What are business entities. Individual entrepreneurs as subjects of entrepreneurial law Subjects of entrepreneurial activity taking part in production

Entrepreneurial business: subjects and forms

Business entities.

Business entities in the Russian Federation.

Organizational and legal forms of entrepreneurship in Russia.

1. Business entities

Business entity Is an active party to any transaction, the bearer of the rights and obligations arising during the preparation and implementation of the transaction.

Business entities, guided by business interests, can engage in any type and type of business activity not prohibited by law.

The activities of business entities are extraterritorial, that is, no differences in the legislation of states can cancel the ability of business entities to enter into business relations.

Under business entity the functional affiliation of a given subject and the functional specialization of his activities are understood.

On the basis of functional specialization, business entities are subdivided:

Entrepreneurs who carry out proactive activities at their own risk and under their individual economic and legal responsibility (collectives of entrepreneurs, entrepreneurial associations);

Workers carry out labor activities for hire, as well as trade unions;

Individual and collective consumers of products;

State and municipal authorities and administration are business entities in cases where they are directly involved in the transaction, as well as government officials.

2. Subjects of entrepreneurial activity in the Russian Federation

Entrepreneurial activity is carried out in two forms:

1) individual, i.e. individual entrepreneurs

2) by creating an organization, when other persons are involved, i.e. entity.

Thus, the subjects of entrepreneurial activity in the Russian Federation: citizens-entrepreneurs and legal entities.

Citizens have the right to engage in entrepreneurial activity from the moment of state registration, they have the right to choose any type of activity that is not prohibited by law.

In some cases, a license or permit is required to run an individual business.

Individual entrepreneurs are individuals who conduct business at their own expense and are personally involved in management, they are also responsible for the obligations of all property belonging to him, thus, the entire risk is assigned to him.

Means of individualization of citizens - entrepreneurs:

2) Place of residence, which is determined by the place of permanent or primary residence on the basis of registration.

The acquisition of rights and obligations on behalf of another person is prohibited.

Legal requirements for running an individual business:

1) Registration requirement

2) Obtaining a license (permission for a specific type of activity)

3) Submission of declaration and tax documentation on the state of income and turnover for the payment of taxes.

4) Compliance with tax laws on the hiring of third parties.

5) Compliance with laws or regulations for a particular type of activity, which may restrict it or serve as a control.

Individual entrepreneurship has a number of positive aspects:

The client often knows the entrepreneur personally. Consequently, the entrepreneur can quickly respond to changes in consumer tastes.

Flexibility and the ability to make quick decisions, because no interference from partners.

The existence of a psychological incentive for strenuous work.

Cons of individual entrepreneurship:

1) Limited financial resources.

2) Limited scale of business.

3) The impossibility of large supplies and the development of large-scale production.

4) Limited human abilities and problems with the use of leave and sick leave.

Civil Code of the Russian Federation says: entity- an organization that has a separate property in its ownership, economic management and operational management and is responsible for its obligations with this property, can, on its own behalf, acquire and exercise property and personal non-property rights, bear obligations, be a plaintiff or defendant in court.

Signs of a legal entity:

1) Organizational unity is an agreed structure and the presence of governing bodies.

2) Property isolation, i.e. a legal entity is assigned property on the basis of various rights.

3) Legal entities have an independent balance sheet or estimate.

4) Ability to bring claims and act as a defendant in court on your own behalf.

5) Independent property liability presupposes that a legal entity is liable for its obligations with all property belonging to it.

Legal entities differ in a number of ways:

1) According to the form of ownership, legal entities can be private and state

2) By the nature of the raw materials consumed:

a) enterprises of the extractive industry

b) processing industry enterprises

3) Depending on the size:

a) large

b) medium

Also, legal entities differ by industry and type of main activity, etc.

In accordance with the Civil Code of the Russian Federation, legal entities are classified:

1. Depending on what rights the founders (participants) retain in relation to legal entities or their property

1.1. Legal entities in respect of which their participants have rights of obligation (business partnerships and companies, production and consumer cooperatives)

1.2. Legal entities to the property of which their founders have the right of ownership (state municipal unitary enterprises)

1.3. Legal entities in respect of which their founders do not have any property rights (religious and public funds, charitable organizations)

2. Depending on the goals of its activity, any legal entity belongs to one of two categories:

2.1. Commercial, pursue profit-making as the main goal of their activities.

2.2. Non-commercial, which pursue other goals.

3. by organizational and legal form: (see clause 3)

3. Organizational and legal forms of entrepreneurship in the Russian Federation

Business partnerships and companies

Full partnerships

Institutions

Organizational and legal forms of entrepreneurship

Religious and public organizations

On the right of operational management

Limited liability companies

Additional liability company

According to the Civil Code, business partnerships and companies are considered to be commercial organizations with authorized (joint-stock) capital divided into shares (contributions) of founders (participants). Business partnerships and companies have similar features:

The property created at the expense of the participants' contributions, as well as acquired or produced in the course of activity, belongs to these enterprises by right of ownership.

Business partnerships and companies as legal entities can be participants in other partnerships and companies.

The founders have a binding right in relation to the company.

Partnership - it is an association of persons who are engaged in entrepreneurial activity; only individual entrepreneurs or commercial organizations can participate in them.

Complete a partnership is recognized, the participants of which (general partners), in accordance with the concluded agreement, are engaged in entrepreneurial activities on behalf of the partnership and are responsible for their obligations with property belonging to them.

The firm name of a full partnership must contain the names (names) of all its participants and the words "full partnership".

A general partnership is created and operates on the basis of a memorandum of association signed by all participants; management is carried out by common agreement, each participant has one vote, unless otherwise provided by the agreement.

Features of a full partnership:

The entrepreneurial activity of its participants is recognized as the activity of the partnership itself as a legal entity.

In the event of a lack of property of the partnership to pay off debts, creditors have the right to demand their coverage from the personal property of any of the participants.

Any of the participants is engaged in entrepreneurial activities on behalf of the partnership as a whole, therefore, a charter establishing the competence of the governing bodies is not required.

Limited partnership consists of two groups of members: full members and contributors. The activities of general partners are carried out in the same way as in a full partnership.

Investors only make contributions to the property of the partnership, but are not liable for obligations with personal property. By attracting depositors, it becomes possible to obtain additional funds not at the expense of the property of general partners.

Investors are not entitled to participate in the management of a limited partnership and to act on its behalf. Investors have the right to receive a part of the profit in accordance with the contributed share. The depositor has the right to transfer his share to a third party, while the consent of the partners is not required.

Business companies.

Limited Liability Company an institution with one or more persons is recognized. A company, the authorized capital of which is divided into shares in the amount determined by the constituent documents. Members of a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company within the amount of their contributions. The constituent documents of the LLC are: the constituent agreement signed by the founders, the charter; the supreme body is the general meeting of participants.

Features of LLC:

It is a kind of pooling of capital, which does not require the mandatory personal participation of its members in economic activities.

The law determines the minimum size of the authorized capital, thus providing certain guarantees of creditors.

Additional liability company differs from LLC only in that if the property of the company is insufficient to satisfy the claims of creditors, the participants can be brought to administrative responsibility, and jointly and severally.

Joint-stock company a company is recognized, the authorized capital of which is divided into a certain number of shares. Shareholders are not liable for the obligations of the joint stock company, but bear the risk of losses within the limits of the value of their shares.

When organizing the authorized capital, full equality of shares is preserved, with their obligatory registration with shares. The shareholder cannot demand any payments upon withdrawal, since it can be done only by one way of selling (or otherwise transferring) one's shares to another person.

Organization of authorized capital with the help of securities makes it possible to concentrate large capital, as well as quickly alienate and acquire shares. However, with this form of organization of enterprises, abuse often occurs.

The main difference between open joint-stock companies is that its members can alienate their shares without the consent of other shareholders. Whereas in a CJSC, shareholders have the preemptive right to purchase shares sold by other shareholders of this company. In addition, in an OJSC, upon creation, it is necessary to conduct an open subscription to the issued shares and their free sale. To control the activities of the OJSC, it is obliged to annually publish in the mass media an annual report, balance sheet, profit and loss account.

A JSC, upon establishment, distributes shares only among the founders, or a predetermined circle of persons.

The Civil Code includes subsidiaries and dependent companies.

A subsidiary is recognized as such if the other main economic company, due to the prevailing participation in its authorized capital, or otherwise, has the ability to influence the decisions made by such a company. The subsidiary is not liable for the obligations of the parent company. At the same time, the parent company is jointly and severally liable for transactions entered into by the subsidiary in the execution of its order.

A dependent business entity is recognized as such if the other, dominant or participating company, has more than 20% of voting shares or 20% of the authorized capital of the LLC.

Production cooperatives or artels - these are voluntary associations of citizens for joint economic activities based on their personal labor and other participation. The capital of a production cooperative is formed by combining the property shares of the participants in the cooperative. The constituent document is the charter. The number of members of the cooperative must be at least five. The profit of the cooperative is divided among its members in accordance with labor participation, unless a different procedure is provided for by the charter. The supreme governing body is the general meeting of the members of the cooperative. Each member of the cooperative has one vote. When leaving the cooperative, the participant must be paid the value of the share or transferred the corresponding property.

A production cooperative is based on a voluntary association of individuals who are not individual entrepreneurs.

State and municipal unitary enterprises stand in a special row among commercial enterprises.

A unitary enterprise is a commercial organization not endowed with property rights, property not assigned to it.

The charter of a unitary enterprise, in addition to general information, information about the purpose and subject of activity, must contain information on the size of the authorized capital, the procedure and sources of its formation, i.e. information about the owners.

Features of unitary enterprises:

The management is based on the principle of unitarity, in contrast to other commercial enterprises, which are based on the principle of corporation. The principle of unitarity is that the founder is considered the owner of the property.

The property of a unitary enterprise is indivisible, and under no circumstances can it be divided according to salaries, shares, shares, even between employees.

The property of a unitary enterprise is assigned to a limited right: economic management or operational management.

The manager is appointed by the owner, to whom he is accountable.

The right of economic management is broader than the right of operational management, i.e. the enterprises of the first group have greater independence in management. They bear independent property responsibility for their debts, and the founders are not responsible for their obligations, except for cases when the founder himself is to blame for the bankruptcy.

In case of insolvency of enterprises based on the right of operational management (state-owned), the Russian Federation bears subsidiary liability for obligations in case of insufficient property of the enterprise. Thus, such an enterprise, in principle, cannot be bankrupt.

Non-profit organizations.

Associations of legal entities are created by commercial organizations in order to coordinate entrepreneurial activities, as well as represent and protect common property interests.

Associations of legal entities include:

1) Holdings.

2) Financial and industrial groups.

3) Intersectoral and regional business unions (associations).

The organization and activity of associations of enterprises of any form is based on the following principles:

Voluntary association based on common economic interests.

Equality of participants in joint activities.

The freedom to choose the organizational form of the association.

Self-government of participants and associations as a whole.

Organization of relations on a contractual basis.

Legal entities that are part of the association retain the independence and rights of a legal entity, the governing bodies of the association are not replaced by administrative power in relation to the enterprises that are part of the association, they perform their functions on the basis of contracts.

holding Is a joint-stock organization that uses its capital to acquire shares in other companies. The holding's assets include controlling stakes in subsidiaries. At the same time, subsidiaries cannot own shares in the holding.

The holding system includes subsidiaries or grandchildren in the parent or parent company. At the same time, the parent company has a small percentage of shares in subsidiaries and can effectively control their activities.

The positive aspects of the activity are due to the following capabilities of the holding structure:

Using the opportunities provided by the increased size of production and distribution

High efficiency in the international movement of capital

Amortization of negative impacts of the state on enterprises.

Financial and industrial groups offer 3 options for education:

1) On the basis of a contractual association of private legal entities.

2) By decision of the government, with the participation of state-owned enterprises.

3) By intergovernmental agreement.

Distinctive features of FIG (financial and industrial group):

The core of the group is a financial company.

Often based on the structure of a trading house.

The participation of industrial enterprises and various sectors of the economy plays an important role.

Financial industrial groups include 3 types of organization:

Trading (trading houses; wholesalers; retail stores, as well as intermediary and transport organizations)

Financial institutions (commercial banks; state banks; pension funds; insurance and investment companies)

Industrial enterprises

Benefits of FIG:

1) Possibility of effective interaction between financial and industrial capital.

2) Unified pricing policy.

3) Development of production cooperation processes.

Flaw: the possibility of market monopolization.

Business unions Are groups of independent companies linked by common goals. An entrepreneurial union is characterized by the fact that participation in a union does not exclude participation in other types of associations; within the framework of the union, long-term relations are established between the participants. More often, entrepreneurial unions are created by companies that are engaged in similar activities. However, it is possible to create large associations representing entrepreneurs in general.

A business entity is any person whose activities are directly or indirectly aimed at obtaining business income and whose legal status is governed by business law.

There are the following groups of business entities:

1) main: commercial organizations (business partnerships and companies, production cooperatives, state and municipal, unitary enterprises) and individual entrepreneurs. The purpose of the activities of non-profit organizations is to conduct non-economic activities that are not aimed at making a profit. To achieve their goals, they can engage in business, but the legal personality of such persons is strictly limited.

Individual entrepreneurs in terms of state regulation of activities, registration procedure are largely subject to the same rules as commercial organizations. Also, their role is similar in terms of pooling and using capital and using other types of material resources. Business entities include citizens who, without registration, provide services, produce goods, use their property independently and on an ongoing basis in order to generate income. In the event of a dispute, the court will consider such citizens as a business entity and apply the rules on obligations related to the implementation of business activities.

2) other subjects of entrepreneurial activity:

Branches

· Representative offices

and other structural divisions of commercial organizations.

Branches as separate subdivisions perform part of the functions or all functions of a commercial organization at their location, therefore the results of their activities and efficiency are assessed both consolidated and separately from other subdivisions. Representative offices represent and protect the interests of a commercial organization outside the location of its governing bodies. The very fact of opening a representative office testifies to the constancy and long-term interests of the organization in the location of the representative office.

Industrial economic complexes (financial and industrial groups, holdings), simple partnerships and other associations that do not have the status of a legal entity. Business associations occupy a special place among business entities, because they ensure the concentration of capital and its use in some interests through the conclusion of a civil contract or through the predominant part of one person in the capital of others. In this case, relations of economic control, subordination and subordination arise between external and dependent legal entities.

3) persons who are part of the market infrastructure and create political, legal, organizational conditions for the functioning of the economy: commodity stock exchanges, non-state pension funds, authorities and local governments, etc.

Legitimation of entrepreneurial activity

The legal conditions for doing business are essentially restrictions.

These include:

1) whether a citizen or a commercial organization has civil legal personality. Legal personality - consists of the legal capacity of a citizen and legal capacity.

2) state registration of business entities. The requirement for state registration applies to both the organization and the citizen. State registration is necessary to keep records of entrepreneurs and ensure the rights and interests of their creditors.

The procedure for registering a legal entity is regulated by the Federal Law on state registration of legal entities, as well as the Federal Law on limited liability companies, joint-stock companies, and the civil code. When a commercial organization is created, state registration is carried out at the location of the permanent executive body of the commercial organization on the basis of a decision on the creation of constituent documents and an application for registration. State registration is carried out within a period not exceeding 5 days from the date of submission of these documents, plus a receipt for payment of the state duty.

The law provides for the possibility of a court decision on the recognition of registration as illegal and invalid.

Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 9, 2000 No. 54 about the transactions of a legal entity whose registration was recognized by the court as invalid.

There are cases when a condition for the registration of commercial organizations is the consent of the federal antimonopoly body or its subsequent notifications.

3) obtaining a special permit for certain types of activities (licensing). A license is a permit for an entrepreneur to carry out a certain type of activity on the terms specified in a formally defined document. Licensing is understood as the activity of the state represented by licensing authorities to issue, suspend or revoke special permits to supervise compliance with their conditions. some of the activities subject to licensing are contained in Art. 17 of the Licensing Law. The list of licensed activities is changing dynamically, therefore the law sets out general principles and requirements for the licensing procedure.

The main principles of licensing are:

Ensuring the unity of the economic space on the territory of the Russian Federation

Establishment of a unified list of licensed types of activities

Openness and publicity of licensing

Implementation of legality in the implementation of licensing

· The establishment of licensing requirements and conditions by provisions on the licensing of specific types of activities.

The license is issued for a period of 5 years. In the event of repeated violations of the terms and conditions, the licensing authority may suspend the licenses. Cancellation of a license is carried out in court on the basis of an appeal by the licensing authority if the licensee has not eliminated the violation within the prescribed period (up to 6 months), as well as if the licensee's violation of license requirements and conditions entailed damage to the rights, legitimate interests, health of citizens, and the country's defense and the security of the state.

The responsibility of the entrepreneur for the improper exercise of his rights and the performance of duties.

The basis of the entrepreneur's liability is the presence of a set of legal facts, which constitutes the composition of the offense and includes the unlawfulness of the entrepreneur's behavior, violation of public interests in the form of legal requirements or the legal rights and interests of individuals, a causal link between the unlawfulness of behavior and violation of the legal rights of private individuals; guilt of offenders.

There are several common essential features of the concept of responsibility in the entrepreneurial sphere:

· The application of measures of responsibility is always coercive.

Coercion is expressed mainly in the norms of law established by the state

Liability is always accompanied by a property sanction

Liability measures can be divided into 2 groups:

1) property sanctions

2) sanctions in the form of restriction or termination of the entrepreneur's right of subjectivity, although this indirectly affects property interests

Not all sanctions in business law are legal liability measures. For example: withdrawal of property from someone else's illegal possession or reimbursement by the seller to the buyer of his expenses for the elimination of deficiencies.

Responsibility in the field of entrepreneurship is a set of measures of state coercion provided for by the norms of law and entailing negative consequences for an entrepreneur in the form of deprivation of rights and property as a result of violation of the right to order or the legal rights and interests of other persons in the course of business.

As a result of mastering this chapter, the student must:

know

subjects and objects of entrepreneurship;
what qualities a modern entrepreneur should have;
organizational and legal forms of legal entities;

be able to

organize entrepreneurial activity without forming a legal entity;
choose the right legal form when organizing entrepreneurial activity;
use regulatory documents in their professional activities, comply with the current legislation governing the organizational and legal forms of legal entities;

own

Competence for choosing the type of activity when organizing your own enterprise.

Individuals and legal entities as subjects of entrepreneurial activity

Subjects of entrepreneurial activity are individuals and legal entities that carry out independent activities related to a certain risk in order to make a profit. All of them are entrepreneurs and enter into complex economic relations with other subjects: the state, consumers, employees. In this case, "entrepreneurs" should be considered both individual and collective entrepreneurs, i.e. business organizations.

In the modern sense, an entrepreneur is a person who carries out entrepreneurial activity, the right to which is enshrined in Art. 34 of the Constitution of the Russian Federation.

The subjects of entrepreneurial activity can be: citizens of Russia, foreign citizens, stateless leaders and associations of citizens.

In accordance with the current legislation, entrepreneurs have rights and obligations (Table 2.1). The rights of entrepreneurs, as a rule, are regulated by legislation and business customs.

In accordance with Art. 5 of the Civil Code of the Russian Federation under the custom of business turnover is recognized the prevailing and widely used rule of conduct in any area of entrepreneurial activity, which is not provided for by law, regardless of whether it is recorded in any document.

Table 2.1

The rights and obligations of entrepreneurs

Entrepreneurs' rights	Obligations of entrepreneurs
Engage in entrepreneurial and any other activity not prohibited by law	Register (re-register) with the tax authority and register with the authorized bodies of state off-budget social funds within the established time frame
Create legal entities independently or jointly with other citizens and legal entities	Independently fulfill obligations to pay taxes and other mandatory payments and fees within the time frame and in the amount established by law
Create your own business in any organizational and legal form	Timely submit to the tax authority a declaration of income, other documents and information necessary for the calculation and payment of taxes and other mandatory payments
Own (business) any property necessary for carrying out entrepreneurial activity	Maintain accounting records, draw up reports on financial and economic activities in accordance with legislation and regulations, ensuring their safety for four years
Make any transactions that do not contradict the law and participate in obligations	Introduce corrections to the financial statements in the amount of hidden or underestimated income (profit) revealed by audits of tax authorities
Independently plan your activities, develop a business plan and carry out other forms and types of planning	Fulfill the requirements of the tax authority to eliminate the identified violations of tax legislation
Independently choose consumers of products, suppliers of all factors of production, conclude business contracts in accordance with the legislation	Fulfill other tax obligations in accordance with the PC RF
Engage workers in labor activities by concluding agreements of a civil nature with them, labor agreements (contracts) in accordance with labor legislation	In accordance with the established procedure, obtain licenses for those types of activities, the implementation of which is possible only with a license in accordance with the Federal Law of May 4, 2011 No. 99-FZ "On licensing certain types of activities"
Independently establish the forms and systems of remuneration of employees, forms of material incentives that do not contradict labor legislation, establish additional holidays for employees, etc.	To manufacture products, perform work, provide services in accordance with applicable standards and (or) certificates
Establish additional vacations for employees	Do not harm the environment, life and health of the population and consumers of goods (works and services) by their activities
Engage in foreign economic, foreign trade activities in accordance with the established procedure	Create the necessary sanitary and hygienic and safe working conditions for employees
Open accounts in any banks	Provide statistical reports on the results of economic and financial activities to the state authorities on time and in full.
Use financial and credit, property and material and other forms of state support in accordance with applicable law	In accordance with the established procedure, keep records of income and expenses, costs of production and sale of goods (works, services)
Receive a government order for the manufacture of products, performance of work and provision of services	Conclude transactions, conclude and execute business contracts in accordance with civil law, etc.
Have other property and personal non-property rights

Entrepreneurs as taxpayers have the following rights (Article 21 of the Tax Code of the Russian Federation):

receive from the tax authorities at the place of registration free information about applicable taxes and fees, legislation on taxes and fees;
written explanations on the application of legislation on taxes and fees;
use tax benefits if there are grounds and in the manner prescribed by the legislation on taxes and fees;
receive a deferral, installment plan, tax credit or investment tax credit in accordance with the established procedure;
to timely offset or refund the amounts of overpaid or overly collected taxes;
require tax officials to comply with the legislation on taxes and fees;
not to comply with unlawful acts and requirements of tax authorities and their officials, ns corresponding to tax legislation;
to appeal in accordance with the established procedure the decisions of tax authorities and actions (inaction) of their officials;
require compliance with tax secrets;
demand, in accordance with the established procedure, full compensation for losses caused by illegal decisions of tax authorities or illegal actions (inaction) of their officials.

In accordance with the Civil Code of the Russian Federation, civil rights and obligations of entrepreneurs arise in the event of:

the conclusion of contracts and other transactions provided for by law, as well as when concluding contracts and other transactions, although not provided for by law, but not contrary to it;
the signing of acts by state bodies and local self-government bodies, which are provided by law as the emergence of civil rights and obligations;
a judgment establishing civil rights and obligations;
acquisition of property on the grounds permitted by law;
creation of works of science, literature, art, inventions and other results of intellectual activity;
causing harm to another person;
unjustified enrichment;
other actions of citizens and legal entities;
events with which the law or other legal act connects the onset of civil consequences.

Carrying out entrepreneurial activity is the realization of the most important right of its participants - the right of ownership to own property, which allows the owner-owners to determine the content and directions of use of their property, including the right to sell. Ownership involves the possession, use and disposal of one's own property.

Individuals as individual entrepreneurs, along with the above, have the following rights:

be participants in general partnerships and general partners in limited partnerships;
to be the executive bodies (sole proprietorship) of a joint-stock company (under an agreement with a joint-stock company);
be in accordance with the established procedure an arbitration manager (internal, external, bankruptcy);
act on the organized securities market as a broker;
engage in audit activities.

Individual Is a citizen who is engaged in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur.

In accordance with Art. 80 of the Constitution of the Russian Federation, a citizen of the Russian Federation can independently exercise their rights and obligations in full only from the age of 18. Consequently, legal capacity from a legal point of view to engage in entrepreneurial activity is acquired by individuals who have reached 18 years of age by the time of state registration of their business.

Thus, an individual who has reached the age of 18 has the right to engage in entrepreneurial activity in the manner prescribed by law alone, without accepting the status of a legal entity, or to create legal entities. To engage in certain types of entrepreneurial activity, a citizen must have a secondary or higher education and certain professional skills, i.e. experience gained earlier over a period of time. To engage in certain types of activities, a citizen must have a document confirming the required level of physical health.

In accordance with civil legislation, certain categories of capable citizens are not allowed to engage in entrepreneurial activity. These include: officials of government and government bodies, military personnel, employees of power ministries and services, employees of tax authorities and other categories of citizens.

In accordance with Art. 9 of the Federal Law of March 22, 1991 No. 948-1 (as amended on July 26, 2006) "On Competition and Restriction of Monopolistic Activities in the Commodity Markets", officials of state authorities and state administration are prohibited from:

engage in independent business activities;
own an enterprise;
vote independently or through a representative by means of their shares, deposits, shares, shares when making decisions by the general meeting of an economic entity;
hold positions in the management bodies of an economic entity.

In accordance with the Civil Code of the Russian Federation, legal capacity may be limited for citizens registered in connection with the use of drugs and alcohol.

Thus, capable persons can engage in individual entrepreneurial activities in the manner prescribed by law without creating a legal entity, as well as for this purpose to establish legal entities independently or with other citizens and legal entities.

To engage in entrepreneurial activity without forming a legal entity, a citizen in the prescribed manner must undergo state registration and obtain a certificate of an individual entrepreneur.

The certificate of state registration of an entrepreneur is the main document confirming his rights and obligations, presented at the request of officials of tax and other authorized executive bodies. State registration data are included in the unified state register of individual entrepreneurs (USRIP).

Entity Is an enterprise (organization, institution) that acts as a single independent bearer of civil rights corresponding to the objectives of the activity provided for in the constituent documents, and bears the obligations associated with this activity.

In accordance with Art. 48 of the Civil Code of the Russian Federation, a legal entity is an organization that:

owns, economically or operatively, a separate property and is responsible for its obligations with this property;
may, on its own behalf, acquire and exercise property and personal non-property rights;
bears responsibilities;
acts as a plaintiff and defendant in court;
has an independent balance sheet or estimate.

Legal entities in respect of which their participants have rights of obligation include business partnerships and companies, production and consumer cooperatives.

Legal entities, to whose property their founders have the right of ownership or other property rights, include state and municipal unitary enterprises, as well as institutions.

Legal entities in respect of which their founders do not have property rights include public and religious organizations, charitable and other foundations, associations of legal entities (associations and unions).

A legal entity is subject to state registration in the manner prescribed by law. State registration data are included in the unified state register of legal entities (USRLE), which is open to the public.

A legal entity possesses legal capacity, which arises at the time of its creation and terminates at the time of making an entry on its exclusion from the unified state register of legal entities.

A legal entity can engage in certain types of activities, the list of which is determined by law, only on the basis of a special permit (license). The right of a legal entity to carry out activities for which it is necessary to obtain a license arises from the moment of obtaining such a license or within the period specified in it and terminates upon the expiration of its validity, unless otherwise provided by law or other legal acts (Article 49 of the Civil Code of the Russian Federation).

A legal entity must have a name containing an indication of the nature of its activities and its organizational and legal form. Depending on the organizational and legal form, legal entities act on the basis of the charter, or the articles of association and articles of association, or only the articles of association.

The location of a legal entity is determined by the place of its state registration, which is carried out at the location of its permanent executive body, and in the absence of such, another body or person acting on behalf of the legal entity. The name and location of a legal entity must be indicated in its constituent documents.

In accordance with Art. 50 of the Civil Code of the Russian Federation, legal entities are divided into two types: commercial and non-commercial organizations.

Commercial is an organization whose main goal is to make a profit from its activities. In accordance with the procedure established by law and constituent documents, a commercial organization distributes the net profit between the founders (participants).

Commercial organizations, with the exception of unitary enterprises, may have civil rights and obligations necessary to carry out any activities not prohibited by law.

In accordance with the law, all commercial organizations (except for a state-owned enterprise) can be considered entrepreneurial. Commercial organizations can be created in the form of business partnerships and societies, production cooperatives, state and municipal unitary enterprises.

A legal entity that is a commercial organization must have a firm name, subject to the registration of which it receives the exclusive right to use it.

Non-profit is an organization that does not aim to make a profit and, accordingly, does not distribute the received profit among the participants (founders). Non-profit organizations can carry out entrepreneurial activities only insofar as it serves to achieve the goals for which they were created, and is consistent with these goals.

Legal entities that are non-profit organizations can be created in the form of consumer cooperatives, public or religious organizations (associations), institutions, autonomous non-profit organizations, social, charitable and other foundations, associations and unions, as well as in other forms provided by law.

Non-profit organizations are created:

to achieve social, charitable, cultural, educational, scientific and managerial goals;
protection of the health of citizens;
development of physical culture and sports;
satisfaction of spiritual and other non-material needs of citizens;
protection of the rights, legitimate interests of citizens and organizations;
settlement of disputes and conflicts;
providing legal assistance;
achievement of public goods, etc.

Legal organizations can create branches and representative offices that are not legal entities. They are endowed with property by the legal entity that created them and act on the basis of the provisions approved by it.

Branch is a separate subdivision of a legal entity located outside the place of its location and performing all of its functions or part of them, including the functions of a representative office.

Representative Office is a separate subdivision of a legal entity located outside its location, representing the interests of a legal entity and protecting them.

The heads of branches and representative offices are appointed by a legal entity and act on the basis of its power of attorney. Representative offices and branches must be indicated in the constituent documents of the legal entity that created them.

The state, state and municipal formations participate in entrepreneurial relations on an equal footing with other subjects - citizens and legal entities. In these relations, the state cannot use its powers of power in relation to other participants and can be held accountable for violation of civil rights and failure to fulfill obligations: in a judicial proceeding, the usual measures of property liability can be applied to the state.

State formations have civil legal capacity and legal capacity, although, unlike legal entities, they were not created to participate in entrepreneurial activities, which are forced for them. Hence, the legal capacity of state entities is special, i.e. they can only have those rights and obligations that are in accordance with their public interest. The implementation of the legal capacity of state formations is carried out through state authorities and local self-government bodies acting within their competence.

State registration of business entities

Entrepreneurial activity can be carried out by citizens without the formation of a legal entity from the moment of state registration as an individual entrepreneur (Article 23 of the Civil Code of the Russian Federation), as well as legal entities that are considered created (legally capable) from the moment of state registration (Article 51 of the Civil Code of the Russian Federation). Registration of business entities ensures the stability of economic turnover, the reliability of information when choosing partners and conducting business transactions.

However, citizens and organizations do not always comply with the rules for state registration. In Art. 23 of the Civil Code of the Russian Federation specifically stipulates that such persons do not have the right to refer to the transactions concluded by them on the fact that they are not entrepreneurs, and the court, in turn, may apply the rules on obligations relating to entrepreneurs in relation to such transactions, in particular, cl. 3 tbsp. 401 of the Civil Code of the Russian Federation on the responsibility of an entrepreneur without fault for failure to fulfill or improper fulfillment of his obligations, paragraph 2 of Art. 400 of the Civil Code of the Russian Federation on the prevention of limitation of liability to the consumer and a number of other norms regulating the activities of entrepreneurs. In addition, on the basis of Art. 171 of the Criminal Code of the Russian Federation, criminal liability of a person (persons) carrying out entrepreneurial activity without registration may occur.

State registration of business entities is carried out by the judicial authorities (Article 51 of the Civil Code of the Russian Federation). However, until the adoption of a special Law on State Registration, Art. 34 and 35 of the Law of the RSFSR of December 25, 1990 "On enterprises and entrepreneurial activity" (Vedomosti of the RSFSR. 1990. No. 30. Art. 418) and the Regulation on state registration of business entities, approved by the Decree of the President of the Russian Federation of July 8, 1994 . № 1482 "On streamlining the state registration of enterprises and entrepreneurs on the territory of the Russian Federation."

In fact, state registration of business entities is carried out by local government bodies or executive bodies of the constituent entities of the Federation. For example, in Moscow, by a joint decision of the Presidium of the Moscow City Council of People's Deputies and the Moscow Government dated July 25, 1991, No. 134-2, the Regulations on the Moscow Registration Chamber, which is an executive body that registers commercial organizations created in Moscow, was approved. The central Moscow Registration Chamber and about twenty of its branches established in the administrative districts of Moscow are directly involved in the registration of commercial organizations.

The competence of the Moscow Registration Chamber includes:

Registration of new and re-registration of existing organizations, including commercial and non-commercial republican, regional, city significance, regardless of departmental subordination, founders or forms of ownership, located or conducting economic activities in Moscow;

Registration of branches, representative offices of nonresident organizations;

Monitoring compliance with the legislation on registration and re-registration;

Determination of the procedure for collecting registration fees.

Krylova Z.G. Law basics. 2010

The category "subjects of entrepreneurial activity" appeared in the scientific circulation relatively recently. It owes its birth to the Law of the RSFSR of December 25, 1990 No. 445-1 "On Enterprises and Entrepreneurial Activity" (hereinafter - the Law on Enterprises), in the preamble of which it was written: "The provisions of this Law are valid throughout the territory of the RSFSR in relation to to all subjects of entrepreneurial activity and enterprises, regardless of the form of ownership and field of activity. "

However, the named Law does not contain a definition of the concept of "business entities". In Art. 2 provides only a list of business entities, and Art. 3 is devoted to forms of entrepreneurship. This situation is hardly accidental. The fact is that the category in question, despite the abundance of publications, has been insufficiently and even superficially studied.

Civil scientists (for obvious reasons) avoid using this concept in their scientific research. The science of civil law operates with such categories as "subjects of civil law", "citizens", "legal entity". The question of the relationship between the concepts of "subject of civil law" and "subject of civil legal relationship" is still controversial. Likewise, there is no unity of views among scientists about the content of the category "subject of law".

Representatives of the science of economic (entrepreneurial) law propose to distinguish between the concepts of "subjects of entrepreneurial law" and "subjects of entrepreneurial activity." Subjects of entrepreneurial law - bearers of rights and obligations in the field of implementation and regulation of entrepreneurial activity 2. These include: individual entrepreneurs; commercial organizations; non-profit organizations engaged in entrepreneurial activity; public formations (state, constituent entities of the Russian Federation, municipalities). The subjects of entrepreneurial law are also state bodies that carry out the functions of leadership and regulation of entrepreneurial activity.

According to supporters of the concept of entrepreneurial law, divisions of enterprises occupy a special place among the subjects of entrepreneurial law. These are internal divisions (workshop, department, etc.), as well as external (separate) - representative offices and branches. This conclusion is based on the assertion that intrafirm (corporate) ties are included, along with horizontal and vertical relationships, in the subject of business law. This opinion is far from indisputable.

Among the subjects of business law, there are holdings, financial and industrial groups (FIGs) and other integrated structures. The latter also do not have the status of a legal entity.

Those scholars who profess the ideas of commercial law (V.F.Popondopulo, B.I.Putinsky, V.V. Rovny) base their views on the civilistic doctrine of persons. So, V. F. Popondopulo writes: “An entrepreneur is a person who carries out entrepreneurial activity. The fact that a person carries out entrepreneurial activity is the basis for recognizing him as a subject of civil law - an entrepreneur and determines the need for special requirements from the legislator to him and his activities ”. The circle of entrepreneurs is strictly limited: these are individuals and legal entities (primarily commercial organizations).

In our opinion, business entities- these are, first of all, individual entrepreneurs and commercial organizations, the main goal of which is to make a profit. Further, among them, it is necessary to name non-profit organizations that carry out entrepreneurial activity only insofar as it serves to achieve the goals for which they were created (clause 3 of article 50 of the Civil Code).

At the same time, we note that this classification of legal entities into commercial and non-commercial organizations, taking into account such a criterion as a commercial focus, causes significant difficulties in practice. In reality, it is sometimes impossible to delimit the main goal of the activity from the non-main one. Thus, many non-profit organizations do not formally pursue profit-making as their main goal, but in fact seek and receive huge incomes from entrepreneurial activities.

Subjects of entrepreneurial activity are collective entities that do not have the status of a legal entity. These include financial and industrial groups, holdings, etc.

The status of FIGs (holdings) is very indicative: it is inadmissible to reduce all collective formations to the civil legal category of "legal entity". Subjects of law, including civil law, can be entities that do not have the characteristics of a legal entity.

From the point of view of civil legislation (Art. 55 of the Civil Code), representative offices and branches are not legal entities, and therefore cannot act as bearers of the corresponding rights and obligations. The heads of representative offices and branches act on behalf of the legal entity on the basis of its power of attorney.

At the same time, representative offices and branches are endowed with the property of the legal entity that created them. Moreover, the property of representative offices and branches is reflected in a separate (detached) balance sheet. There is a problem of real property belonging to the property assigned to the representative office and the branch. The Civil Code keeps a "vow of silence" in this regard.

Article 216 provides a non-exhaustive list of property rights. In particular, the Code lists (in addition to property rights related to the ownership of land plots, the rights of economic management and operational management) and other property rights, for example, the right to use the living quarters of the owner's family members.

Another issue: representative offices and branches have the right to have current, settlement and other accounts with credit institutions. In this case, the head of the representative office (branch) carries out the functions of disposing of funds on the basis of the issued power of attorney.

And, finally, by virtue of paragraph 5 of Art. 36 APC "a claim against a legal entity arising from the activities of its separate subdivision is filed at the location of the separate subdivision." However, in these cases, a party to the case is a legal entity, the collection is made by the court from it or in favor of it. A representative office and a branch, not having the characteristics of a legal entity (Art. 48 of the Civil Code), are not a procedural party in court.

The previous tax legislation considered representative offices and branches as payers of income taxes, i.e. subjects of tax law. With the adoption of the new Tax Code of the Russian Federation (Art. 19), the situation has changed: branches and representative offices of Russian organizations perform the duties of the latter to pay taxes and fees at the location of the branches (representative offices).

The legal status of representative offices and branches in the context of the Tax Code of the Russian Federation creates additional difficulties in the interpretation and application of Art. 19 NK. On the one hand, the Tax Code establishes that branches and other separate subdivisions of Russian organizations fulfill, in the manner prescribed by the Code, the obligations of these organizations; on the other hand, the Code does not contain any rules regarding such an order. There are other practical difficulties as well.

So, branches and representative offices are business entities. However, we do not share the opinion that the internal structural divisions (shop, department) of a commercial organization can also be attributed to subjects of entrepreneurial activity.

Public formations, as well as state and local authorities, cannot engage in entrepreneurial activity. This claim is sometimes challenged in the legal literature. So, S. E. Zhilinsky considers public formations as subjects of civil law and subjects of entrepreneurial activity.

In his opinion, there are three areas of entrepreneurial activity with the participation of public entities:

participation in entrepreneurship through the established commercial and non-commercial organizations (for example, unitary enterprises);
participation in the affairs of privatized state and municipal property;
engaging in entrepreneurial activity directly by the state and local authorities themselves.

In the latter case, an example is given: by virtue of Art. 7 of the Federal Law of July 21, 1997 No. 12E-FZ "On the Privatization of State Property and on the Basics of Privatization of State Property in the Russian Federation" rights of a shareholder (participant) of business entities, shares (stakes in the authorized capital) of which are in federal ownership. We cannot agree with such conclusions.

There is a mixture of two different, but intersecting concepts - "subjects of civil law" and "subjects of entrepreneurial activity". Public formations are indeed subjects of civil law (Chapter 5 of the Civil Code). In accordance with cn. 2 tbsp. 124 of the Civil Code, the rules governing the participation of legal entities in relations regulated by civil legislation apply to public entities, unless otherwise follows from the law or the specifics of these entities. At the same time, the relevant state authorities and local self-government bodies act on behalf of public entities (Article 125 of the Civil Code).

To be a subject of entrepreneurial activity means that the state, subjects of the Federation and municipalities must engage in entrepreneurial activity on a professional and permanent basis in order to systematically obtain profit from the sale of products (performance of work, provision of services). The participation of public entities in economic activity through the creation of commercial and non-commercial organizations (as well as participation in the affairs of privatized state and municipal property) cannot, in our opinion, be assessed as participation in entrepreneurship.

Shareholders, participating in the general meeting of the company and receiving dividends on shares, do not directly engage in entrepreneurial activity. The status of a shareholder, his rights and obligations are defined in the Law on Joint Stock Companies.

The above applies equally to the founders (participants) of limited liability companies (LLC). An LLC participant and an entrepreneur are not the same thing.

The conclusion about the impossibility of public entities to engage in entrepreneurial activity follows from the provisions of the Constitution of the Russian Federation. So, in the ruling of the Constitutional Court of the Russian Federation of October 1, 1998, No. 145-0 "At the request of the Legislative Assembly of the Nizhny Novgorod Region on the verification of the constitutionality of part one of Article 6 of the RSFSR Code of Administrative Offenses", the following legal position is formulated: "Within the meaning of the Constitution of the Russian Federation (Article 34, part 1) one and the same person cannot combine power activities in the field of state and municipal administration and entrepreneurial activities aimed at systematic profit ”.

The definition also notes that constitutional norms predetermine the special nature of the legal capacity of public legal entities: the Russian Federation, its subjects, municipalities participate in civil legal relations as subjects with special legal capacity, which, due to their public legal nature, does not coincide with the legal capacity of others. subjects of civil law - citizens and legal entities.

Therefore, they (public entities) cannot, in the opinion of the Constitutional Court of the Russian Federation, also act as trustees, since such activities involve receiving remuneration, submitting reports to the founder of trust (Articles 1018 and 1023 of the Civil Code), which contradicts the public law nature of these formations.

The public-law nature of the state, subjects of the Federation and municipalities is stated in the ruling of the Constitutional Court of the Russian Federation of December 4, 1997, No. 139-0 "On refusal to accept for consideration the request of the Federation Council to review the constitutionality of the Federal Law" On bills of exchange and promissory notes " ...

This constitutional provision has been developed in the current legislation. In particular, Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition" (clause 3 of Art. 15) prohibits combining the functions of federal executive bodies, executive bodies of the constituent entities of the Federation, local self-government bodies with the functions of economic entities, as well as endowing economic entities with the functions and rights of these bodies.

Russian legislation prohibits government bodies and local governments to engage in entrepreneurial activity, i.e., to be subjects of entrepreneurial activity. Moreover, a number of federal laws on business entities contain a prohibition on the participation of state bodies and local self-government bodies as founders of a company, unless otherwise provided by federal laws.

There is a ban on combining entrepreneurship with the functions of civil servants. The RF Law of July 31, 1995 No. 119-FZ "On the Fundamentals of the Civil Service of the Russian Federation" (Article 11) provides that a civil servant is not entitled to engage in entrepreneurial activities personally or through proxies. Relevant legal prohibitions are contained, for example, in federal laws dated January 10, 1996 No. 5-FZ "On foreign intelligence" (Article 18) (as amended on August 22, 2004 No. 122-FZ), dated April 18, 1991 No. 1026-1 "On the police" (Art. 20) (as amended on December 18, 2006, No. 232-FZ), etc.

And in conclusion, a few words about the relationship between the concepts of "business entities" and "business entities". In our opinion, these are not the same concepts. They correlate with each other in the same way as economic (economic) and entrepreneurial activity correlate. Business entities do not always acquire the status of entrepreneurs. For example, non-profit organizations, as a rule, do not engage in entrepreneurship, although they do business.

As already noted, in accordance with Art. 11 of the Law on the Securities Market, a stock exchange can be created in the form of a non-commercial partnership and does not pursue the goal of earning its own profit. Exchange activity can not be attributed to either charitable or socio-cultural, etc. Therefore, the term "economic activity" should be used here.