The supreme governing body of a corporate legal entity is. Organizational and legal foundations for the creation and operation of corporate NGOs. Corporate and unitary legal entities

27.11.2019

A huge number of different legal entities are involved in civil circulation, which can be classified depending on a variety of criteria.

The civil legislation of Russia, which underwent significant changes in 2014, adheres to the position that legal

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legal entities can be either corporate or unitary (Article 65 of the Civil Code of the Russian Federation), and, in accordance with this criterion, builds the logic of further classification of legal entities.

So, legal entities whose founders (participants) have the right participation (membership) in them and form their supreme body, are corporate legal entities (corporations).

To corporate legal entities (corporations) The Civil Code of the Russian Federation includes: business partnerships and companies, peasant (farm) enterprises, economic partnerships, production and consumer cooperatives, public organizations, social movements, associations (unions), associations of property owners, Cossack societies and communities of indigenous peoples Russian Federation.

Members of a corporation (participants, members, shareholders, etc.) have the right to participate in the management of the affairs of the corporation, receive information about the activities of the corporation and get acquainted with its accounting and other documentation, appeal against decisions of the bodies of the corporation that entail civil law consequences, demand, acting from name of the corporation, compensation for the losses caused to the corporation and to challenge the transactions made by it.

supreme body corporation is the general meeting of its participants (Article 65 3 of the Civil Code of the Russian Federation). The corporation has a sole executive body (director, CEO, chairman, etc.), and a collegial executive body (board, directorate, etc.) can also be formed. Along with the executive bodies, a corporation may form a collegial management body (supervisory or other board) that controls the activities of the executive bodies of the corporation and performs other functions assigned to it by law or the charter of the corporation. -,|

Corporate legal entities can be both commercial (pursuing profit as the main goal of their activities) and non-commercial (not having profit as the main goal of their activities and not distributing their profits among participants) organizations.

Commercial corporations include the following legal entities:

1)full partnership. In accordance with paragraph 1 of Art. 69 of the Civil Code of the Russian Federation, a partnership is recognized as a full partnership, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in

to 4. Types of legal entities ____________________________ 151

entrepreneurial activities on behalf of the partnership and are liable for its obligations the property they own.

A general partnership is created and operates on the basis of a constituent agreement. Each member full partnership has the right to act on behalf of the partnership, if the constituent agreement does not establish that all its participants conduct business jointly, or the conduct of business is entrusted to individual participants.

Profits and losses of a general partnership shall be distributed among its participants in proportion to their shares in the share capital, unless otherwise provided by the memorandum of association or other agreement of the participants. An agreement on the elimination of any of the participants in the partnership from participation in profits or losses is not allowed (Article 74 of the Civil Code of the Russian Federation).

The participants in a general partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership;

2)limited partnership (limited partnership)- it's a partnership wherein along with the participants from entrepreneurial activities on behalf of the partnership and liable for the obligations of the partnership with their property (general partners), there is one or more participants - contributors(limited partners) who bear the risk of losses associated with the activities of the partnership, in within the limits of their contributions and do not take part in the implementation of entrepreneurial activities by the partnership.

The number of limited partners in a limited partnership should not exceed 20 people, otherwise this partnership must be transformed into an economic company.

The management of the activities of a limited partnership is carried out by general partners. Contributors are not entitled to participate in the management and conduct of business of a partnership on faith, to challenge the actions of general partners in the management and conduct of business of the partnership, but they are entitled to receive a part of the partnership's profit due to their share in the share capital, in the manner prescribed by the founding agreement;

3)peasant (farm) economy- voluntary association of citizens on the basis of membership for a joint production "or other economic activity in the area of Agriculture based on their personal participation and the association of property contributions by members of the peasant (farm) economy (Article 86 "of the Civil Code of the Russian Federation).

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The property of a peasant (farm) economy belongs to it by the right of ownership, however, members of a peasant (farm) economy established as a legal entity bear the obligations of the peasant (farm) economy subsidiary a responsibility;

4)society with limited liability, which is recognized as a business company, authorized capital which is divided into ^ shares. -SCH

Unlike previous organizations, participants in a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company, only within the limits of the value of their shares(Clause 1, Article 87 of the Civil Code of the Russian Federation).

The number of participants in a limited liability company must not exceed 50, otherwise it is subject to transformation into a joint-stock company. It follows from the foregoing that even one person can be the founder of a limited liability company.

The founders of a limited liability company conclude an agreement in writing between themselves on the establishment of a limited liability company, determine the procedure for their implementation joint activities on the establishment of the company, the size of the authorized capital of the company, the size of their shares in the authorized capital of the company and other conditions;

5)joint-stock company- This is a business company, the authorized capital of which is divided into a certain number of shares. Members of a joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their shares.

The joint stock company is recognized public, if its shares and securities convertible into its shares are publicly placed (by open subscription) or publicly traded on the terms established by securities laws (Article 66 3 of the Civil Code of the Russian Federation). -"one

In accordance with paragraph 5 of Art. 97 of the Civil Code of the Russian Federation in a public joint stock company, the number of shares owned by one shareholder, their total nominal value, as well as the maximum number of votes granted to one shareholder cannot be limited. Thus, a joint-stock company may consist (or be created) of one person. ^

The founding document of a joint-stock company is its charter, approved by the founders.

The charter of a joint-stock company must contain information about the trade name of the company and its location, conditions for

§ 4. Types of legal entities _________________________153

the categories of shares issued by the company, their nominal value and quantity, the size of the company's authorized capital, the rights of shareholders, the composition and competence of the company's bodies, and the procedure for their decision-making (clause 3, article 98 of the Civil Code of the Russian Federation);

6)production cooperative (artel) - voluntary association of citizens on the basis of membership for joint production or other economic activities (production, processing, marketing of industrial, agricultural and other products, performance of work, trade, consumer services, provision of other services), based on their personal labor and other participation and its association members (participants) property shares(Article 106 of the Civil Code of the Russian Federation).

Members of a production cooperative bear the obligations of the cooperative subsidiary a responsibility.

The founding document of a production cooperative is its charter, approved by the general meeting of its members, who must be at least five.

The property owned by the production cooperative is divided into shares of its members in accordance with the charter of the cooperative.

The profit of a production cooperative is distributed among its members in accordance with their labor participation unless otherwise provided by the law on production cooperatives and the charter of the cooperative.

To non-profit corporate organizations includes the following legal entities:

1) consumer cooperative- a voluntary association based on membership of citizens or citizens and legal entities in order to meet their material and other needs, carried out by combining its members with property shares (Article III ^ KRF).

Unlike a production cooperative, a consumer cooperative is a non-profit organization, and its members are not required to participate in its activities with their personal labor. Consumer cooperatives include, for example, housing and dacha cooperatives;

2)social organization is a voluntary association of citizens united on the basis of their common interests to satisfy spiritual or other intangible needs, to represent and protect common interests and achieve other

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goals contrary to the law (architectural, scientific, patriotic societies, etc.).

By virtue of paragraph 2 of Art. 123 4 of the Civil Code of the Russian Federation, 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)social movement- a mass public association consisting of members, non-member, pursuing social, political and other socially useful goals supported by members of the social movement"; .J

4)association (union)- association of legal entities and (or);

citizens, based on voluntary or, in cases established by law, on mandatory membership and created to represent and protect common, including professional, interests, to achieve socially useful goals, as well as other goals that do not contradict the law and are of a non-commercial nature.

In the organizational and legal form of an association (union), for example, associations of persons are created with the aim of coordinating their entrepreneurial activity, representation and protection of common property interests, professional associations of citizens that do not aim to protect labor rights and interests of its members;

5)association of property owners- a voluntary association of owners of real estate (premises in a building, in an apartment building, summer cottages, etc.), created by them for joint possession, use and, within the limits established by law, disposal of property (things), which, by virtue of the law, are in their common property or in common use.

To non-profit corporate organizations also include: Cossack societies, communities of indigenous peoples of Russia, bar associations and bar associations.

Unitary legal entities

Unlike the commercial and non-commercial corporate legal entities listed above, in unitary legal entities founders do not become their participants and do not acquire membership rights in them.

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To commercial unitary legal entities include state and municipal unitary enterprises.

In accordance with Art. 113 of the Civil Code of the Russian Federation, a unitary enterprise is a commercial organization that is not endowed with the right of ownership of the property assigned to it by the owner. The property of a unitary enterprise is indivisible and cannot be distributed among contributions (shares, shares), in number between employees of the enterprise.

The property of a state or municipal unitary enterprise is owned by its founder, i.e., in state or municipal ownership, and belongs to such an enterprise on the basis of the right of economic management or operational management.

Paragraph 2 of Art. 2 of the Federal Law of November 14, 2002 No. 161-FZ “On State and Municipal Unitary Enterprises” establishes that the following types of unitary enterprises are created and operate in Russia:

economic management(federal state enterprise, a state enterprise of a constituent entity of the Russian Federation and a municipal enterprise);

Unitary enterprises based on law operational management(federal state-owned enterprise, state-owned enterprise of a constituent entity of the Russian Federation and municipal state-owned enterprise).

Article 295 of the Civil Code of the Russian Federation establishes that the owner of property located in economic management, in accordance with the law, resolves issues of establishing an enterprise, determining the subject and goals of its activities, its reorganization and liquidation, appoints a director (manager) of an enterprise, exercises control over the use for its intended purpose and the safety of property belonging to the enterprise. The owner has the right to receive a part of the profit from the use of property under the economic management of the enterprise. In general, this enterprise has the right to dispose of the profits received independently.

At the same time, an enterprise is not entitled to sell property belonging to it on the right of economic management. real estate, rent it out, pledge it, make it as a contribution to the authorized (reserve) capital business companies and partnerships or otherwise dispose of this property without the consent of the owner. However, this enterprise has the right to freely dispose of movable property.

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Establishment and state-owned enterprise, to which property is assigned by right operational management, only own and use this property within the limits established by law, in accordance with the objectives of their activities, the purpose of this property and dispose of this property only with the consent of the owner of this property.

The owner of the property has the right to withdraw the excess, unused or not used for its intended purpose, the property assigned by him to the institution or state-owned enterprise. The procedure for distributing the income of a state-owned enterprise is also determined by the owner of its property.

Non-commercial unitary legal entities include:

1)fund- a unitary non-profit organization without membership, established by citizens and (or) legal entities on the basis of voluntary property contributions and pursuing charitable, cultural, educational or other social, socially useful goals;

2)institution- a unitary non-profit organization created owner for the implementation of managerial, socio-cultural or other functions of a non-commercial nature;

3)autonomous non-profit organization - a unitary non-profit organization that does not have membership and was created on the basis of property contributions from citizens or legal entities for the purpose of providing services in the areas of education, healthcare, culture, science and other areas of non-commercial activity;

4)religious organization- a voluntary association of citizens or other persons permanently and legally residing on the territory of Russia, formed by them for the purpose of joint confession and dissemination of faith and registered in the manner prescribed by law as a legal entity.

Objects of civil rights

The object of civil rights is both a material and non-material good (or the process of creating this good), for the sake of which the subject enters into a civil legal relationship. The object of civil rights and the object of civil legal relations can be | treat as synonyms. .J

It is quite natural that the object of civil law! not any benefits become, but only those that are able to satisfy the interests of the participants in this legal relationship.

§ 5. Objects of civil rights ______ 157

In Art. 128 of the Civil Code of the Russian Federation is given list of objects of civil rights.

X they include: things, including cash and documentary securities, other property, including non-cash cash, paperless securities, property rights;

results of work and provision of services; protected results of intellectual activity and equated means of individualization ( intellectual property); intangible benefits.

Some of the designated objects of civil rights may be limited in circulation, i.e. transactions with them may be allowed only with special permission from the competent authorities (land, subsoil, weapons, precious metals, etc.).

The main part of the objects of civil rights is property, which can be understood as a set of things, property rights and obligations.

Things can include both means of production and consumer goods, they can be movable and immovable (the movement of which is impossible without disproportionate damage to their purpose). Things can be presented in civil circulation as a single property complex (enterprise), be divisible and indivisible (the division of which is impossible without destroying, damaging the thing or changing its purpose). A special kind of things are money and securities.

To the intangible benefits as objects of civil rights Art. 150 of the Civil Code of the Russian Federation refers to life and health, personal dignity, personal integrity, honor and good name, business reputation, inviolability of private life, inviolability of the home, personal and family secrets, freedom of movement and choice of place of stay and residence, the name of a citizen, authorship and other intangible benefits. "

The legislator emphasizes that intangible benefits that belong to a citizen from birth or by virtue of law are inalienable and non-transferable to another person.

Civil Code of the Russian Federation in Art. 151 establishes a provision according to which if a citizen has suffered moral harm (physical or moral suffering) by actions that violate his personal non-property rights, then the court may impose on the violator the obligation of monetary compensation for the specified harm.

The methods of protecting intangible benefits also include the right of a citizen to demand in court a refutation of information discrediting his honor, dignity or business reputation, if disseminated

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providing such information will not prove that it is true. By virtue of Art. 152 of the Civil Code of the Russian Federation, a refutation must be made in the same way that information about a citizen was disseminated or in another similar way.

According to Art. 152 2 of the Civil Code of the Russian Federation, without the consent of a citizen, the collection, storage, distribution and use of any information about his private life, in particular information about his origin, place of his stay or residence, personal and family life, is not allowed.

Non-profit organizations are of increasing importance in the formation of civil society in Russia. Thus, the Federal Law of April 5, 2010 “On Amendments to Certain Legislative Acts of the Russian Federation Concerning Support for Socially Oriented Nonprofit Organizations” outlines measures to strengthen their role in the formation of civil society. Nevertheless, the role of non-profit organizations, which form the basis of civil society, without which the existence of a rule of law state and the implementation of the principles of democracy, is clearly underestimated.<1>. The author of the named publication correctly notes that it is impossible to find optimal approaches to the definition legal status non-profit organizations, not counting economic fundamentals their activities, areas of functioning and the role assigned to them, which was clearly demonstrated by the discussion in society of the Federal Law on a Foreign Agent.

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<1>Soifer T.V. Status not commercial organization// Non-commercial organizations: theoretical and practical problems. M., 2009. S. 56 - 59.

The emergence of most types of non-profit organizations is based on economic prerequisites due to the shortcomings of the market mechanism of management, since it is inefficient in the implementation of certain benefits. Non-profit organizations are diverse and inherently heterogeneous. For example, some of them provide interaction between business and the state (for example, non-profit partnerships and other types of associations and unions), others are aimed at strengthening the role of civil society in the public life of the country (for example, public organizations).

For social activities It is characteristic that it is successfully carried out not only non-profit organizations in the form of a legal entity, but also an entity, a group of persons who do not have such a status. In practical, law enforcement activities, it is important to determine in which cases the statutory activities of non-profit organizations require the use of the organizational and legal form of a legal entity, since statutory activities as such are in no way connected with the participation of a non-profit organization in civil circulation, unlike a commercial organization. In most cases, non-profit organizations are created to ensure the main (statutory) activity, and in cases where they carry out other income-generating activities, non-profit organizations must have separate property, which can be levied for their obligations.

AT new edition The Civil Code of the Russian Federation, the previously existing single paragraph “Non-profit organizations” is divided into § 6 “Non-profit corporate organizations” and § 7 “Non-profit unitary organizations”.

Non-profit corporate organizations- 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 in accordance with paragraph 1 of Art. 65.3 of the Civil Code of the Russian Federation (Clause 1, Article 123.1 of the Civil Code of the Russian Federation).

The same article lists the organizational and legal forms in which only non-profit corporate organizations can be created. In contrast to the previous Law on Non-Commercial Organizations, the list of both corporate and unitary non-commercial organizations is closed.

The Federal Law of July 20, 2012 “On Amendments to Certain Legislative Acts of the Russian Federation Regarding the Regulation of the Activities of Non-Commercial Organizations Acting as Foreign Agents” amended, in particular, the Federal Law “On Public Associations” of May 19, 1995 and in the Law on Nonprofit Organizations. The first named Law provides for the procedure for including a public association intending to participate in political activity, to the register of non-profit organizations performing the functions of a foreign agent.

The status of a foreign agent applies only to public organizations, social movements, bodies of public initiative and territorial public self-government, if they are registered as legal entities and are going to engage in political activities ( paragraph 6 of Art. 2Law on non-profit organizations).

A non-profit organization acting as a foreign agent, is a Russian non-profit organization that receives funds and other property from foreign states, their state bodies, international and foreign organizations, foreign citizens, stateless persons or persons authorized by them and (or) from Russian legal entities receiving funds and other property from the indicated sources (with the exception of open joint-stock companies with state participation and their subsidiaries), and which participates, in that including in the interests of foreign sources, in political activities carried out on the territory of the Russian Federation (Article 2 of the Law on Non-Commercial Organizations).

non-profit organization other than political party, is recognized as participating in political activities carried out on the territory of the Russian Federation, if, regardless of the goals and objectives specified in its constituent documents, it participates (including through financing) in the organization and conduct of political actions in order to influence the adoption government bodies decisions aimed at changing their state policy, as well as in shaping public opinion for the indicated purposes.

Not related to political activity activities in the field of science, culture, art, healthcare, prevention and protection of the health of citizens, social support and protection of citizens, protection of motherhood and childhood, social support for the disabled, propaganda healthy lifestyle life, physical education and sports, protection of flora and fauna, charitable activities, as well as activities in the field of promoting charity and volunteering (clause 6, article 2 of the Law on non-profit organizations).

It should be noted that activities in the field of education can, under certain conditions, be considered as political (for example, activities to train members of election commissions, election observers, etc.).

Non-profit organizations that receive funds and other property from foreign sources keep separate records of income (expenses) received (produced) within the framework of receipts from foreign sources, and income (expenses) received (produced) within the framework of these receipts. The law establishes the rules for submitting reports on their activities, on the personal composition of the governing bodies, documents on the purpose of spending financial resources and other property, including those received from foreign sources, as well as an auditor's report.

Non-profit organization acting as a foreign agent(Besides public associations), are all types of non-profit organizations to which the Law on Non-Profit Organizations applies.

The Foreign Agent Law is one of the grounds for prohibiting the creation of non-profit organizations pursuing goals that are contrary to the law or the foundations of the rule of law or morality.

In the Resolution of the Constitutional Court of the Russian Federation of April 8, 2014 “On the case of checking the constitutionality of the provisions of paragraph 6 of Article 2 and paragraph 7 of Article 32 of the Federal Law “On Non-Commercial Organizations” and Part 1 of Article 19.34 of the Code of the Russian Federation on administrative offenses in connection with the complaints of the Commissioner for Human Rights in the Russian Federation, the fund “Kostroma Center for the Support of Public Initiatives”, citizens L.G. Kuzmina, S.M. Smirensky and V.P. Yukechev” noted that the interrelated provisions of paragraph 6 of Art. 2, paragraph 2 of paragraph 7 of Art. 32 of the Federal Law “On non-profit organizations” do not contradict the Constitution of the Russian Federation.

Non-commercial organizations may have civil rights and bear civil obligations corresponding to the purposes of their creation and activities, provided for in their charters.

Non-profit corporate organizations are created by the decision of the founders at their general (constituent) meeting, conference, congress, etc. These bodies approve the charter of the relevant non-profit organization and form its bodies (Clause 3, Article 123.1 of the Civil Code of the Russian Federation).

Based on the comparison of paragraph 3 of Art. 50 and paragraph 1 of Art. 65.1 of the Civil Code of the Russian Federation, legal entities that are non-commercial corporate organizations, can be created in the organizational and legal forms of the following types:

Types and types of organizational and legal forms of a legal entity

Types of corporate non-profit organizations	Types of corporate non-profit organizations
Consumer cooperatives	housing, housing construction and garage cooperatives, horticultural, horticultural and country consumer cooperatives, mutual insurance companies, credit cooperatives, rental funds, agricultural consumer cooperatives;
Public organizations	political parties and trade unions established as legal entities ( trade union organizations), social movements, bodies of public amateur performance, territorial public self-governments;
Associations (unions)	non-profit partnerships self-regulatory organizations, associations of employers, associations of trade unions, cooperatives and public organizations, commercial and industrial, notary and bar associations;
Associations of property owners	homeowners associations;
Cossack societies included in State Register Cossack societies in the Russian Federation	Cossack societies entered in the state register of Cossack societies in the Russian Federation;
Communities of Indigenous Peoples of the Russian Federation	communities of indigenous peoples of the Russian Federation.

The principle of a limited number of types of organizational and legal forms of non-profit corporate organizations laid down in the Civil Code of the Russian Federation will give positive effect only in the case when the basic laws on consumer cooperatives, public organizations and associations (unions) are developed and adopted.

6.1. Consumer cooperatives

consumer cooperative- an association based on membership of citizens or citizens and legal entities in order to meet their material and other needs, carried out by combining its members with property shares (clause 1, article 123.2 of the Civil Code of the Russian Federation).

Charter of a consumer cooperative must contain information about the name and location of the cooperative, about the subject and goals of its activities, the conditions for the amount of share contributions of members of the cooperative; on the composition and procedure for making share contributions by members of the cooperative and on their liability for violation of the obligation to make share contributions; on 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 the losses incurred by the 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".

Members of a consumer cooperative are obliged, within 3 months after the approval of the annual balance sheet, to cover the resulting losses by making additional contributions. In case of failure to fulfill this obligation, the cooperative may be liquidated in judicial order at the request of creditors. 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 (Article 123.3 of the Civil Code of the Russian Federation).

A consumer cooperative, by decision of all members, may be transformed into a public organization, association (union), autonomous non-profit organization or foundation.

Prior to the adoption of a unified law on consumer cooperatives, the law on consumer cooperation, laws on certain types of consumer cooperatives under paragraph 3 of Art. 50 of the Civil Code of the Russian Federation are applied in the part that does not contradict Art. 123.2 and 123.3 of the Civil Code of the Russian Federation.

The law on non-profit organizations does not apply to consumer cooperatives, their activities are regulated by the Civil Code of the Russian Federation, laws on consumer cooperatives, other laws and legal acts(Clause 3, Article 1 of the Law on Non-Commercial Organizations). Such regulation is consistent with Art. 123.3 of the Civil Code of the Russian Federation on the obligation to make additional contributions by members of a consumer cooperative in the event of losses in the activities of the cooperative. It provides for the features of the organizational and legal form of a consumer cooperative, making it possible to assert that it contains signs of a commercial organization.

6.2. Associations of property owners

This type of organizational and legal form of a non-profit corporate organization is separated from consumer cooperatives, since its only type, specified in paragraph 3 of Art. 50 of the Civil Code of the Russian Federation, - partnerships of homeowners, has become widespread as a form of joint management of a real estate complex in an apartment building, unfortunately, in practice, significant abuses are revealed in the activities of management companies. Citizens are often forced to challenge the validity of the creation of a homeowners association<1>.

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<1>For example: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 10, 2012 N 2364/12 in case N A40-45218 / 11-121-323.

Association of property owners- a voluntary association of owners of real estate (premises in a building, including in an apartment building, or in several buildings, residential buildings, country houses, horticultural, gardening or summer cottages, etc.), created by them for joint possession, use and within the limits established by law of the disposal of 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 (clause 1 of article 123.12 of the Civil Code of the Russian Federation).

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

The qualifying features of this type of non-profit corporate organization is the fact that the common property in an apartment building, as well as common-use objects in horticultural, horticultural and country non-profit partnerships, belong to the members of the relevant partnership on the basis of common shared ownership, unless otherwise provided by law. Share in the common property of a member of such non-profit partnership follows the fate of ownership of said premises or land plot(Article 123.13 of the Civil Code of the Russian Federation).

To the exclusive competence of the supreme body of the partnership of property owners, along with the issues specified in paragraph 2 of Art. 65.3 of the Civil Code of the Russian Federation, also includes the adoption of decisions on establishing the amount of mandatory payments and contributions of members of the partnership (clause 1 of article 123.14 of the Civil Code of the Russian Federation).

Establishment and operation of a homeowners association, the legal status of its members are governed primarily by Section VI of the LC RF.

homeowners association(hereinafter - HOA) - a non-profit organization, an association of owners of premises in an apartment building for the joint management of a complex of real estate in an apartment building, ensuring the life of this complex, possession, use and, within the established limits, disposal of common property in an apartment building (Article 135 of the LC RF) .

The number of members of the HOA who have created a partnership must exceed 50% of the votes of the total number of owners of premises in an apartment building. Owners of premises in an apartment building can create only one HOA. At the general meeting of members of the HOA, which is the governing body of an apartment building, an estimate of income and expenses for the year is determined, including the necessary expenses for the maintenance and repair of common property, the cost of overhaul and reconstruction of an apartment building, special contributions and deductions to the reserve fund, as well as other expenses established by the charter of the HOA (clause 2, clause 1, article 137 and clause 1, clause 2, article 44 of the LC RF).

In order to achieve the goals provided for by the charter, the HOA has the right to engage in economic activities, maintain, operate and repair real estate, rent out, rent parts of the common property in an apartment building. The income received from economic activities, based on the decision of the general meeting of the homeowners' association, is used to pay general expenses or is directed to special funds spent for the purposes provided for by the partnership's charter (Article 152 of the Housing Code of the Russian Federation).

The peculiarity of the formation of the property of the HOA is that the establishment of the amount of mandatory payments and contributions, other means of the HOA is carried out on the basis of a decision of the general meeting of its members.

The decision of the general meeting, adopted in accordance with the procedure established by the Housing Code of the Russian Federation, on issues relating to the competence of such a meeting is mandatory for all owners of premises in an apartment building, including for their owners who did not participate in the vote (clause 5, article 46 of the Housing Code of the Russian Federation)<1>. In the event that the owner of the premises in an apartment building fails to fulfill his obligations to participate in the general expenses of the HOA, the HOA has the right to demand in court the compulsory reimbursement of mandatory payments and contributions. The HOA may demand in court full compensation for the losses caused to it as a result of the non-fulfillment by the owners of the premises of the obligations to pay mandatory payments and contributions and pay other general expenses (clauses 3 and 4 of article 137 of the RF LC).

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<1>See more: Andreev V.K. Decisions of meetings // Civilist. 2013. N 3. S. 3 - 72.

The HOA has the right to conclude an agreement on the management of an apartment building with a managing organization (Article 168 of the LC RF).

6.3. Public organizations

Public organizations- voluntary associations of citizens united in the manner prescribed by law on the basis of their common interests to meet spiritual or other non-material needs, as well as to represent and protect common interests and achieve other goals that do not contradict the law (clause 1 of article 123.4 of the Civil Code of the Russian Federation).

The legislator changed the approach to the types of public organizations. Unlike the edition of the Civil Code of the Russian Federation, adopted in the first reading, in the edition of the Civil Code of the Russian Federation that came into force, Cossack societies and communities of indigenous peoples of the Russian Federation are not classified as public organizations, but are singled out as independent types of non-profit corporate organizations due to socio-cultural and political characteristics .

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 fees. 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 (Article 123.4 of the Civil Code of the Russian Federation).

Number of founders public organization cannot be less than 5.

Charter of a public organization must define its name and location, the subject and goals of its activities, and also contain conditions on the procedure for joining (accepting) participants (members) in and out of the organization, on the composition and competence of its bodies and the procedure for making decisions by them, including on issues, decisions on which are made 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 123.5 of the Civil Code of the Russian Federation).

Participant (member) of a public organization exercises corporate rights provided for in paragraph 1 of Art. 65.2 of the Civil Code of the Russian Federation, 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.

Participant (member) of a public organization, along with the obligations provided for the participants of the corporation, paragraph 3 of Art. 65.2 of the Civil Code of the Russian Federation, is also obliged to pay membership and other property contributions provided for by its charter.

A participant (member) of a public organization has the right, at his own discretion, to leave the organization in which he participates at any time. Membership in a public organization is inalienable. The exercise of the rights of a participant (member) of such an association of citizens cannot be transferred to another person.

To the exclusive competence of the supreme body of a public organization, along with the questions in paragraph 2 of Art. 65.3 of the Civil Code of the Russian Federation also applies to the adoption of decisions on the amount and procedure for payment by its participants (members) of membership and other property contributions. In a public organization, a sole executive body is formed 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 (Article 123.7 of the Civil Code of the Russian Federation).

Public organizations may unite into associations (unions) in the manner prescribed by the Civil Code of the Russian Federation.

By decision of the participants (members) of a public organization, it can be transformed into an association (union), an autonomous non-profit organization or a foundation.

6.4. Associations and unions

Association (union)- an association of legal entities and (or) citizens based on voluntary or, in cases established by law, mandatory membership and created by them to represent and protect common, including professional, interests, to achieve socially useful, as well as other non-contradictory and non-commercial the nature of the goals (clause 1, article 123.8 of the Civil Code of the Russian Federation).

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

Associations and 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).

An association (union) is the owner of its property and 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.

Peculiarities legal status associations (unions), their certain types may be established by law.

The number of founders of an association (union) cannot be less than 2.

The charter of an association (union) must define its name and location, the subject and goals of its activities, the conditions on the procedure for joining (accepting) members to the association (union) and leaving it, on the composition and competence of the governing bodies and the procedure for making decisions by them, including on issues, decisions on which are adopted unanimously or by a qualified majority of votes, on the property rights and obligations of members of the association (union) and on the procedure for distributing property left after the liquidation of the association (union) (Article 123.9 of the Civil Code of the Russian Federation).

To the exclusive competence of the supreme governing body of the association (union), along with the issues specified in paragraph 2 of Art. 65.1 of the Civil Code of the Russian Federation, also includes making decisions on the procedure for using and paying 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 the charter.

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 authority of the body may be prematurely terminated in cases of gross violation by this body of its duties, an inability to properly conduct business, or if there are other serious grounds (clause 2, article 123.10 of the Civil Code of the Russian Federation).

A member of an association (union), along with general corporate rights and obligations, 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 and is 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).

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. A member of an association (union) may be expelled from it in cases and in the manner established in accordance with the law in the charter of the association (union) (paragraph 2, clause 2, article 123.11 of the Civil Code of the Russian Federation).

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

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

Cossack societies entered in the state register of Cossack societies in the Russian Federation,- associations of citizens 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 the Federal Law of December 5, 2005 N 154-FZ “On public service Russian Cossacks”, who voluntarily assumed, in accordance with the procedure established by law, obligations to perform state or other service.

The norms of § 1 Ch. 4 of the Civil Code of the Russian Federation relating to non-profit organizations, as well as Art. 123.1 of the Civil Code of the Russian Federation, unless otherwise provided by the above-mentioned Law on the Civil Service of the Russian Cossacks.

A Cossack society, by decision of its members, can be transformed into an association (union) or an autonomous non-profit organization (Article 123.15 of the Civil Code of the Russian Federation).

6.6. Community of Indigenous Peoples of the Russian Federation

Community of Indigenous Peoples of the Russian Federation- voluntary associations of citizens belonging to the indigenous peoples of the Russian Federation and united on the basis of consanguinity and (or) territorial-neighborhood in order to protect the original habitat, preserve and develop traditional ways of life, management, crafts and culture.

Members of a community of indigenous peoples of the Russian Federation 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.

Full text of Art. 65.1 of the Civil Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice under Article 65.1 of the Civil Code of the Russian Federation.

1. 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, business partnerships, production and consumer cooperatives, public organizations, social movements, 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.

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 companies.

2. In connection with participation in a corporate organization, its participants acquire corporate (membership) rights and obligations in relation to the legal entity they have created, except for the cases provided for by this Code.

(The article was additionally included from September 1, 2014 by the Federal Law of May 5, 2014 N 99-FZ)

Commentary on Article 65.1 of the Civil Code of the Russian Federation

1. The provisions of this article are a novelty of civil law and are designed to radically change the existing structure of subjects of civil circulation. Therefore, we will consider these provisions in more detail, making a short historical and legal digression to the origins of the formation of the foundations that consolidated the classification of legal entities reflected in the commented article.

While maintaining the traditional division of legal entities into commercial and non-profit organizations from September 1, 2014, legal entities are also classified by membership and degree of participation in the formation and activities of a legal entity into:
1) corporate. Legal entities whose founders (participants, members) have the right to participate in the management of their activities (the right of membership) are corporate organizations (corporations);
2) unitary. Legal entities, the founders of which do not become their participants and do not acquire membership rights in them, are unitary organizations.

The division of legal entities into corporate and unitary forms (based on the nature of the connection between the participants) corresponds to the historically established doctrine of most Western countries and the Russian legal order, which was reflected in the works of the German civilists Geise, F. Savigny, O. Gierke, Bernatsik. Here is how the Russian scientist G.F. Shershenevich distinguished between “combinations of persons” and institutions: “... the concept of a legal entity plays, as it were, the role of “brackets”, which contain the homogeneous interests of a certain group of persons for a more simplified definition of the relationship of this collective personality to others These associations may be of a public nature, such as a society of nobility, or of a private nature, such as a joint-stock company." After analyzing the opinions of Russian jurists, S.D. Mogilevsky concludes that in the Russian doctrine of the 19th century, the term "corporation", like the German concepts, was used as a generic concept for a group of legal entities, within which two types of corporations were distinguished: public and private. Back in 1861, S. Pakhman, speaking on the issue of joint-stock reform, proposed dividing joint-stock companies into two types: state-economic (public) and private-economic (private). hallmark companies included in the first group, was the need for them to solve social problems, for example, construction railways, organization of navigation, etc. The joint-stock companies belonging to the second group did not set themselves the goals of achieving socially useful tasks. Private corporations in Russian law called trade associations. At the same time, G.F. Shershenevich wrote that the terminology of our legislation in relation to joint-stock partnerships was completely inconsistent. She calls them partnerships, companies, companies with the addition of expressions: "on shares", "on participants", "on shares".

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Quoted from the book: Corporate law. Textbook for university students / Ed. I.S. Shitkina. M.: "Volters Kluver", 2008, ch.I, paragraph 1 "The concept of corporate law" (Corporations in pre-revolutionary Russia) / URL: http://eknigi.org/uploads/posts/2010-03/1267746607.1252691339_korporativnoe_pravo.jpg
There.

In modern scientific doctrine, a corporation is traditionally understood as an organization based on the principles of participation (membership), which is created to realize the interests of its participants (members) by organizing its management through a special system of bodies. A corporation organized on the basis of membership, as a rule, is opposed to unitary organizations or institutions that do not have membership and are created, as a rule, in the interests of an unlimited number of people for the implementation of socially useful goals.

________________
See Serova O.A. Theoretical, methodological and practical problems of classification of legal entities of modern civil law in Russia: Monograph. M.: Yurist Publishing House, 2011 / URL: http://window.edu.ru/resource/904/74904/files/Serova_Problemy_klassifikatsii_yuridicheskikh_lits.pdf
It should be noted that in Russian and foreign legal orders the word "corporation" is not distinguished by its unambiguous understanding. This situation is explained by two circumstances. Firstly, in most countries this concept is not enshrined in law, but is present only at the doctrinal level. Secondly, the term "corporation" has a different interpretation in the Anglo-Saxon and continental systems of law. In this regard, as I.S. Shitkina rightly noted, the legislative consolidation of the division of organizations into corporate and unitary organizations, introduced into the Civil Code of the Russian Federation, is an advanced idea.

________________
See Shitkina I.S. Corporate Law Issues in the Draft Federal Law "On Amendments to the Civil Code of the Russian Federation" // Economy and Law, N 6, 2012 / URL: http://shitkina-law.ru/publikatsii/voprosy-korp-prava.html
The introduced changes will require the unification of legal regulation various kinds legal entities. Obviously, further specification of the rights and obligations, for example, of a shareholder or member of a limited liability company, should be reflected in the relevant federal law. This approach to the presentation system legal regulations characteristic not only for establishing the rights and obligations of the participants in the corporation, but also for other institutions of legislation. So, legal regulation management in the corporation is carried out by Art. 65.3 of the Civil Code of the Russian Federation; in Art. 66.3 of the Civil Code of the Russian Federation provides for the features of management in public and non-public companies; Art. 67.1 of the Civil Code of the Russian Federation regulates the features of management in business partnerships and companies, and in Art. 97 of the Civil Code of the Russian Federation provides for special requirements for the management of a public joint stock company. At the same time, these articles of the Civil Code of the Russian Federation contain numerous mutual references that complicate the application of the relevant norms. There is no unequivocal answer to the question of whether such an approach is convenient for practical application. According to I.S. Shitkina, it is unlikely that for purposes other than scientific classification, which could be carried out at the level of doctrine, someone will need, for example, to identify the rights and obligations that are simultaneously inherent in public joint-stock company, and a garage cooperative.

________________
There.

2. Summarizing numerous studies devoted to the analysis of the legal nature and identification of the essence of a corporation, I.S. Shitkina highlights the following features inherent in a corporation:
________________
See corporate law. Textbook for university students / Ed. I.S. Shitkina. M.: "Volters Kluver", 2008, ch.I, paragraph 1 "The concept of corporate law" (Corporations in modern Russian law) / URL: http://eknigi.org/uploads/posts/2010-03/1267746607.1252691339_korporativnoe_pravo. jpg
1) the corporation is recognized as a legal entity;
2) a corporation is a union of individuals and (or) legal entities that are subjects of law, which acquire the status of a participant (member) of the corporation;
3) corporation - "volitional organization". The will of a corporation is determined by the common interests of its members; the will of the corporation is different from the individual wills of its members;
4) the corporation as a legal entity is preserved regardless of changes in the composition of its participants;
5) a corporation is an association of not only participants, but also their property - contributions to the authorized capital, shares, contributions;
6) the property contributed by the participants to the corporation belongs to it by the right of ownership;
7) participants in the corporation as subjects of corporate relations are bearers of rights and obligations in relation to both the corporation itself and to each other;
8) a corporation is an organizational unity, expressed, among other things, in the presence of management bodies, the highest of which is the general meeting of shareholders (participants).

The main distinguishing feature of a corporation, as shown above, is participation or membership. The terms "participation" and "membership" characterize the legal relationship that mediates the relation of the subject's belonging to internal structure organizations. Participation (membership) is manifested in the implementation of the goals of participants (members) united in one legal entity through their participation in the management of this legal entity.

Corporations, in accordance with the commented article, include both commercial and non-commercial legal entities:
- business partnerships and companies;
- Peasant (farming) farms;
- business partnerships;
- production and consumer cooperatives;
- public organizations;
- associations (unions);
- associations of property owners;
- Cossack societies entered in the state register of Cossack societies;
- Indigenous communities.

3. The second category of legal entities are unitary legal entities, which include:
- state and municipal unitary enterprises;
- funds;
- institutions;
- autonomous non-profit organizations;
- religious organizations;
- public companies.

These entities are organized by combining the contributions of these entities, which are subsequently transferred to a legal entity. If earlier the status of a unitary enterprise or institution indicated the inextricable link between a legal entity and the state, now the integrity and indivisibility of such a subject is decisive. The withdrawal of a person from the founders does not entail a redistribution of shares, the authorized capital of such organizations, as a rule, is absent, the property is formed at the expense of contributions.

4. Applicable law:
- Law of the Russian Federation of June 19, 1992 N 3085-I "On consumer cooperation (consumer societies, their unions) in the Russian Federation";
- Federal Law No. 82-FZ of May 19, 1995 "On Public Associations";
- Federal Law No. 135-FZ of 11.08.95 "On charitable activities and charitable organizations";
- Federal Law No. 193-FZ of 08.12.95 "On Agricultural Cooperation";
- Federal Law No. 208-FZ of December 26, 1995 "On Joint Stock Companies";
- Federal Law No. 7-FZ of January 12, 1996 "On non-profit organizations";
- Federal Law of 08.05.96 N 41-FZ "On production cooperatives";
- Federal Law of June 15, 1996 N 72-FZ "On associations of homeowners".

Federal Law No. 125-FZ of September 26, 1997 "On Freedom of Conscience and Religious Associations";
- Federal Law No. 14-FZ of 08.02.98 "On Limited Liability Companies";
- Federal Law of 15.04.98 N 66-FZ "On horticultural, horticultural and country non-profit associations citizens";
- Federal Law of July 20, 2000 N 104-FZ "On general principles organizations of communities of indigenous peoples of the North, Siberia and Far East Russian Federation";
- Federal Law No. 161-FZ of November 14, 2002 "On State and Municipal Unitary Enterprises";
- Federal Law No. 74-FZ dated 11.06.2003 "On Peasant (Farm) Economy";
- Federal Law of 05.12.2005 N 154-FZ "On the public service of the Russian Cossacks";
- Federal Law No. 174-FZ of November 3, 2006 "On Autonomous Institutions";
- Federal Law No. 286-FZ of November 29, 2007 "On Mutual Insurance";
- Federal Law No. 190-FZ of July 18, 2009 "On Credit Cooperation";
- Federal Law of 03.12.2011 N 380-FZ "On economic partnerships".

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