Many dream of starting their own business. Of course, in modern conditions this is not easy to do, but if you have a great idea and capital, you will only have to settle all the organizational issues. In what form to create a company, what has changed in the law, and whether the Federal Law “On Commercial Organizations” also exists, read about this in the article.
The concept
Legal entities (JL) - such companies that are created with the goal of profit (for example, the production and marketing of any products, things) or without it (training, development).
All persons according to the specified target are divided into two large blocks: commercial (for profit) and non-profit organizations (without such a goal (hereinafter - NPO)).
The modern market needs such forms of activity, since we have a market economy. In past Soviet times, with the command type of economy, these organizations were not needed, because everything was dictated by the state: what to eat, how to dress, where to study.
These institutions are independent persons who have property, are responsible for debts, and also participate in the turnover on their own behalf. They are created specifically by the participants, and even if the members exit, the legal entity continues to exist. This is a guarantee against loss of property.
The legal status of these organizations is widely regulated by the Civil Code of the Russian Federation. However, some researchers believe that it would be nice to publish a separate Federal Law “On Commercial Organizations” by analogy with NPOs.
Legislation: what's new?
The rapidly changing legal relations in the provision of services, the sale of goods require amendments to the legislative framework.
Currently, issues of the creation, activity, liquidation of organizations are regulated in addition to the Civil Code (Chapter 4) by the following federal laws:
- Federal Law (Federal Law) "On Non-Profit Organizations" of 1996 No. 7.
- “About LLC” 1998, No. 14.
- “On JSC” 1995 No. 208.
- On Public Law Companies 2016 No. 236.
- “On the procedure for the formation and expenditure of the target capital of NCOs” in 2006 No. 275.
- "On horticultural, vegetable garden and country non-profit associations of citizens" 1998, No. 66.
- "About SRO" in 2007 No. 315.
- “On Credit Cooperation”, 2009, No. 190.
- “On advocacy and advocacy” 2002
It is worth noting that some incorrectly refer to the law on NPOs - the Federal Law “On Non-Profit Public Organizations”. There is no such name; public organizations are one of the varieties of NPOs.
In 2014, the main changes touched on the paragraphs of the chapter four of the Civil Code:
- separation of legal entities (both commercial and non-commercial) into corporate and unitary;
- the concept of “obligation rights” has been replaced by “corporate rights”;
- the names of some forms of legal entities have changed: instead of a closed joint-stock company and a joint-stock company, now PAO (public) and NPAO (non-public); Homeowners' associations and country partnerships are partnerships of property owners; state corporation and company, additional liability companies, etc .;
- the category “public law company” was introduced; the 2016 law of the same name was adopted;
- Now the Civil Code of the Russian Federation describes in detail the procedure for creating a legal entity (decision-making and requirements for constituent documents);
- the charter may stipulate that the authority to act on behalf of the legal entity is granted to several persons who will act jointly or independently (to be included in the USRLE);
- Added article on affiliation (connectedness);
- Amendments to the provisions on the liquidation of persons.
From the above list of regulations it is clear that at present there is no separate federal law on commercial organizations. All provisions on them are regulated in sufficient detail in the Civil Code of the Russian Federation and other individual acts. Consequently, there is no latest version of the federal law on commercial organizations.
Theoretical lawyers in the formation of the doctrine of the development of legislation on legal entities note that the legal regulation of the status of these persons is characterized by a multiplicity of normative acts that do not fully comply with each other and the whole code. As we can see, most federal laws on the commercial activities of organizations (on LLCs, on joint-stock companies, on economic partnerships, etc.) are special in relation to the Civil Code, and at the same time they actively influence the implementation of the code. Sometimes some provisions are written several times in different documents, creating contradictions to each other.
Some scientists see that in order to eliminate competition of legal norms that have the same legal force, it is necessary to adopt the Civil Code as a federal constitutional law, while others see a way out in the adoption along with the Civil Code of the unified Federal Law "On Commercial Organizations."
Systematization
Currently, the classification of legal entities is carried out according to many criteria. Two main ones can be distinguished from them.
For the purpose of creating legal entities there are:
By management structure:
You can also systematize people by type of activity, responsibility, order of education, etc.
Corporations or unitary legal entities?
This is a relatively new classification of legal entities, until 2014 the law did not provide for this.
Corporations are legal entities where the founders have the right to participate in the organization and create the highest governing body. These include business associations, partnerships, partnerships, production and consumer cooperatives, Cossack societies, public organizations, associations, TSN, communities of small indigenous peoples.
Unitary - legal entities in which the founders do not have a similar right, respectively, do not acquire the right to membership.
Bright representatives of this class are unitary enterprises (municipal and state), non-profit autonomous organizations (ANOs), public law companies (PPK), religious organizations, foundations, and institutions.
The question of the appropriateness of such a separation of persons has repeatedly raised in the scientific community. Some believe that this is pointless, since the classification is interesting only for science, but of little use in practice.
Other scholars say that such a systematization makes it possible to unify the structure of their management and uniformly regulate relations within corporations. At the same time, many note that in practice the question of the procedure for appealing against decisions of governing bodies in unitary organizations remains unresolved.
Commercial organizations
The main goal of creating these enterprises is to profit. They can operate in almost any field: the sale of services (domestic, legal, beauty salons, car repair shops, etc.), the production and sale of goods (farms, factories, factories, etc.).
Now the legal status of these organizations is fully regulated by the Civil Code of the Russian Federation. If we turn to history, we will see that since 1990, i.e. Since the inception of the market economy, a separate Law of the RSFSR in the field of enterprises and entrepreneurial activity No. 445-1 has been in force. He was replaced by articles of the first part of the Civil Code and the Federal Law "On Non-Commercial Organizations", while a separate Federal Law "On Commercial Organizations" was not adopted.
Currently, these organizations are created in the following forms:
Corporate:
- households companies (LLC, JSC);
- households partnerships;
- peasant farms;
- households partnerships;
- PC (production cooperatives).
Unitary:
- unitary enterprises: state / municipal.
As mentioned above, some theoretical lawyers believe that a separate federal law on commercial organizations should be issued. It would combine the detailed decoding of all forms that are scattered according to individual laws, as well as the procedure for the formation, restructuring and liquidation, issues of responsibility.
It is also worth noting that all legal entities, including commercial organizations, under 44- that regulates procurement for the needs of state bodies or municipalities, can act as suppliers without having any tax arrears, affiliation with the customer, not being an offshore company .
NCO Forms
Since there are much more types of NPOs than commercial organizations, the legislator separately regulated their activities in the same law. Art. 3 of the Federal Law "On Non-Profit Organizations" determines their legal status. An NPO has been created from the moment of state registration, it must have property on the basis of ownership or operational management, it is responsible for it according to its debts, acquires, implements powers on its own behalf, can act in court as a plaintiff or defendant, bears responsibilities.
NPO can open accounts, have seals and stamps, symbols. 24 tbsp. The Federal Law "On Non-Profit Organizations" says that they can engage in income-generating activities within the framework of the purposes for which they were created, and if provided for by their charters.
These organizations have the following forms:
Corporate:
- consumer cooperatives (housing, housing cooperatives, housing cooperatives, utility companies, gardening and summer cottages, insurance companies, credit, agricultural, rental funds) - to address material and other needs;
- public organizations (NGOs) and movements (political parties, trade unions, amateur initiative, CBT) - to satisfy spiritual and other intangible needs;
- Association (SRO, non-profit partnerships, unions of trade unions, employers, cooperatives and public associations, CCI) - to protect professional and other interests, solve socially useful tasks;
- partnership of real estate owners (TSN), including the HOA - for joint ownership, use, disposal of common property;
- Cossack societies indicated in the State Register - to support the lifestyle of a given people and culture;
- communities of small indigenous peoples of the Russian Federation - to maintain an established lifestyle, culture;
- chambers of law;
- legal education - to provide legal assistance to the population;
- notarial chambers - to protect the interests of notaries.
Unitary:
- funds - for solving charitable, social, educational and other socially useful tasks;
- institutions (state, municipal, private) - for the implementation of management, socio-cultural functions;
- ANO - for the provision of services in the field of medicine, culture, education, etc .;
- Religious organizations - for collective worship;
- PPC;
- state corporations and companies.
Public Law Companies
Along with state-owned companies and corporations, a new form of NPO was introduced - PPK. In 2016, a law with the corresponding name was adopted.
Whether there is a difference between these species and what is the peculiarity, we will understand this now.
To begin with, it is worth mentioning the goals of creating software, they can be:
- public policy;
- state property management;
- provision of public services;
- modernization and innovative development of the economy;
- implementation of control and management functions, powers;
- implementation of especially important state projects and programs.
As you can see, the PPK is formed in the interests of the state and society and is vested with relevant rights. The order and timing of achieving goals are prescribed in the strategy of its development.
It is created on the basis of the Federal Law / Presidential Decree. It can also be formed by reorganization of AOs, state companies, state corporations, the sole founder of which is the Russian Federation.
The main document is the charter. The main objective of the PPK is a more effective participation of the state in those areas where it is necessary to tighten control over the use of state property.
In companies, the internal control system should be debugged and an internal audit service should be created. Once a year, the PPC must send a report to the highest authorities: the President of the Russian Federation, the Government of the Russian Federation, the Federal Assembly of the Russian Federation, the Public and Audit Chambers of the Russian Federation
In 2017, one such PPP was created - the Fund for the Protection of Citizens' Rights in the field of shared construction.
At the same time, independent observers, experts in the field of jurisprudence do not see much difference between the legal status of three forms: state-owned companies, state corporations and PPK. The difference is that the first two were created only on the basis of the Federal Law, and the PPC can be formed on the basis of the decree of the President himself. Some call the management scheme for these organizations as “state-owned LLC”: the same governing bodies, only more audits have been added.
Separate nuances of the legislation on NPOs
The Federal Law on the Activities of Non-Profit Organizations provides in detail the procedure for the formation, reorganization and termination of activities of these structures.
Sources of property formation can be:
- contributions of founders (members);
- voluntary donations;
- revenue
- dividends from securities and deposits;
- income from their property;
- other contributions not prohibited by law.
Acts may establish restrictions on the sources of income of NPOs (for example, for institutions).
Revenues are not shared among NPO members - this is one of the components of the difference from the activities of commercial organizations.
Art. 32 of the Federal Law "On Non-Profit Organizations" established control over the activities of NPOs. Particular attention is paid to the reporting of organizations performing the functions of foreign agents, as well as receiving finances and property from foreign sources: their annual reporting is subject to audit (1 time per year), they must provide the authorized body with a detailed report on the activities and structure of management (1 time every six months) ), on spending money and other property (quarterly).
Institutions (state and municipal) for the purpose of transparency and accessibility of information (except for state secrets) should post constituent documents, an activity plan, assignment, reporting, budget estimates, etc. on the Internet.
In general, the supervision of the activities of NPOs is carried out taking into account the provisions of the Federal Law No. 294, which regulates relations in the field of state supervision and municipal control, the rights of legal entities in this area.
NGO support
Article 31.1 of the Federal Law “On Non-Profit Organizations” provides for the support of socially oriented NPOs by state authorities and local self-government in carrying out the following activities:
- assistance to victims of disasters, catastrophes, including preparing the population to overcome them, interethnic and other conflicts;
- in the social sphere: support, service, protection of citizens;
- legal assistance free of charge or on preferential terms, legal education;
- animal welfare; environmental protection;
- charity, volunteering;
- protection and maintenance of cultural objects, historical sites, burial places;
- in the field of health care, education, science, sports, art, culture;
- prevention of antisocial behavior of citizens;
- prospecting works (unknown burials of the defenders of the Fatherland);
- perpetuation of the memory of victims of political repression;
- in the field of education of citizens in the spirit of patriotism;
- anti-corruption propaganda;
- protection of identity, culture, development of interethnic cooperation;
- adaptation and integration of migrants (social and cultural);
- rehabilitation (medical, social, labor) of people who used drugs and psychotropic substances.
- fire prevention and / or extinguishing and rescue operations;
- increase mobility of labor resources.
This list is not exhaustive; it can be supplemented by local authorities with other types aimed at solving social problems and developing civil society.
So, what is the right to count on the above enterprises?
Article 31.1 of the Federal Law "On Non-Profit Organizations" establishes the following support measures:
- financial aid;
- provision of property, information (placement in the media for free), advice;
- training and further education of workers and volunteers;
- tax benefits (including for legal entities that provide material assistance to socially oriented NGOs);
- , , ( ).
.
Responsibility
. , .
( ) , ( ).
– ( . ), . , .
Thus, developing market relations require new forms of entrepreneurial activity, which should be correctly and gently introduced by the legislator into the usual circulation. Whatever the chosen form for the implementation of ideas, the goals of creation and activity must always comply with the law. Recently, the founders of NPOs have been sinning by this, making the main task of the business profit-making, rather than satisfying any intangible needs of society, as prescribed by regulatory acts.