A legal entity is required to undergo the established state registration procedure under applicable law with the authorized municipal authority in the manner established by the law on state registration of organizations.
State registration data are included in a single state register of organizations that is open to the public.
In the framework of this article, we consider the main ways of the emergence and suspension of the legal entity in modern conditions.
The essence of the concept of legal entities
The emergence of legal entities and the concept of legal entity are spelled out in accordance with the Civil Code of the Russian Federation.
The Civil Code of Russia (Civil Code), speaking of individuals, identifies:
- physical person;
- legal entity;
- regions of the Russian Federation, municipalities that deal with property and other civil matters.
This article will discuss issues of the concept, origin and types of legal entities.
The provisions of the Civil Code of the Russian Federation on legal entities are considered in Art. 48. In accordance with paragraph 1 of this article, legal entities are organizations that:
- own certain property;
- enter into relations with obligations, reacting to them with their property;
- receive rights and obligations;
- may be involved in litigation.
Thus, a legal entity should be understood as a subject of legal relations having economic rights and obligations, its own balance sheet, seal, current account and some similar details. The legal entity acts on the basis of the Charter or a special provision.
In judicial practice, property isolation, autonomy of organizations, and ample opportunities for making managerial decisions are called the essential elements of a legal entity’s design.
In accordance with paragraph 2 of Art. 48 of the Civil Code of the Russian Federation, a legal entity is subject to state registration. Along with the process of the emergence and registration of a legal entity, you need to choose a certain type of legal form.
In accordance with Art. 50 of the Civil Code of the Russian Federation to the main OPF legal entities include:
- partnerships and societies;
- business partnerships;
- consumer cooperatives, including housing, garage, etc .;
- lawyers and notaries;
- public organizations, including parties and trade unions, etc.
The indicated publication of the Civil Code of the Russian Federation is related to the systematization of legal entities, depending on whether they are aimed at generating income.
The list of forms is also indicated in OK 028-2012 “All-Russian Classifier of Legal Forms of Organization”. This classifier, taking into account the amendments made to it, is used in the USRLE.
It should be noted that a legal entity’s change of its OPF does not entail the need to re-register property rights.
Historical aspects
Consider the main aspects of the history of legal entities. The essence of the concept of a legal entity appeared in ancient Rome. At that time, the state itself was understood by him, and a little later they began to mean a group of united persons with a common goal, efforts based on partnership.
In the Middle Ages, trading guilds appeared as associations of groups of people (merchants) that looked like legal entities.
The first teaching in the theory of the emergence of legal entities was the work of F.K.Savigny. He became the founder of the theory of "fiction." According to his theory, a legal entity was considered as a unit of law, which is artificially created.
Further developed the theory of "personalized goals" (A. Brinz). According to this theory, the emergence and creation of a legal entity was associated with the management of certain property. Such an understanding is already closer to modern interpretations.
Further, the founder of the theory of social reality Salley legal entity began to be understood as the subject of legal relations in front of the state.
Studying the Soviet works of scientists in the theory of the development of legal entities, we outline the main points:
- upon emergence and creation, a legal entity was considered as an entity, which the state always stands behind;
- the addendum stated that in addition to the state, the legal entity also has its head;
- a legal entity was considered a full-fledged subject of legal relations.
An interesting theory of N.V. Kozlova, which raised the issue of artificial personality. That is, a legal entity is artificially created as a subject of socio-economic relations. Its occurrence is connected with the will of its founders.
Grounds for the emergence of legal capacity of a legal entity
The current procedure is regulated at the legislative level. The process of occurrence includes the formation and state registration of a legal entity in accordance with established procedures. There are four reasons for the emergence of legal entities.
The first relates to the administrative order. In this situation, the legal entity appears on the basis of the decision of the owners in the form of an order of the authorized body. The main stages of this process:
- creation of the act by the initiator (owner);
- work on the organizational part: personnel search, premises search, etc .;
- approval procedure for constituent documentation;
The second basis is permissive. This basis is characterized by the following points:
- an act of initiators (founders) is drawn up;
- act approval process;
- organizational work.
The third reason is obviously normative in nature. With him there are no orders and permits for occurrence. With this method, there is only the initiative of the founders and their appearance. The procedure for the emergence and formation of a legal entity is subject to compliance with legal requirements. The goals set must correspond to the nature of the activity. In this basis, the following documents take place:
- act of initiators of occurrence;
- organizational work;
- the work of the regulatory body.
The fourth basis is the nature of the legal order. In this situation, the founders conclude a civil law contract.
Thus, the reasons for the emergence of legal entities may be as follows:
- the will of its own or authorized body;
- the will of future members;
- the will of the founders, which are composed of property and capital.
Basic principles
The leading feature of the process of the legal entity's emergence is the principle of formal certainty, in which the procedure for creating and registering is clearly expressed in the framework of existing legal norms.
Russian law establishes other equally important principles for the emergence of legal entities:
- legality states that all procedures are strictly regulated by law;
- reliability indicates that the information generated in the process must be reliable;
- initiative involves the will of the organizers and their initiative to create;
- control involves an audit and audit by the competent authorities of all the processes of the legal entity;
- uniformity of procedures and methods for the emergence and termination of a legal entity;
- stages and sequence of all state registration operations.
Commercial and non-profit legal entities
One of the most important classifications of organizations is their division into commercial and non-commercial.
The appearance and types of legal entities are determined on the basis of whether they are aimed at generating income or not. Given the forms of organizations, legal entities are systematized as follows (Article 50 of the Civil Code of the Russian Federation).
Commercial organizations include:
- partnerships;
- society;
- farms;
- production cooperatives;
- business partnerships;
- municipal and city unitary companies.
The forms of NPOs are as follows:
- consumer cooperatives;
- public institutions;
- other non-profit organizations.
The status of a non-profit organization does not mean that this person cannot participate in income-generating work, but such activity is not central to him and has the following restrictions:
- must be indicated in the organization’s statute;
- should be aimed at achieving the main goal of the organization, but not at counteracting this task.
How are they created?
The emergence of a legal entity is its creation and state registration. All these procedures are carried out in accordance with the established requirements of the law. There are the following methods for the emergence of legal entities.
- Permissive method. The procedure for the emergence of legal entities by this method was used in the USSR. For the formation of a legal entity, permission of the competent municipal authority and the following state registration were needed. Currently, in the Russian Federation it is used as an exception to the generally accepted rule for the formation of certain types of legal entities - credit and insurance companies, unions and associations, etc.
- Normative - explicit way of legal entity. It is understood that there are special rules that govern the appearance and activities of certain types of legal entities. The implementation of the conditions that were provided for in such acts gives the right to recognize the company as a legal entity, which is confirmed by the fact of its state registration. Currently, the Russian Federation is applying a normative turnout procedure.
- Explicit method of legal entities (contractual). Organizations are created as a result of the expressed desire of those participating to act as a legal entity in the absence of the fact of its state registration. Currently, this procedure is not applied in the Russian Federation, but only abroad (associations in France, non-profit organizations in Switzerland, in fact, commercial companies in the USA, etc.).
All of these methods of legal entities have their own legal basis. The application of each of the methods within the framework of a particular legal entity is an individual process and will be determined by the founders (owners).
What are the rules?
The process of creating a legal entity is a set of rules and procedures that are regulated at the level of legislation.
Consider the main points of the procedure for the emergence of legal entities.
The founders of a legal entity may be:
- their original members and members;
- property owners or their authorized body (in the development of unitary companies and institutions);
- other persons making a material contribution to them, who then do not take a specific role in the work of the legal entity (they are founders).
Any legal entity (unlike an individual) appears as a result of the implementation of a number of legal instruments, consisting of the following steps.
Stages of formation of a legal entity:
- Making a decision to create an organization.
- State registration of the organization (Articles 51, 52 of the Civil Code of the Russian Federation).
Legal entities act as follows:
- the foundation of the legal entity is the Charter;
- based on a memorandum of association;
- based on federal law (state-owned companies).
How to register?
Legal entities are created at the request of their owners, but the state, in the interests of all parties involved, controls the legality of their creation.
Hence the need for mandatory state registration of organizations (paragraph 1 of article 51 of the Civil Code).
State registration of legal entities is a set of acts of the authorized state executive body that are carried out by entering information into the state register on the creation, transformation or elimination of these organizations.
A legal entity is considered created from the moment of its state registration (paragraph 8 of article 51 of the Civil Code of the Russian Federation). This procedure is carried out by the tax authorities in the manner prescribed by the Federal Law of August 8, 2001 N 129- “On State Registration of Legal Entities and Individual Entrepreneurs”.
State registration of a legal entity is carried out at the location:
- its permanent executive body;
- in the absence of a permanent executive body - another body or person authorized to act on behalf of the organization by law.
All changes in the status of a legal entity are also subject to state registration:
- composition of owners or participants;
- composition of organs;
- change in the subject of his work and activity, location, size of the criminal code, etc.
The documents that are provided for registration are fully listed in the law on state registration of legal entities.
Registration must be done within 5 business days from the time of submission of documents.
The refusal of state registration of a legal entity is possible only on the basis of non-submission of documents necessary for registration, or their submission to an inappropriate registration authority. There are no other grounds.
The decision to refuse state registration may be challenged in court.
Required documents
The answer to this question is presented in Art. 12 Federal Law No. 129.
The list includes:
- Application for registration of legal entities. Its form is officially approved;
- the minutes of the meeting of the founders or another document that contains a decision on the creation of the organization;
- one copy of the memorandum of association of the organization. Exception - cases when the organization is created with the usual charter;
- receipt of state duty payment. You can pay via Internet resources.
The foreign organizations - founders will need to provide proof of their status: an extract from the appropriate register of the country of origin or another such document.
If the documents are collected correctly, after 3 days the applicant will receive a charter and a document that confirms registration in the register in electronic form.
To register a legal entity, you must personally submit to the territorial tax authority or through the MFC the indicated package of documents. This can also be done remotely by sending a registered letter by mail or through the State Services portal.
Property and property
The property of legal entities is private property. It must be emphasized that the presence of a certain property is one of the important signs of the existence of a legal entity as a subject of law. However, the property does not always belong to the legal entity by right of ownership. It is possible to have property in the economic management or operational management of the organization (Article 48 of the Civil Code of the Russian Federation). Most legal entities are characterized by their participation in relations as the owner of property.
The emergence of ownership of a legal entity refers to the mandatory conditions for the formation of its role in civil circulation.
The founders (participants) of legal entities retain the possibility of claiming rights to it in relation to the organization’s property or do not have such rights at all.
The property of legal entities is governed by the general provisions of the law, which form the content of the right of ownership. The emergence of ownership of legal entities is provided with the grounds for its appearance and termination.
The procedure for direct management of the property of a legal entity is determined by its constituent documents.
Property limited in circulation may belong to an organization only with appropriate permission. A certain impact on objects that may belong to legal entities is manifested in the presence in some of them of special legal capacity.
Usually the quantity and value of a legal entity’s property is not limited in size.
The property of a business company or partnership consists of a management company and property formed by its founders (participants), which arises on other grounds (transactions, etc.).
Withdrawal of a shareholder from a joint-stock company is possible only by alienating shares to another owner or to a third party.
As a result, the value of the company's property is not underestimated. The property that remains after satisfying the conditions of the creditors is distributed among the participants in accordance with their shares.
Closing procedures
Procedures for the emergence and termination of legal entities are absolutely opposite to each other.
Depending on the legal consequences of the termination of the legal entity’s activities, there is a difference between the transformation or reorganization (the rights and obligations of the legal entity are transferred to another person) and liquidation (termination of the legal entity’s activities without transferring its rights and obligations to someone else).
Legal entity reorganization
The reorganization of a legal entity (association, accession, division, spin-off, transformation) may be carried out by decision of its owners (participants) or an authorized organization management body.
In situations that have been established by law, the reorganization of a legal entity in the form of its separation or the separation of one or several organizations from its structure is carried out by decision of authorized state bodies or by court order.
A legal entity is considered reorganized, except for cases of transformation in the form of a merger, from the moment a legal entity was created by state registration of newly emerged organizations.
In the event of a merger of organizations, the rights and obligations of all are transferred to the newly formed organization in accordance with the act of transfer.
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The liquidation commission shall place in the press, which publishes information on the state registration of the organization, publication of information on elimination, as well as the procedure and deadline for submitting claims by its creditors. This period cannot be more than two months from the date of publication of the liquidation data.
The liquidation commission takes constructive measures to identify creditors and collect receivables, and also informs creditors in writing about the procedure for eliminating a legal entity.
If the funds that are withheld during the liquidation of a legal entity (except institutions) are insufficient to satisfy the conditions of creditors, the commission sells the property of the organization at public auction in the manner that was established for the execution of court decisions.
Payment of amounts to creditors of a legal entity being liquidated is made by the liquidation commission in the order of priority, which was established by Art. 64 of the Civil Code of the Russian Federation.
After all settlements with creditors, the commission draws up a liquidation balance sheet approved by the founders (participants) of the legal entity. In cases that have been established by law, this balance is approved by agreement with the authorized municipal authority.
The liquidation of the organization is considered completed after making an entry in the register.
Conclusion
The procedures for the emergence and termination of legal entities are established by law in relation to different types of legal entities.