Legal regulation of entrepreneurial activity in the production of goods. Legal regulation of entrepreneurial activity: features and structure. Types and signs of transactions

24.06.2020

Entrepreneurial relations have a complex content and structure.

The first group of such relations is ϶ᴛᴏ relations associated with organization entrepreneurial activity. Material published on http: // site
It is worth noting that they are based on the right of citizens to engage in entrepreneurial activities, its development, determining the entrepreneurial legal capacity of citizens, creating a legal entity, establishing state registration of citizens as individual entrepreneurs, legal entities, licensing, as well as organizational and property relations. These relations are interconnected by subject unity - they will be entrepreneurial. According to the ϲʙᴏ method of legal regulation - ϶ᴛᴏ diversified relations.

The second group is the relations connected with the entrepreneurial activity itself. The dominant position is occupied by civil law regulation. Although here there are a number of cases of state influence on private law relations - for example, state regulation of prices for products and services of natural monopolies, etc.

The third group is closely related to the first and second. But if there the initiative side of the organization of entrepreneurial activity will be mainly a citizen, other business entities, then here the state establishes the rules and consequences of their violation, protecting public and private interests.

The fourth group - ϶ᴛᴏ intraeconomic relations arising in large business structures. Regulated by local regulations.

The specifics of the legal regulation of entrepreneurial activity finds expression in the combination, interaction of private law and public law interests, private law and public law means. In relation to some actions, a private law means of regulation is applied - an agreement. In other cases, public law means are used.

Treaty- the main legal means of private law. When ϶ᴛᴏm, the public law impact on contractual relations is applied. Many agreements are built in ϲᴏᴏᴛʙᴇᴛϲᴛʙii with Model contracts approved by government agencies. A private law remedy acquires a public law character, being sanctioned by the state.

Entrepreneurial turnover often cannot be carried out without the use of public legal means. So, in ϲᴏᴏᴛʙᴇᴛϲᴛʙii from Art. 46 of the Law on Companies with limited liability big deal may be concluded if the general meeting of participants makes a decision to conclude it. Such a decision cannot be attributed to private law means, since it involves a managerial action. The state influences both the contract and its individual conditions.

Private law means can be directly used in public law relations. So, the tax credit is made out by the contract.

Many private legal remedies are being transformed into private public legal remedies.

A feature of entrepreneurial activity is that it is a sphere of interaction between private and public interests, and its regulation is carried out using public law and private law means.

The concept and main features of entrepreneurial activity. Entrepreneurial relationship. Business entities. Grounds for the emergence of the right to engage in entrepreneurial activity. Spheres, types and forms of entrepreneurial activity. The property basis of entrepreneurial activity. Legal status entrepreneur. The rights and obligations of the entrepreneur. Responsibility of the entrepreneur.

Currently, market reforms in Russia provide for the creation of a free market for goods and services, the expansion and strengthening of entrepreneurial activity. Therefore, entrepreneurs are becoming the main actors in the country's economy. The transition of the country to the market took place in the most difficult conditions, which brought both moral and material losses to the population of our country. In order to contain the elements of the market, it is necessary to regulate the state, create a special legal framework that regulates relations in the field of entrepreneurship.

During the years of reforms, the legal understanding of entrepreneurship has undergone a number of changes. So, according to paragraph 1 of Art. 2 Civil Code of the Russian Federation entrepreneurial activity – this is an independent activity carried out at one's own risk, aimed at systematically obtaining profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law.

Entrepreneurial activity is distinguished by a number of characteristics, which include the following:

1) independence;

2) the presence of a goal, which is to make a profit;

3) the systematic nature of making a profit;

4) economic risk;

5) the fact of state registration of participants.

The absence of at least one of the listed signs means that the activity is no longer entrepreneurial.

Let's take a closer look at these essentials. signs of entrepreneurship:

1. The independence of entrepreneurial activity is manifested in organizational independence. Unlike an employee, who is obliged to obey the internal work schedule, i.e. follow the instructions of the employer, observe the regime of working hours and rest periods, comply with labor standards, etc., the entrepreneur in the sphere of his economy has no other power over himself than his own. He is his own boss, he decides what and when to do, what products to produce and how to sell it. In this regard, the entrepreneur does not depend on government agencies, nor from other persons. No one has the right to dictate and impose his will on him, but no one is obliged to assist him either. An employer is obliged to provide an employee with work, tools, etc., to create proper working conditions. Entrepreneurial activity can be carried out both by the owner himself and by the entity managing his property on the basis of the right of economic management. Independence in the organization of production is complemented by commercial freedom. The business entity independently determines the ways and means of selling its products. An important condition for commercial freedom is free pricing. However, in the economy there is no absolute freedom of producers. The independence of the producer is manifested in the fact that there is no authority over him, which determines what to do and in what quantities. But the entrepreneur depends on the market, which dictates its own rules.

2. main goal Entrepreneurial activity is the receipt of such income that would exceed the costs incurred in connection with the implementation of this activity (production costs). In the very general view the sum of the difference between income received and production costs is profit. Moreover, both profit and loss are calculated for a certain period and from all sales in general. Therefore, the loss from the sale of one product is covered by the profit from the sale of other goods, or vice versa. To qualify an activity as an entrepreneurial one, it is not necessary that as a result of its implementation only profit was actually received, the goal, the orientation of the will of the person to make a profit, is important. Entrepreneurial activity is aimed at making a profit, which is the product of a specific human resource - entrepreneurial abilities. Such work is not easy and implies, firstly, the presence of an initiative to combine material and human factors, and secondly, the adoption of extraordinary decisions on the management of production and activities. Therefore, entrepreneurship is professional activity aimed at making profit. At the same time, the entrepreneur takes responsibility for the result of his activity.

3. Systematic profit is one of the most important features, so isolated cases of profit are not entrepreneurship. At the same time, the Civil Code of the Russian Federation states that for an entrepreneur, it is not so much the field of activity itself that is important, but the systematic profit. In addition, entrepreneurial activity is considered to be an activity aimed at systematically making a profit, i.e. carried out in the form of fishing, as a more or less permanent source of income for the entrepreneur. Therefore, entrepreneurial activity aimed at a one-time profit is not considered.

4. Economic risk- these are possible adverse property consequences of the entrepreneur's activities. At the same time, the risk can not only lead to the bankruptcy of the entrepreneur, but also be detrimental to the property interests of citizens and organizations. This is a feature contained in the definition of entrepreneurial activity. It consists in the fact that this activity is carried out by the entrepreneur at his own risk. Due to various circumstances that do not depend on the will of the entrepreneur, his commercial calculations may not be justified, and at best he will not receive the planned profit, at worst he will go bankrupt. The burden of such consequences lies with the entrepreneur himself.

5. State registration is a legal fact that precedes the start of entrepreneurial activity. To obtain the status, a business entity must be registered (recognized by the state) as such. For the systematic extraction of profit from their activities without state registration, legal liability is provided. Entrepreneurship can be carried out by both citizens and organizations. Commercial organizations enjoy this right to the full extent, but even they certain activities must obtain an additional permit - a license (transport, legal, medical, etc.). For certain types of activity, a state monopoly is established (production and trade in weapons). A person who intends to independently, at his own risk, carry out activities aimed at making a profit, must register as an entrepreneur. Otherwise, his activity will be considered illegal. But when concluding transactions of a commercial nature, the lack of registration is not an obstacle to recognizing them as such. Such transactions will be subject to the rules governing entrepreneurial activity (Article 23 of the Civil Code of the Russian Federation).

Entrepreneurial relations are public relations in the field of entrepreneurial activity, as well as non-commercial relations closely related to them, including relations on state regulation market economy.

These relationships are divided into two groups:

1) proper entrepreneurial relations (entrepreneur-entrepreneur) - horizontal;

2) non-commercial relations (entrepreneur - management body) - vertical.

Horizontal relations (property) are based on the legal equality of the parties. Their rights and obligations, as a rule, arise from the contract.

The second group includes relations, although of a non-commercial nature, but closely related to entrepreneurial ones (for example, those related to the formation of an enterprise, licensing, etc.) This group of relations includes relations on state regulation of the economy, on supporting competition and limiting monopolistic activities, legal regulation of the quality of products, goods, works and services, pricing, etc. Their characteristic feature is the obligatory execution by business entities of management acts adopted within the competence of such a body and addressed to these entities.

A feature of entrepreneurial relations is their subject composition. Business entity is any person whose activities are aimed at generating income, as well as the legal status of which is regulated by the rules of business law.

Business entities differ depending on the role they play in the economy. The most common entities are commercial organizations and individual entrepreneurs. In addition, business entities also include non-profit organizations. Although their goal is to maintain commercial activities, but they can, in order to achieve the goals for which they were created, engage in entrepreneurial activities. Business entities are also members of governing bodies, managers of commercial organizations. They directly carry out entrepreneurial functions. There are also groups of other business entities:

Branches, representative offices, other structures of commercial divisions of commercial organizations;

Industrial and economic complexes (financial and industrial groups, holdings, simple partnerships and other associations of entrepreneurs without forming a legal entity);

Commodity and stock exchanges;

Investment funds;

Non-state pension funds;

Self-regulatory organizations and other associations of entrepreneurs;

Authorities and local government.

The right to engage in entrepreneurial activity is one of the fundamental constitutional rights and freedoms of man and citizen. The Constitution of the Russian Federation enshrines the right of every citizen to freely use their abilities, property for entrepreneurial and other purposes not prohibited by law. economic activity. The free exercise of entrepreneurial activity is an element of the constitutional principle of economic freedom.

Every citizen has the right to choose any mode of economic activity. A person can carry out entrepreneurial activities as an employee or an individual entrepreneur, be both an individual entrepreneur and an employee, or participate in the activities of a commercial organization. But at the same time, the law restricts, in certain cases and procedures, the freedom of entrepreneurship in order to protect the constitutional order, morality, protect human health and life, state security, protect environment, protection of cultural property, etc. These restrictions include:

The presence of a business entity of legal personality;

Availability of state registration of business entities;

Obtaining a special permit (license) to carry out certain types of activities.

The right to engage in entrepreneurship includes the freedom to choose the scope, type and form of entrepreneurship . Among business areas distinguish production, commerce (trade) or provision of services. By types of entrepreneurial activity differs by banking, insurance, exchange, production of a certain type of product, etc. By business forms allocate individual and collective entrepreneurial activity(a citizen can independently carry out entrepreneurial activities in individually as well as through participation in a commercial organization).

The right to engage in entrepreneurship is an integral part of the legal capacity of a citizen: according to the law, only a capable citizen can independently engage in entrepreneurship.

In order to carry out business activities, an entrepreneur must have a certain property, and one of the conditions for recognizing an organization as a legal entity is the presence of separate property that is under the right of ownership, in the economic management or operational management of the organization.

By legal grounds property is divided into:

Movable and immovable;

Negotiable, limited circulation and withdrawn from circulation.

According to economic characteristics, the property is divided into:

Basic and working capital;

Property for production and non-production purposes;

Tangible and intangible assets;

Funds for various purposes.

In order to form property for the purpose of doing business, entrepreneurs can acquire property in ownership or in temporary possession and use. Property is acquired upon formation of authorized (share) capital (for example, when establishing a partnership) and on other grounds provided for by law.

The property of an entrepreneur includes all types of property intended for his activities ( land, buildings, structures, equipment, inventory, raw materials, products, trade name rights, trademarks, etc.). The property rights of an enterprise are secured by securities, which certify certain property rights of its owners. special types assets are money and foreign currency.

Legal status of an entrepreneur forms a set of rights and obligations that make up the content of business relations. Entrepreneur's right- this is an expression in a specific legal norm of the principle of freedom of enterprise by assigning the right to a specific subject.

1) the right to perform their own actions;

2) the right to demand the fulfillment of duties and obligations by other persons in their own interests;

3) the ability of entrepreneurs to protect their interests.

Each entrepreneur is provided with equal opportunities to conduct entrepreneurial activities and the same legal status regardless of place of registration or place of residence. Individual entrepreneurs can choose any place of residence, and the founders of a commercial organization - any location of the legal entity they create. In accordance with the principle of freedom of economic activity, an entrepreneur has the right to independently and independently set prices for goods and services, except for those regulated by the state (natural monopolies).

Commercial organizations can carry out any kind of activity. Entrepreneurs have the right to own property, including land, other Natural resources, cash etc. Each entrepreneur has the right of free access to any market of a particular product. The rights of entrepreneurs may be limited by federal laws.

To business rights relate:

The right to create legal entities;

The right to own property, other property and non-property rights;

The right to make transactions that do not contradict the law;

The right to participate in obligations;

Entrepreneur's duty- this is a measure of restriction of his economic freedom, a condition for the legitimacy of the behavior of an entrepreneur and is established through legal requirements or legal prohibitions.

The obligations of an entrepreneur are regulated by civil law and are an element of a civil law relationship. They are established in relation to society, to consumers, to employees, competitors, entrepreneurs - the other side in the transaction.

Responsibilities of an Entrepreneur can be divided into several groups, depending on the stages of entrepreneurial activity:

1) preparation for entrepreneurial activity. During this stage, there is state registration, the entrepreneur receives licenses, permits, permits, etc. He conducts the preparation of forms and accounting books, financial and statistical reporting becomes taxable. At this stage, the formation of the production base also takes place;

2) production of goods and provision of services. At this stage, the obligations of the entrepreneur include the implementation of legislation, obligations under transactions, etc.;

3) formation of the results of entrepreneurial activity and their disposal. At this stage, the responsibilities of the entrepreneur include:

Payment of taxes to the budgets of various levels;

Payment of mandatory payments to off-budget funds;

Submission of tax returns, tax reports and balance sheets;

Presentation of statistical information.

Responsibility of the entrepreneur established in order to encourage entrepreneurs to comply with established procedures, standards and rules, to punish entrepreneurs for non-compliance with their duties, to prevent violations, to ensure the restoration of violated rights.

The responsibility of the entrepreneur is expressed by a sanction that is applied to the offender in the form of imposing on him additional responsibilities(payment of a fine, penalty, damages, etc.) and deprivation of his right, which entails for him Negative consequences. The deprivation of the right is expressed in the seizure of property to the state revenue, the deprivation of the right of ownership of property, in the restriction or termination of the legal personality of the entrepreneur. These measures include:

liquidation of a legal entity by a court decision in the event of carrying out activities:

Without a license;

prohibited by law;

Repeated or gross violations of the law;

reorganization of a legal entity by decision of state bodies or by a court decision;

Suspension of activities of a legal entity or individual entrepreneur;

cancellation of a license by a court decision (if the entrepreneur has violated licensing requirements, as well as if these violations have entailed a violation of the rights, legitimate interests of citizens, damage to their health;

application of criminal punishment in the form of deprivation of the right to engage in certain activities or hold certain positions;

Restriction of entrepreneurial activity or individual operations.

Responsibility comes only with a set of legal facts that determine the composition of the offense - the wrongfulness (illegality) of the behavior of the entrepreneur, violation of public interests, a causal relationship between them, the guilt of the offender.

abstract

Legal regulation entrepreneurial activity

Introduction

1. Legal regulation of entrepreneurial activity in the Russian Federation

1.1 The concept and signs of entrepreneurial activity

1.2 Legal regulation of entrepreneurial activity

1.3 Concept, subject, method, system and sources of civil law

2. Business contracts. Main types and features

2.1 Principles and procedure for concluding business contracts

Conclusion

Bibliography

Introduction

Entrepreneurial activity and the social relations that develop in connection with its implementation.

The function of such regulation is performed by the norms of various branches of law: constitutional, international, civil, administrative, labor, financial, environmental, land, etc. The totality of such norms related to the regulation of entrepreneurship is often combined under the general name "business law" ).

Of particular importance in such regulation are the constitutional guarantees of entrepreneurship. According to the Constitution of the Russian Federation (Article 34), everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law. Thus, at the constitutional level, the necessary prerequisite for free enterprise is established - the universal entrepreneurial legal capacity of citizens. In addition, recognizing the right to private property, including land and other natural resources, the Constitution of the Russian Federation enshrines the most important economic guarantee of entrepreneurial activity (Articles 35, 36).

Nevertheless, the main role in the regulation of entrepreneurship belongs to the norms of civil and administrative law. Civil law determines the legal status of individual entrepreneurs and legal entities in property circulation, regulates property relations and contractual relations. The norms of administrative law establish the procedure for state registration of business entities, the procedure for licensing certain types of entrepreneurial activity, etc. At the same time, civil law is the basis of private law regulation of entrepreneurial activity, and administrative law is public law. The leading role in the mechanism of legal regulation of entrepreneurship belongs to the norms of private law, and especially civil law.

This is not surprising, if we recall the features characterizing entrepreneurial activity, organizational and economic independence, initiative, implementation at one's own risk, focus on making a profit.

Relevance of the topic - change economic relations in Russia, the emergence of diverse forms of ownership, the development of entrepreneurial activity. All this influenced the formation of legislation, including the system state regulation in the field of production, works, services, and their quality. AT given time the process of reforming the system of legislation in the field of legal regulation is being actively carried out.

The purpose of the work is to determine the main directions for the development of the foundations of legal regulation in the field of production and sale of products and related processes.

In accordance with the goal, the following tasks were solved:

The concept and signs of entrepreneurial activity are considered;

The legal regulation of entrepreneurial activity in the Russian Federation is considered;

The concept of a business contract is considered;

The main types and features of business contracts are indicated.

The principles and procedure for concluding business contracts are considered.

1. Legal regulation of entrepreneurial activity in the Russian Federation

1.1 Pconcept and signs of entrepreneurial activity

In the conditions of the free market of goods, works and services being formed in Russia, the sphere of entrepreneurial activity is expanding. Entrepreneurial activity is understood as an independent activity carried out at one's own risk, aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services by citizens and legal entities registered as entrepreneurs in the prescribed manner.

This definition reflects six features of entrepreneurial activity:

Her independent character;

Implementation at your own risk, i.e. under the sole responsibility of entrepreneurs;

The purpose of the activity is to make a profit;

Sources of profit - use of property, sale of goods, performance of work or provision of services;

The systematic nature of making a profit;

The fact of state registration of business participants.

The absence of any of the first five signs means that the activity is not entrepreneurial. To qualify an activity as entrepreneurial, a sixth (formal) feature is also required. However, in some cases, the activity can be recognized as entrepreneurial even in the absence of formal registration of the entrepreneur. A citizen who carries out entrepreneurial activities without registering as an individual entrepreneur is not entitled to refer, in relation to transactions concluded by him, to the fact that he is not an entrepreneur.

Knowledge of all legal, i.e., based on the formula of the law, signs of entrepreneurial activity is also necessary in the presence of state registration of an entrepreneur, since it can be carried out in violation of the law. In some cases, persons who are unable to independently carry out such activities (incompetent), bear independent property liability or do not have the goal of systematically making a profit are registered as entrepreneurs. In such cases, the registration may be declared invalid by the court, and if the violations of the law committed during the creation of a legal entity are irreparable, it may be liquidated.

1.2 Legal regulation of entrepreneurial activity

It is necessary to distinguish between entrepreneurial activity and the activity of entrepreneurs. Entrepreneurs not only conclude contracts and are responsible for their violation, but also attract employees, pay taxes, customs duties, bear administrative and even criminal responsibility for the commission of unlawful acts. The activities of entrepreneurs cannot be either a privilege or a burden of any one branch of law, as well as some kind of complex “business code”. It is regulated and protected by the norms of all branches of law - both private (civil, labor, etc.) and public (administrative, financial, etc.).

Diversified norms on the activities of entrepreneurs provide, for example, federal laws dated June 14, 1995 No. 88-F3 “On state support for small business in Russian Federation” and of December 29, 1995 No. 222 - F3 “On a simplified system of taxation, accounting and reporting for small businesses”, as well as Decree of the President of the Russian Federation of April 4, 1996 No. 491 “On priority measures of state support for small businesses in the Russian Federation". In particular, they provide:

The procedure for issuing a patent for the right to apply a simplified system of taxation, accounting and reporting of individual entrepreneurs and legal entities - small businesses;

Benefits for granting loans to them;

However, this does not mean that all branches of law equally regulate the entrepreneurial activity itself. Since the content of entrepreneurial activity primarily and mainly consists of property relations of legally equal subjects, that is, what is regulated by civil law, we can talk about civil law regulation of entrepreneurial activity on the basis of the civil code and other civil legislation. This, of course, requires the assimilation of the basic provisions of civil law and taking into account, on this basis, the features of civil law regulation of business relations as a type of civil law relations.

Entrepreneurial law reflects the main aspects of civil law regulation of both entrepreneurial activity and the activities of entrepreneurs.

1.3 Concept, subject, method, system and sources of civil law

Civil law is a set legal regulations governing property and related personal non-property relations based on equality, autonomy of will and property independence of their participants. Civil law as the leading branch of private law has its own subject, method, system and sources.

The subject of civil law is property and personal non-property relations. Property relations are property relations and other property relations, relations associated with exclusive rights to results mental labor (intellectual property), as well as relations arising within the framework of contractual and other obligations. Relations of a personal nature, such as, for example, relations of authorship to works of science, literature, art, inventions and other ideal results of intellectual activity, are recognized as related to property.

This definition reflects six features of entrepreneurial activity:

Her independent character;

Implementation at your own risk, i.e. under the sole responsibility of entrepreneurs;

The purpose of the activity is to make a profit;

Sources of profit - use of property, sale of goods, performance of work or provision of services;

The systematic nature of making a profit;

The fact of state registration of business participants. paragraph 1 of Art. 2 of the Civil Code of the Russian Federation

Legal regulation of entrepreneurial activity

It is necessary to distinguish between entrepreneurial activity and the activity of entrepreneurs. Entrepreneurs not only conclude contracts, are responsible for their violation, but also attract employees, pay taxes, customs duties, bear administrative and even criminal liability for illegal acts. The activities of entrepreneurs cannot be either a privilege or a burden of any one branch of law, as well as some kind of complex “business code”. It is regulated and protected by the norms of all branches of law - both private (civil, labor, etc.) and public (administrative, financial, etc.).

Diversified norms on the activities of entrepreneurs provide, for example, federal laws of June 14, 1995 No. 88-F3 "On State Support for Small Business in the Russian Federation" and of December 29, 1995 No. 222-F3 "On a Simplified System of Taxation, Accounting and reporting for small businesses”, as well as Decree of the President of the Russian Federation of April 4, 1996 No. 491 “On priority measures of state support for small businesses in the Russian Federation”. In particular, they provide:

The procedure for issuing a patent for the right to apply a simplified system of taxation, accounting and reporting of individual entrepreneurs and legal entities - small businesses;

Benefits for granting loans to them;

Reservation for them of a certain share of orders for the production and supply of certain types of goods and services. Lebedev K.K. Entrepreneurial and commercial law: systemic aspects. SPb., 2002., S. - 48.

Entrepreneurial law reflects the main aspects of civil law regulation of both entrepreneurial activity and the activities of entrepreneurs.

INTRODUCTION

The textbook "Legal regulation of commercial activity" is intended for students of the Federal State Educational Institution of Higher Professional Education of the Voronezh State Agrarian University, studying in the specialty 080401 "Commodity Science and Expertise of Goods". The subject of the discipline is the provisions of the current civil, business, customs, arbitration law, separate regulations governing trade, foreign economic and other commercial activities, as well as international legal acts in the field of commercial activities included in the legal system of the Russian Federation.

The topics of the civil law section proposed for study touch upon the issues of regulating the legal status of an individual entrepreneur and legal entities. The manual discusses the features of contracts with the participation of business entities and responsibility in the field of entrepreneurship. A number of topics study guide dedicated to the issues of legal regulation foreign economic activity, peculiarities of foreign economic transactions, the procedure for resolving disputes between participants in foreign economic relations.

According to the authors of the manual, the study of the proposed topics training course to a certain extent, it will contribute to the ability to apply Russian legislation regulating professional activities in practice, will provide an opportunity to protect commercial and property interests independently in future professional activities.

The accepted abbreviations are used in the text of the manual:

Civil Code of the Russian Federation - Civil Code of the Russian Federation;

Code of Administrative Offenses of the Russian Federation - Code of administrative offenses Russian Federation;

Criminal Code of the Russian Federation - Criminal Code of the Russian Federation;

CPC - Civil Procedure Code of the Russian Federation;

NK - tax code Russian Federation;

APK - Arbitration Procedure Code of the Russian Federation.

TOPIC 1. LEGAL REGULATION OF BUSINESS ACTIVITIES

The concept and main features of entrepreneurial activity. Entrepreneurial relationship. Business entities. Grounds for the emergence of the right to engage in entrepreneurial activity. Spheres, types and forms of entrepreneurial activity. The property basis of entrepreneurial activity. Legal status of the entrepreneur. The rights and obligations of the entrepreneur. Responsibility of the entrepreneur.

Entrepreneurial activity is distinguished by a number of characteristics, which include the following:

1) independence;

2) the presence of a goal, which is to make a profit;

3) the systematic nature of making a profit;

4) economic risk;

5) the fact of state registration of participants.

The absence of at least one of the listed signs means that the activity is no longer entrepreneurial.

Let's take a closer look at these essentials. signs of entrepreneurship:

1. The independence of entrepreneurial activity is manifested in organizational independence. Unlike an employee, who is obliged to obey the internal labor regulations established by the employer, i.e. follow the instructions of the employer, observe the regime of working hours and rest periods, comply with labor standards, etc., the entrepreneur in the sphere of his economy has no other power over himself than his own. He is his own boss, he decides what and when to do, what products to produce and how to sell it. In this regard, the entrepreneur does not depend on state bodies or other persons. No one has the right to dictate and impose his will on him, but no one is obliged to assist him either. An employer is obliged to provide an employee with work, tools, etc., to create proper working conditions. Entrepreneurial activity can be carried out both by the owner himself and by the entity managing his property on the basis of the right of economic management. Independence in the organization of production is complemented by commercial freedom. The business entity independently determines the ways and means of selling its products. An important condition for commercial freedom is free pricing. However, in the economy there is no absolute freedom of producers. The independence of the producer is manifested in the fact that there is no authority over him, which determines what to do and in what quantities. But the entrepreneur depends on the market, which dictates its own rules.

2. The main purpose of entrepreneurial activity is to obtain such income that would exceed the costs incurred in connection with the implementation of this activity (production costs). In the most general form, the sum of the difference between income received and production costs is profit. Moreover, both profit and loss are calculated for a certain period and from all sales in general. Therefore, the loss from the sale of one product is covered by the profit from the sale of other goods, or vice versa. To qualify an activity as an entrepreneurial one, it is not necessary that as a result of its implementation only profit was actually received, the goal, the orientation of the will of the person to make a profit, is important. Entrepreneurial activity is aimed at making a profit, which is the product of a specific human resource - entrepreneurial abilities. Such work is not easy and implies, firstly, the presence of an initiative to combine material and human factors, and secondly, the adoption of extraordinary decisions on the management of production and activities. Therefore, entrepreneurship is a professional activity aimed at making a profit. At the same time, the entrepreneur takes responsibility for the result of his activity.

4. Economic risk is the possible adverse property consequences of the entrepreneur's activity. At the same time, the risk can not only lead to the bankruptcy of the entrepreneur, but also be detrimental to the property interests of citizens and organizations. This is a feature contained in the definition of entrepreneurial activity. It consists in the fact that this activity is carried out by the entrepreneur at his own risk. Due to various circumstances that do not depend on the will of the entrepreneur, his commercial calculations may not be justified, and at best he will not receive the planned profit, at worst he will go bankrupt. The burden of such consequences lies with the entrepreneur himself.

5. State registration is a legal fact that precedes the start of entrepreneurial activity. To obtain the status, a business entity must be registered (recognized by the state) as such. For the systematic extraction of profit from their activities without state registration, legal liability is provided. Entrepreneurship can be carried out by both citizens and organizations. Commercial organizations fully enjoy this right, but even they must obtain an additional permit - a license (transport, legal, medical, etc.) to engage in certain activities. For certain types of activity, a state monopoly is established (production and trade in weapons). A person who intends to independently, at his own risk, carry out activities aimed at making a profit, must register as an entrepreneur. Otherwise, his activity will be considered illegal. But when concluding transactions of a commercial nature, the lack of registration is not an obstacle to recognizing them as such. Such transactions will be subject to the rules governing entrepreneurial activity (Article 23 of the Civil Code of the Russian Federation).

These relationships are divided into two groups:

1) proper entrepreneurial relations (entrepreneur-entrepreneur) - horizontal;

2) non-commercial relations (entrepreneur - management body) - vertical.

Horizontal relations (property) are based on the legal equality of the parties. Their rights and obligations, as a rule, arise from the contract.

Business entities differ depending on the role they play in the economy. The most common entities are commercial organizations and individual entrepreneurs. In addition, non-profit organizations also belong to business entities. Although their goal is to conduct non-commercial activities, they can, in order to achieve the goals for which they were created, engage in entrepreneurial activities. Business entities are also members of governing bodies, managers of commercial organizations. They directly carry out entrepreneurial functions. There are also groups of other business entities:

Branches, representative offices, other structures of commercial divisions of commercial organizations;

Industrial and economic complexes (financial and industrial groups, holdings, simple partnerships and other associations of entrepreneurs without forming a legal entity);

Commodity and stock exchanges;

Investment funds;

Non-state pension funds;

Self-regulatory organizations and other associations of entrepreneurs;

Authorities and local self-government.

The right to engage in entrepreneurial activity is one of the fundamental constitutional rights and freedoms of man and citizen. The Constitution of the Russian Federation establishes the right of every citizen to freely use his abilities, property for entrepreneurial and other economic activities not prohibited by law. The free exercise of entrepreneurial activity is an element of the constitutional principle of economic freedom.

Every citizen has the right to choose any mode of economic activity. A person can carry out entrepreneurial activities as an employee or an individual entrepreneur, be both an individual entrepreneur and an employee, or participate in the activities of a commercial organization. But at the same time, the law restricts in certain cases and procedures the freedom of entrepreneurship in order to protect the constitutional order, morality, protect human health and life, state security, protect the environment, protect cultural values, etc. These restrictions include:

The presence of a business entity of legal personality;

Availability of state registration of business entities;

Obtaining a special permit (license) to carry out certain types of activities.

The right to engage in entrepreneurship includes the freedom to choose the scope, type and form of entrepreneurship . Among business areas distinguish production, commerce (trade) or provision of services. By types of entrepreneurial activity differs by banking, insurance, exchange, production of a certain type of product, etc. By business forms allocate individual and collective entrepreneurial activity(a citizen can both independently carry out entrepreneurial activities on an individual basis, and by participating in a commercial organization).

The right to engage in entrepreneurship is an integral part of the legal capacity of a citizen: according to the law, only a capable citizen can independently engage in entrepreneurship.

For legal reasons, property is divided into:

Movable and immovable;

Negotiable, limited circulation and withdrawn from circulation.

According to economic characteristics, the property is divided into:

Fixed and working capital;

Property for production and non-production purposes;

Tangible and intangible assets;

Funds for various purposes.

The property of an entrepreneur includes all types of property intended for his activities (land plots, buildings, structures, equipment, inventory, raw materials, products, rights to a trade name, trademarks, etc.). The property rights of an enterprise are secured by securities, which certify certain property rights of its owners. Special types of property are money and foreign currency.

1) the right to perform their own actions;

2) the right to demand the fulfillment of duties and obligations by other persons in their own interests;

3) the ability of entrepreneurs to protect their interests.

Each entrepreneur is provided with equal opportunities to conduct business activities and the same legal status, regardless of the place of registration or place of residence. Individual entrepreneurs can choose any place of residence, and the founders of a commercial organization - any location of the legal entity they create. In accordance with the principle of freedom of economic activity, an entrepreneur has the right to independently and independently set prices for goods and services, except for those regulated by the state (natural monopolies).

Commercial organizations can carry out any kind of activity. Entrepreneurs have the right to own property, including land, other natural resources, money, etc. Each entrepreneur has the right of free access to any market of a particular product. The rights of entrepreneurs may be limited by federal laws.

To business rights relate:

The right to create legal entities;

The right to own property, other property and non-property rights;

The right to make transactions that do not contradict the law;

The right to participate in obligations;

Responsibilities of an Entrepreneur can be divided into several groups, depending on the stages of entrepreneurial activity:

1) preparation for entrepreneurial activity. During this stage, state registration takes place, the entrepreneur receives licenses, permits, permits, etc. He prepares forms and accounting books, financial and statistical reporting, becomes tax records. At this stage, the formation of the production base also takes place;

2) production of goods and provision of services. At this stage, the obligations of the entrepreneur include the implementation of legislation, obligations under transactions, etc.;

3) formation of the results of entrepreneurial activity and their disposal. At this stage, the responsibilities of the entrepreneur include:

Payment of taxes to the budgets of various levels;

Payment of mandatory payments to off-budget funds;

Submission of tax returns, tax reports and balance sheets;

Presentation of statistical information.

The responsibility of the entrepreneur is expressed by a sanction that is applied to the offender in the form of imposing on him additional obligations (payment of fines, penalties, losses, etc.) and deprivation of his right, which entails negative consequences for him. The deprivation of the right is expressed in the seizure of property to the state revenue, the deprivation of the right of ownership of property, in the restriction or termination of the legal personality of the entrepreneur. These measures include:

liquidation of a legal entity by a court decision in the event of carrying out activities:

Without a license;

prohibited by law;

Repeated or gross violations of the law;

reorganization of a legal entity by decision of state bodies or by a court decision;

Suspension of activities of a legal entity or individual entrepreneur;

application of criminal punishment in the form of deprivation of the right to engage in certain activities or hold certain positions;

Restriction of entrepreneurial activity or individual operations.

TOPIC 2. SOURCES OF REGULATION OF BUSINESS ACTIVITIES

Entrepreneurial law: subject and methods of legal regulation. Principles of business law. Legal regulation of entrepreneurial activity. Types of legal sources. Civil law and its system. Operation of civil law. Application of civil law. Correlation of business law with other branches of law.

If a labor Relations governed by the rules labor law, the situation with entrepreneurial activity is more complicated. For a long time in our state, entrepreneurial activity was not only not regulated by the state, but was also directly prohibited, its engagement in the Criminal Code of the RSFSR of 1960 was strictly punished (for example, speculation) by imprisonment for up to 10 years with confiscation of property. Only since the second half of the 1980s, for the first time, and only to a very limited extent, did the law allow citizens to engage in entrepreneurial activities based on their personal labor, which was called individual labor activity. At present, the state not only recognizes the right of citizens and private organizations to engage in entrepreneurship, including with the involvement of hired labor, but also encourages it.

Business Law is an integral part of the legal system of Russia, as it regulates relations related to the market economy. A feature of business law is that it is formed from the norms of various branches of law - constitutional, civil, labor, financial, administrative, criminal, tax, etc.

Business Law of the Russian Federation – set of norms of various industries Russian law regulating public relations in the field of entrepreneurial activity.

At the same time, the rules of business law establish:

Legal requirements to entrepreneurs and other participants in business relations;

Basic rules of entrepreneurship;

Legal liability for non-compliance with established rules.

Through the norms of business law, the state creates favorable conditions for entrepreneurship, develops market relations, and contributes to the creation of such market structures like exchanges, banks, trading houses, etc.

Under subject of legal regulation refers to the range of social relations that are regulated by this branch of law. The subject of business law, therefore, are public relations in the field of entrepreneurial activity and related non-commercial relations. Such relations form economic and legal relations and a single economic and legal turnover.

Under legal regulation method is understood as a set of techniques and methods of legal influence on social relations. The methods of business law include methods:

Mandatory regulations (the rights and obligations of subjects of business relations are established);

Autonomous decisions, autonomy of will of the parties of legal relations (i.e., the rights and obligations of participants in entrepreneurial activity are established by mutual agreement);

Coordination (the subject of business law resolves the issues that have arisen independently, and when entering into a legal relationship - in agreement with its other participant);

Prohibitions.

Principles of business law- these are the fundamental principles that determine the legal norms of business law. These include:

1) The principle of freedom of entrepreneurial activity (enshrined in Article 34 of the Constitution of the Russian Federation - "everyone has the right to freely use their abilities and property for entrepreneurial activities and other economic activities not prohibited by law." But the freedom of entrepreneurship can be limited by federal laws in the interests of society. The freedom of entrepreneurship is also limited by the licensing of certain types of economic activity.

2) The principle of recognition of the diversity of forms of ownership, the legal equality of forms of ownership and their equal protection. According to this principle, the legislation cannot establish any privileges or restrictions for business entities. All subjects are provided with equal protection of their rights.

3) The principle of a single economic space. This principle establishes the consolidation in the Constitution of “free movement of goods, services and financial resources throughout the territory of the Russian Federation. In accordance with this principle, the establishment of customs borders, duties, fees or other obstacles to the free movement of these objects is not allowed on the territory of the Russian Federation.

4) The principle of maintaining competition and preventing economic activities aimed at monopolization and unfair competition. Compliance with this principle is necessary for the development of a market economy and the implementation of entrepreneurial activities.

5) The principle of state regulation of entrepreneurial activity. It is carried out in various forms and methods, which are determined by political conditions, the level of economic, social development and other factors.

6) The principle of legality. In accordance with this principle, entrepreneurial activity must be carried out in strict compliance with the requirements of the law, and the state must ensure the legality of legal acts, the legality of the activities of the authorities that regulate entrepreneurship.

Of particular importance in such regulation are the constitutional guarantees of entrepreneurship. According to the Constitution of the Russian Federation (Article 34), everyone has the right to freely use their abilities and property for entrepreneurial activities and other economic activities not prohibited by law. In addition, recognizing the right to private property, including land and other natural resources, the Constitution defines the most important economic guarantee for entrepreneurial activity.

Of particular importance in modern Russia acquires legal regulation of entrepreneurial activity, which is carried out through the use of a variety of legal sources.

A legal source is a way of fixing legal norms. Legal sources of business law fix legal rules that govern relationships between entrepreneurs. The following legal sources of business law operate in the Russian Federation:

1. The main source is the Constitution of the Russian Federation, which has the highest legal force, direct action and is applied throughout the territory of our state. All laws and regulations must not contradict it. The Constitution of the Russian Federation establishes the constitutional foundations of entrepreneurship, constitutional restrictions. Entrepreneurial law is assigned to the jurisdiction of the Russian Federation and provides a unified legal regulation of entrepreneurial activity throughout the territory of the Russian Federation.

2. One of the sources is the Civil Code of the Russian Federation, which regulates not only civil legal relations, but also business ones. The Civil Code discloses the concept of entrepreneurship, organizational and legal forms of its implementation, the concept of the legal regime of entrepreneurs' property, the concept of contracts.

3. A significant place among the sources of entrepreneurial law is occupied by federal laws on entrepreneurial activity. They are classified into laws:

Regulating the general state of a certain type of market;

Establishing the legal status of a business entity;

Regulatory certain types entrepreneurial activity;

Establishing the legal status of individual market entities;

Establishing requirements for entrepreneurial activity.

4. An important role in the regulation of entrepreneurship is played by by-laws, which should not contradict the Constitution and federal laws. These are Decrees of the President, Decrees of the Government, regulations federal executive authorities.

5. Under regulation business relations the normative-legal acts of the USSR continue to operate.

6. In a number of cases, along with federal sources of law, acts of subjects of the Russian Federation may also operate.

7. Legal acts in the field of entrepreneurship, local self-government bodies can also issue (in the field of regulation of ownership of the property fund they own).

8. Play a big role and local acts, which are created by the business entities themselves (Charter, regulation, memorandum of association, etc.), they can establish a trade secret regime.

9. Business customs are also sources of business law. In Art. 5 of the Civil Code of the Russian Federation states that this is "an established and widely used rule of conduct that is not provided for by law, regardless of whether it is recorded in any document." Business customs are applied along with the legislation with its gaps, but not contrary to it. The legal significance of customs lies in the fact that they are applied after legal acts and contracts.

10. An integral part of the legal sources of business law are generally recognized principles and norms of international law, as well as international bilateral and multilateral treaties of the Russian Federation.

The main role in the regulation of entrepreneurship belongs to the norms of civil and administrative law. Civil law fixes the legal status of individual entrepreneurs and legal entities in property turnover, regulates property relations and contractual relations.

Civil law governs entrepreneurial activity in the following areas:

Defines the organizational and legal forms of entrepreneurial activity (there are two such forms - entrepreneurship without forming a legal entity ( individual entrepreneurship) and entrepreneurship with the formation of a legal entity);

Regulates the procedure for the creation and termination of legal entities, establishes the procedure for the bankruptcy of entrepreneurs;

Regulates "internal" relations in commercial organizations, i.e. relations between the participants of the organization, as well as between the participants and the organization itself (corporate law);

Protects the means of individualizing business participants, their goods, works, services, trade names, trademarks, service marks, etc.;

Regulation and protection of property relations and relations derived from it (property law);

Regulates and protects contractual relations entered into by entrepreneurs in the course of their activities (contract law);

Establishes the grounds, forms and amount of property liability of entrepreneurs for civil torts committed by them in the course of entrepreneurial activity.

The norms of civil legislation are concentrated in the Civil Code of the Russian Federation, which has priority among the normative acts regulating civil relations. In addition, the norms of civil legislation include federal laws (FZ), decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation, regulatory legal acts of federal executive authorities (ministries and departments). In accordance with the Constitution of the Russian Federation, civil legislation is in the exclusive jurisdiction of the Russian Federation. This means that the subjects of the Russian Federation and municipalities cannot adopt acts containing norms of civil law. In addition to normative sources in this area of public relations, business customs are applied, i.e. rules of conduct that have developed and are widely used in any area of business activity, not provided for by law, but recognized by the state. Business customs apply in areas such as banking and insurance, as well as shipping.

Under civil law system refers to the totality of normative legal acts containing the norms of civil law.

Depending on the legal force, all acts included in the civil law system are divided into:

a) acts that have the highest legal force - laws;

b) acts of a by-law nature - decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation;

c) by-laws issued by other federal executive bodies - acts of federal ministries and departments.

Acts related to the system of civil legislation are also classified on the basis of other criteria, in particular, depending on the volume and nature of the civil law norms contained in them. On the basis of this criterion, acts of a purely civil law nature are distinguished, such as, for example, the Civil Code of the Russian Federation, and complex regulatory legal acts, which, along with civil law norms, also contain norms of other branches of law. An example of this kind of acts is the Housing Code of the Russian Federation, which contains both norms of civil law and norms of administrative law.