Types of legal regulation of entrepreneurial activity. Legal regulation of entrepreneurial activity: features and structure. The concept of entrepreneurship and entrepreneurial activity

concept entrepreneurial activity contained in Art. 2 of the Civil Code of the Russian Federation.

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 persons registered in the manner prescribed by law.

There are some signs of entrepreneurial activity.

• 1. Systematicity, that is, the implementation of entrepreneurial activities for a certain period. However, the legislator does not define clear criteria for systematicity. Therefore, to qualify an activity as an entrepreneurial one, criteria such as:
  • - the share of profit from entrepreneurial activity in the total income of a person;
  • - profit margins;
  • - receiving it a certain amount of times for any reporting period, etc.
• 2. Independence, which includes two components:
  • a) organizational independence - the ability to independently make decisions in the process of entrepreneurial activity (volitional character);
  • b) property independence - the entrepreneur has a separate property for the implementation of entrepreneurial activities. Risky nature of entrepreneurial activity. Risk (from Latin risco - “sheer cliff”) - the probability of not receiving the planned or expected positive result.
• 3. Independent property liability of the entrepreneur. The limits of such liability depend on the organizational and legal form of entrepreneurial activity.
• 4. Legalized character. The presence of a special entity (entrepreneur) i.e. a person registered in this capacity in the manner prescribed by law. Entrepreneurial activity can be carried out only by persons registered in the manner prescribed by law. Carrying out business activities without state registration is an offense (art. 14.1 of the Code of administrative offenses(hereinafter referred to as the Code of Administrative Offenses of the Russian Federation); Art. 171 of the Criminal Code of the Russian Federation (hereinafter - the Criminal Code of the Russian Federation)).
• 5. Focus on systematic profit. Profit is understood as income minus expenses. In this case, it is the purpose of the person’s activity that is important, and not the fact of making a profit. Activities aimed at making a profit, but causing losses, are also entrepreneurial.
• 6. Extracting income from certain activity: sales of goods, provision of services, performance of work, receipt of income from the use of property (for example, renting out premises) and intellectual property of the entrepreneur.
• 7. Professionalism - a sign that suggests that the entrepreneur has certain knowledge and skills. At present, such a requirement is fixed in relation to far from all types of entrepreneurial activity (basically, the presence of a certain education is required for the implementation of licensed activities). However, it is indicated as mandatory in the legislation of Germany, France, etc.

Types of entrepreneurial activity are classified:

• - according to the form of ownership on the basis of which entrepreneurial activity is carried out: private, state, municipal;
• - by the number of participants: individual, collective;
• - by the nature of the activity: the production of goods, the provision of services, the performance of work, etc. (Industrial entrepreneurship, commercial, the essence of which is trade and exchange operations, financial entrepreneurship, intermediary, insurance).

Business law, like any other branch of Russian law, is based on certain principles that characterize and determine the legal regulation in the field of business law.

The principles of Russian business law are the fundamental principles on which business law is built. There are a number of principles of business law.

• 1. The principle of freedom of entrepreneurial activity is enshrined in Art. Art. 8, 34 of the Constitution of the Russian Federation, which establishes: “everyone has the right to free use of their abilities and property for entrepreneurial and other purposes not prohibited by law. economic activity". Consequently, each citizen decides independently whether to engage in entrepreneurial activity or not, what organizational and legal form and type of entrepreneurial activity to choose, etc. This principle is developed in the Civil Code of the Russian Federation and other regulatory legal acts.
• 2. The principle of recognition of the diversity of forms of ownership, the legal equality of forms of ownership and their equal protection is based on the provisions of paragraph 2 of Art. 8 of the Constitution of the Russian Federation: "In Russian Federation private, state, municipal and other forms of ownership are recognized and protected in the same way. The legislation cannot establish any privileges or restrictions for entities engaged in entrepreneurial activities using property that is in state, municipal or private ownership.
• 3. The principle of a single economic space, which is expressed in the fact that, according to paragraph 1 of Art. 8 of the Constitution of the Russian Federation “in the Russian Federation the free movement of goods, services and financial resources". Restrictions may be introduced in accordance with federal law, if necessary to ensure safety, protect human life and health, protect nature and cultural values.
• 4. The principle of maintaining competition and preventing economic activity aimed at monopolization and unfair competition. In accordance with paragraph 1 of Art. 8 of the Constitution of the Russian Federation in the Russian Federation guarantees the support of competition, freedom of economic activity. Article 34 of the Constitution of the Russian Federation also establishes a ban on the implementation of economic activities aimed at monopolization and unfair competition. This principle has been developed in the legislation on competition, on natural monopolies.
• 5. The principle of balancing the private interests of entrepreneurs and the public interests of the state and society as a whole. In an effort to maximize profits, entrepreneurs in some cases may not take into account the interests of the state and society as a whole. Various measures allow reconciling the interests of entrepreneurs and society state regulation entrepreneurship. They can be direct (directive) and indirect (economic). Direct state regulation is expressed in the establishment of requirements for entrepreneurial activity; establishment of prohibitions; the application of measures of responsibility, and indirectly - in the provision of benefits in taxation, lending.
• 6. The principle of legality. On the one hand, entrepreneurial activity itself must be carried out in strict compliance with the law. On the other hand, the state must ensure the rule of law in the activities of public authorities and local government in relation to business entities. Legality ensures the stability of the economy and its financial system.
• 7. The principle of systematic profit as the goal of entrepreneurial activity. The implementation of this principle is a necessary attribute market economy. The main goal of doing business

Business entities

1. Legal regulation entrepreneurial (commercial) activity.

State regulation of economic activity.

The concept and signs of entrepreneurial activity and entrepreneurial legal relations.

Private law and public law regulation of entrepreneurial activity.

Business entities, their characteristics.

2. Legal status of participants' property economic relations.

Ownership: concept, content. Ownership types.

Forms of ownership in the Russian Federation.

The right of property of citizens and legal entities.

State and municipal property.

Limited real rights: the right of economic management and the right of operational management.

3. Organizational and legal forms of entrepreneurial activity.

The concept of a legal entity, its features.

The purpose of the creation of legal entities.

Classification of legal entities.

Ways to create legal entities.

Constituent documents and state registration of legal entities.

4. Legal status individual entrepreneurs.

State registration of individual entrepreneurs.

Civil legal capacity and legal capacity.

Loss of the status of an individual entrepreneur.

Responsibility of individual entrepreneurs for obligations.

5. Reorganization and liquidation of legal entities.

The concept, grounds and forms of reorganization.

The concept, grounds and procedure for the liquidation of legal entities.

Guarantees of the rights of creditors during the reorganization and liquidation of legal entities.

6. Insolvency (bankruptcy) of legal entities: concept, features, procedures

The concept of insolvency (bankruptcy).

Signs of bankruptcy.

Legal regulation institution of bankruptcy.

bankruptcy procedures.

The peculiarity of state regulation of economic activity is to prevent the collision of private interests of business entities, on the one hand, and the public interests of society as a whole, on the other hand.

In fact, achieving a balance of these interests is possible in various ways and methods. To achieve this goal, it is necessary to develop a perfect mechanism for the legal interaction between the entrepreneur and society.

In this sense, the ongoing Russian economy the transition from direct directive influence (which is characteristic of the administrative-command system of management) to indirect methods of regulation using various economic levers and incentives (for example, credit and tax incentives).

In this way, state regulation of economic activity can combine direct and indirect methods of regulation.

The main form of direct regulation is the state registration of legal entities and individual entrepreneurs (simultaneously with the state registration of trade names of commercial organizations). It should be noted that obtaining a certificate of state registration does not always allow the entity to start doing business. So, for example, entrepreneurs who carry out cash settlements with the population, by direct instruction of the law, must register in tax authorities cash register machine. Additionally, in order to develop certain areas of business, entrepreneurs register objects of patent law, means of individualization of goods, works, services. Certain types of property (for example, an enterprise) and certain rights to property used in entrepreneurial activities are subject to registration.

To the forms of direct state regulation of economic activity in particular include:

• fulfillment of obligations to pay taxes and non-tax payments;
• licensing certain types activities;
• the procedure for agreeing with the regional executive authorities on the location of enterprises and the nature of selected types of entrepreneurial activity, taking into account environmental, demographic and other possible consequences;
• observance of norms of nature management, sanitation and hygiene;
• compliance with the requirements for the formation of the cost of products, maintaining accounting, standards, certification of products and services, uniformity of measurements;
• ensuring the quality and safety of goods, works and services;
• establishment of norms for nature management;
• establishment of uniform rules for maintaining and providing accounting, statistical and other information reporting;
• consumer protection laws.

Indirect Methods regulation involves the provision of preferential loans, subsidies, subsidies, preferential tax treatment, etc.

In all economic systems the state regulates the economy, and its role increases with the development of scientific and technological progress, the growth of the scale of production and the deepening of the international division of labor.

The state acts, first of all, as a power structure that establishes the rules of behavior in the market for business entities and influences the conditions for the activity of market entities with its mandatory power regulations. The most important task states on this direction – development of an effective legal framework.

Market relations provide for the functioning of enterprises and organizations of various forms of ownership. Joint-stock, private and state enterprises participate on equal grounds in the competitive struggle in the markets.

Since the market presupposes freedom of production and commercial activity, competition between producers, the domination of any one form of ownership is excluded.

Investment activities. State regulation of the investment process is aimed both at stimulating sources of accumulation within the country and at attracting foreign capital on a wide scale. Investment activity is reflected in the relevant state policy.

One of the important areas of state regulation of the economy is labor market regulation. State regulation of employment is tangibly manifested in the development of special legislation, programs to stimulate employment and increase the number of jobs in the public sector, training and retraining of specialists. The government has a great influence on the labor market. social programs. They contribute to a certain stabilization of the socio-economic position of the working people and mitigate the painful shortcomings of the market mechanism. As a result, a special element of the price of labor power appears, which is not directly related to the functioning of the labor market and is formed on non-market principles.

The above list of the main directions of state regulation of the economy is not limited to this. There are other directions as well.

At the same time, it is important that all government measures to regulate economic processes were undertaken in the interests of the whole society, both to activate the forms of activity necessary for society, and to limit and suppress undesirable forms of management.

Necessary condition normal and efficient functioning of the market economy is competition of business entities based on the following legal principles:

• freedom of entrepreneurial and other economic activities not prohibited by law;
• freedom of movement of goods (trade) and financial resources on the territory of the state;
• equality legal status subjects of economic activity.

According to the current Civil Code of the Russian Federation, entrepreneurial activity- this is 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 persons registered in this capacity in the manner prescribed by law.

Entrepreneurial activity is distinguished by a number of features, which allows us to speak of entrepreneurial activity as a narrower concept than the concept of "economic activity".

The main and mandatory features of entrepreneurial activity are:

1) independent activity;

2) the purpose of the activity is to make a profit;

3) economic risk;

4) the fact of state registration of participants.

The absence of any of the five signs means that the activity is not entrepreneurial.

1. Entrepreneurial activity can be carried out both by the owner himself and by the entity managing his property on the basis of economic management rights with the establishment of the limits of such management by the owner of the property.

Independence in the organization of production is complemented by commercial freedom. The business entity determines the ways and means of selling its products, selects counterparties with whom it will deal. Economic ties are secured by agreements.

An important condition for commercial freedom is free pricing. However, in the economy, absolute freedom of producers does not exist. The entrepreneur has complete independence in the sense that there are no instances above him, issuing commands: what to do, how and how much. It is not free from the market, from its strict requirements. Therefore, we can only talk about certain limits of independence.

2. Entrepreneurial activity involves systematic profit, which is a product of a specific human resource - entrepreneurial abilities. This work is difficult and combines, firstly manifestation of the initiative to combine material and human factors for the production of goods and services, Secondly, making extraordinary decisions on the management of the company, organization of labor and, third, the introduction of innovations through the production of a new type of product or a radical change production process. All this gives grounds to speak of entrepreneurship as a professional activity aimed at making a profit.

Having independence, organizing production in his own interests, the entrepreneur takes responsibility within the limits determined by the legal form of the enterprise for the result of his activity. The property liability of an entrepreneur is his obligation to suffer adverse property consequences due to offenses committed on his part. Its size depends on the organizational and legal form of the enterprise.

The Civil Code of the Russian Federation specifies the main subjective feature, i.e. an indication of the systematic receipt of profit is introduced. Isolated cases of profit making are not entrepreneurial activities. Systematicity is characterized by the duration and regularity of profit, which is determined by the professionalism of the entrepreneur. Thus, 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.

3. A sign of entrepreneurial economic relations is economic risk. Risk constantly accompanies business and forms a special way of thinking and behavior, the psychology of an entrepreneur. Risk is the possible adverse property consequences of the entrepreneur's activities, not due to any missed opportunities on his part.

The risky nature of activities can lead not only to bankruptcy, but also be detrimental to the property interests of citizens and organizations. The Civil Code of the Russian Federation provides for increased property liability of an entrepreneur for violation of his obligations, if he does not have evidence that proper performance was impossible due to force majeure (clause 3 of article 401 of the Civil Code of the Russian Federation). However, this rule is valid unless otherwise provided by law or contract.

The entrepreneur is responsible for the risk with his property, but not only with it. Losses are also possible that affect his status in the labor and capital markets (competitiveness, professional reputation, psychological assessment, etc.).

4. State registration participants in entrepreneurial activity - a legal fact that precedes the start of entrepreneurial activity. Business entities must be registered in this capacity to obtain the status of an entrepreneur. Engaging in systematic profit-making activities without state registration entails legal liability.

Entrepreneurial activities can be carried out by both legal entities and citizens. Among legal entities, commercial organizations fully enjoy this right.

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 of a market economy.

These relationships are divided into two groups:

1) proper entrepreneurial relations ( horizontal relations, i.e. relationship entrepreneur-entrepreneur);

2) non-commercial relations ( vertical relationship, i.e. entrepreneur-management relationship).

Both groups together form economic and legal relations, a single economic and legal turnover.

The horizontal (property) relations of entrepreneurs are based on the legal equality of the parties. Their rights and obligations arise from the contract. These relations are regulated mainly by the norms of civil law, this is the so-called private law regulation of entrepreneurial activity.

The second group includes relations, although of a non-commercial nature, but closely related to entrepreneurial ones, for example, relations in connection with the formation of an enterprise (entrepreneur), licensing, taxation, etc. This includes relations on state regulation of the economy, on supporting competition and limiting monopolistic activities, legal regulation of the safety of products, goods and services, pricing, etc. A characteristic feature of these relations is the obligatory execution of management acts addressed to entrepreneurs, adopted within the competence of the governing body. These relations are regulated mainly by the norms of administrative, tax, labor, land law, this is the so-called public law regulation of entrepreneurial activity.

As Art. 23 of the Civil Code of the Russian Federation, entrepreneurial activities can be carried out by citizens without forming a legal entity (individual entrepreneurs), as well as legal entities.

In business relations, the concept of "economic entity" is the main one.

Business entity is a business entity. At the same time, the concept of "economic entity" is broader than the concept of "entrepreneur", since non-profit organizations, not being entrepreneurs, can participate in the economic turnover.

Essential in understanding entrepreneurship is the norm of Part 2 of Art. 34 of the Constitution of the Russian Federation, which defines entrepreneurial activity as type of economic activity. Entrepreneurship can only be carried out within the framework of economic activity. An activity aimed at the systematic receipt of some kind of income, but not being economic, cannot be considered as entrepreneurial.

Signs of business entities:

§ registration in the prescribed manner;

§ the presence of legal capacity (recognized by the right of the opportunity to have property rights and bear obligations);

§ availability of separate property as a base for entrepreneurial activities;

§ independent property liability for obligations.

As experience shows, the practice of the economically developed countries of the world, the economic well-being of any country depends on the forms of government and the stability of their legislative system. If the leadership of the state works fully and efficiently and ensures the normal functioning of the laws, then the country will prosper regardless of its geographical location and cultural orientation. In all countries, the state supports entrepreneurship. For the development of the country ultimately depends on its development.

In Russia, entrepreneurial activity is regulated by laws adopted by the State Duma, approved by the Federal Assembly and signed by the President of the country. In addition, the decrees and orders of the President (Putin V.V.) and the decrees and orders of the Government of the Russian Federation (Fradkov) are of great importance, directly for the sector of the economy Agriculture orders and instructions of the Ministry of Agriculture of the Russian Federation (Minister Gordeev) are important.

The Basic Law of our country is the Constitution of the Russian Federation. It reflects all the main legal provisions and any other normative act should not contradict the Constitution.

According to the Constitution, every capable person has the right to engage in entrepreneurial and other economic activities not prohibited by law (Article 34 of the Constitution of the Russian Federation). In combination with the right of private property, such freedom of entrepreneurship acts as the legal basis for a market economy, excluding the state's monopoly on the organization of economic life. This freedom is considered as one of the foundations of the constitutional order of Russia (Article 8 of the Constitution).

Therefore, the state is the guarantor of this right. State bodies are obliged: 1) not to refuse to register an enterprise, referring to the inexpediency, 2) to protect the property of a private entrepreneur on an equal basis with state property, 3) must fight racketeering and extortion, 4) any damage caused to the enterprise through the fault of officials government agencies, is refundable. 5) no state body has the right to dictate to the entrepreneur what products he is obliged to produce and what prices should be for it (if the limits are not regulated by law), 6) the entrepreneur himself hires and fires workers in compliance with labor law, he manages his own profit, 7) the freedom of entrepreneurship also includes the right to carry out foreign economic activity, create unions and associations with other entrepreneurs, open bank accounts.

At the same time, the state has the right to restrict certain rights of the entrepreneur: 1/. The state prohibits certain types of economic activity (the production of weapons, the manufacture of orders, etc.) or conditions such activities with special permits (licenses). 2/. The state regulates exports and imports, which imposes certain restrictions on many enterprises. Finally, 3/. State bodies have the right to require financial reporting from the entrepreneur, without affecting commercial secrets. These and a number of other restrictions are necessary in the interests of the entire national economy, but must be based on the legislative framework.

Specific issues related to the exercise of the right to entrepreneurial activity are regulated by many laws and, above all, by the Civil Code of the Russian Federation, the first part of which entered into force on January 1, 1995, and the second - on March 1, 1996.

The Civil Code, this kind of basic law of a market economy, introduces economic activity into the general framework of relations of any individuals and legal entities with other persons, enshrines the freedom of contract, the inadmissibility of arbitrary interference by anyone in private affairs. According to the Civil Code of the Russian Federation, the main and main condition for starting a business, as we noted earlier, is its state registration. The subject of the right to entrepreneurial activity (it does not necessarily mean the creation of an enterprise) is any person who is not limited by law in their legal capacity. The legal capacity of a citizen arises at the moment of his birth and ceases with his death. According to Art. 18 of the Civil Code of the Russian Federation, the content of legal capacity includes the right to engage in entrepreneurial and any other activities not prohibited by law, create legal entities independently or jointly with other citizens and legal entities, make any transactions that do not contradict the law and participate in obligations, etc. Naturally, juvenile citizens can to exercise their rights only through legal representatives (parents, guardians). from 18 years old.

Among other federal laws on the regulation of entrepreneurial activity should include the Law of the Russian Federation "On State Regulation of Foreign Trade Activities" (1995). In particular, in accordance with this Law, all Russian persons have the right to carry out foreign trade activities, "with the exception of cases provided for by the legislation of the Russian Federation." Foreign persons carry out similar activities in compliance with Russian legislation. The law establishes the procedure for the import and export of goods, restrictions on exports and imports, the issuance of licenses, etc.

Antimonopoly regulation of entrepreneurial activity is carried out in accordance with the Law “On Competition and Restriction of Monopoly Activities in Commodity Markets” (1991). It is expressed in the fact that the state limits monopolization and unfair competition. Unfair competition refers to the conduct of competition by dishonest and illegal methods.

Abuses related to market dominance and infringement ethical rules competition are detrimental to citizens and society as a whole. Lack of competition delays economic and technological progress, suppresses the activity of small and medium-sized businesses, reduces the quality of goods, maintains high prices, and infringes on the right of many people to free economic activity. Unfair competition affects the interests of citizens and the economy, which manifests itself in the conclusion of agreements on prices (to maintain high prices), the division of markets, the elimination of other entrepreneurs from the market. The interests of consumers are infringed when they are misled as to the manufacturer, purpose, method and place of manufacture, quality and other properties of the goods of another entrepreneur, by incorrect comparison of goods in advertising and other information, copying of the external design or use of the trademark of someone else's goods and in other ways.

It is also prohibited for an entrepreneur to disseminate false, inaccurate or distorted information that could cause losses to another entrepreneur, to withdraw goods from circulation in order to create or maintain a shortage in the market or to increase prices, to impose on a counterparty the terms of an agreement that are unfavorable for him or not related to the subject of the agreement, and a number of other actions.

The law establishes that recognition of a position as dominant (i.e. monopoly) is possible if the share of goods on the market exceeds 35% and it is possible to restrict competition. Restriction of competition is prohibited not only for individual entrepreneurs, but also for executive authorities. A means of combating monopolization and unfair competition can be an appeal to the antimonopoly authorities, which have the right to issue orders to stop unlawful actions, and in case of failure to comply with the orders, to impose a fine. In case of causing losses from such actions, you can apply to the court (both general jurisdiction and arbitration).

To implement the provisions of this Law, the State Antimonopoly Committee of the Russian Federation, which has territorial departments, was created. The activity of these bodies is of a quasi-judicial nature, since they decide on measures of influence in procedural forms, i.e. with the provision of certain guarantees to the parties, observance of their rights and legitimate interests. However, any decisions of these bodies can be appealed to the court.

The antimonopoly legislation does not affect the scope of the so-called natural monopolies, i.e. monopolies that produce goods for which the satisfaction of demand in the market of this product is more effective in the absence of competition due to the technological features of production and which have a stable demand due to the impossibility of completely replacing them with other goods. These are transportation of oil and gas through pipelines, railway transportation, services of transport terminals and ports, services of electric and postal communication. The federal law of August 17, 1995 provides for the regulation of the activities of these natural monopolies through special federal executive bodies.

The state also provides support to the so-called small business (with up to 100 people employed at the enterprise), as adopted by the Federal Law of June 14, 1995. The law provides for the creation of preferential conditions in financial area and taxation, support foreign economic activity small enterprises, etc. The state is called upon to implement special programs and create funds to support small businesses.

In the system of Russian law, there is no branch specifically designed to regulate 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, civil, administrative, labor, financial, etc. The totality of such norms related to the regulation of entrepreneurship is often combined under the general name "commercial law".

In this way, business law – this is a set of norms of various branches of Russian law that regulate social relations in the field of entrepreneurial activity.

Of particular importance in such regulation are the constitutional guarantees of entrepreneurship. According to Art. 34 of the Constitution of the Russian Federation, everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law.

The main role in the regulation of entrepreneurship belongs to the norms 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. These relationships are sometimes also called horizontal, i.e. relations based on the legal equality of the parties.

The norms of administrative law establish the procedure for state registration of business entities, the procedure for licensing certain types of entrepreneurial activity, etc. These relationships are vertical, i.e. here the dominant principle is the principle of power and subordination.

Civil law is the basis of private law regulation of entrepreneurial activity, and administrative law is the basis of public law.

Private legal regulation of entrepreneurial activity

The leading role in the mechanism of legal regulation of entrepreneurship belongs to the norms private law, and first of all civil. It is quite obvious that entrepreneurial activity by its nature does not tolerate imperative, administrative-command methods of influence. Managed by similar methods, production activity ceases to be free, enterprising, and the economy, losing the mechanism of self-regulation, turns into a planned one. Therefore, the dispositive method used by civil law, as well as possible, corresponds to the very nature of entrepreneurial activity.

The main areas of civil law regulation in this area are:

Definition of organizational and legal forms of entrepreneurial activity

Regulation of the procedure for the creation and termination of legal entities, the establishment of bankruptcy procedures

Regulation of internal relations in commercial organizations

Regulation and protection of property relations and relations derived from them (property law)

Regulation and protection of contractual relations entered into by entrepreneurs in the course of entrepreneurial activities (contract law)

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

The most important civil law norms governing entrepreneurial activity are concentrated in Civil Code of the Russian Federation- the basic law, which has priority over all other normative acts containing civil law norms. These acts include: federal laws, decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation and regulatory legal acts of executive authorities of the federal level (ministries and departments). Since civil legislation is under the exclusive jurisdiction of the Russian Federation, the subjects of the Russian Federation and municipalities cannot adopt acts containing norms of civil law.

Along with the regulatory legal acts sources of civil law are business practices, i.e. Rules of conduct that have developed and are widely used in any area of ​​business activity and are not provided for by law, regardless of whether they are recorded in any document (Article 5 of the Civil Code of the Russian Federation). Basically, business customs are used in such areas of business as banking and insurance, as well as shipping.

Public law regulation of entrepreneurial activity.

The task of public law is to prevent possible harmful consequences that may occur in conditions of absolute economic freedom: abuse of commodity market, in the provision of works and services, restriction of freedom of competition, periodic economic crises, etc.

The main areas of public law regulation in the field of entrepreneurship are:

Establishment of the procedure for state registration of business entities

Regulation of relations related to the licensing of certain types of activities

Antitrust regulation

Regulation of relations on standardization, ensuring the uniformity of measurements and certification

Establishment of sanctions for offenses in the field of entrepreneurial activity.

A) Licensing

Some types of activities, the list of which is determined by law, business entities can be engaged only on the basis of a license. License is a special license to carry out specific type activities subject to mandatory compliance with licensing requirements and conditions, issued by a specially authorized body government controlled(licensing authority) to a legal entity or individual entrepreneur. Licensing is managerial activity and therefore governed by administrative law.

Main normative act in the field of licensing is the Federal Law "On licensing certain types of activities" dated 08.08.2001.

The meaning of the license lies in the fact that the licensing authorities get the opportunity to monitor compliance by licensees with the requirements and conditions established by law for the implementation of licensed activities. In case of detection of violations of license requirements and conditions, the licensing body has the right to suspend the license. At the same time, a period of up to six months is established for the licensee to eliminate the violations committed. If the violations are not eliminated within this period, the licensing authority is obliged to apply to the court with an application to cancel the license.

abstract

Legal regulation of 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 establishes the most important economic guarantee for 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.

The relevance of the topic is the change in 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 of state regulation in the field of production, work, 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 P concept 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 needed. 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 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;

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 of legal norms regulating 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.

The complex of entrepreneurial property relations is an important element of the subject of civil law. The Civil Code, other laws and other legal acts containing civil law norms not only give a legal definition of entrepreneurial activity, but also regulate the features of the sources of its civil law regulation, its subjects and their participation in obligations. An important type of business activity regulated by civil law is investment activity, i.e. investment ( Money, target bank deposits, shares, securities, technologies, licenses, etc.) and a set of practical actions for their implementation.

Civil law does not regulate, but nevertheless protects the inalienable rights and freedoms of a person and other non-material benefits not directly related to property relations, such as, for example, life and health, personal dignity, personal integrity, honor and good name, business reputation, personal and family secrets. Not being purely entrepreneurial, these rights and freedoms play an important role in the life and work of entrepreneurs.

Civil law is not the only branch of law that regulates property relations. Some of these relations are regulated by other branches of private or public law. So, property relations on payment wages governs labor law, for the payment of taxes and duties - financial law, and for the payment of administrative fines - administrative law. As a result, in order to distinguish civil law as a regulator of entrepreneurial activity from other branches of law that also regulate individual property relations of entrepreneurs, it is necessary to take into account a set of special techniques and means, i.e., the specifics of the method of influence of civil law on the relations it regulates.

The civil law method is characterized by the legal equality of participants in regulated relations, autonomy, that is, the independence of the will of each of them, and their property independence. None of the participants in civil law relations is in a state of power and subordination, order and execution. As a result, by direct order of paragraph 3 of Art. 2 of the Civil Code, to property relations based on administrative or other power subordination of one party to the other, including tax and other financial and administrative relations, civil law, according to general rule, does not apply.

The method of civil law is sometimes called the method of coordination, entitlement, permission, horizontal connections. The properties of the civil law method of regulating property relations are most adequate to the conditions of a free market, a competitive environment and the needs of entrepreneurs. They are based on such basic principles of civil law as the inviolability of property, freedom of contract, the inadmissibility of arbitrary interference in private affairs, the unhindered exercise of civil rights, ensuring the restoration of violated rights and their judicial protection.

An important feature of the civil law method is the optionality of many civil law norms. Dispositive norms contain a certain general rule ( general model) the behavior of the participants, allowing for the possibility of the formation of a different model by them, if this follows from another law and (or) agreement of the parties themselves. For example, by virtue of paragraph 1 of Art. 223 of the Civil Code, the right of ownership of the acquirer of the thing under the contract arises from the moment of its transfer, unless otherwise provided by law or the contract. In the same way, the risk of accidental loss or accidental damage to property, according to the general rule of dispositive art. 211 of the Civil Code, is borne by its owner, unless otherwise provided by law or contract.

Using these articles of the Civil Code, an entrepreneur - the seller of a thing, wanting to get rid of the risk of its accidental destruction as soon as possible and knowing that the buyer is very interested in acquiring it, can persuade the latter to provide in the contract that the ownership will pass to him not from the moment the thing is transferred, but, say, from the moment of signing the treaty or its entry into force. The civil law method allows entrepreneurs - market participants to freely compete with each other, to achieve the optimal balance of mutual interests, to the greatest extent satisfying the needs of consumers in necessary goods, works and services.

The system of civil law is formed by civil law norms and their blocks, including civil law institutions and superinstitutions, the external expression of which can be the structural elements of the most important act of civil legislation, consisting of civil law prescriptions, combined into articles and collections of articles: paragraphs, chapters, subsections, sections and parts.

The sources of civil law are the Constitution of the Russian Federation, civil legislation and other acts containing civil law norms; business practices; generally recognized principles and norms of international law and international treaties of the Russian Federation. The Constitution of the Russian Federation, which has the highest legal force, direct effect and applied throughout the territory of the Russian Federation, is the foundation of civil legislation. Moreover, since the courts of the Russian Federation, when considering civil cases, increasingly refer to specific articles of the Constitution, the Plenum Supreme Court On October 31, 1995, the Russian Federation adopted Decree No. 8 “On Certain Issues of the Application by the Courts of the Constitution of the Russian Federation in the Administration of Justice”, which clarifies the procedure for using articles of the Constitution of the Russian Federation in judicial practice.

According to Art. 71 p. "o" of the Constitution of the Russian Federation, civil legislation is under the jurisdiction of the Russian Federation and consists of the Civil Code and other adopted in accordance with it federal laws, whose norms must comply with the Civil Code. Other sources of civil law are by-laws: decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation, acts of federal executive bodies (orders, instructions, rules, etc.). The norms of civil law contained in laws other than the Civil Code must comply with the Civil Code. In turn, similar norms of by-laws should not contradict both the Civil Code and other laws, and acts of higher executive authorities.

Along with national (internal) laws and other legal acts, the generally recognized principles and norms of international law, such as, for example, freedom of trade, navigation, etc., as well as international treaties of the Russian Federation, which are an integral part of the legal system of Russia, serve as sources of civil law. International treaties apply directly to relations regulated by civil law, except when their application requires the issuance of an internal Russian act. If an international treaty of the Russian Federation establishes rules other than those stipulated by civil legislation, the rules of the international treaty shall apply.

The considered two types of sources regulate any civil legal relations. As for the third type - business customs - it is used only in the field of entrepreneurial activity. The custom of business turnover is a rule of conduct that has developed and is widely used in any area of ​​business activity, not provided for by law, regardless of whether it is recorded in any document. Examples of such customs are the norms of time for loading and unloading ships, which are often used in seaports, taking into account the subtleties associated with tonnage, type of cargo and vessel, weather, etc., conditions of maritime transportation. Only those business practices that are inconsistent with the provisions of the law or the contract that are binding on entrepreneurs are not subject to application.

2. Business contracts. Main types and features

The contract is universal legal form organization and regulation of economic relations. It allows you to most fully determine the mutual rights, obligations and responsibilities of participants in economic legal relations. The contract is the main way to implement such principles of economic turnover as compensation and equivalence.

In general, the functions of the contract in the economic sphere (commercial contract) are as follows: the contract acts as a means of expressing the common will of the producer and consumer, which determines the correct pace of supply and demand and serves as a guarantee of product sales. The treaty is the most convenient legal means, representing the emerging in the process of implementation economic activity relations based on the principle of mutual interest of the parties to these relations, the contract gives these relations the form of obligations, determines the procedure and methods for their implementation. The agreement provides for ways to protect the subjective rights, legitimate interests of the participants in these relations in case of non-fulfillment or improper fulfillment of obligations.

The contract in the field of economic activity by right nature is a kind of civil law contract, general concept which is enshrined in Art. 390 GK. In accordance with it, the agreement of two or more persons on the establishment, change or termination of civil rights and obligations is recognized as an agreement. Economic activity as a sphere of application of a civil law contract determines its features. One of them is the subject composition of the economic contract. The parties or one of them are commercial organizations in various organizational and legal forms, non-profit organizations engaged in entrepreneurial activities within the rights granted to them by law and constituent documents, individual entrepreneurs.

Based on the foregoing, we can conclude that the same contract can be commercial (if both parties to the contract are entrepreneurs), civil law (if both parties to the contract are not entrepreneurs), entrepreneurial, for one party - an entrepreneur, and civil law (domestic) for the other party who is not an entrepreneur. In the latter case, the rules of economic legislation apply to the entrepreneur, and the rules of civil law apply to the non-entrepreneur.

Thus, based on the subject composition, commercial contracts are contracts, both parties to which are entrepreneurs (supply contract, contracting contract, contract for the supply of goods for state needs), as well as contracts, one of the parties to which, by virtue of a direct indication of an act of legislation, can only be an entrepreneur ( treaty retail purchase and sale, energy supply contract, rental contract, contract household contract, agreement trust management property, loan agreement, etc.).

The second sign of a commercial contract is the purpose for which it is concluded. Since the purpose of economic activity is the systematic receipt of profit, the contract in this area is concluded with the same purpose. The indicated sign of commercial contracts implies the reimbursable nature of the relations mediated by them for the transfer of material and intangible benefits. Any contract in accordance with the Civil Code is supposed to be paid.

If an entrepreneur acts as a party to a donation agreement, which by its legal nature is only gratuitous, such an agreement is not entrepreneurial, since, acting within the framework of the obligation mediated by it, the entrepreneur does not seek to make a profit. Based on the listed features and taking into account the definition of a civil contract, an entrepreneurial contract can be defined as an agreement between parties that are entrepreneurs, or with their participation, on the establishment, change or termination of rights and obligations in the field of entrepreneurial activity. An entrepreneurial contract, therefore, is the same civil law contract, but it has obvious features, due to the sphere of social relations, of which it acts as a regulator. It should be noted that the term "contract" has several meanings in civil law. They also designate a civil obligation relationship that arose on the basis of an agreement, a legal fact as the basis for the emergence of a legal relationship, and a document that sets out the content of an agreement concluded in writing.

The system of commercial contracts is constantly evolving. This dynamics is determined by the development of entrepreneurial relations themselves. New types of households are fixed in the legislation (a contract for the sale of an enterprise, a contract for the assignment of a claim (a factoring contract)), and previously fixed contracts (a contract for the provision of paid services) become independent types. To identify and use in entrepreneurial activity one or another type of business contract, its most optimal conditions, is carried out on the basis of various criteria, depending on the goals pursued, the classification of business contracts.

Based on the subject of commercial contracts, they can be divided into three groups:

Contracts aimed at the transfer of property;

Contracts aimed at the performance of work;

Contracts for the provision of services.

Within the framework of these groups, separate types of contracts are distinguished, corresponding to the names of the chapters of the Civil Code. So, within the framework of contracts aimed at the transfer of property, the following types are distinguished:

Contract of sale;

Lease contract;

Barter agreement, etc.

Within the framework of contracts aimed at the performance of work, the following types are distinguished:

Work agreement;

Contract for the implementation of research, experimental - and design and technological work.

And, finally, the group of contracts aimed at the performance of services is represented by such types as:

Treaty paid provision services;

contract of carriage;

Transport expedition agreement;

storage agreement;

contract of assignment;

Commission agreement, etc.

Types of contracts, in turn, are divided into types. For example, the types of sale and purchase agreement are:

Retail - purchase and sale;

Supply contract;

Contract for the supply of goods for - state needs,

Energy supply contract;

Sale agreement - real estate, etc.

Since commercial contracts are a kind of civil law contracts, and those, in turn, are a kind of transactions, they are subject to the classification of transactions. Thus, the division of transactions into unilateral and bilateral (multilateral), consensual and real, perpetual and urgent, etc. may equally apply to business contracts.

It should be borne in mind that in relation to contracts, the division into unilateral and bilateral (mutual) is carried out not by the number of participants (since their number cannot be less than two in the contract), but by the nature of the distribution of rights and obligations between the participants. A unilateral contract generates only rights for one side, and only obligations for the other. In mutual agreements, each of the parties acquires rights and at the same time bears obligations in relation to the other party.

Thus, based on the foregoing, it can be argued that the system of business contracts is not permanent, because this is due to the constant development of entrepreneurial relations. At the same time, a business contract is always aimed at making a profit.

2.1 Principles and procedure for concluding business contracts

The conclusion of contracts in the field of economic activity should be carried out taking into account the principles that underlie the conclusion of civil law contracts.

The fundamental principle of concluding a contract, enshrined in the Civil Code as a principle of civil law in general, is freedom of contract. Freedom of contract means that entrepreneurs are free to conclude a contract. This means that entrepreneurs are free to resolve issues with anyone, about something, to what extent to enter into contractual relations. Any coercion to conclude a contract is not allowed, except in cases where the obligation to conclude a contract is provided for by law or a voluntarily assumed obligation.

There are exceptions to this principle, due to the fact that for one of the parties the conclusion of the contract may be mandatory.

The first such exception is a public contract under Art. 396 GK. The analysis of this article allows us to identify a number of signs indicating that the contract is not free, i.e. public, namely:

One of the parties to the contractual relationship must be a commercial organization;

The sole or one of the activities carried out by this organization must be the sale of goods, the performance of works or the provision of services;

The activities of a commercial organization must be public, i.e., carried out in relation to everyone who applies to the organization (retail trade, transportation by public transport, energy supply, communication services, medical, hotel services, etc.);

The subject of the contract must be the property sold by the commercial organization, the work performed or the service provided.

The price of goods, works, services, as well as other terms of the contract are established the same for all, except as otherwise provided by law. In the event of unreasonable evasion from concluding an agreement that meets all of the listed criteria, the consumer has the right to judicial order force commercial organization conclude an agreement with him, as well as demand compensation for the losses caused.

The second exception is the conclusion of the main contract provided for the preliminary requirements, which must comply with the preliminary contract established by Art. 399 GK. If the party that concluded the preliminary agreement evades the conclusion of the main agreement, then the other party has the right to demand coercion to conclude the main agreement, on the terms determined by the preliminary agreement, and compensation for losses. Preliminary agreements must be distinguished from agreements encountered in practice (protocols of intent). The latter only reinforce the desire of the parties to enter into contractual relations in the future. Failure to comply with agreements (protocols of intent) does not entail any legal consequences.

The third exception is the conclusion of an agreement with the person who won the auction. If one of the parties evades the conclusion of such an agreement, the other party has the right to apply to the court with a demand for compulsion to conclude an agreement, as well as for compensation for losses caused by evading its conclusion.

The fourth exception is a state contract for the supply of goods for state needs, the conclusion of which is mandatory for enterprises that are monopolists in the sale or production of certain types of goods (works, services).

The second principle of the conclusion of the contract, enshrined in the Civil Code, is the principle of the legality of the contract. Since the contract as a whole is a kind of transaction, then, like any general civil transaction, it is valid if it meets the requirements of the law. The conditions for the validity of general civil transactions include: the disputability of the persons who made it; unity of will and will; observance of the form of the transaction; compliance of the content of the transaction with the requirements of the law. The business contract must also meet the above requirements. The procedure for concluding commercial contracts, the sequence of stages established by law, performed through certain actions aimed at reaching an agreement between the parties and called methods of concluding a contract, cover the provisions of Chapter 28 of the Civil Code. The following stages of concluding an agreement in the field of commercial activity can be distinguished: the general procedure for concluding an agreement; conclusion of an agreement without fail; conclusion of an agreement by assignment; conclusion of an auction agreement.

The conclusion of a contract is usually preceded by so-called non-contractual contracts. They are established in order to clarify the true intentions of counterparties, their financial capabilities, determine the price of a future contract, taking into account costs, various design, technical, estimate and other documentation, agreed and other aspects necessary for the conclusion and execution of the contract.

As a general rule, a contract is considered concluded when an agreement has been reached between the parties on all essential terms of the contract. The process of reaching agreement goes through two obligatory parties: sending an offer by one party and receiving an acceptance by the other party that sent the offer.

The values ​​of concluding a contract in the field of economic activity are explained by the fact that in the field of activity under consideration, the stage (the direction of the offer) is sometimes preceded by advertising, and a public offer is often used. Advertising and other offers addressed to an indefinite circle of persons are considered as an offer to make offers. A public offer is a complete essential conditions contract, an offer from which the will of the person making the offer is seen to conclude a contract on the conditions specified in the offer by anyone who responds.

In accordance with Art. 408 of the Civil Code, the commission by the person who received the offer (including those who responded to public offer), actions or fulfillment of the terms of the contract specified in the offer (shipment of goods, performance of work, provision of services, etc.) is recognized as acceptance, unless otherwise provided by law or specified in the offer. At the same time, it is sufficient that the actions are directed towards the partial fulfillment of these conditions, but necessarily within the time period set by the offeror for acceptance.

The rules established by Art. 415 of the Civil Code, are applied when concluding an agreement without fail, that is, when the conclusion of an agreement is mandatory for one of the parties by virtue of the law. The obligated party may either act as the recipient of the offer to conclude the contract, or itself send the other party an offer to conclude it. The party with which the conclusion of the contract is mandatory must, within thirty days from the date of receipt of the offer, consider and send to the other party a notice of acceptance, from the moment of reading which the other party considers the contract concluded, or of acceptance of the offer on other conditions (minutes of disagreement on the draft contract ), or notice of refusal of acceptance.

A party that has received a notice of acceptance of an offer on other terms has the right to either notify the other party of acceptance of the contract, or to refer the disagreements arising from the conclusion of the contract to the court for consideration within thirty days from the date of receipt of such notice, or the expiration of the period for its acceptance receipt, notice of refusal to accept, and also in case of receiving a response to the offer within the prescribed period, the offeror may apply to the court with a demand to compel the conclusion of the contract.

In situations where the obligated party itself sends a draft contract, the other party has the right to send it a notice of acceptance within thirty days, from the moment it is received by the obligated party, the contract will be considered concluded, or a notice of acceptance of the offer on other conditions (minutes of disagreement to the draft contract). If a notice of refusal of acceptance is received, or if a response to the offer is not received within the prescribed period, the contract is considered not concluded, since its conclusion is not binding on the party that received the offer. In case of receipt of the protocol of disagreements to the contract, the obligated party must, within thirty days from the date of its receipt, notify the other party of the acceptance of the agreement in its version, or of the rejection of the protocol of disagreements. In case of rejection of the protocol of disagreements or failure to receive notification of the results of its consideration within the specified period, the party that sent the protocol of disagreements has the right to submit the disagreements that arose during the conclusion of the contract for consideration by the court, which determines the conditions over which the parties have disagreements. If the party that sent the protocol of disagreements does not go to court, the contract is considered not concluded. The above rules on deadlines apply unless other deadlines are established by law or agreed by the parties.

If the obligated party unreasonably evades the conclusion of the contract, it must compensate the other party for the losses caused.

The second features compared to general order the conclusion of a commercial contract has the conclusion of an accession agreement. The accession agreement is an agreement, the terms of which are determined by one of the parties in forms or other standard forms and can be accepted by the other party and only by joining the proposed agreement. The party that develops its forms or standard forms is the person who commercial activity in areas related to mass consumption or the performance of the same type of services. The conclusion of an agreement by joining the offer, or to the agreement as a whole, may be conditioned by the legislative regulation of the relevant agreements, the terms of which are determined by imperative legal regulations and fixed in forms or standard forms (insurance contract), or relations with mass consumption (communication services, energy saving, transport services, etc.). The accession agreement may be terminated or amended at the request of the acceding party on special grounds, which boil down to the fact that this party has the right to demand termination or amendment of the agreement if the accession agreement, although not contrary to law, deprives this party of the rights usually granted under the agreement of this type, excludes or limits the liability of the other party for breach of obligations, or contains other conditions that are clearly not applicable to the acceding party, which it, based on its reasonably understood interests, would not accept if it had the opportunity to participate in determining the terms of the contract.

These rules do not apply to entrepreneurs, i.e., the requirement to terminate or amend the contract in the presence of those listed in paragraph 2 of Art. 398 of the Civil Code of the grounds presented by the party joining the contract in connection with the implementation of its economic activities, is not subject to satisfaction if the acceding party (entrepreneur) knew, or should have known, on what conditions the contract is concluded. Thus, the accession agreement, on the one hand, increases the risk of the joining party, which is an entrepreneur, and on the other hand, it simplifies the procedure for concluding business contracts.

A special procedure is the conclusion of contracts through bidding. This method is used, in particular, when selling property in the process of privatization of state property, when fulfilling orders for the supply of goods, performance of work or provision of services for state needs, and in other cases provided for by law. Any contract may be concluded at the auction, unless otherwise follows from its essence. Through the auction, any property, both movable and immovable, as well as property rights, can be sold.

The essence of the contract under consideration is that the contract is concluded with the person who won the auction. The organizer of the auction is the owner of the property, the owner of the property right or a specialized organization acting on the basis of an agreement with the owner of the property (owner of the property right) on their behalf or on their own behalf. Bidding is carried out in the form of an auction or competition. The winner of the tender is the person who offers Better conditions, and at the auction the highest bidder. Auctions and tenders can be closed and open. Any person can participate in an open auction or competition, but only persons specially invited for this purpose can participate in a closed auction. Bidders make a deposit in the amount, terms and procedure specified in the notice of the auction.

If the auction does not take place, the deposit is refundable. It is also returned to persons who participated in the auction, but did not win it. The organizer of the auction must notify all prospective participants of the auction at least thirty days before the start of the auction. The notice must contain information about the time, place and form of the auction, the subject and procedure for holding it, including the registration of participants in the auction, the determination of the person who won the auction, as well as information about the initial price.

The person who won the auction and the organizer of the auction sign on the day of the auction or competition the protocol on the results of the auction, which has the force of the contract. If the person who won the auction evades signing the protocol, he loses the deposit made by him. If the organizer of the auction evades signing the protocol, then he is obliged to return the deposit in double size and compensate the owner who won the auction for the losses caused by participation in the auction, in the part exceeding the amount of the deposit. If the subject of the auction was only the right to conclude an agreement, such an agreement must be signed by the parties no later than twenty days or another period specified in the notice, after the completion of the auction and the execution of the protocol. If one of the parties evades the conclusion of the contract, the other party has the right to apply to the court with a demand to compel the conclusion of the contract, as well as to compensate for losses caused by evasion from its conclusion.

Since the contract is concluded on the basis of an auction, its validity depends on the validity of the auction. If the auctions were held in violation of the rules established by law, they may be declared invalid at the claim of the interested party, which is the basis for invalidating the contract concluded with the person who won the auction. Not only bidders, but also persons who were denied participation in the auction can act as an interested person. The consequences of the invalidity of the contract are determined in accordance with the rules established by Art. 168 of the Civil Code and other articles of the Civil Code, depending on the violations committed.

Art. 417 - 419 of the Civil Code provide general rules about the auction. They cannot be contradicted by special rules that regulate in detail the procedure for concluding certain contracts on the basis of bidding. Such rules are established, for example, by the Regulations on auctions for the sale state-owned OAS shares approved by the Order of the Ministry of State Property dated June 10, 1998 No. 8 ( new edition The Regulations were approved by the Decree of the Ministry of State Property of June 27, 2000 No. 141).

As a general rule, the contract is considered concluded at the moment the person who sent the offer receives its acceptance (consensual agreement). However, if, in accordance with the legislation for concluding a contract, the transfer of property is also necessary, the contract is considered concluded from the moment the relevant property is transferred (real contract).

If the contract is subject to state registration, then it is considered concluded from the moment of such registration, and if notarization and registration is necessary - from the moment of registration, unless otherwise provided by legislative acts.

In the process of concluding a contract between the parties, disagreements (pre-contractual disputes) may arise. The transfer of such disagreements for resolution by the court is possible in cases where, firstly, the conclusion of an agreement is obligatory for one of the parties and, secondly, the parties have reached an agreement on this. There are two categories of pre-contractual disputes. These are disputes about coercion to conclude an agreement and disputes over the terms of the agreement. The former are associated with the refusal or evasion of one of the parties from concluding an agreement and, as a rule, take place when concluding agreements without fail. The court decision on compulsion to conclude an agreement shall indicate the conditions under which the parties must conclude an agreement. If the dispute concerns the terms of the contract, then the resolution of the dispute sets out the wording of each disputed term.

Conclusion

Recently, due to the increasing growth of entrepreneurial activity, the need for regulation of entrepreneurship and entrepreneurial activity has become more and more urgent. But this regulation should proceed from the requirements and needs of the entrepreneur, and not from the “capacities” of the state. At this stage of development of entrepreneurship, the state has a huge number of ways and methods of influencing entrepreneurial activity. And the interaction of power and business structures is becoming increasingly important in both economic and political contexts. Entrepreneurship sees in the stability of power, in the stability of society, the main guarantee of its development. And the state acquires in their person economic support and effective assistance to the state in achieving its social goals. But the economic problems of both entrepreneurs and the state should be solved not by setting rash and irrational "rules of the game" by one side for the other, but by finding compromises.

Already, the state, represented by state bodies, is beginning to realize the importance of solving various problems by coordinating interests, (consultations and round tables good to that the confirmation).

The functions of the state are not limited only to regulation, the state must also support entrepreneurship (especially small business) in order to form a middle class. Assistance to business entities can be very diverse in its forms. It is carried out both at the state level and in the regions by recognizing state support as one of the most important areas of economic reform. For support, both complex programs and tax incentives, the allocation of credit resources on preferential terms are used. Organized information and advisory services.

Now it is necessary to change the attitude of the authorities towards the entrepreneur, it is necessary to support entrepreneurship by all means, because the entrepreneur is the basis for advancing society to a more highly developed, industrial state, which is the basis of the well-being of every citizen of the country.

In this work, it was determined that the contract in the field of economic activity by right nature is a kind of civil law contract, on the basis of which it can be concluded that the conclusion of contracts in the field of economic activity should be carried out taking into account the principles that underlie the conclusion civil law contracts, namely: the principle of the legality of the contract, the principle of freedom of contract.

Bibliography

Regulations

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