The supreme governing body of a corporate legal entity is. Classification of corporate and unitary legal entities. Management in a corporation

27.11.2019

Non-profit corporate organizations - legal entities who do not pursue profit making as the main goal of their activities and do not distribute the profits received among the participants, the founders (participants) of which acquire the right to participate (membership) in them and form their supreme body.

clarification

Non-profit corporate organizations are legal entities that do not pursue profit making as the main goal of their activities and do not distribute the profits received among the participants, the founders (participants) of which acquire the right to participate (membership) in them and form their supreme body.

Non-profit corporate organizations include:

The main difference between them is that non-profit corporate organizations have members who participate in the management of the NPO, while non-profit unitary organizations do not have membership.

A similar division into corporate and unitary organizations and commercial organizations.

Differences between corporate and unitary legal entities are defined in paragraph 1 of Article 65.1. "Corporate and unitary legal entities" of the Civil Code Russian Federation(GK RF):

"Legal entities, the founders (participants) of which have the right to participate (membership) in them and form their supreme body in accordance with paragraph 1 of Article 65.3 of this Code, are corporate legal entities (corporations). These include business partnerships and societies, peasant (farm) enterprises, economic partnerships, production and consumer cooperatives, public organizations, social movements, associations (unions), partnerships of property owners, Cossack societies included in State Register Cossack societies in the Russian Federation, as well as communities of indigenous peoples of the Russian Federation.

Legal entities, the founders of which do not become their participants and do not acquire membership rights in them, are unitary legal entities. These include state and municipal unitary enterprises, foundations, institutions, autonomous non-profit organizations, religious organizations, public law companies.

The legal status of non-profit corporate organizations is regulated by paragraph 6 "Non-profit corporate organizations" of Chapter 4 of the Civil Code of the Russian Federation (CC RF). Article 123.1. "Basic provisions on non-profit corporate organizations" of the Civil Code of the Russian Federation defines:

"1. Non-commercial corporate organizations are recognized as legal entities that do not pursue profit-making as the main goal of their activities and do not distribute the profits received among the participants (paragraph 1 of Article 50 and Article 65.1), the founders (participants) of which acquire the right to participate (membership) in them and form their supreme body in accordance with paragraph 1 of Article 65.3 of this Code.

2. Non-profit corporate organizations are created in the organizational and legal forms of consumer cooperatives, public organizations, associations (unions), partnerships of property owners, Cossack societies entered in the state register of Cossack societies in the Russian Federation, as well as communities of indigenous peoples of the Russian Federation (paragraph 3 of Article 50).

3. Non-commercial corporate organizations are created by the decision of the founders, adopted at their general (constituent) meeting, conference, congress, etc. These bodies approve the charter of the relevant non-profit corporate organization and form its bodies.

4. A non-profit corporate organization is the owner of its property.

5. The charter of a non-commercial corporate organization may provide that decisions on the creation by a corporation of other legal entities, as well as decisions on the participation of the corporation in other legal entities, on the establishment of branches and on the opening of representative offices of the corporation, are taken by the collegial body of the corporation.

The most important feature of the classification of an economic entity in a market economy is the division of an economic entity on the basis of the organizational and legal forms of enterprises, which are regulated by the state through the Civil Code of the Russian Federation (CC RF).

The Civil Code introduces the concepts of "commercial organization" and "non-commercial organization".

A commercial organization pursues profit as the main goal of its activities. A non-profit organization does not pursue profit as the main goal of its activities, and if it makes a profit, then it is not distributed among the participants of the organization (Fig. 2.2).

Rice. 2.2. The structure of organizational and legal forms of organizations

Table 2.1. definitions of organizational and legal forms are formulated.

Table 2.1.

Structure of organizational and legal forms

Name of legal form	Definition
Commercial organizations	Organizations whose main goal is to make a profit and distribute it among the participants
Business partnerships	Commercial organizations in which contributions to the share capital are divided into shares of the founders
General partnership	A partnership, the participants of which (general partners) on behalf of the partnership are engaged in entrepreneurial activity and are liable for its obligations not only with their contributions to the share capital, but also with their property
Faith partnership	A partnership in which, along with general partners, there is at least one participant of a different type - a contributor (limited partner), who does not participate in entrepreneurial activities and bears risk only within the limits of his contribution to the share capital.
Business companies	Commercial organizations in which contributions to the authorized capital are divided into shares of the founders
Limited Liability Company (LLC)	A business company, the participants of which are not liable for its obligations and bear the risk only within the limits of their contributions to the authorized capital of the LLC.
Additional Liability Company (ALC)	A business company, the participants of which jointly and severally bear subsidiary (full) liability for its obligations with their property in the same multiple for all of the value of their contributions to the authorized capital of the ALC.
Open Joint Stock Company (OJSC)	A business company, the authorized capital of which is divided into a certain number of shares, the owners of which can alienate their part without the consent of other shareholders. Shareholders bear risk only to the extent of the value of their shares
Closed Joint Stock Company (CJSC)	A joint-stock company whose shares are distributed only among its founders or other predetermined circle of persons. Shareholders of a CJSC have a pre-emptive right to acquire shares sold by its other shareholders. Shareholders bear risk only to the extent of the value of their shares
Production cooperatives	Voluntary association of citizens on the basis of membership for joint production or other economic activity based on personal labor participation and combining by its members of property share contributions (to the share fund of the cooperative)
Unitary enterprises	A unitary enterprise is recognized as an enterprise that is not endowed with the right of ownership of the property assigned to it by the owner. Only state and municipal enterprises can be unitary
State (state) enterprise	A unitary enterprise based on the right of operational management and created on the basis of property that is in federal (state) ownership. A state-owned enterprise is created by decision of the Government of the Russian Federation
municipal enterprise	A unitary enterprise based on the right of economic management and created on the basis of state or municipal property. Created by decision of the authorized state body or body local government
Non-Profit Organizations	Organizations that do not pursue the goal of making a profit and do not distribute the profits received among the participants
consumer cooperative	Voluntary association of citizens and legal entities on the basis of membership in order to meet the material and other needs of the participants, carried out by pooling property shares by its members. Provides 2 types of membership: member of the cooperative (with the right to vote); associate member (has the right to vote only in certain cases provided for by law)
Funds	An organization that does not have membership, established by citizens and (or) legal entities on the basis of voluntary property contributions, pursuing social, charitable, cultural, educational or other socially useful goals. The right to engage in entrepreneurial activities to achieve their goals (including by creating business companies and participation)
Institutions	An organization created by the owner to carry out managerial, socio-cultural or other functions of a non-commercial nature and financed by him in whole or in part

Business partnerships

In accordance with the current legislation in the Russian Federation, two types of business partnerships can be formed: general partnership and fellowship of faith(limited partnership).

A partnership is recognized as full, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with their property (Article 69 of the Civil Code of the Russian Federation).

It follows from this that such a partnership is a contractual association, since it is created and operates on the basis of a constituent agreement, which is signed by all participants in the partnership. Therefore, when registering a general partnership, the presentation of the Charter to the registration chamber is not required, since this document is not provided for by the current legislation for commercial organizations of this type.

The law imposes certain requirements on the content of the memorandum of association. The provisions of the law are obligatory and the participants in a general partnership must strictly follow the relevant legal provisions when drawing up the memorandum of association.

The memorandum of association of a general partnership shall contain information that is common to all legal entities, as well as information that reflects the specifics of the general partnership. The first group of information includes: order joint activities to create a partnership; conditions for the transfer of his property to him and participation in his activities; location; address and others. To the second group: the size and composition of the share capital; the size of the shares of each of the participants in the share capital; provisions on the responsibility of participants for violation of obligations to make contributions and others.

A feature of a general partnership is that for its formation it is necessary to have a share capital. It is necessary, firstly, in order for a general partnership to be registered, since the existence of such a condition is directly provided for by the current regulations on the procedure for registering legal entities. The share capital plays the role authorized capital and is not less than 100 minimum monthly wages. Secondly, the share capital of a general partnership forms its property base, without which the entrepreneurial activity of the partnership is impossible or will be difficult. Thirdly, the share capital plays the role of a guarantee for creditors, that is, those persons who enter into various property relations with a general partnership, concluding agreements with it. Therefore, in case of non-fulfillment of its obligations, the collection of debts will be directed primarily to property in the form of share capital, which is assigned to the general partnership as a legal entity. Fourthly, the presence of share capital is necessary so that the participants have clear guidelines for the distribution of profits and losses, since they are divided in proportion to the share of each of the participants in the share capital.

A full partnership can unite both individuals and legal entities. However, a citizen can be a participant in a general partnership only if certain conditions are met, which are established by law. The point is that a citizen, before he exercises his right to become a member of a general partnership, must obtain the status of an individual entrepreneur by registering in the appropriate manner. As for legal entities, only commercial organizations can be full partners, while non-commercial ones do not have such a right.

In addition to the already indicated distinguishing features of a full partnership, it should also be emphasized that the members of such an association are obliged to participate in its activities with their personal labor. Therefore, in its essence, a general partnership is primarily an association of persons, and then property.

Internal relations in partnership

Internal relations in a full partnership are determined by the memorandum of association. They are based on mutual trust due to the peculiarities of the legal status of a general partnership. The management of the partnership is carried out by common agreement of all its participants.

The memorandum of association may define individual cases where decisions on specific issues may be taken by majority vote. Each of the participants in a general partnership has one vote, regardless of its share in the share capital. At the same time, the current legislation gives the right to the members of the partnership to change this general rule and reflect in the memorandum of association a different procedure for establishing the number of votes.

General partnership has the status of a legal entity, therefore it is considered by the legislation as a single subject of entrepreneurial and other legal relations. Legal entities acquire civil rights and assume civil obligations through their bodies. As for the general partnership, these functions are performed by its participants, since special management bodies are not formed in the partnership. Each of the participants individually may act on behalf of a full partnership when concluding transactions, unless the constituent documents establish that its participants conduct business jointly, or one or several participants are entrusted with the conduct of business. Depending on the way in which the case is handled, there are different legal consequences.

First, when business is conducted jointly, then the consent of all participants in the partnership is required for the completion of each transaction.

Secondly, if the affairs are entrusted to one or some of the participants, then the rest can make transactions only on the basis of a power of attorney from those persons who are entrusted with the conduct of affairs.

Power of attorney – a written authorization issued by one person to another for representation before third parties.

A participant in a full partnership is granted the right to withdraw, and he cannot be deprived of it. When leaving the partnership, the rest of its participants must be warned six months before the actual exit. In addition, a participant may be expelled from the partnership, but only by a court decision and on the basis of the request of the other partners. However, there must be serious reasons for this: a gross violation of their duties and a unanimous decision to expel. When leaving the partnership, a person has the right to pay him the value of a part of the partnership's property in proportion to his share in the share capital. Instead of payment, he may be given property in kind. But this requires an agreement between the one who leaves the partnership and the rest of the participants.

Termination of a partnership

The termination of a partnership can be due to various reasons. It terminates its activities after the expiration of the term, if it was created for a certain period. Also, the action of the partnership is terminated if the purpose for which it was created is achieved. The partnership will cease to operate due to the inappropriateness of further business activities. This requires the general consent of all participants. A general partnership can be transformed into a limited partnership, or into a business company, or into a production cooperative. From the moment of transformation, it ceases to be valid.

A general partnership is liquidated if one of the partners left the membership, or died, or was declared incompetent (clause 21, article 76 of the Civil Code of the Russian Federation). However, even if these circumstances occur, the partnership may continue its work if the founding agreement expressly provides for such a possibility. A general partnership is subject to liquidation when the only participant remains in it, as well as on general grounds: by a court decision in the event of carrying out activities without an appropriate permit (license), when it is required, due to the recognition of the partnership as bankrupt, and others.

General partners are liable for obligations with their property, and limited partners risk only their contributions. The right to conduct business on behalf of the partnership belongs only to general partners.

Faith partnership is a contractual association. The main document that regulates relations in a partnership is the memorandum of association. The legislation states that the memorandum of association is signed only by general partners, which is why they manage the affairs of the partnership. Depositors are not entitled to influence the management of cases in any way, to challenge the correctness of the management decisions made in court. The main duty of the investor is the timely contribution to the share capital. The fact of making a contribution is confirmed by a special document - a certificate of participation. This document confirms not only that the contribution has been made, but also that the person is a partner in a limited partnership as a limited partner.

Investors bear not only obligations, but also have rights. Since a limited partnership is a commercial organization, they are entitled to receive a part of the profit due to them for a share in the share capital. They also have the right to supervise the business activities by reviewing the annual accounts and balance sheets of the partnership. In addition, they have the right to withdraw from the partnership at the end of the financial year and receive their contribution. It follows from this that they do not have the right to receive a share in the property upon exit, in contrast to general partners.

Termination of the activities of a limited partnership has a number of features. Firstly, the partnership is liquidated if not a single contributor remains in its composition. Secondly, in the event of the liquidation of the partnership, the limited partners have the priority right to receive contributions from the remaining property. The legislation also provides for other features of the liquidation of a limited partnership (Article 86 of the Civil Code of the Russian Federation).

The company name serves as an individualization of the partnership. According to the law, it must contain either the names of all general partners and the word “limited partnership” or “limited partnership”, or the name of one general partner with the addition of the words “and company”, as well as indicating the type of partnership. If the name of the investor is indicated in the company name of the partnership, he becomes a general partner with all the legal and organizational consequences arising from this provision.

Limited and additional liability companies

A limited liability company (LLC) is a commercial organization, the authorized capital of which is divided into shares in the amounts determined by the constituent documents.

Members of an LLC are not liable for its obligations and bear the risk of losses within the limits of the value of their contributions. A limited liability company (hereinafter referred to as the Company) may be established by one or more persons. The legislation specifies the maximum number of founders, the excess of which entails the obligation to transform it into a joint-stock company, or liquidate if the issue of transformation is not resolved within a year.

Modern legislation more strictly regulates relations arising from the establishment and activities of commercial organizations of this type. As practice has shown, on the one hand, such companies are most common in entrepreneurial activity, and on the other hand, it is in such societies that various financial abuses are quite common.

This should also include another limitation that exists in the legislation: an LLC cannot be established by a business company consisting of one person.

The company must have a corporate name consisting of the name and the words "limited liability". For example: "Limited Liability Company Builder".

Such a society involves, first of all, the pooling of capital for the purpose of engaging in entrepreneurial activity, and therefore the personal participation of the founders in its work is not necessary. But, as practice shows, the relationship between the members of the company is much closer and more trusting than in a joint-stock company.

When registering an LLC, the relevant documents must be submitted: the memorandum of association and the Articles of Association. If the founder is one person, then it must provide only the charter, approved by him. In other cases, constituent documents are approved and signed by the founders. It follows from this that the law classifies LLC as a statutory company.

Constituent documents must contain the necessary information that characterizes the company as a commercial organization with the status of a legal entity: location, purpose of activity and others, as well as information reflecting the specifics of the company. In particular, they should indicate: the size of the authorized capital and the size of the shares of each of the participants, the procedure for making contributions.

The authorized capital of an LLC must not be less than the amount of 100 minimum wages established by the legislation of the Russian Federation as of the date of submission of constituent documents for registration. The law requires that at the time of registration of an LLC, at least 50% of the authorized capital must be paid up. The rest is paid by the participants during the first year of work. Failure to pay the authorized capital on time entails various negative legal consequences both for the LLC as a whole and for its individual participants.

Participants who have not made contributions to the authorized capital in full are jointly and severally liable for the obligations of the company. The legislator did not accidentally establish such rules. After all, the authorized capital is not only a necessary material base for the activities of an LLC, but also must guarantee the interests of its creditors, without misleading them about the financial and other material capabilities of a particular company with which they (creditors) enter into various legal relations that follow from the concluded contracts. In general, the legal regime of the authorized capital of an LLC is determined by the Civil Code of the Russian Federation and special legislation on limited liability companies.

According to the current regulations, a company after its registration is obliged to notify its creditors of each case of a decrease in the authorized capital and register its decrease in the prescribed manner. Creditors also have the right to demand early performance of obligations and compensation for losses. In addition, the company is allowed to increase the authorized capital, but under one very important condition: after all participants have made their contributions in full (Article 90 of the Civil Code of the Russian Federation).

Members of the company do not have ownership rights to the property of the LLC. Their rights extend only to a share in the authorized capital. By virtue of this, a member of the company may sell or otherwise assign (donate) his share in the authorized capital to other members of the company. This right of a participant cannot be limited by anyone, it is unconditional, since it concerns the internal relationships of the participants in the society. Otherwise, the possibility of alienating a share in the authorized capital by a third party, that is, one that is not part of the participants, is regulated. In principle, the legislation does not prohibit a participant (participants) from making such transactions. However, this issue is finally regulated only by the charter of the company. Consequently, the charter may contain a rule prohibiting the alienation of a share by a third party, or a rule that allows the sale of a share in the authorized capital to third parties. Depending on what norm is written in the charter, these are the legal consequences.

A limited liability company is a legal entity. The management of the company's affairs is carried out through bodies of a legal entity specially formed for this purpose. The basic principles of the organization and activities of the governing bodies of an LLC are established by the Civil Code of the Russian Federation. In more detail questions of the organization of management should be regulated by the special law.

In accordance with the Civil Code of the Russian Federation, management bodies should be formed in the company: a general meeting of participants; executive body (director, president and others); audit committee.

The general meeting of the company's participants is the supreme governing body, which has its own exclusive competence. This means that on issues referred to the exclusive competence of the general meeting, no management body can make any decisions. If such decisions are made, they will not have legal force. Moreover, such issues not only cannot be considered by other management bodies on their own initiative, but they cannot even be transferred, delegated by the general meeting to the executive body, for example, a director or directorate.

The following issues are assigned to the exclusive competence of the general meeting by legislation: changing the charter of the company, as well as the size of the authorized capital; formation of other governing bodies of the company; resolving issues of reorganization and liquidation of the company and others.

Issues related to the competence of the general meeting are determined by legislative acts. Members of the company when drawing up the charter must follow the requirements of the law.

The management bodies of the company can be both collegiate and sole. The General Assembly is a collegiate body. The quantitative composition of the executive bodies is determined by the charter of the company. From Art. 91 of the Civil Code of the Russian Federation it follows that the sole management body can be elected both from among the members of the company and from third parties. The legal status of the sole executive body is determined along with civil legislation, and also by labor legislation: an employment agreement (contract) must be concluded with the director (president, etc.). The employment agreement-contract defines the rights and obligations of the director, the duration of the contract, incentives and liability for misconduct committed in the performance of labor duties, additional grounds for his dismissal. Order of conclusion employment contract and its termination is regulated by Art. 15 - 40, 254 of the Code of Labor Laws of the Russian Federation (Labor Code of the Russian Federation). In addition, civil law defines the conditions of activity and the responsibility of the person acting on behalf of the organization, and in many cases such a person is the head. He must act in the interests of the company he represents in good faith and reasonably, and is obliged, at the request of the founders, to compensate for the losses of the company, unless otherwise provided by law or contract.

Termination of activities of a limited liability company

Termination of the company's activities is possible due to its reorganization or liquidation.

The reorganization of a limited liability company can be carried out both by decision of its founders, and by force. Legislation defines the following forms of company reorganization: merger, accession, division, separation, transformation. During the transformation, succession occurs, that is, the transfer of part of the rights to newly formed legal entities in accordance with the separation balance sheet and the deed of transfer. Reorganization in the form of transformation means a change in the legal form. So, an LLC can be transformed into a joint-stock company or a production cooperative (Article 92 of the Civil Code of the Russian Federation).

A limited liability company is considered to be reorganized, except for cases of reorganization in the form of merger, from the moment state registration newly established legal entities.

When a company is reorganized in the form of a merger with another legal entity, the company is considered reorganized from the moment an entry is made in the unified state register of legal entities on the termination of the activities of the accommodating legal entity.

The liquidation of an LLC is carried out in accordance with Art. 61-65 of the Civil Code of the Russian Federation. These rules are common to all legal entities.

To carry out the liquidation of a legal entity, a liquidation commission is created, which carries out all the necessary measures. The liquidation of a legal entity is considered completed, and the legal entity ceased to exist, after making an entry about this in the unified state register of legal entities (Article 63 of the Civil Code of the Russian Federation). Issues related to insolvency (bankruptcy) are regulated in detail by the special Law of the Russian Federation “On the insolvency (bankruptcy) of enterprises”.

Additional Liability Company (ALC) – a commercial organization, the participants of which, unlike LLC, jointly and severally bear subsidiary liability for its obligations in the amount of a multiple of the value of their contributions to the authorized capital.

An additional liability company has a number of common features and features, in comparison with an LLC. What these societies have in common is:

An additional liability company may be established by one or more persons;

The authorized capital of the ALC is also divided into shares, the amount of which is determined by the constituent documents.

Otherwise, the norms of the law applicable to LLCs apply to the additional liability company, with a number of exceptions that are due to the specific features of this organization. Firstly, in contrast to an LLC, participants in a company with additional liability jointly and severally bear subsidiary liability with their property in the same multiple for all of the value of contributions determined by the constituent documents of the company. Secondly, in the event that one of the participants becomes insolvent (bankrupt), his liability for the obligations of the company is distributed among the other participants in proportion to their contributions. The constituent documents may also provide for a different procedure for the distribution of responsibility.

Joint stock companies

The concept of a joint-stock company is disclosed in paragraph 1 of Art. 96 of the Civil Code of the Russian Federation and paragraph 1 of Art. 2 of the Federal Law of the Russian Federation "On joint-stock companies».

Joint-stock company - a commercial organization with an authorized capital divided into a certain number of equal shares, the rights to which are fixed in securities - shares.

Stock- a security certifying the obligatory rights of a shareholder to a share in the authorized capital of a joint-stock company .

As a rule, the authorized capital of a joint-stock company is divided into a large number of shares and the right to each such share is fixed in a security - shares.

The concept of "shareholder" means a citizen or legal entity that owns shares and is registered in the register of shareholders of the company. One share reflects the right to one share in the authorized capital. Acquisition of a share from a joint-stock company (purchase) means that the purchaser contributes the value of the share to the authorized capital of the joint-stock company. The value of a share, equal to the amount of money contributed to the authorized capital, is called par value of a share, it is indicated on the paper itself.

After the purchase of a share, the acquirer applies to the joint-stock company with a request to make changes in the register (list) of shareholders of this company so that the new owner of the share is indicated in the register instead of the previous one, and as soon as such changes are made, the acquirer becomes a full shareholder.

A share, like a security, can be sold by the shareholder himself. In this case, the price of the share being sold may be different from its nominal price. If the joint-stock company is doing well, the price of its shares rises, and then they are sold at a price much higher than their nominal value. Well, if things go badly, the joint-stock company is on the verge of insolvency (bankruptcy), then the shares can be sold at a price below their face value. In such cases, shareholders are already trying to get rid of securities and save at least some amount of their money. The difference between the nominal value of shares and the one at which it is sold by the shareholders themselves is called exchange rate difference.

As a general rule, anyone can purchase as many shares as possible based on their purchasing power. At the same time, the charter of a joint-stock company may establish limits on the number of shares owned by one shareholder. Thus, the law does not establish restrictions, however, the shareholders themselves have the right to establish such a rule for their company. It allows, for example, to preserve elements of democracy in the decision-making process. If there are no such limits and one shareholder or several shareholders have a large number of shares - a controlling stake, then all the threads of control pass to him or to them.

This is due to the fact that when voting, it is not the number of shareholders themselves that is taken into account, but the number of shares, and the principle applies - one share - one vote. Therefore, it is likely that the decision will be made in favor of a narrow circle of shareholders owning the majority of shares, while shareholders holding a small number of shares, despite their numerical superiority, will not be able to influence the decision.

A joint-stock company is a legal entity and owns separate property recorded on an independent balance sheet, can acquire and exercise property and personal non-property rights on its own behalf, incur obligations, be a plaintiff and defendant in court.

The Company is independently responsible for its obligations. Shareholders bear the risk of losses associated with the activities of the company, within the value (nominal) of their shares.

Dividends – part of the net profit of the company, paid to the shareholder according to the number of shares owned by him.

A joint stock company has the right to engage in any type of activity not prohibited by federal law. Certain types of activities, the list of which is also established by federal law, may be carried out by a company only on the basis of a special permit (license).

The founding document of a joint-stock company is the charter, the requirements of which are binding on all shareholders. When developing the charter, the shareholders include in it only such rules that do not contradict the current legislation. The charter of a joint-stock company must contain, in particular, the following information: the name of the company, location, the amount of the authorized capital and the procedure for its formation, the rights and obligations of shareholders, and others.

Types of joint-stock companies

Legislation defines two types of joint stock companies: an open joint stock company (OJSC) and a closed joint stock company (CJSC).

In an open joint stock company, shareholders have the right to alienate their shares without the consent of other shareholders. Such a company has the right to conduct an open subscription for shares issued by it and their free sale. Thus, an unhindered change of shareholders is possible in an open joint-stock company.

In a closed joint-stock company, shares are distributed in advance only among its founders or other predetermined circle of persons. Such a company is not entitled to conduct an open subscription for shares issued by it, or otherwise offer them for purchase to an indefinite circle of persons. Shareholders of a closed joint stock company have the right to sell their shares, however, all other shareholders have a pre-emptive right to acquire them, at the price of offering them to another person. The procedure and term for exercising the pre-emptive right is determined by the charter. At the same time, the term for exercising the pre-emptive right cannot be less than 30 and more than 60 days from the moment the shares are offered for sale. If none of the shareholders agrees to their acquisition at the appropriate price, the shares may be sold to other persons.

The number of shareholders of closed joint stock companies must not exceed fifty. This number includes both individuals and legal entities. If this number is exceeded, a closed joint-stock company must be transformed into an open one within a year. If the number of shareholders is not reduced to fifty, the company is subject to liquidation in judicial order.

The procedure for creating a joint-stock company

A joint-stock company may be created by founding anew and by reorganizing an existing legal entity. For example, as a result of the transformation of a production cooperative or a limited liability company into a joint-stock company.

The creation of a joint-stock company by founding is usually carried out in two stages. The content of the first is that the founders enter into an agreement between themselves on the establishment of a joint-stock company. This agreement determines the procedure for their implementation of activities to establish a company, the size of the authorized capital, the types of shares to be placed among the founders, the amount and procedure for their payment, etc. This agreement is not a constituent document of the company, since it plays an auxiliary role. With this agreement, the founders clothe in a contractual form the entire preparatory work to create a society.

After all the preparatory work has been carried out, the charter of the company has been developed, the second stage of the creation of a joint-stock company begins. The founders at the general meeting decide on the establishment of a joint-stock company and approve its charter. At the same time, on such issues as the establishment of a company, the approval of the charter and some others, the decision is made by the founders unanimously.

However, it is not enough just to decide on the creation of a society. A joint stock company is considered established as a legal entity from the moment of its state registration. It is from this moment that the society acquires the right to carry out entrepreneurial activities.

The founders of the company may be citizens and (or) legal entities.

State bodies and local self-government bodies cannot act as founders of a joint-stock company, unless otherwise established by federal law. This is explained by the fact that with the participation of these bodies in the activities of the company, conditions for unfair competition will be created, since a company with the participation of state bodies and local governments will naturally have greater business opportunities than a company where there are no such participants.

Production cooperative

Production cooperative(artel) is a voluntary association of citizens on the basis of membership for joint production activities or other economic activities based on personal labor participation and the association of property shares by its members (participants) (Article 107 of the Civil Code of the Russian Federation).

A production cooperative can be engaged in various economic activities: the production of industrial and agricultural products, trade, and consumer services. Each participant in a production cooperative is obliged to participate by personal labor in the work of the cooperative, which is one of its important features. Therefore, it is no coincidence that the production cooperative is also officially referred to as an artel.

The main document on the basis of which the production cooperative operates is the charter. It is approved by the general meeting of members of the cooperative, for the establishment of which at least five people are required.

The charter of a production cooperative must contain the following data: location, management procedure, the amount of share contributions, the procedure for the participation of members of the cooperative in its work, and much more. The property of a production cooperative is owned by it and is divided into shares. Management bodies are created in the production cooperative. The supreme body is the general meeting of its members. The current management of the affairs of the cooperative can be carried out by the board and the chairman. A supervisory board may be created in a production cooperative if the number of members of the cooperative is more than fifty. The competence of the management bodies of a production cooperative is determined by law and the charter

Competence – a set of rights and obligations that the management body of a legal entity has to solve the problems facing it.

According to paragraph 3 of Art. 110 of the Civil Code of the Russian Federation, the exclusive competence of the general meeting includes:

changing the charter of the cooperative;

formation of other governing bodies;

admission and exclusion from members of the cooperative and others.

Exclusive competence is a competence that can only be exercised by the supreme management body of a legal entity.

Termination of membership in a production cooperative can occur both at the request of a member of the cooperative, and in the event of his exclusion, as well as on other grounds (for example, in the event of death).

State and municipal unitary enterprises

unitary enterprise- a commercial organization that does not have ownership of the property assigned to it. The property of this enterprise is indivisible, which means the impossibility and inadmissibility of its distribution by shares, shares, including between employees. In this form, state and municipal enterprises can be created, and therefore their property is state and municipal property. The enterprise in relation to the property assigned to it has the right of economic management or operational management.

The concepts of "the right of economic management" and "the right of operational management" require more detailed consideration.

Right of economic management- the right of an enterprise (state or municipal) to own, use and dispose of property, but within certain limits, which are established by the Civil Code of the Russian Federation.

The enterprise is not entitled to dispose of immovable property without the consent of the owner: sell, lease it, give it as a pledge. Real estate means: land plots and everything that is closely connected with land: buildings, structures. The company has the right to dispose of the rest of the property independently, at its own discretion.

The right of operational management - the right to dispose of property, both immovable and movable, only with the consent of the owner.

Property on the right of operational management is assigned to the created unitary enterprises, which are called "state". They can be established by decision of the Government of the Russian Federation on the basis of federally owned property (federal state enterprise). Such an enterprise is liquidated and reorganized only by decision of the Government of the Russian Federation. In the constituent documents of the enterprise, it must be indicated that it is state-owned.

Non-Profit Organizations – legal entities whose purpose is to meet the social, cultural and other non-material needs of citizens.

The legal status of non-profit organizations is determined by the Civil Code of the Russian Federation and special legislation on various types non-profit organizations.

More specifically, a non-profit organization is an organization that does not have profit making as the main goal of its activities and does not distribute the profits received among the participants (clause 1, article 50 of the Civil Code of the Russian Federation and clause 1, article 2 of the Law of the Russian Federation "On non-profit organizations ").

Legal entities related to non-profit organizations are formed in the form of consumer cooperatives, public or religious organizations, charitable and other foundations.

consumer cooperative

consumer cooperative- a voluntary association of citizens and legal entities on the basis of membership in order to meet the material and other needs of the participants, which is carried out by combining property contributions by its members. Consumer cooperatives by the nature of their activities are very diverse: housing construction, garage, gardening and others. Members consumer cooperative, as well as a production cooperative, there may be minors who have reached the age of 16 years.

At present, the Law of the Russian Federation “On Agricultural Cooperatives” has been adopted and is in force, where there are articles that determine the status and procedure for the work of consumer cooperatives in rural areas. Consumer cooperatives, like other non-profit organizations, have the right to engage in entrepreneurial activities, but the income received, unlike other non-profit organizations, is distributed among the members of the cooperative. consumer cooperative- an association of persons on the basis of membership in order to meet their own needs for goods and services, the initial property, which consists of share contributions. Citizens who have reached the age of 16 and legal entities can be shareholders of a consumer cooperative. Participants in consumer cooperatives can be both citizens and legal entities, and the presence of at least one citizen is mandatory, otherwise the cooperative will turn into an association of legal entities.

Consumer cooperatives include: housing-construction, dacha-building, garage-building, housing, dacha, garage, gardening cooperatives, as well as homeowners' associations and some other cooperatives

Consumer cooperatives have a number of distinctive features:

A consumer cooperative is created and operates to meet the material and other needs of its members;

The cooperative may carry out certain types of entrepreneurial activities, the income from which may be distributed among the members of the cooperative or go to other needs determined by its general meeting.

A consumer cooperative is created and operates on the basis of the following principles:

Voluntary entry into the consumer society and exit from it;

Mandatory payment of entrance and share fees;

Democratic management of the consumer society (one shareholder - one vote, mandatory accountability to the general meeting of the consumer society of other management bodies, control bodies, free participation of the shareholder in the elected bodies of the consumer society);

Mutual assistance and provision by shareholders participating in the economic or other activities of a consumer cooperative, economic benefits;

Limitations on the size of cooperative payments (cooperative payments are a part of the income of a consumer cooperative distributed among shareholders in proportion to their participation in the economic activities of a consumer cooperative or their share contributions, unless otherwise provided by the charter of a consumer cooperative);

Availability of information about the activities of the consumer society for all shareholders;

The widest involvement of women in participation in management and control bodies;

Concerns about raising the cultural level of shareholders.

The only constituent document of a consumer cooperative is its charter, which is approved supreme body- general meeting of members of the cooperative. The name of a consumer cooperative must contain an indication of the main purpose of the cooperative, as well as the word "cooperative" or the words "consumer society" or "consumer union".

The property of a consumer cooperative belongs to it by the right of ownership, and the shareholders retain only rights of obligation to this property. A consumer cooperative is liable for its obligations with its property; it is not liable for the obligations of shareholders. The losses of the cooperative are covered by additional contributions.

Funds

Funds are created by citizens or citizens and legal entities jointly, or only by legal entities. As a non-profit organization, the foundation aims to meet non-material needs. For example, consumer protection funds can be created. The Fund may use the property assigned to it only to achieve the goals specified in the charter. The property belongs to him by right of ownership. This includes not only the property that the foundation acquires as a result of its activities, but also the property transferred to it by the founders. Foundations, like other non-profit organizations, can engage in entrepreneurship. In this case, the fund is subject to general rules defining the procedure for entrepreneurial activities of non-commercial legal entities. To carry out entrepreneurial activities, funds create business companies or take part in them (for example, they act as shareholders of an open or closed company, establish limited liability companies, etc.). However, charitable foundations have the right to participate in economic companies only as their sole members (Article 12 of the Law on Charitable Activities).

One of the peculiarities of the foundation's legal status is that the foundation is obliged to publish annual reports on the use of its property. Internal control over the work of the fund is carried out by the Board of Trustees, which operates on a voluntary basis. It is created on the basis of the charter approved by the founders of the fund.

It is necessary to note the features of the process of liquidation of the fund. It can be liquidated only on the basis of a court decision. To make such a decision, the application of interested parties is necessary. This is, firstly, and, secondly, there must be grounds that are directly provided for in the law: if the fund's property is not enough to achieve its goals and the probability of obtaining such property is illusory; if the fund deviates in its activities from the goals specified in the charter, and others (Article 119 of the Civil Code of the Russian Federation). Other grounds for the liquidation of the fund must be expressly stated in the law. In accordance with Art. 65 of the Civil Code of the Russian Federation, a fund may be recognized by a court decision as insolvent (bankrupt) on a general basis.

Institutions

A legal entity created by the owner for the purpose of performing non-commercial functions is recognized as such. It is fully or partially funded by the owner. Institutions are government bodies, law enforcement agencies (police, tax police), educational institutions (schools, academies, universities) and others. In other words, with the help of institutions, management functions are implemented and general educational services are provided.

The institution's rights to property are rather limited. It (property) is assigned to the institution on the basis of the right of operational management. What is the essence of the right of operational management, you already know. For its obligations, the institution is liable only in cash, but in no case in property. If the institution does not have sufficient Money in order to pay off debts, then the owner should come to his aid as an additional (subsidiary defendant).

The constituent document of the institution is the charter, which is approved by the owner of the property. The name of the institution indicates the owner of the property and the nature of the activities of the institution.

According to the legislation, non-profit organizations can be created in other organizational and legal forms. These can be non-profit partnerships, autonomous non-profit organizations. Religious organizations are also classified as non-profit organizations by law. The procedure for the creation and operation of religious organizations is established by special legal acts of the Russian Federation.

In conclusion, we note that a thorough knowledge of the legislation on commercial and non-profit organizations creates conditions not only for the qualified activities of entrepreneurs, but is also an integral part of any activity of a citizen.

Organizational and legal forms of non-profit organizations.

(introduced by Federal Law No. 99-FZ of May 5, 2014)

1. General provisions about non-profit corporate organizations

Article 123.1. Fundamentals of Nonprofit Corporate Organizations

1. Non-commercial corporate organizations are recognized as legal entities that do not pursue profit-making as the main goal of their activities and do not distribute the profits received among the participants (paragraph 1 of Article 50 and Article 65.1), the founders (participants) of which acquire the right to participate (membership) in them and form their supreme body in accordance with paragraph 1 of Article 65.3 of this Code.

4. A non-profit corporate organization is the owner of its property.

5. The charter of a non-commercial corporate organization may provide that decisions on the creation by the corporation of other legal entities, as well as decisions on the participation of the corporation in other legal entities, on the establishment of branches and on the opening of representative offices of the corporation, are taken by the collegial body of the corporation.

2. Consumer cooperative

Article 123.2. Basic provisions on consumer cooperatives

1. A consumer cooperative is a membership-based voluntary association of citizens or citizens and legal entities in order to meet their material and other needs, carried out by combining property shares by its members.

2. The charter of a consumer cooperative must contain information about the name and location of the cooperative, the subject and goals of its activities, conditions on the amount of share contributions of members of the cooperative, the composition and procedure for making share contributions by members of the cooperative and their liability for violation of the obligation to make share contributions, the composition and competence of the bodies of the cooperative and the procedure for making decisions by them, including on issues decisions on which are taken unanimously or by a qualified majority of votes, the procedure for covering losses incurred by members of the cooperative.

The name of a consumer cooperative must contain an indication of the main purpose of its activity, as well as the word "cooperative". The name of the mutual insurance company must contain the words "consumer society".

3. A consumer cooperative, by decision of its members, may be transformed into a public organization, association (union), autonomous non-profit organization or foundation. A housing or housing-construction cooperative, by decision of its members, may be transformed only into a partnership of real estate owners.

Article 123.3. Obligation of members of a consumer cooperative to make additional contributions

1. Within three months after the approval of the annual balance sheet, members of a consumer cooperative are obliged to cover the resulting losses by making additional contributions. In case of failure to fulfill this obligation, the cooperative may be liquidated in court at the request of creditors.

2. Members of a consumer cooperative jointly and severally bear subsidiary liability for its obligations within the limits of the unpaid part of the additional contribution of each of the members of the cooperative.

3. Public organizations

Article 123.4. Basic provisions on public organizations

1. Voluntary associations of citizens united in accordance with the procedure established by law on the basis of their common interests to meet spiritual or other non-material needs, to represent and protect common interests and achieve other goals not contrary to law are recognized as public organizations.

2. A public organization is the owner of its property. Its participants (members) do not retain property rights to the property transferred by them to the ownership of the organization, including membership fee.

Participants (members) of a public organization are not liable for the obligations of the organization in which they participate as members, and the organization is not liable for the obligations of its members.

3. Public organizations may form associations (unions) in accordance with the procedure established by this Code.

4. A public organization, by decision of its participants (members), may be transformed into an association (union), an autonomous non-profit organization or a foundation.

Article 123.5. Founders and charter of a public organization

1. The number of founders of a public organization cannot be less than three.

2. The charter of a public organization must contain information about its name and location, the subject and goals of its activities, as well as conditions on the procedure for joining (accepting) a public organization and leaving it, the composition and competence of its bodies and the procedure for making decisions by them, in including on issues, decisions on which are taken unanimously or by a qualified majority of votes, on the property rights and obligations of a participant (member) of the organization and on the procedure for distributing property left after the liquidation of the organization.

Article 123.6. Rights and obligations of a participant (member) of a public organization

1. A participant (member) of a public organization shall exercise the corporate rights provided for in paragraph 1 of Article 65.2 of this Code in the manner prescribed by the charter of the organization. He also has the right, on an equal footing with other participants (members) of the organization, to use the services provided by it free of charge.

2. A participant (member) of a public organization, along with the obligations stipulated for participants in a corporation by paragraph 4 of Article 65.2 of this Code, also bears the obligation to pay membership and other property contributions provided for by its charter.

A participant (member) of a public organization, at his discretion, has the right to withdraw from the organization in which he participates at any time.

3. Membership in a public organization is inalienable. The exercise of the rights of a participant (member) of a public organization cannot be transferred to another person.

Article 123.7. Features of management in a public organization

1. The exclusive competence of the supreme body of a public organization, along with the issues specified in paragraph 2 of Article 65.3 of this Code, also includes the adoption of decisions on the amount and procedure for payment by its participants (members) of membership and other property contributions.

2. A sole executive body (chairman, president, etc.) is formed in a public organization, and permanent collegial executive bodies (council, board, presidium, etc.) can be formed.

By decision of the general meeting of members of a public organization, the powers of its body may be prematurely terminated in cases of gross violation by this body of its duties, inability to properly conduct business, or if there are other serious grounds.

4. Associations and unions

Article 123.8. Basic provisions on association (union)

1. An association (union) is an association of legal entities and (or) citizens, based on voluntary or, in cases established by law, on compulsory membership and created to represent and protect common, including professional, interests, to achieve socially useful goals, as well as other purposes that do not contradict the law and have a non-commercial nature.

In the organizational and legal form of an association (union), in particular, associations of persons aimed at coordinating their business activities, representing and protecting common property interests, professional associations of citizens that are not aimed at protecting labor rights and interests of its members, professional associations of citizens not related to their participation in labor relations(associations of lawyers, notaries, appraisers, people of creative professions and others), self-regulatory organizations and their associations.

2. Associations (unions) may have civil rights and bear civil obligations corresponding to the goals of their creation and activities, provided for by the charters of such associations (unions).

3. An association (union) is the owner of its property. An association (union) is liable for its obligations with all its property, unless otherwise provided by law in relation to associations (unions) of certain types.

An association (union) is not liable for the obligations of its members, unless otherwise provided by law.

Members of an association (union) shall not be liable for its obligations, unless the law or charter of the association (union) provides for subsidiary liability of its members.

4. An association (union), by decision of its members, may be transformed into a public organization, an autonomous non-profit organization or a foundation.

5. Features of the legal status of associations (unions) of certain types may be established by laws.

Article 123.9. The founders of the association (union) and the charter of the association (union)

1. The number of founders of an association (union) cannot be less than two. Laws establishing the specifics of the legal status of associations (unions) of certain types may establish other requirements for the minimum number of founders of such associations (unions).

2. The charter of an association (union) must contain information about its name and location, the subject and goals of its activities, the conditions for the procedure for joining (accepting) members to the association (union) and leaving it, information about the composition and competence of the bodies of the association (union). ) and the procedure for making decisions by them, including on issues, decisions on which are taken unanimously or by a qualified majority of votes, on the property rights and obligations of members of the association (union), on the procedure for distributing property left after the liquidation of the association (union).

Article 123.10. Features of management in an association (union)

1. The exclusive competence of the supreme body of the association (union), along with the issues specified in paragraph 2 of Article 65.3 of this Code, also includes the adoption of decisions on the procedure for determining the amount and method of payment of membership fees, on additional property contributions of members of the association (union) to its property and on the amount of their subsidiary liability for the obligations of the association (union), if such liability is provided for by law or the charter.

2. In an association (union), a sole executive body (chairman, president, etc.) is formed, and permanent collegial executive bodies (council, board, presidium, etc.) can be formed.

By decision of the supreme body of the association (union), the powers of the body of the association (union) may be prematurely terminated in cases of gross violation by this body of its duties, inability to properly conduct business, or if there are other serious grounds.

Article 123.11. Rights and obligations of a member of an association (union)

1. A member of an association (union) shall exercise the corporate rights provided for in paragraph 1 of Article 65.2 of this Code in the manner prescribed by law in the charter of the association (union). He also has the right, on an equal footing with other members of the association (union), free of charge, unless otherwise provided by law, to use the services provided by it.

A member of an association (union) has the right to withdraw from it at his own discretion at any time.

2. Members of the association (union), along with the obligations provided for the participants of the corporation by paragraph 4 of Article 65.2 of this Code, are also obliged to pay the membership fees provided for by the charter and, by decision of the supreme body of the association (union), make additional property contributions to the property of the association (union).

A member of an association (union) may be expelled from it in cases and in accordance with the procedure established by the charter of the association (union) in accordance with the law.

3. Membership in an association (union) is inalienable. The consequences of termination of membership in an association (union) are established by law and (or) its charter.

5. Associations of property owners

Article 123.12. Basic Provisions on the Association of Real Estate Owners

1. A partnership of real estate owners is a voluntary association of owners real estate(premises in a building, including in an apartment building, or in several buildings, residential buildings, country houses, horticultural, gardening or suburban land plots, etc.), created by them for joint possession, use and within the limits of disposal established by law property (things), by virtue of the law being in their common ownership or in common use, as well as to achieve other goals provided for by laws.

2. The charter of a partnership of real estate owners must contain information about its name, including the words "partnership of real estate owners", location, subject and purposes of its activities, composition and competence of the bodies of the partnership and the procedure for making decisions by them, including on issues, decisions on which are adopted unanimously or by a qualified majority of votes, as well as other information provided by law.

3. An association of real estate owners is not liable for the obligations of its members. Members of an association of property owners are not liable for its obligations.

4. An association of real estate owners, by decision of its members, may be transformed into a consumer cooperative.

Article 123.13. Property of the Association of Real Estate Owners

1. An association of real estate owners is the owner of its property.

2. Common property in an apartment building, as well as objects of common use in horticultural, gardening and country non-profit partnerships, belong to members of the relevant partnership of real estate owners on the basis of common shared ownership, unless otherwise provided by law. The composition of such property and the procedure for determining shares in the right of common ownership to it shall be established by law.

3. A share in the right of common ownership of common property in an apartment building of the owner of premises in this house, a share in the right of common ownership of common objects in a horticultural, gardening or country non-profit partnership of the owner land plot- a member of such non-profit partnership follow the fate of the ownership of the specified premises or land.

Article 123.14. Features of management in a partnership of property owners

1. The exclusive competence of the supreme body of a partnership of property owners, along with the issues specified in paragraph 2 of Article 65.3 of this Code, also includes the adoption of decisions on establishing the amount of mandatory payments and contributions of members of the partnership.

2. A sole executive body (chairman) and a permanent collegial executive body (management board) are created in a partnership of real estate owners.

By decision of the supreme body of the association of real estate owners (clause 1 of Article 65.3), the powers are constantly acting bodies partnerships may be prematurely terminated in cases of gross violation of their duties, revealed inability to conduct business properly, or if there are other serious grounds.

6. Cossack societies entered in the state register of Cossack societies in the Russian Federation

Article 123.15. Cossack society entered in the state register of Cossack societies in the Russian Federation

1. Cossack societies are recognized as associations of citizens entered in the state register of Cossack societies in the Russian Federation, created in order to preserve the traditional way of life, management and culture of the Russian Cossacks, as well as for other purposes provided for by Federal Law of December 5, 2005 N 154-FZ " O public service Russian Cossacks" who voluntarily assumed, in accordance with the procedure established by law, obligations to perform state or other service.

2. The Cossack Society, by decision of its members, may be transformed into an association (union) or an autonomous non-profit organization.

3. The provisions of this Code on non-profit organizations apply to Cossack societies entered in the state register of Cossack societies in the Russian Federation, unless otherwise established by Federal Law No. 154-FZ of December 5, 2005 "On the Public Service of the Russian Cossacks".

7. Communities of Indigenous Peoples of the Russian Federation

Article 123.16. Community of Indigenous Peoples of the Russian Federation

1. Communities of the indigenous peoples of the Russian Federation are voluntary associations of citizens belonging to the indigenous peoples of the Russian Federation and united on the basis of consanguinity and (or) territorial-neighbourhood in order to protect the original habitat, preserve and develop the traditional way of life, management, crafts and culture.

2. Members of a community of indigenous peoples of the Russian Federation shall have the right to receive part of its property or compensation for the value of such a part upon leaving the community or its liquidation in the manner prescribed by law.

3. A community of indigenous peoples of the Russian Federation, by decision of its members, may be transformed into an association (union) or an autonomous non-profit organization.

4. The provisions of this Code on non-profit organizations shall apply to communities of indigenous peoples of the Russian Federation, unless otherwise provided by law.

Effective September 1, 2014 the federal law dated 05.05.2014 N 99-FZ "On Amendments to Chapter 4 of Part One of the Civil Code of the Russian Federation and on the Recognition of Certain Provisions of Legislative Acts of the Russian Federation as Invalid" for the first time introduced the definition of the term "non-profit corporate organization" into the civil legislation of the Russian Federation, establishing separate features of the legal status of such organizations and implementing the proposal of the Concept for the Development of Civil Legislation on fixing in the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) “the division of legal entities into corporations and unitary organizations of an uncorporate type, establishing general rules for both all corporations and especially - for commercial and non-commercial corporations.

The characteristic features of a non-profit corporate organization are defined in paragraph 1 of Art. 123.1 of the Civil Code of the Russian Federation:

the main purpose of the organization is not related to making a profit;
the organization does not distribute the profits received among the participants;
founders (participants) acquire the right to participate (membership) in them, have corporate rights and bear corporate obligations under Art. 65.2 of the Civil Code of the Russian Federation;
founders (participants) form the supreme body of a non-profit corporation in accordance with paragraph 1 of Art. 65.3 of the Civil Code of the Russian Federation.

The first two features characterize the organization as a non-profit and thus distinguish it from commercial corporations. At the same time, non-profit organizations, including corporations, have the right to carry out income-generating activities (before September 1, 2014, the category "entrepreneurial activity" was used in paragraph 3 of Article 50 of the Civil Code) if this is provided for by their charters only in so far as it serves to achieve the purposes for which they were created, if it corresponds to such purposes (clause 4, article 50 of the Civil Code) and provided that such an organization has property of a market value of at least minimum size authorized capital provided for limited liability companies (clause 5, article 50 of the Civil Code).

It should be noted that the main difference between members and participants of legal entities is documenting participation: members of a non-profit corporate organization formalize their participation with appropriate statements or documents that allow taking into account, say, the number of members of a public organization, while the founders automatically become members of the created organization by virtue of their status. The most common document that is drawn up by an applicant for membership in a public organization is an application for membership.

The Civil Code of the Russian Federation contains an exhaustive list of non-profit corporate organizations, which cannot be expanded by federal laws. These include:

community organizations (including political parties and trade unions established as legal entities ( trade union organizations), bodies of public initiative, territorial public self-governments);
associations (unions);
social movements;
Cossack societies entered in the state register of Cossack societies in the Russian Federation;
communities of indigenous peoples of the Russian Federation;
associations of property owners;
consumer cooperatives.

Non-profit corporate organizations are created by the decision of the founders, adopted at their general (constituent) meeting, conference, congress, etc. These bodies approve the charter of the relevant non-profit corporate organization and form its bodies.

It should be emphasized that the legal capacity of any legal entity arises from the moment information about its creation is entered in the unified state register of legal entities.

The supreme body of a non-profit corporation is the general meeting of its members (founders). The charters of large non-profit corporations may provide that the highest body is a conference or congress. According to paragraph 1 of Art. 65.3 of the Civil Code of the Russian Federation in non-profit corporations and production cooperatives with more than 100 participants, the highest body may be a congress, conference or other representative (collegiate) body determined by their charters in accordance with the law. So, according to Art. 8 of the Federal Law of May 19, 1995 N 82-FZ "On public associations The highest governing body of a public organization is the congress (conference) or general meeting.

The competence of the collegiate governing body of certain types of non-profit corporations, which include the general meeting of participants, conference, congress, is defined in paragraph 2 of Art. 65.3, other norms of the Civil Code of the Russian Federation, as well as other federal laws.

Thus, the Civil Code of the Russian Federation refers to the exclusive competence of the supreme body of the corporation the solution of the following issues:

determining the procedure for admission to the membership of the corporation and exclusion from the number of its participants, unless such procedure is determined by law;
formation of other bodies of the corporation and early termination of their powers, if the charter of the corporation in accordance with the law does not refer this authority to the competence of other collegiate bodies of the corporation;
approval of annual reports and accounting (financial) statements of the corporation, if the charter of the corporation, in accordance with the law, this authority is not assigned to the competence of other collegiate bodies of the corporation;
making decisions on the creation of other legal entities by the corporation, on the participation of the corporation in other legal entities, on the establishment of branches and on the opening of representative offices of the corporation, except in cases where the charter of a business company in accordance with the laws on business companies, the adoption of such decisions on these issues is within the competence other collegiate bodies of the corporation;
making decisions on the reorganization and liquidation of the corporation, on the appointment of a liquidation commission (liquidator) and on the approval of the liquidation balance sheet;
election of the audit commission (auditor) and appointment of an audit organization or an individual auditor of the corporation.

At the same time, the collegial bodies of a corporation may be collegial executive bodies (management board, directorate, etc.), collegial management bodies (supervisory or other board) that control the activities of the executive bodies of the corporation.

In accordance with paragraph 2 of Art. 65.3 of the Civil Code of the Russian Federation, issues referred by this Code and other laws to the exclusive competence of the supreme body of the corporation cannot be transferred to them for decision by other bodies of the corporation, unless otherwise provided by this Code or other law.

A significant legislative novelty is the consolidation in the Civil Code of the Russian Federation of the rights and obligations of participants, including a non-profit corporation

So, in accordance with paragraph 1 of Art. 65.2 of the Civil Code of the Russian Federation, participants in a corporation have the right to:

participate in the management of the affairs of the corporation;
in cases and in the manner prescribed by law and the constituent document of the corporation, to receive information about the activities of the corporation and get acquainted with its accounting and other documentation;
appeal against the decisions of the bodies of the corporation, entailing civil law consequences, in cases and in the manner prescribed by law;
demand, acting on behalf of the corporation, compensation for the losses caused to the corporation;
challenge, acting on behalf of the corporation, transactions made by it on the grounds provided for in Article 174 of the Civil Code of the Russian Federation or laws on corporations of certain organizational and legal forms, and demand the application of the consequences of their invalidity, as well as the application of the consequences of the invalidity of void transactions of the corporation.

The right to appeal the decisions of the bodies of their corporations is especially important for members of non-profit corporations, including members of various public organizations. At the same time, the law directly indicates that we are talking about the possibility of appealing only decisions of a civil law nature, and not decisions relating to the main area of activity of non-profit corporations, and this is also possible only in cases and in the manner specifically provided for by law.

At the same time, provided for in paragraph 1 of Art. 65.2 of the Civil Code of the Russian Federation, the list of rights of participants in corporations is not closed (exhaustive), since their other rights may be provided for both by special laws and constituent documents of specific corporations.

In accordance with paragraph 4 of Art. 65.3 of the Civil Code of the Russian Federation, a member of a corporation is obliged to:

participate in the formation of the property of the corporation in the required amount in the manner, manner and within the time limits provided for by this Code, other law or the constituent document of the corporation;
keep secret confidential information on the activities of the corporation;
participate in the adoption of corporate decisions, without which the corporation cannot continue its activities in accordance with the law, if its participation is necessary for the adoption of such decisions;
not to take actions knowingly aimed at causing harm to the corporation;
not to take actions (inaction) that significantly impede or make it impossible to achieve the goals for which the corporation was created.

The list of obligations of corporation participants is also not exhaustive (closed), since corporation participants may also bear other obligations provided for by special laws on certain types corporations or charters of particular corporations.

The totality of the listed rights and obligations of participants in corporations makes it possible to consider a corporation as an independent subject of law, distinct from a legal entity. Corporate rights and obligations of participants arise not only in relation to the legal entity created by them at the time of state registration of the legal entity in one of the organizational and legal forms of the corporation provided for by the Civil Code of the Russian Federation. Corporate rights and obligations of corporation participants are acquired and exercised as a result of corporate governance by establishing additional rights and obligations of the participants of the corporation by the decision of the supreme body of the corporation.

Head of Department for non-profit organizations
Departments of the Ministry of Justice Russian Federation for the Republic of Khakassia
L.G. Vinokurov

The amendments to the Civil Code of the Russian Federation, which came into force on September 1, 2014, significantly changed the norms of Russian corporate law. In particular, these changes also affected the classification of legal entities, which determines the relevance of the topic of this article. According to the civil legislation of the Russian Federation, all legal entities, the division of which into commercial and non-commercial, as a whole, remained unchanged, are now subdivided into two more types - corporate and unitary. The criterion for such a division is established by law (clause 23, article 1 of Law No. 99-FZ) and consists in the fact that the founder of a legal entity has the right to participate (membership) in it, as well as in the form of influence on the formation of the supreme body of the corresponding organization.

It should be noted that as a result of the reform, both commercial and non-commercial corporate and unitary legal entities can be established only in those organizational and legal forms that are provided for by the legislation of the Russian Federation.

Corporations

Corporations (corporate legal entities) are recognized as such legal entities whose founders (participants) have the right to participate (membership) in them, in respect of which they have corporate rights, and also form the supreme body of corporations - the general meeting (in cases provided for by law - the congress, conference or other representative (collegiate) body) - in accordance with the requirements established by law (clause 1, article 65.1 of the Civil Code of the Russian Federation). As mentioned earlier, since the division of legal entities into commercial and non-commercial has been preserved, the updated classification of legal entities (here, corporate) is as follows:

1) Commercial corporate organizations:

A) business companies: limited liability companies (LLC) and joint-stock companies (public and non-public JSC - introduced by the 2014 reform);

b) business partnerships (full and limited);

c) business partnerships;

d) production cooperatives;

e) peasant (farm) enterprises.

2) Non-profit corporate organizations:

a) consumer cooperatives;

b) associations (unions);

c) public organizations (trade unions, political parties, social movements and others);

d) associations of real estate owners;

e) Cossack societies entered in the state register of Cossack societies of the Russian Federation;

f) communities of indigenous peoples of the Russian Federation.

Status of corporation members

Separation of corporations as special kind legal entities contributed to the consolidation directly in the Civil Code of the Russian Federation of general rules regarding the status, namely, the rights and obligations of both the corporations themselves and their participants (members, shareholders). This, in turn, made it possible to expand the range of rights and opportunities for protecting the interests of not only participants in business companies, but also members of any corporation (by granting them the rights, for example, to participate in managing the affairs of a corporation, to receive information about its property status, the right to challenge exclusion from the corporation, etc. (Article 65.2 of the Civil Code of the Russian Federation)). The list of rights of corporation members is not exhaustive and, therefore, corporation members may have other rights provided for by law or listed in the corporation's charter.

The so-called "restoration corporate control”, that is, the restoration of the rights of participation in the corporation lost against the will of the participants is the judicial practice new form protection of the property interests of the participants, which also received legislative consolidation thanks to the reform of 2014. This form of protection additionally ensures the observance of the rights of persons who have suffered from various illegal actions and abuses, such as: unreasonable “write-off” of shares, “corporate takeovers” and others.

The scope of duties of the corporation participants is enshrined in the list of paragraph 3 of Art. 65.2 of the Civil Code of the Russian Federation and, like the list of rights of its members, is not closed. One of the distinguishing features of the reform was the legislative consolidation of the obligation for a member of a corporation to take part in the adoption of corporate decisions, without which it is impossible to continue the activities of this corporation, if his participation is necessary for making such a decision. This novelty of Russian legislation was introduced in order to prevent a situation of "corporate deadlock" (English corporate deadlock), when none of the participants or a group of participants are unable to make any important decision due to the lack of the necessary quorum. Plenum Supreme Court in its Resolution No. 25 dated June 23, 2015, such decisions, in particular, include decisions on the appointment of a sole executive body or a member of the board of directors, as well as on amendments to the corporation's charter. However, it is interesting that the Civil Code of the Russian Federation does not contain any mechanisms for forcing a participant to fulfill this obligation and does not impose real responsibility on a participant for its failure to fulfill it.

Corporation governing bodies

The new article 65.3 of the Civil Code of the Russian Federation is devoted to the organization of management in a corporation, according to which the general meeting of participants is the supreme body of the corporation. It has broad powers that give the general meeting the right to: approve and change the charter of the corporation, independently determine the priority areas of its activities, regulate the procedure for accepting members of the corporation, create or terminate the activities of other bodies of the corporation, approve annual reports and financial statements, make decisions on the creation corporation of other legal entities, its reorganization, liquidation, etc.

The law also establishes a rule according to which a sole executive body must be formed in a corporation, which can be either an individual or a legal entity. The charter of the corporation, at the same time, provides for the possibility of various options for organizing corporate governance in this case: firstly, when the powers of one sole executive body are simultaneously granted to several persons; or when it is possible to create several sole executive bodies that will act independently of each other. In cases stipulated by law, a corporation may also form a collegial executive body.

Speaking about the structure of corporate governance bodies, one cannot fail to mention one more collegiate body - a supervisory or other board, acting along with all of the above bodies and formed in some cases specified in the law or the charter of the corporation. In joint-stock companies, for example, the supervisory board is the board of directors, which, together with audit commission, which is also a collegial management body and exercises control over the financial and economic activities of the company (clause 1, article 85 of the Federal Law "On Joint Stock Companies" dated December 26, 1995 No. 208-FZ), controls the activities of executive bodies and performs other functions assigned to him by law and the charter of the joint-stock company.

Unitary legal entities

Legal entities, on the property of which their founders have property rights, without becoming, at the same time, participants in these legal entities and without acquiring the rights of membership in them, are recognized as unitary legal entities (paragraph 2, clause 1, article 65.1 of the Civil Code of the Russian Federation). The updated classification of legal entities (here it is unitary) while maintaining the previous division into commercial and non-commercial is as follows:

1) Commercial unitary organizations: state and municipal unitary enterprises.

It should be noted that the right of ownership of the property, which is assigned to the enterprise by the owner, is not granted to this enterprise. It also cannot be distributed among contributions (shares, shares), including among employees of the enterprise (paragraph 1, clause 1, article 113 of the Civil Code of the Russian Federation), which, accordingly, characterizes this property as indivisible.

2) Non-profit unitary organizations:

a) funds;

b) institutions (private, state and municipal);

c) autonomous non-profit organizations;

d) religious organizations;

e) public law companies (also introduced by the 2014 reform, and in July 2016, Federal Law No. 236-FZ of July 3, 2016 “On Public Law Companies in the Russian Federation and on Amendments to Certain Legislative Acts of the Russian Federation") (hereinafter referred to as the Public Companies Law);

This classification, according to some theorists, is not perfect. For example, the allocation of religious organizations, previously recognized as a variety of public organizations, into an independent organizational and legal form is recognized as rather controversial. Since the actual fixing of the priority of special legislation and internal regulations over the civil law status of these legal entities does not allow fixing legal status religious organizations as participants in civil circulation.

Unfortunately, the Law on Public Law Companies has not been able to resolve many issues in relation to legal entities of public law. Thus, the concept of "public law companies" is defined quite broadly. At the same time, one of the key features (incompatibility of goals with entrepreneurial activity) is not clearly expressed. In addition, it was assumed that public companies would replace state corporations, whose essentially privileged legal status compared to other legal entities is the subject of much debate. However, in the end, these two forms of legal entities will coexist in Russian law.

It should be noted that the above division of organizations into unitary and corporate ones is rather conditional, since in a unitary organization the founder, although not formally a member, still has an unconditional right to manage. As an example, we can cite the rules on autonomous non-profit organization, the founders of which the legislator grants sufficiently significant rights and gives them significant powers to manage the organization (Article 123.25 of the Civil Code of the Russian Federation), which indicates a mixture of features of a corporation and a unitary legal entity.