ASSOCIATIONS OF LEGAL ENTITIES ASSOCIATIONS OF LEGAL ENTITIES (associations and unions) - non-profit organizations created by legal entities on a voluntary (contractual) basis and on the basis of membership (in the form of associations and unions) in order to coordinate their activities, represent and protect their common, incl. h. property, interests (clauses 1 and 2 of article 121 of the Civil Code of the Russian Federation). O.y.l. not entitled to carry out any managerial functions in relation to participants who fully retain their independence and rights legal entities(Clause 3, Article 121 of the Civil Code of the Russian Federation). As founders of O.y.l. both commercial and non-profit organizations can act, both separately and jointly (clause 4, article 50 of the Civil Code of the Russian Federation).

Big legal dictionary. - M.: Infra-M. A. Ya. Sukharev, V. E. Krutskikh, A. Ya. Sukharev. 2003 .

See what "ASSOCIATIONS OF LEGAL ENTITIES" is in other dictionaries:

Associations of legal entities- (English unions of juridical persons) in the Russian Federation, non-profit organizations created by legal entities on a contractual basis in order to coordinate their activities, represent and protect common property interests ... Encyclopedia of Law

Non-profit organizations created by legal entities on a voluntary (contractual) basis and on the basis of their membership in the form of associations and unions in order to coordinate their activities and represent and protect their common, including property ... ... Law Encyclopedia

associations of legal entities Big Law Dictionary

ASSOCIATIONS OF LEGAL ENTITIES- see Associations and unions of legal entities ... Law Dictionary modern civil law

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 ... Vocabulary: accounting, taxes, business law

- (ASSOCIATIONS AND UNIONS) in accordance with the civil legislation of the Russian Federation, non-profit organizations created in the form of associations or unions by commercial organizations under an agreement between themselves in order to coordinate their entrepreneurial ... ... Encyclopedic Dictionary of Economics and Law

Associations of legal entities (associations, unions) in the system of higher and postgraduate professional education- are non-profit organizations established and operating in accordance with the Civil Code of the Russian Federation. Federal Law of August 22, 1996 N 125 FZ, Art. 14 ... Dictionary of legal concepts

ASSOCIATIONS OF LEGAL ENTITIES (ASSOCIATIONS AND UNIONS)- in accordance with the civil legislation of the Russian Federation, non-profit organizations created in the form of associations or unions by commercial organizations under an agreement between themselves in order to coordinate their business activities, and also ... ... Legal Encyclopedia

associations of legal entities (associations and unions)- (associations and unions) non-profit organizations created by legal entities on a voluntary (contractual) basis and on the basis of membership (in the form of associations and unions) in order to coordinate their activities, represent and protect their common ones, including ... ... Big Law Dictionary

Non-profit organizations created by legal entities on a voluntary (contractual) basis and on the basis of membership (in the form of associations and unions) in order to coordinate their activities, represent and protect their common, including property, ... ... Law Dictionary

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• Civil Society as a Guarantee of Political Dialogue and Countering Extremism, Avakyan Suren Adibekovich. This publication is a collective monographic work devoted to modern key constitutional and legal problems of civil society as a guarantee of political dialogue and…

Introduction

The relevance of the topic of the work lies in the fact that present stage development of market relations in Russia, the processes of integration of economic entities taking place in commodity market are becoming more and more widespread. This is expressed in the creation of holdings, financial and industrial groups and other associations of economic entities. The concentration of capital and the formation of corporate associations with a complex structure is a common feature inherent in the economies of all industrialized countries. Russia is no exception in this respect.

Under these conditions, there is an objective need to form effective mechanisms for the legal regulation of the processes of creation and activities of associations of economic entities. However, as the analysis of the current legislation shows, it does not fully meet economic needs, and many of its provisions relating to individual associations of economic entities need to be improved.

In Russia, there is quite a lot of experience in the functioning of associations of economic entities, but so far in legal science, issues related to the concept and essence of associations, their classification, legal personality, cause a lot of controversy, including the expediency of the existence of separate associations of economic entities is ambiguously assessed by scientists.

The object of the study is the relations that develop in the process of creation and operation of associations of economic entities, regulated by civil and antimonopoly legislation.

The subject of the study is the norms of civil and antimonopoly legislation, through which associations of economic entities act as participants in relations developing in the commodity markets.

The purpose of the work is a comprehensive study of individual associations of economic entities in the aspect of civil and antimonopoly legislation. To achieve this goal, the following main tasks are set:

study of Russian historical experience formation and development of associations of economic entities;

theoretical understanding of the essence of associations of economic entities in the economic and legal aspects, clarification of the conceptual apparatus in the study area;

comparative study of individual non-profit associations of economic entities (associations (unions), non-profit partnerships);

studying the issues of antimonopoly regulation of the creation and activities of commercial and non-commercial associations of economic entities.

The normative-legal basis of the study is the previously existing and current domestic civil and antimonopoly legislation; draft laws were also used.

Chapter 1 current position associations of economic entities

.1 History of business associations in Russia

In Russia, the characteristic features of associations of the pre-revolutionary period (cartels, syndicates, trusts) were that participation in them was carried out on the initiative of entrepreneurs pursuing the realization of private interests in strengthening their position in the market and extracting the maximum possible profit; the basis of most business unions (associations) was an agreement (cartels, syndicates), however, there were also associations that are legal entities (trusts).

In the Soviet period, the main feature of enterprise associations (state trusts, syndicates, industrial, production and scientific production associations) was that the formation of associations was primarily subordinated to the goals of the state planned management of industry and trade. The entry of enterprises into associations was carried out centrally, by decision of higher management bodies. In contrast to the pre-revolutionary period, the formation of enterprise associations in the USSR was based on the structure of a legal entity, although individual associations (in particular, industrial ones) did not have the status of a legal entity.

The specificity of the current stage of the existence of associations of economic entities lies in the fact that in a relatively short period of about 20 years, there has been a sharp transition from production, industrial, research and production associations that acted as state-monopoly structures to new, diverse forms of associations. Compared with the Soviet period, the principles of creating and operating associations have changed significantly: from a directive, centralized association state enterprises to initiative, voluntary interaction of economic entities; the organization of associations is allowed using both the construction of a legal entity (association (union)), and an agreement, in particular, on joint activities. A feature of the current stage of the existence of associations of economic entities is that in the conditions of competition in the commodity market, antimonopoly regulation of the processes of creation and activities of such associations is carried out.

In the post-perestroika period, the development of the economy and the creation of jobs required the energy of entrepreneurship to replace the dying state-owned enterprises. It was also necessary for the development of a full-fledged civil society, without which democracy is impossible. In this connection, about a million new companies appeared, but most of them failed to survive.

State regulation of associations of legal entities (associations and unions) is designed to determine the strategy for their development, develop instructions for action, principles for the functioning of organizations. To resolve inconsistencies in the system state regulation a deterrent non-state counterbalance is needed. Associations, unions, institutions of self-regulation, which are elements of civil society and business law, are such a balancing force. These associations allow their participants to create not only products that are competitive on the Russian market, but also to integrate into international business activities and, as a result, expand sales markets, improve their own business activities.

The state is ready to entrust the business community, led by self-regulatory organizations, participate in the development of regulatory procedures at the state level and regulate certain areas of their activities independently. At the same time, Russian legislation does not have time to respond to the necessary needs economic relations which are developing quite rapidly.

1.2 Economic and legal essence of the association of economic entities

Based on the statement about profit maximization as the main goal of the company's activities in the market, taking into account the ongoing processes of economic integration, it can be said that, pursuing the goal of making profit as the main goal of activity, business entities use the creation of associations as one of the means of increasing the efficiency of ongoing entrepreneurial activities due to acquisitions as a result of combining individual competitive advantages. The creation of associations is carried out in the forms provided for by the current legislation, and each of them is characterized by a number of advantages for the participants. Thus, participation in FIGs implies the possibility for economic entities to receive state support measures (Article 15 of the FIG Law); within the framework of holdings, it is possible to reduce production costs; associations (unions) contribute to the collective solution of economic, legal, political and other tasks facing the participants (Article 121 of the Civil Code, hereinafter referred to as the Civil Code of the Russian Federation); when creating contractual associations, the consolidation of financial, production, intellectual and other resources is carried out, which makes it possible to jointly implement large-scale projects and programs (Article 1041 of the Civil Code of the Russian Federation).

To designate the participants in the association, the category of antimonopoly legislation “economic entity” was taken as the basis, which allows taking into account the nature of the activities of such persons in the commodity market and the economic prerequisites for creating associations (obtaining competitive advantages for obtaining (increasing) profits). Criticizing the definition of an economic entity contained in Art. 4 of the Law on Protection of Competition, business entities are proposed to be understood as individual entrepreneurs, commercial organizations and non-profit organizations engaged in entrepreneurial activities.

The association of economic entities is proposed to be considered in two senses: on the one hand, as an economic process of interaction between economic entities, during which they coordinate, coordinate certain aspects of their business activities in order to increase efficiency, increase profits received by each economic entity, and, on the other hand, as a set of persons (economic entities) acting within the framework of the legal forms, in particular, financial and industrial group, association (union), etc.

The peculiarities of the association as a process of interaction between economic entities is that economic entities enter into relations regarding the creation and operation of various associations. These relations may arise regarding the creation of an association as a legal entity (for example, an association (union), or may be of a contractual nature (for example, when an association is created on the basis of a simple partnership agreement).

The features of the association of economic entities as a set of persons are, firstly, that the association consists of at least two economic entities; secondly, participation in the association contributes to the achievement by economic entities of one of the main goals of their entrepreneurial activity - obtaining (increasing) profit; thirdly, the legal organization of associations of economic entities is carried out in the forms provided for by the current legislation, in particular, a financial and industrial group, a contractual association, a non-profit association (association (union), non-profit partnership); fourthly, an association of economic entities may either have the status of a legal entity (for example, an association (union), or not (FIG).

As a result of the study of the classification of associations of economic entities existing in the legal literature, it is concluded that it is not finally completed and can be supplemented by such criteria as

List of participants:

A) associations, the participants of which are only legal entities - holdings, FIGs, associations (unions);

B) associations, the participants of which, along with legal entities, may also be individual entrepreneurs - associations based on a simple partnership agreement, non-commercial partnerships;

Sources of legal regulation:

A) regulation is carried out mainly by the norms of the Civil Code of the Russian Federation - associations based on a simple partnership agreement;

B) the norms of the Civil Code of the Russian Federation and other federal laws - associations (unions), holdings; C) norms of other federal laws - FIG.

In contrast to the opinion widespread in the literature, the inconsistency of the ideas of both the inclusion in the Civil Code of the Russian Federation of norms devoted to individual associations of economic entities, and the adoption of a unified federal law on business associations is proved. A more effective way is to improve the provisions of the current regulations governing the creation and operation of individual associations, in particular the Law on FIGs, the provisions of the Civil Code of the Russian Federation on a simple partnership agreement (on joint activities).

Chapter 2. Legal regulation of the activities of associations of legal entities

.1 Unions and associations of legal entities in Russian law

Associations (unions), as well as non-profit partnerships, can act as associations of economic entities, since these organizations have all the features of associations: economic entities can act as their members, the activities of associations (unions), non-profit partnerships serve, first of all, the interests of members of such organizations , including contributes to the achievement by them of one of the main goals of their entrepreneurial activities - obtaining (increasing) profit.

At present, two forms of associations of legal entities with the status of a legal entity are fixed in the legislation of the Russian Federation - these are associations and unions. From the point of view of legislation and business customs, it is clear that the legislator does not distinguish between these two concepts, however, an alliance is usually created if the dominant feature of the association is the common goals of its members, for example, the Russian Union of Industrialists and Entrepreneurs, the Union of Journalists of Russia, the Russian Union of Youth, The Union of Charitable Organizations of Russia, in which the association of its members takes place on a territorial basis. Merging in the form of an association occurs if its dominant feature is the uniformity of the composition of participants, for example, the Association of Accountants and Auditors, the Association joint-stock companies, Workers Association gas industry, Association of European Businesses in Russia, Association of Managers of Russia, Association of Automatic Identification, Association of Operators Russian market poultry meat.

An important function of associations (unions) created by commercial organizations is lobbying.

The main legal method of lobbying is the persuasion of persons making certain decisions, which is based on economic, political, legal arguments. Consistent and systematic explanation to these persons of the meaning of certain provisions, drafts, federal laws is sufficient to make the right decision.

In addition, representatives of business associations various countries As a rule, they are participants and often heads of various advisory committees under the government, in ministries and departments, and the content of those recommendations that become the basis of government programs largely depends on their opinion. The voice of the business community is usually heard by the general public, which is also used to carry out certain policies agreed with the authorities.

As a result of comparing the two organizational and legal forms, no commercial organizations(associations (unions) and non-profit partnerships), it can be seen that a non-profit partnership can actually be created to achieve similar goals as an association (union).

Membership in non-profit associations is one of the ways for economic entities to increase the efficiency of entrepreneurial activity, giving them a number of competitive advantages, among which one can single out the possibility of collectively solving problems of an economic, legal, informational, social nature using joint efforts; information exchange; receiving gratuitous services (when joining an association (union)); protection and representation of the interests of business entities.

The term “non-profit organizations” used in Russian business regulation practice seems to be less justified than the term non-profit organizations, which is widely used in English-speaking countries to refer to a similar group of business entities. The disadvantage of this concept is the fact that all over the world it is customary to understand trade as commerce. Therefore, such business entities that can do everything in the world, except for trade, should be recognized as non-commercial. Meanwhile, a completely different meaning is put into the content of the concept of non-profit organizations, which inevitably confuses the system of definitions used to regulate modern business.

One of the most important issues in the activities of non-profit organizations is the issue of their entrepreneurial activities. At first glance, only commercial organizations should be engaged in making a profit, while non-profit organizations should social protection and assist its members, pursue other generally useful goals. The special legal capacity of non-profit organizations imposes certain restrictions on their entrepreneurial activities.

The focus of non-profit organizations on conducting core business does not mean that the final results should be presented to consumers free of charge or at subsidized prices. Currently, many non-profit organizations, especially in the field of health, education, culture, provide consumers with market prices for products that are the result of their main activities.

If the meaning of the existence of commercial organizations is to generate income for their owners, then for non-commercial profit it is not an end in itself, but only a means for realizing a certain mission: preserving cultural heritage, increasing affordable education, medicine, etc. The main task is to ensure that a non-profit organization, engaged in entrepreneurial activities, does not deviate from the performance of its main activity, directs possible profits to fulfill its statutory goals.

In the case of the systematic implementation of the results of highly effective research and development, managerial, organizational, technical and other know-how, the development of related activities, the association (union) receives a profit, which cannot be distributed among the founders. Or in case of liquidation of the association (union), the property is not subject to return to its founders. In these cases, the founders of the association (union) may reorganize into the appropriate organizational and legal form, for example, into a business company or partnership, carry out voluntary liquidation after the transformation, while distributing property among the founders, taking into account the fact that the founders new organization become the founders of the reorganized

associations (unions).

Most often, associations (unions) maximize the total profit of their members, either by increasing demand for goods or services, or by limiting competition. The first implies improving the quality of goods and services, as well as improving the legal characteristics of goods and services, and improving the quality of customer service.

In fact, serving business organizations, associations and unions play a significant role in their commercial activities.

Associations (unions) form a kind of "bridge" between formal government institutions, forming legislative norms and rules and forcing their implementation, and informal restrictions (traditions, customs, voluntarily assumed norms of behavior, dignity, professional consciousness, etc.) that develop in the business environment, transforming them into "written" contracts, codes honor, etc. Formed on a voluntary, democratic basis, associations (unions) aim to create the most favorable environment for doing business or pursuing other results through the formation of mutually beneficial relationships between members, effective external relations with other commercial structures, bodies state power and local self-government, public organizations.

In Europe, national business associations, gaining access to decision-making through European federations, defend the interests of their business in the government institutions of the state and maintain contacts with domestic European parliamentarians and employees of the European Commission. They are represented at the level of the European Union through various business associations, large industry associations. Germany, for example, is represented by the Federal Association of German Industry, the Federal Association of German Employers' Unions, the German Congress of Chambers of Commerce and Industry, a number of industry unions influential at the European level, such as the German Chemical Industry Union.

2.2 Rights and obligations of legal entities in unions and associations

The founders are not connected with the association and with each other either in rem, or obligations, or membership relations. Thus, before accepting the charter of an association (union), the founders should conclude a memorandum of association among themselves, which should reflect all the conditions for their participation in the creation and activities of this legal entity. It is the memorandum of association, which comes into force from the moment of its conclusion and is valid for the entire existence of the association (union), that will bind the founders with each other and with the association itself by obligations, which will make it possible in case of an unforeseen situation to easily find a way out of the difficulty. The advantage of the agreement is that this flexible legal instrument will make it possible to find a successful compromise in relations between the founders and the association (union) as a whole when solving such problems as financing, election of management bodies, change of executive bodies, etc. Thus, the founding documents of the association and the union are the constituent agreement and the charter. If the first of them determines the goals of creating an association and the conditions for participation in it, then the second determines 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 the 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 activities, which should be indicated in its name, on the composition and the 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 the basis of membership participation, its supreme governing body is the general meeting of participants or their representatives, the competence and procedure of which are determined by the charter of the association (union). The executive bodies of an association (union) are formed by its supreme governing body from among individuals - representatives of the participants. The property of an association (union) is initially made up of entrance and membership fees of participants and their voluntary donations and becomes the property of the association (union). At the same time, the founders (participants) of an association or union do not acquire any rights to this property. The commented law does not establish any requirements for minimum size property of the association (union) or to the contribution of its member. 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 lack of its property to cover debts to creditors, bear limited liability with their property in the amount and in the manner prescribed by the constituent documents of the association. Such subsidiary liability of members of an association (union) is an important feature of its civil law status. The decision of the Federal Arbitration Court of the Russian Federation of the Central District of April 3, 2001 indicates that, by virtue of Art. 121 of the Civil Code of the Russian Federation, members of an association (union) bear subsidiary liability for its obligations in the amount and in the manner prescribed by the constituent documents of the association (union). The subsidiary liability of the members of the association is stated in the founding agreement of the association. Thus, the defendants in the case bear subsidiary liability, and the court’s conclusion that the rules on subsidiary liability apply only to founders and cannot apply to associations of legal entities (associations, unions) is incorrect. But according to the current legislation, a claim can be brought against a person bearing subsidiary liability only if the main debtor refused to satisfy the creditor's claim. In this case, enforcement proceedings are being conducted against the association (the main debtor). Part of the debt has been repaid. The bailiffs did not seize the debtor's property, the writ of execution was not returned, i.e. execution has not been completed. Thus, claims against the institutions of the association cannot be satisfied. 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). Any member of an association (union) has the right to use the services provided by the association (union) free of charge. A member of an association (union) may 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. 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 accepted into 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 the moment of their acceptance.

An association or union is not entitled to carry out entrepreneurial activities themselves, but may create business companies for this purpose or participate in them. 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. 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. The rest of the association's property, 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, and cannot be distributed among its founders (members).

Members of an association (union) can only be legal entities, and it does not matter whether they are commercial or non-commercial organizations. This determines the peculiarities of the rights and obligations of the members of the association (union). The gratuitousness of using the services of an association for its members is a relative concept, since it participates in financing the activities of the corresponding association. In this case, the term “free of charge” means that a member of an association (union) receives management, consulting, marketing and other similar services from his association in each case free of charge, without concluding paid civil law contracts. However, the constituent documents may well provide that the relevant association provides services to its members on the basis of gratuitous contracts, since both the degree of participation of different members of the association in its activities, and the need of individual members for management and other similar services may be different. May be different for different participants also the order of provision, volume, frequency and other parameters of consumed services. All this may lead to the need to specify relations in the plane "association - participant" by concluding gratuitous civil law contracts. The gratuitous nature of such contracts must in each case be clearly indicated in their texts, otherwise, according to Art. 423 of the Civil Code of the Russian Federation, it will be considered paid. A member of an association (union) may freely withdraw from it, since for the association or union his withdrawal does not entail the obligation to make any payments or extraditions. The mechanism for exercising the right of a member of an association to withdraw from the association is determined in the memorandum of association. This mechanism cannot provide for any restrictions on the right to exit, since the imperative norm of paragraph 2 of Art. 123 of the Civil Code of the Russian Federation connects a voluntary withdrawal from an association (union) only with the discretion (expression of will) of the corresponding participant. Therefore, the memorandum of association cannot establish a rule on the withdrawal of a member of an association from its members with the consent of other members. However, paragraph 2 of Art. 123 of the Civil Code of the Russian Federation also defines the condition under which the right to exit can be exercised.

The rule that a member of an association has the right to withdraw from it only at the end of the financial year is established by the commented article in the interests of other members of the association. The duration of the financial year is usually set in the constituent documents of the legal entity and may coincide with the duration of the calendar year. But since the financial year for the association is the period during which the approved cost estimate for its maintenance is valid, and at the same time the reporting period, it can begin and end on days that do not coincide with the days of the beginning and end of the calendar year. The commented article does not stipulate the right of a participant withdrawing from the association to the return of his contribution made during the creation of the association. By virtue of paragraph 3 of Art. 48 of the Civil Code of the Russian Federation, such a return should be considered impossible. Being a member of an association, its participant bears subsidiary liability for the obligations of the association in the manner and in the amount provided for by the constituent documents. However, the law specifies in which cases for the members of an association (union) subsidiary liability occurs - if its property is insufficient to cover debts to creditors. Such subsidiary liability of members of an association (union) is an important feature of its civil law status.

The decision of the Federal Arbitration Court of the Russian Federation of the Central District of April 3, 2001 indicates that, by virtue of Art. 121 of the Civil Code of the Russian Federation, members of an association (union) bear subsidiary liability for its obligations in the amount and in the manner prescribed by the constituent documents of the association (union). The subsidiary liability of the members of the association is stated in the founding agreement of the association. Thus, the defendants in the case bear subsidiary liability, and the court’s conclusion that the rules on subsidiary liability apply only to founders and cannot apply to associations of legal entities (associations, unions) is incorrect. But according to the current legislation, a claim can be brought against a person bearing subsidiary liability only if the main debtor refused to satisfy the creditor's claim. In this case, enforcement proceedings are being conducted against the association (the main debtor). Part of the debt has been repaid. The bailiffs did not seize the debtor's property, the writ of execution was not returned, i.e. execution has not been completed. Thus, claims against the institutions of the association cannot be satisfied.

The amount of responsibility of the Civil Code of the Russian Federation strictly regulates, therefore it can be symbolic. But when leaving the association, its participant, within two years from the moment of exit, bears subsidiary liability for the obligations of the association in proportion to its contribution. This is an imperative rule, and it cannot be changed by agreement of the parties. The same applies to the amount of liability of a member of an association excluded from it by decision of other participants in cases and in the manner prescribed by the constituent documents of the association. 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. 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 accepted into 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 the moment of their acceptance. The rules on the procedure for a new member joining an association in the course of the association's activities may be established in the constituent documents of the association (union). An unlawful requirement of the law for such a situation is only the consent of all members of the association to join it in the prescribed manner in the course of the activity of the corresponding association, all the rules provided for by law and the constituent documents of this association, governing the rights, duties and responsibilities of all other participants in this association, apply.

2.3 Antimonopoly regulation of the activities of unions and associations of legal entities

At the present stage of development of market relations, the processes of integration (association) of economic entities taking place in the commodity market are becoming increasingly widespread. Under these conditions, there is a conflict between the private interests of economic entities, using all the opportunities enshrined in law for cooperation, integration and the creation of various associations, and the public interests of the state, which ensures the development of the economy and market relations by creating and maintaining conditions for competition, i.e. competitiveness, struggle, rivalry of economic entities. Achieving a balance of interests of economic entities and the state in relation to the problem of the activities of associations in the commodity market in a competitive environment is challenging task, effective solution which can be implemented through appropriate antimonopoly regulation.

The creation and activities of associations of economic entities have a significant impact on the state of competition in the market, which can be both negative and positive. The negative consequences of the creation and operation of associations of economic entities can be expressed in the monopolization of the market, the restriction of competition, resulting in a violation of the rights of both economic entities that are not members of associations, consumers, and the interests of the state in ensuring conditions for effective competition in the market. The positive socio-economic effect is to increase the competitiveness of economic entities-participants of associations, their entry into the world market, increase the volume of investment, support for long-term scientific research, development of the country's scientific and technical potential.

Taking into account the degree of influence of associations on the state of competition in the commodity market, the following main areas of antimonopoly regulation of the functioning of associations of economic entities are distinguished:

) regulation of the processes of creating associations of economic entities, carried out in order to prevent possible negative consequences for competition in the commodity market associated with the emergence of associations;

) regulation of the activities of associations of economic entities in order to prevent violations of antimonopoly legislation by them.

As a result of the relationship between the concepts of "association of economic entities" and the concept of "group of persons" used in the antimonopoly legislation, it is concluded that the allocation of such a category as a "group of persons" is a technical and legal technique that allows considering a set of persons, including economic entities , characterized by the presence of a legal connection between the members of the group, as a special structural unit of the commodity market. An analysis of the concept of a “group of persons” gives an idea that when determining the composition of a group of persons, a formal approach should be applied, which consists in legislatively fixing the circle of subjects of law (individuals and legal entities) - potential members of the group. The advantage of the formal approach is the absence of opportunities for contradictory or broad interpretation of the composition of persons included in the group, which acts as a factor facilitating the application of the category "group of persons" for the purposes of antimonopoly regulation.

Before the entry into force of the Law on Protection of Competition, both the processes of creation (merger, accession) and the activities of non-profit associations of economic entities were regulated. The current antimonopoly legislation provides for the regulation of only the activities of non-profit associations through rules aimed at preventing the coordination of the activities of economic entities, if such coordination leads or may lead to consequences dangerous for competition. Since non-profit associations, in particular, associations (unions) are created directly to coordinate the activities of legal entities, insofar as these provisions of the Law on Protection of Competition apply to these entities.

In the aspect of antimonopoly regulation, coordination can be understood as an activity carried out by one person (coordinator) to coordinate certain aspects of the activities of other (coordinated) persons in order to achieve certain goals that are common to all coordinated persons. The subjects of coordination of activities in the commodity market are at least three persons, including at least two economic entities, whose activities are coordinated by a third party. Due to the fact that there is no legal definition of "economic activity", for the purposes of antimonopoly regulation it is practically not used, does not interact with the concept of an economic entity as a person engaged in entrepreneurial activity, it is necessary to replace the concept of "coordination economic activity economic entities”, contained in the Law on Protection of Competition, identical in meaning to the concept of “coordination of the activities of economic entities”.

Conclusion

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 business activities, such an association (union) is transformed into a business company or partnership in the manner prescribed by the Civil Code of the Russian Federation, or it may create a business company to carry out business activities or participate in such a company. 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.

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 the obligations of this association (union) in the amount and in the manner prescribed by its constituent documents. 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".

Rights and obligations of members of associations and unions.

Members of an association (union) have 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, a member of the association (union) bears subsidiary liability for its obligations in proportion to its contribution within two years from the date of withdrawal.

A member of an association (union) may be expelled from it by decision of the remaining members in the cases and in the manner 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.

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.

Legal form - associations of legal entities, including associations and unions, not responsible fundamental principle building legal entities - dividing into commercial and non-profit organizations. Commercial organizations, creating an association under a contract, thereby entrust it with conducting business activities in the form of coordinating their business activities, representing and protecting the common interests of the association members, who retain their independence and the rights of a legal entity.

Unions of public and other non-profit organizations unite voluntarily for completely different purposes, in accordance with the legislation on non-profit organizations. These associations of legal entities are not engaged in entrepreneurial activities, their activities, including entrepreneurial ones, are regulated by special laws “On public associations”, “On charitable activities and charitable organizations”, etc.

List of used literature

2.Federal Law No. 275-FZ of December 30, 2006 On the Procedure for the Formation and Use of Target Capital of Non-Commercial Organizations.

.Federal Law of January 12, 1996 No. 7-FZ "On Non-Commercial Organizations" (with subsequent amendments and additions).

.Antipov A.A. Features of the association (union) as a non-profit organization. //Actual problems Russian law. M., 2007., No. 2 (5), pp. 140-144.

.Antipov A.A. Entrepreneurial activity of associations (unions) and other associations of entrepreneurs. // Actual problems of Russian law. M., 2008., No. 4 (9), S. 196-202.

.Civil law / ed. A.P. Sergeev and Yu.K. Tolstoy. Moscow: Prospekt, 2006 - 784 p.

.Civil law. Volume I / ed. E.A. Sukhanova - M.: Wolters Kluver, 2008 - 734 p.

.Kolevatova O.A. Accounting various kinds business activities in budget institutions //Accounting, 2006, No. 7, p. 38-43.

"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 for the purpose of coordinating economic activity, 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) can be transformed into business 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, gratuitous provision of services should be understood as gratuitous specific 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.

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, development physical education and sports, other purposes established by law, taking into account the organizational and 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 exemptions for the payment of taxes in individually individual non-profit organizations, as well as individual citizens and legal entities providing financial 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 others. 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 obtain accounts receivable 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.

In case of insufficiency at the liquidated institution Money in order to satisfy the claims of creditors, the latter have the right to apply to the court with a claim for the satisfaction of 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 on employment contract, including under a contract, and on 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 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 a single state register 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 during the simplified liquidation of an inactive organization tax authorities no 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 legal regulation 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 about 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 participant 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 state registration authority about the amounts they receive from international and foreign organizations, foreign citizens and stateless persons financial resources. 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"

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 (will-expressing) bodies of an association (union) are formed by its supreme body from among individuals - bodies ( officials ) or representatives of the 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 (clause 1, article 123 of the Civil Code; clause 1, article 12 of the Law on Non-Commercial 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 accepted into 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 prior to their acceptance. 3 art. 123 GK; paragraph 3 of Art. 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. Peculiarities legal status of any state are conditioned by the presence of political power and state sovereignty, by virtue of which it itself regulates various relations, including property relations, establishing as universally binding 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. Them legal status 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) entities to be independent, special subjects of law (sui generis), existing along with legal 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's why 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 entity (clause 4 -6 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 general order 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, the defendants in the relevant claims for general rule act financial authorities. 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 legislation and judicial practice many foreign countries and in some international conventions, the so-called doctrine of limited (functional) immunity has proliferated in recent decades. In accordance with it, it is assumed that the state (public legal entity), exercising private law, commercial activity in international property circulation, thereby waives judicial immunity on the claims arising from it. This approach really consistently equates the state with other participants in private law relations in the field of international commercial relations.

Topic 4. Organizational and legal forms of legal entities

4.15. Associations of legal entities (associations and unions)

Commercial organizations have the right, in order to coordinate their business activities, as well as to represent and protect common property interests under an agreement, to create associations of legal entities in the form of associations or unions.

If, by decision of the participants, the association (union) is entrusted with conducting entrepreneurial activities, then such an association (union) must either be transformed into a business company or partnership, or create a business company to carry out entrepreneurial activities, or participate in this company. Both public and other non-profit organizations, including institutions, may voluntarily unite into associations (unions) of these organizations. At the same time, the members of the association (union) retain their independence and the rights of legal entities. The name of the association (union) must contain an indication of the main subject of activity of its members with the obligatory inclusion of the word "association" or "union".

The founding documents of an association (union) are a constituent agreement (signed by its members) and an approved charter. These documents must contain the following information:

The name of the association and its location;

The procedure for managing activities determines the composition and competence of the governing bodies 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 members, as well as on the procedure for distributing property remaining after the liquidation of the association (union);

The subject and goals of the activity.

The memorandum of association defines the obligations to create an association (union), as well as the procedure for joint activities, the conditions for the transfer of property and participation in its activities. The agreement defines the conditions and procedure for the distribution of profits and losses among the participants, the withdrawal of participants from its composition. A member of an association (union) has the right to leave the association at its own discretion, but only at the end of the financial year. At the same time, he bears subsidiary liability for the obligations of the association (union) in proportion to his contribution within two years from the date of withdrawal. A member of an association (union) may be expelled from it by decision of the other participants in the cases and in the manner prescribed by the constituent documents. With the consent of the members of the association (union), a new member may enter it. At the same time, the entry into the association (union) of a new member may be conditioned by its subsidiary liability for the obligations of the association (union) that arose before its entry.