Letter of the Federal Tax Service of Russia dated July 12, 2005 N 09-1-02 / 2908, it is reported that by virtue of clause 1 of Art. 1 of Federal Law N 83-FZ, a legal entity that has actually ceased its activities (hereinafter referred to as an inactive legal entity) may be excluded from the Unified State Register of Legal Entities in the manner prescribed by this Law.
An inactive legal entity is a legal entity that, during the last twelve months, did not submit reporting documents provided for by the legislation on taxes and fees, and did not carry out operations on at least one bank account.
According to paragraphs 2 - 4 of Art. 1 of Federal Law N 83-FZ, in the presence of all the signs of an inactive legal entity listed in this article, the registering tax authority decides on the forthcoming exclusion of the legal entity from the Unified State Register of Legal Entities.
This decision must be published in the press, which publishes data on the state registration of a legal entity, within three days from the date of its adoption. From this moment, within three months from the date of publication of the decision on the forthcoming exclusion, an inactive person, creditors or other interested persons whose rights and legitimate interests are affected by the exclusion of an inactive legal entity may send an application to the registering (tax) body.
Thus, if a legal entity has a debt, for example, to the executive body of the Social Insurance Fund of the Russian Federation, this executive body has the right to send an application to the registration (tax) body at the location of such a legal entity to object to the exclusion of the legal entity from the Unified State Register of Legal Entities. After sending such an application, a decision to exclude a legal entity from the Unified State Register of Legal Entities is not made.
In the event that statements from the persons specified in paragraph 3 of Art. 1 of Law N 83-FZ, the registering (tax) authority does not receive within three months from the date of publication of the decision on the upcoming exclusion of an inactive legal entity, after the expiration of the specified period, the registering (tax) authority makes an entry on the exclusion of the legal entity from the Unified State Register of Legal Entities.
The Letter of the Ministry of Finance of Russia dated July 27, 2005 N 03-01-10 / 6-347 states that even if the organization is liquidated, its debts are not hopeless.
The Tax Code of the Russian Federation recognizes as uncollectible debts for which the limitation period has expired, or an obligation that has been terminated due to the impossibility of performance. Moreover, such an impossibility, in accordance with paragraph 2 of Art. 266 of the Tax Code of the Russian Federation may arise on the basis of an act of a state body or in connection with the liquidation of an organization.
In accordance with paragraphs. 2 p. 2 art. 265 of the Tax Code of the Russian Federation, bad debts of an organization can be written off as expenses.
However, the Russian Ministry of Finance believes that simplified liquidation does not fall under this rule. The fact of exclusion of an organization from the Unified State Register of Legal Entities (this is exactly what happens during the simplified liquidation of an organization) is not at all identical with liquidation.
This is due to the fact that in the simplified liquidation of an inactive organization, the tax authorities do not need to go to court. The exclusion of a legal entity from the state register occurs only on the basis of the decision of the tax inspectorate.
Federal Law N 129-FZ grants the right to creditors of an organization liquidated under a simplified procedure to apply to the registration authority. In such a statement, the claims against the debtor and evidence of their validity must be listed. This can be done within three months from the date of publication of the decision on the forthcoming liquidation of the inactive debtor.
According to the Ministry of Finance of Russia, the filing of an application should suspend the simplified liquidation of an inactive organization. And after that, only the court can liquidate the organization in the bankruptcy procedure of the absent debtor.
Organizations that missed the deadline for submitting such an application also cannot write off the debt. They must go to court and appeal the very fact of exclusion of an inactive person from the Unified State Register of Legal Entities in order to recover the amounts due from him.
There is another opinion on this matter. The authors, who hold a different point of view, refer to the provisions of Art. 266 of the Tax Code of the Russian Federation, which states that the debts of liquidated firms are recognized as uncollectible. And according to Art. 63 of the Civil Code of the Russian Federation, the liquidation of a legal entity is considered completed precisely after an entry about this is made in the Unified State Register of Legal Entities. From the same moment, the legal entity is recognized as having ceased to exist. Thus, we can conclude that making an entry in the Unified State Register of Legal Entities is the liquidation of the organization.
With a simplified procedure, an entry is also made in the Unified State Register of Legal Entities, and therefore, the organization is being liquidated. And the rules of Art. 266 of the Tax Code of the Russian Federation. Therefore, such debt can be safely recognized as uncollectible and written off as non-operating expenses.
The proposal of the Russian Ministry of Finance, instead of writing off the debt, to "reanimate" the organization and make claims against it does not make sense either. The fact is that in this case, the bankruptcy procedure of the absent debtor begins to work. But there is no one to finance such liquidation. After all, as a rule, inactive organizations do not have any property. From paragraph 2 of Art. 227 of the Federal Law of October 26, 2002 N 127-FZ "On Insolvency (Bankruptcy)" it follows that in the absence of funding for the bankruptcy proceedings of the absent debtor, the court must return the application for declaring the debtor bankrupt. It turns out that the only way to write off such debt for the creditor is to finance the bankruptcy procedure.
The version of the Law on Non-Commercial Organizations dated February 2, 2006 tightens the registration procedure for non-commercial organizations.
This is due to the need for a comprehensive adjustment of approaches to the legal regulation of the procedure for state registration of non-profit organizations, since the existing legislation on non-profit organizations lacks a mechanism for monitoring them.
The new Law on non-profit organizations establishes a special procedure for the state registration of such organizations established in the form of:
- non-profit partnership;
- institutions;
- an autonomous non-profit organization;
- fund;
- associations;
- union.
In accordance with the text of the new Law, the creation and operation of organizations with foreign investment in the territory of a closed administrative-territorial formation is allowed in the manner prescribed by the Government of the Russian Federation.
At the same time, on the territory of a closed administrative-territorial formation, the creation and activities of organizations whose founders are:
- Foreign citizens;
- stateless persons;
- foreign organizations;
- foreign non-profit non-governmental organizations;
- branches of foreign non-profit non-governmental organizations.
The activities of international organizations are also prohibited in these territories.
Founders, members and participants of public associations may be:
- citizens over the age of 18;
- legal entities - public associations.
Foreigners and stateless persons legally residing in the Russian Federation may be founders, members and participants of public associations, with the exception of cases established by federal laws or international treaties of the Russian Federation.
The Law establishes that a foreigner, in respect of whom a decision has been made on the undesirability of his stay on the territory of Russia, or whose actions, according to a court decision, contain signs of extremist activity, can neither be a founder, nor a member, nor a member of a public association.
Also, persons sentenced to deprivation of liberty cannot act as founders.
Members and participants of youth public associations may be citizens who have reached the age of 14, children's public organizations - citizens who have reached the age of 8.
It is established that bodies of state power and local self-government cannot be founders, members and participants of public associations.
When creating public associations in the form of public organizations, the founders of these associations automatically become their members, acquiring appropriate rights and obligations.
In order to acquire the rights of a legal entity, a public association is subject to state registration.
The decision on state registration or refusal of it is made by the federal executive body authorized in this area, or its territorial body. At the same time, the decision on state registration of an all-Russian or international public association is made by the federal body of state registration.
The law determines that documents for state registration of non-profit organizations are submitted within three months from the date of the founding congress or general meeting.
The decision on registration must be made by the authorized body within thirty days from the date of receipt of the application. For the state registration of non-profit organizations, changes made to their charter, a state fee is collected in the manner and in the amounts provided for by the legislation of the Russian Federation on taxes and fees.
Registration may be refused if the charter and other constituent documents of the public association contradict the Constitution and legislation of the Russian Federation.
Public associations must inform the federal body of state registration about the amount of funds they receive from international and foreign organizations, foreign citizens and stateless persons. Otherwise, the body that registered such an association has the right to apply to the court to recognize this association as having ceased its activities as a legal entity and to exclude it from the Unified State Register of Legal Entities.
L.N. Myakinina
Tax Consultant
CJSC "BKR-Intercom-Audit"
Types of associations of legal entities
An association of legal entities is a membership organization that unites any commercial, non-profit, and government organizations for non-commercial purposes. Such associations can be created in the form of associations and unions. Association - This is a voluntary association of legal entities and (or) individuals. Union- voluntary association, agreement for the implementation of any action. At the same time, it should be noted that Russian legislation does not make a clear distinction between an association and a union as types of associations of legal entities. At the same time, a number of experts believe that it is more correct to consider an association as an association of organizations of the same type, and a union as an association formed on the basis of such features as a territorial community, a common market for products, etc.
In Russia, a significant number of associations of legal entities have been created in recent years. The main purpose of their creation and functioning is to defend the professional, property interests of legal entities. Associations of legal entities free various institutions of state power from monitoring compliance with the principles of business ethics, product quality, standardization, training of qualified personnel, etc.
There are the following forms of associations of legal entities:
Associations of commercial organizations;
Associations of non-profit organizations;
Associations of commercial and non-commercial organizations.
Associations of commercial organizations are created in order to coordinate their business activities, as well as to represent and protect common property interests. An example of an association of commercial organizations is the Association of Russian Banks (ARB). The need to create the ARB was due to the needs of commercial banks to combine efforts to protect their interests. Each bank pursues its own goals and solves its own problems. At the same time, all banks are interested in a favorable economic and legal climate in the country, uniform compliance with established laws and regulations. It should be noted that banking associations have a long history. Thus, banking associations in the USA and Great Britain were created in the 19th century.
Non-commercial organizations can also unite in associations and unions. It is possible to create mixed associations of legal entities.
The procedure for the creation, reorganization and liquidation of an association of legal entities
An association can only be created by a group of legal entities, and not by one person. The name of the association must contain the word "association" or "union", as well as an indication of the subject of activity. Associations and unions as founding documents must have a memorandum of association and articles of association.
When joining an association, its members retain their independence (with the exception of the powers voluntarily transferred to the association), the rights of a legal entity.
The association (union) is not responsible for the obligations of its members. At the same time, the participants of the association (union) bear subsidiary liability for the obligations of the association (union) in the amount and in the manner prescribed by its constituent documents.
An association, union may be transformed into a foundation, an autonomous non-profit organization, a business entity or a partnership.
The reorganization and liquidation of an association (union) is carried out by decision of the congress or judicial bodies. The reasons for the reorganization and liquidation are as follows:
The main objectives of the activity cannot be achieved;
The association (union) avoids its main activity;
The association (union) violates the current legislation, etc.
Entrepreneurial activity of associations of legal entities
Associations and unions do not have the right to directly carry out entrepreneurial activities. If in practice there is a need to conduct entrepreneurial activities, then the following options for solving this problem are possible:
1) an association (union) is transformed into a business company or partnership;
2) an association (union) creates an economic company for the implementation of entrepreneurial activities;
3) an association (union) takes part in the activities of a business entity.
Rights and obligations of members of associations (unions)
Members of an association (union) have the right to use its (his) services free of charge. The content of the services provided depends on the goals and objectives set for the association. It can be management, consulting, information and other types of services. To receive such services, first of all, associations and unions are created by legal entities.
Members of an association (union) have the right to withdraw voluntarily. However, such an exit should not cause damage to other members of the association. Therefore, a member of an association (union) has the right to withdraw from the organization, but only at the end of the financial year. In this case, a member of the association bears subsidiary liability for its obligations in proportion to its contribution within two years from the date of withdrawal. The same rules apply to excluded members of an association (union).
In case of withdrawal from the association (union), entrance and membership fees are not refundable.
The constituent documents of associations of legal entities provide that its member may be expelled from the association (union) in case of gross violations of the law, non-compliance with the charter, incorrect actions in relation to the association and its members, non-payment of membership fees.
With the consent of the members of the association (union), a new member may enter it (it). For example, when a meeting of shareholders of a commercial bank decides to join the ARB, they submit an application for joining the association, as well as documents confirming the reliable financial condition of the bank, guaranteeing the payment of membership fees.
Associations and unions are associations of various legal entities based on corporate (membership) principles. Unlike non-legal holding type associations (including "parent" and subsidiaries), these associations, firstly, are independent legal entities, and secondly, pursue non-commercial goals, mainly coordinating the activities of participants and representing and protecting their common, in including property interests, thus being non-profit organizations. They are created exclusively on a voluntary basis and are not entitled to exercise any managerial functions in relation to the participants. Therefore, members of an association or union fully retain their independence and the rights of legal entities (clause 3, article 121 of the Civil Code; clause 3, article 11 of the Law on Non-Commercial Organizations). An association (union) is an association of legal entities based on the principles of membership, created by them in order to coordinate activities, as well as represent and protect their interests (clauses 1 and 2 of article 121 of the Civil Code; clauses 1 and 2 of article 11 of the Law on non-profit organizations ). Territorial (regional) unions of consumer societies (district consumer unions, regional consumer unions, etc.), as well as territorial and interregional associations of trade unions (regional trade union unions, etc.) are now declared to be a variety of such non-profit organizations. Both commercial and non-commercial organizations can act as founders of associations and unions, both separately and jointly (paragraph 4 of article 50 of the Civil Code), although the practical need for coordination of activities or joint protection of common interests usually arises from homogeneous in nature activities of groups (types) of legal entities. The law does not provide for the minimum required number of participants in such organizations, leaving the decision on this issue to the discretion of the founders themselves. One and the same legal entity, while remaining completely independent, may simultaneously be a member of several associations and unions, including those of a homogeneous nature. The founding documents of an association and a union are the memorandum of association and the charter (clause 1, article 122 of the Civil Code; clause 1, article 14 of the Law on Non-Commercial Organizations). In the first of them, the goals of creating an association and the conditions for participation in it are determined, and in the second, the status of the association itself. Therefore, in case of discrepancy between the conditions contained in these documents, preference should be given to the charter as directly determining the status of the association in its relations with third parties. In addition to information common to all legal entities, the constituent documents of an association (union) must contain conditions on the tasks and objectives of its activities (determining the scope and nature of its special legal capacity, as well as the main subject of its activity, which should be indicated in its name), about the composition and competence of the governing bodies and the procedure for their decision-making, as well as the procedure for the distribution of property remaining after the liquidation of the association (union). Since such a non-profit organization is created on a corporate basis, its highest (will-forming) body is always the general meeting of participants (their representatives), the competence and procedure for which, in accordance with the law, should be determined by its charter (clauses 1-3 of article 29 of the Law on non-profit organizations). The executive (volitional) bodies of an association (union) are formed by its supreme body from among individuals - bodies (officials) or representatives of participants. The property of the association is initially made up of entrance and membership fees of participants and their voluntary donations and becomes the object of its property. At the same time, the founders (participants) of an association or union do not acquire any rights to this property (clause 3, article 48 of the Civil Code). The law does not establish requirements for the minimum amount of property of such a non-profit organization or for the contribution of its participant. The property of an association (union) is its property and is used by it exclusively to achieve the goals provided for by its founding documents. At the same time, members of an association (union), in the event of a shortage of its property to cover debts to creditors, bear limited liability with their property in the amount and in the manner prescribed by the association's constituent documents (clause 4, article 121 of the Civil Code; clause 4, article 11 of the Law on Non-Commercial Organizations ; item 4, article 14 of the Law on Charitable Activities). Such subsidiary liability of members of an association (union) is an important feature of its civil law status. An association or union is not entitled to carry out entrepreneurial activity itself, but may create business companies for this purpose or participate in them1. However, the association (union) does not have the right to distribute income from its activities among its members and must use it exclusively for the needs of the association. A member of an association (union) has the right to participate in the management of its affairs on an equal footing with other members (participants). He can also use the services provided by the association (union) free of charge (p. 1 st. 123 GK; paragraph 1 of Art. 12 of the Law on non-profit organizations). A member of an association (union) has the right to freely withdraw from it, since for the association or union his withdrawal does not entail the obligation to make any payments or extraditions. He bears the obligations stipulated by the constituent documents, including the payment of membership and other fees, for non-fulfillment of which he may be expelled from the association (union) by decision of the other participants (paragraph 2, paragraph 2, article 123 of the Civil Code; paragraph 2, paragraph 2 article 12 of the Law on non-profit organizations). At the same time, for two years from the moment of his withdrawal, he retains additional liability for the debts of the association (union) in the amount proportional to his contribution to its property. New members are admitted to such an association by a unanimous decision of its participants, and they may be assigned additional liability with personal property for the debts of the association that arose before their adoption (clause 3 of article 123 of the Civil Code; clause 3 of article 12 of the Law on non-profit organizations ). The association (union) is reorganized and liquidated according to the general rules of reorganization and liquidation of legal entities. Such an association, by unanimous decision of the participants, may be transformed into a foundation or an autonomous non-profit organization, and if the founders entrust it with the conduct of entrepreneurial activity, it must be transformed into a business company or partnership. Due to the existence of subsidiary liability of members of an association (union) for its debts, such a non-profit organization cannot be declared bankrupt (cf. clause 2, article 65 of the Civil Code). The rest of the property of the association, formed after the completion of its liquidation, is transferred for use for the purposes specified in its charter, or for other purposes provided for by law (clause 1, article 20 of the Law on Non-Commercial Organizations) and cannot be distributed among its founders (members) . An independent type of association is the Chamber of Commerce and Industry. The Chamber of Commerce and Industry is a voluntary association on the basis of membership of commercial organizations and individual entrepreneurs, created by them to promote the development of entrepreneurship, organize interaction between entrepreneurs, as well as represent and protect their interests (clause 1, article 1 and clause 1, article 3 Law on Chambers of Commerce and Industry in the Russian Federation). Its main feature is the absence of additional liability of participants for the debts of the association (chamber). The Chamber of Commerce and Industry (CCI) is created on the initiative of at least 15 founders and, unlike the constituent documents of an ordinary association, has a charter as the only constituent document. Chambers of commerce and industry are formed according to the territorial principle, and in the same territory (in the region) there can be only one such chamber. Only Russian commercial organizations and individual entrepreneurs, as well as their associations (unions and associations), can be members of the CCI. Otherwise, their status is similar to that of ordinary associations and unions.
27. State and other public legal entities as subjects of civil law.
Along with individuals and legal entities, the parties to relations regulated by civil law are the state and other public legal entities. In order to solve the public, national or other public (regional, local) tasks facing them, in many cases they need to participate in property relations. Among the public legal entities involved in civil legal relations are, firstly, the state and, secondly, municipalities. The peculiarities of the domestic state and socio-economic structure result in the fact that the state does not act as a single subject of civil legal relations, but, on the contrary, is characterized by a plurality of subjects. The peculiarities of the legal status of any state are due to its political power and state sovereignty, by virtue of which it itself regulates various, including property, relations, establishing as generally binding both the rules of conduct for all participants and the procedure for resolving their possible disputes. At the same time, it itself determines its own civil legal personality, its content and limits. Features of the civil legal personality of public legal entities. They differ from ordinary legal entities of private law in that they are created on the basis of a public law (usually administrative, power-administrative) act and pursue public (public) goals in their activities, and also have certain powers. Their legal status is regulated by the norms of public rather than private law, but as subjects of property turnover they are equalized with legal entities of private law. The current Russian legislation considers the state, state and municipal (public law) formations to be independent, special subjects of law (sui generis), existing along with legal entities and individuals. Their civil status is subject to the norms that determine the participation in the property turnover of legal entities, unless otherwise directly follows from the law or from the characteristics of these entities (clause 2 of article 124 of the Civil Code). As subjects of civil law, the state and other public legal entities have civil legal capacity and legal capacity. When determining their nature and content, it should be borne in mind that the entities in question, unlike legal entities, were not created to participate in civil legal relations, which is for them a forced, auxiliary character in relation to the main activity. Thus, the actions of the authorities, committed within their competence, are the actions of the public legal entities themselves. It is therefore important to determine whether these actions are based on the respective powers of these bodies, whether they fall within their competence. The competence of state bodies and local self-government bodies, including participation in civil legal relations, is established by acts of public, and not private (civil) law. For the sphere of civil law, first of all, their competence in the use of state and municipal property, including the possibility of acquiring and alienating (disposing of) it, as well as competence in the field of imposing (bearing) property liability, is of importance. Participation of the state and other public legal entities in property relations As owners of their property, public legal entities are independent of each other and act in civil legal relations as completely independent, equal and property-separated subjects. Attempts by the federal state to establish for other public owners the cases of disposing of their property, for example, to determine the objects of privatization, cannot be recognized as based on the law. That is why the Russian Federation is not liable with its treasury for the obligations of its constituent entities or municipalities, and the latter are not liable with their property for the obligations of each other or the Russian Federation, unless one of them has assumed a special guarantee (guarantee) for the obligations of another subject (clause 4–6 of article 126 of the Civil Code). Public law formations may be subject to certain limited property rights (servitude type). They have the right to use proprietary and other methods of protecting their rights and legitimate interests by filing appropriate claims in accordance with the general procedure established by law. Public law entities can be heirs by will, and also become owners of escheated property. Thus, they can be participants in hereditary relationships. Depending on what objects are included in the escheated property (movable or immovable things, securities, bank deposits, etc.), the public authorities participating in these legal relations on behalf of public legal entities are also determined. As owners, they have the right to create legal entities, endowing them with the necessary property. The creation of unitary enterprises - non-owners (subjects of the right of economic management) is now allowed only for public legal entities (and the creation of state-owned enterprises - subjects of the right of operational management - only to the federal state). Participation of public legal entities in corporate relations . State and municipal formations can create new owners - economic companies and partnerships - at the expense of their property or together with other subjects of civil law. However, only relevant committees or property funds can act as founders of such companies on their behalf. As shareholders and participants in other business companies and partnerships, public legal entities through their authorized persons become participants in corporate civil law relations. Their representatives participate in the activities of such commercial organizations on behalf of public legal entities and in accordance with their instructions both at general meetings and in management (executive) bodies. Moreover, state and municipal formations have the right, on the above conditions, to create business companies with their predominant or even sole participation (“companies of one person”, “state corporations”). Participation of public legal entities in obligations. State and municipal entities may be subject to various obligations arising both from contracts and from non-contractual relations. In the field of contractual relations, the most common cases of their acting as state customers in contracts for the supply or contract for state needs (where both state bodies and other persons authorized by them to do so can act on their behalf), as well as borrowers or lenders in loan or credit agreements. Such relations can also be formalized by issuing bonds or other state and municipal securities (including in "uncertificated form") that perform the functions of bonds ("treasury bills" or "treasury bills", "gold certificates" of the Ministry of Finance, etc.) . Public legal entities are also liable for harm caused to citizens or legal entities by illegal actions of state bodies, local governments or their officials (Article 16, 1069 of the Civil Code). Property damage caused to citizens and legal entities by such actions of public authorities is subject to compensation at the expense of the relevant treasury (of the Russian Federation, its subject, municipality), i.e. primarily at the expense of budgetary (cash) funds, and in their absence - at the expense of other property constituting the treasury, except for property withdrawn from circulation (clause 1 of article 126 of the Civil Code)1. Therefore, as a general rule, financial authorities act as defendants in the relevant claims. Participation of the state in exclusive (non-property) legal relations. In the sphere of exclusive (inventive, copyright, "adjacent" and the like) rights, the federal state (but not other state and municipal entities) can become the subject of legal relations in cases specified by law. At the same time, the participation of the federal state as an independent subject of civil legal relations arising in this area is of an exceptional nature, due to the special social (public) significance of the use of certain protected objects. As a general rule, the state does not become and cannot become the subject of not only copyright and inventive (patent), but even other "industrial rights", for example, for a trademark or service mark. Participation of the state in external (international) civil circulation. Independent participants in the civil law relations under consideration can only be state, but not municipal entities. On the basis of civil law agreements and guarantees, both state external loans of the Russian Federation and the provision of loans by it to foreign states, their legal entities and international organizations can be carried out. The party to such transactions is the Russian Federation, usually represented by the Government of the Russian Federation. A foreign state can also act as a subject of civil law relations, being, in particular, the owner of certain property or a foreign investor on Russian territory. However, its legal personality will be determined according to the rules of its national legislation (where it is most often considered a legal entity of public law) and taking into account relevant international legal agreements. State immunity. The participation of the state as a partner in a transaction in foreign economic turnover does not in itself make it possible to hold it liable for failure to fulfill its obligations in a foreign court, since this would violate the sovereignty of the state. In some cases, the state itself waives judicial immunity, for example, in order to attract foreign investment. In the legislation and judicial practice of many foreign countries and in some international conventions in recent decades, the so-called doctrine of limited (functional) immunity has become widespread. In accordance with it, it is assumed that the state (public legal entity), carrying out private law, commercial activities in international property circulation, thereby waives judicial immunity for the requirements arising from it. This approach really consistently equates the state with other participants in private law relations in the field of international commercial relations.
Profession Development Director Job responsibilities of the Regional Development Director
Coursework: Liquidity and solvency of the enterprise, methods of assessment and management
Using Logistics Performance Indicators
The concept and elements of the logistics process
Job description for the head of the motor transport section Job description for the head of the transport packaging department