The firm as a commercial organization. Commercial organizations: definition according to the Civil Code of the Russian Federation, types and purposes of activity

The main criterion by which legal entities are classified in Russian legislation is established in Art. 50 of the Civil Code, which considers commercial and non-profit organizations.

Both groups are full-fledged participants in civil circulation. However, there are significant differences between them, which determine the special legal status of each.

The concept and main features of commercial organizations

The law does not contain the concept of a commercial organization, close to scientific, but its main features are formulated in Art. 48, 49 of the Civil Code, as well as in parts 1 and 2 of Art. 50 GK.

Signs of commercial organizations:

• The main objectives of the activities of such legal entities are to make a profit. This means that the charter of the organization must contain a corresponding provision. Officials may pay attention to its presence or absence during registration. His absence serves as a basis for denial of it.
• Commercial organizations, as a rule, have a general legal capacity. This means that such legal entities have legal grounds for engaging in any type of non-prohibited activity. The exception is municipal and state unitary enterprises. They can carry out activities within the framework of the purposes for which they were created. Legislation governing the position of market participants in various sectors of the economy may also impose restrictions. Examples can be found in the financial sector. Organizations performing the functions of banks or insurance companies may not engage in other activities.
• Mandatory state registration. Only after that the legal entity becomes a participant in civil circulation.

The concept of a commercial organization

The characteristic of commercial organizations according to the main features allows us to formulate the concept of this legal entity.

A commercial organization should be understood as a legal entity whose main goal is to make a profit, capable, as a rule, of carrying out any activity that is not prohibited by legal norms.

The concept and main features of non-profit organizations

The above articles of the Civil Code contain a description of commercial and non-profit organizations. This classification makes it possible to distinguish the latter by a number of features.

• The main distinguishing feature is the purpose of establishing non-profit organizations. Such a structure performs other functions than a commercial legal entity and they are not related to making a profit. Humanitarian, social, political and other aspirations can serve as goals.
• Nonprofit organizations have limited legal capacity. It is determined by the purpose of creation. At the same time, entrepreneurial functions that meet this requirement are also possible.
• Another sign is the inability to distribute profits among the founders. If there is one, it serves as an additional financial basis for achieving the goals for which such an organization was created.
• Special organizational and legal forms. As in the case of commercial legal entities, there is a closed list that defines the types of these organizations.
• To start activities, state registration is required. In some cases, it is much more complex and involves a greater number of necessary actions. An example is the registration of political parties carried out in the Ministry of Justice.

The concept of a non-profit organization

The provisions of the law that characterize these legal entities make it possible to derive the most complete concept.

Non-profit organizations should be understood as duly registered legal entities of certain organizational and legal forms, the goals of which are to achieve results in the public, humanitarian, political and other spheres that are not related to making a profit, capable of performing functions within the specified framework and not distributing the financial resources received between founders.

How to distinguish a for-profit organization from a non-profit?

Such a classification of legal entities can be carried out according to their main features.

The characteristics of for-profit and non-profit organizations paint a clear picture of how one differs from the other.

Differences can be found in the text of the founding document. Comparison of their initial sections will help to establish the goals of creating organizations. The difference will be in the presence or absence of profit making as the main one.

However, not every citizen has access to documents of organizations. In this case, types of organizational and legal forms will help. It is by their name that the organization can be classified as commercial or non-commercial.

Forms of commercial organizations

The list of types of commercial organizations is given in Part 2 of Art. 50 GK. These include:

• Economic companies. This is the most common form. Among them there are joint-stock companies, including public and non-public (PJSC and CJSC, respectively) and limited liability companies.
• production cooperatives. Their peak came in the perestroika years. However, today it is a rare type of commercial organization.
• Economic partnerships, which are even rarer than production cooperatives.
• Business partnerships.
• Municipal and state unitary enterprises.
• Peasant (farming) farms.

Forms of non-profit organizations

The legislation provides for a large number of forms of such legal entities (part 3 of article 50 of the Civil Code). Therefore, it is easier to act by elimination method.

Non-commercial organizations should include all legal entities that are not related to commercial ones. In practice, there are often such forms as political parties, foundations, public organizations, consumer cooperatives, homeowners associations, bar associations and formations.

What are commercial and non-profit organizations?

Commercial and non-profit organizations, in fact, are legal entities, thus subdivided depending on the purpose of creation. The first ones aim at making profit from commercial activities and distributing it among the participants of the enterprise. The latter can also be engaged in entrepreneurship, however, in this case, the profit is spent on the purposes for which the legal entity was created and therefore cannot be distributed among its participants.

The activities of non-profit organizations are usually aimed at achieving social, educational, charitable, scientific and cultural goals, developing sports and meeting other needs of citizens.

Commercial and non-profit organizations. Forms.

The list of forms (types) of commercial organizations is exhaustive and is enshrined in the Civil Code of Russia. These include:

Business partnerships and companies. They are commercial organizations, the authorized capital of which is divided into contributions of participants.

Economic partnerships are created in the form of a full partnership, as well as limited partnerships. Members of the partnership have the right to participate in the activities of the organization. The profit is divided proportionally to the shares. All participants in a general partnership are equal. They risk their property. A limited partnership is understood as a partnership in which, in addition to participants carrying out activities aimed at making a profit on behalf of the partnership, liable for the obligations of the partnership with their own property, there is at least one who risks property, within the amount of the contribution and does not take part in the implementation of entrepreneurship .

production cooperatives.

Commercial organizations, which are associations of citizens on a voluntary basis, functioning for the purpose of joint production and other economic activities on the basis of membership. The property is formed at the expense of the shares of the members of the cooperative.

The list of non-profit organizations may be supplemented. Non-profit organizations are created in the form of: religious and public associations and organizations, consumer cooperatives, institutions, non-profit partnerships, associations and unions, foundations, etc.

The activities of non-profit organizations are limited (by the charter and memorandum of association), it is directly prescribed in them and cannot go beyond.

Commercial and non-profit organizations are considered established from the moment of the state. registration. At the same time, non-profit organizations operate without limitation of terms of activity and subsequent re-registration is not required.

The Civil Code of the Russian Federation provides for the following possible forms of business organization:

business partnerships

business companies

production cooperatives

state and municipal unitary enterprises

A business partnership is a commercial organization, the authorized capital of which is divided into shares (contributions) of its participants (founders), who are liable for its obligations with their property.

A business company is a commercial organization, the authorized capital of which is divided into shares (contributions) of its participants (founders), who are not liable for its obligations with their property and risk only their shares (contributions).

A production cooperative (artel) is a commercial organization that unites citizens on a voluntary basis on the basis of membership, personal labor and other participation and making property shares.

A state (municipal) unitary enterprise is a commercial organization created by the state (municipal governing body) and not endowed with the right of ownership to the property assigned to it by the owner.

Three of the four forms of entrepreneurial activity are some form of association of separate, individual, private capital.

The main advantages of capital pooling compared to individual entrepreneurship are as follows:

the pooling of capital allows it to quickly increase, and therefore quickly expand this or that commercial activity;

distribution of responsibility for the safety and efficient use of the joint capital;

freeing up businessmen's time for personal life, education, recreation, treatment, etc.;

combining the experience and knowledge of capital owners, expanding opportunities to attract highly qualified specialists in all areas of activity;

the owners of the combined capital bear the risk only within the limits of their contributions.

Production cooperative

A production cooperative as a form of business organization may not differ economically from a business partnership or company. It is assumed that the members of the production cooperative take personal labor participation in its activities. However, on the one hand, the same thing can take place in small business partnerships and companies, and on the other hand, the law does not exclude the possibility of membership in a production cooperative of legal entities and other, except labor, forms of participation in its work.

As a legal entity, a production cooperative is characterized by the following features:

It is an association of citizens who organize themselves in order to work;

The association is based on membership in a cooperative;

Members of the cooperative participate in the activities of the cooperative by personal labor;

It requires not only personal labor, but also property participation in the activities of the cooperative;

Membership in a cooperative on the basis of only a share contribution without personal labor participation is in principle allowed, but in certain amounts - no more than 25 percent of the amount of share contributions. The existence of such members of the cooperative is also allowed, who by their labor do not participate in the activities of the cooperative. But they should be no more than 25 percent;

A member of a cooperative that contributes only a share can also be a legal entity;

Members of a production cooperative bear subsidiary liability (subsidiary liability means that if the property of the cooperative is not enough to cover the obligations, then the remaining part of the debt is reimbursed by the shareholders) for the obligations of this legal entity in the amount established by the charter of the cooperative;

The company name of this legal entity must contain the actual name of this cooperative and the words "production cooperative" or "artel" (these are synonyms);

The charter adopted at the general meeting of members of the cooperative acts as a constituent document here;

The number of members of the cooperative must be at least 5. The maximum number is not limited;

The property base of the cooperative's activity is formed by the share contributions of the members of the cooperative.

unitary enterprise

The main difference between a business partnership and a company and a unitary enterprise is that, firstly, the property they possess belongs to them by the right of ownership, and secondly, by the right of economic ownership or operational management. In practice, there is usually a second difference between these forms of commercial organizations, which consists in the fact that unitary enterprises always have only one owner (the state or a municipal government body), while business organizations usually have several such owners (although the law allows for the possibility that They also have only one owner).

A unitary enterprise may be based only on state or municipal property.

A unitary enterprise has the following features:

1. Unlike business companies, partnerships and production cooperatives, the enterprise itself does not have the right to own property. The founder of this enterprise continues to be the owner of this property. For the unitary enterprise itself, this property is assigned either on the right of economic management, or on the right of operational management, on the so-called limited real right;

2. The property of a unitary enterprise is not distributed among the employees of this enterprise, is indivisible, and there can be only one owner of a unitary enterprise;

3. The management body of a unitary enterprise is the sole one. This is, as a rule, a director or general director, who is appointed by the owner of the property of this unitary enterprise. Collegial forms of management are not allowed;

4. As the owner of a unitary enterprise, there may be:

The Russian Federation as a subject of civil law,

subjects of the Russian Federation,

municipalities.

Economic partnership

A business partnership differs from a business partnership in the form of responsibility of their members, or in the amount of risk they bear when participating in a particular business organization. This liability can be full, i.e. include liability with all the property of a participant in a commercial organization, regardless of the size of his contribution to its authorized capital, or partial, limited, i.e. limited to the size of his share (contribution) in the authorized capital of this organization.

A business partnership is based on a contribution to the authorized capital and full property liability of its members. A business company is based on a contribution to the authorized capital, but the liability of its members is limited only by the size of the contribution itself.

A business partnership can exist in two varieties: a full partnership and a limited partnership.

General partnership - this is a business partnership in which all its participants, called "general partners", are liable for its obligations with their property.

Faith partnership- this is a business partnership in which not all of its participants are liable for its obligations with their property, but there are one or more participants who do not take part in the business activities of the partnership, and therefore bear the risk of losses only within the limits of their contributions.

Any person can be a participant in only one general partnership or be a general partner in only one limited partnership.

A participant in a general partnership cannot be at the same time a general partner in a limited partnership and vice versa.

The organization of any partnership is based on the personal trusting relationship of its participants. Without trust, a partnership is impossible, since the risk of its participants is unlimited by nothing (except for the size of their personal property).

A business entity may exist in the following forms:

limited liability company;

additional liability company;

Joint-Stock Company.

Participants of commercial organizations have the right to participate in their management, receive information about their activities, participate in the distribution of profits, receive a proportion of the property remaining after the liquidation of the organization, to have other rights under the law and in accordance with the statutory documents.

The classification of commercial organizations is shown in fig. 3.

Rice. 3. Classification of commercial organizations

The variety of forms of ownership is the basis for the creation of various organizational and legal forms of organizations. According to the current Russian legislation, there are various organizational and legal forms of commercial organizations.

Depending on who owns the organization, the form of ownership is also determined. The legislation of the Russian Federation provides for the following forms of ownership: private, state, property of public organizations (associations) and mixed.

Part private property include:

a) the property of individual citizens, including the property of personal subsidiary plots, vehicles and real estate;

b) the property of an association of citizens (general partnerships);

c) property of groups of individuals - limited liability partnerships, joint-stock companies (closed and open, property of cooperatives);

d) property of business associations (business companies and partnerships, concerns, holdings, associations, unions, etc.);

e) mixed property of citizens and legal entities.

State property form objects:

a) federal (RF) property;

b) the property of the constituent entities of the Russian Federation (republics, territories, regions, autonomous districts and cities of Moscow and St. Petersburg);

c) municipal (districts, districts, prefectures) property.

mixed ownership formed as a combination of different forms of ownership. Organizations (companies) with a mixed economy are companies in which the state or some public body is combined with private capital for various reasons, for example, the participation of the state in a private company whose activities are in the public interest, or to control and direct its general policy and others. The state, participating in such companies, seeks not so much to make a profit as to direct the policy of these organizations. This is sometimes the duality of such a system, since, on the one hand, a situation may arise when members of the board representing the state contribute to the weakening of the production and financial responsibility of the company, seek to impose on it the point of view of the government, which does not always help its successful activities. On the other hand, such a company expects to receive various kinds of privileges. To balance these interests, it is necessary that government representatives participate in the economic activities of the company and bear responsibility for its economic performance.

According to the form of ownership, organizations can be divided into private and public (Fig. 3.3).

Organizations of the private sector of the economy differ depending on whether one or more persons are its owners, on responsibility for its activities, on the way in which individual capitals are included in the total capital of the organization. The public sector of the economy is state-owned (federal and subjects of the federation) and municipal enterprises (meaning not so much the fact that the state acts as an entrepreneur, but the fact that state or public enterprises operate on the principles of entrepreneurship).

An individual entrepreneur (IP) is a capable citizen independently, at his own risk and under personal individual responsibility, carries out entrepreneurial activities and is registered for these purposes in the prescribed manner.

An individual entrepreneur is fully liable for obligations with all his property, with the exception of that which is levied in accordance with the Civil Code of the Russian Federation. This means that the collection of debts of an individual entrepreneur can also be imposed on his personal property that is not involved in entrepreneurial activities.

State registration as an individual entrepreneur occurs without the formation of a legal entity, but he is a full participant in civil circulation, therefore, the legal norms governing the activities of commercial organizations apply to him. An individual entrepreneur can, after paying taxes, dispose of the profits received at his discretion. For him, a simplified form of the taxation system is provided, which consists in the quarterly payment of taxes on the income declared by the IP itself. Individual entrepreneurs' personal income is taxed in the same way as personal income tax.

An individual entrepreneur has the right to create commercial organizations. After registering as a commercial organization, an individual entrepreneur can hire and fire employees. He can invest his capital in other areas of activity, deriving profit from this. The number and value of property owned by an individual entrepreneur is not limited by law. Land plots of the enterprise, property complexes, buildings, structures, equipment, securities, etc. may be in private ownership. An individual entrepreneur can be a participant in general partnerships, as well as enter into agreements on joint activities (in the form of a simple partnership).

On the territory of Russia, individual entrepreneurs have the same rights as legal entities. According to the law "On investment activity in the Russian Federation", foreign citizens can also engage in entrepreneurship. All investors enjoy equal rights; protection of these rights is guaranteed by the state regardless of the form of ownership.

An individual entrepreneur is the head of a peasant (farm) economy, carrying out activities without forming a legal entity.

The state registration of a citizen as an individual entrepreneur becomes invalid and his activity is terminated from the moment:

A court decision on declaring an individual entrepreneur insolvent (bankrupt);

Receipt by the registering authority of the entrepreneur's application for the cancellation of his state registration and as an entrepreneur and the certificate of registration previously issued to him;

death of a citizen;

Recognition of a citizen by a court decision as incapable or partially capable (in the absence of the consent of the trustee to engage in entrepreneurial activity by the ward citizen).

An individual entrepreneur who is unable to satisfy the requirements of creditors related to the implementation of entrepreneurial activities may be declared insolvent (bankrupt) by a court decision.

Individual entrepreneurship is a priority for people who are able to single-handedly control the decision-making process. The advantage of sole proprietorship is the payment of only income tax, which makes his business more stable and attractive, as well as independence in the distribution of profits. An important advantage of an individual business is its mobility when changing activities.

Commercial organizations are divided into three major categories: organizations that unite individual citizens (individuals); organizations that combine capital and state unitary enterprises (Fig. 3.4). The former include business partnerships and production cooperatives. clearly distinguishes partnerships - associations of persons requiring the direct participation of founders in their activities, companies - capital associations that do not require such participation, but involve the creation of special management bodies. Business partnerships can exist in two forms: a general partnership and a limited partnership.

IN full partnership(PT) all its participants (general partners) are engaged in entrepreneurial activities on behalf of the partnership and are fully liable for its obligations. Each participant may act on behalf of the partnership, unless otherwise established by the memorandum of association. The profit of a full partnership is distributed among the participants, as a rule, in proportion to their shares in the share capital. For the obligations of a full partnership, its participants are jointly and severally liable with their property.

partnership in faith, or a limited partnership (TV or CT), such a partnership is recognized in which, along with general partners, there are also contributors (limited partners) who do not take part in the entrepreneurial activities of the partnership and bear limited liability within the limits of the amounts of their contributions. In essence, TV (CT) is a complicated type of PT.

In a general partnership and limited partnership, shares of property cannot be freely assigned, all full members bear unconditional and joint and several liability for the liability of the organization (they answer with all their property).

Business partnerships(ХТ), as well as business companies (CO), are commercial organizations with authorized (share) capital divided into shares (contributions) of founders (participants). Differences between CT and CW are manifested, in relation to their more specific forms, in the ways of their formation and functioning, in the characteristics of their subjects in terms of the degree of liability of these subjects, etc. In the most general form, all these differences can be interpreted in the context of the ratio of corporate partnerships .

Production cooperative(PrK) is a voluntary association of citizens on the basis of membership for joint production or other economic activities based on their personal labor or other participation and the association of its members (participants) of property shares. The features of the GoC are the priority of production activities and the personal labor participation of its members, the division of the property of the GoK into shares of its members (Fig. 3.5).

Cooperatives and organizations with the participation of workers in management and profits, which have become widespread in a mixed economy, have certain advantages over entrepreneurial-type companies in labor productivity, social climate and labor relations, and income distribution. The introduction of inherently socialist principles of organization into economic activity (participation of workers in management, in profits and in the ownership of shares) is seen as a means of overcoming the difficulties that entrepreneurial-type organizations constantly face: bureaucratization of management structures in large corporations; weak interest of workers in the success of the company (because their remuneration is still limited by salary); losses from strikes and labor conflicts; high turnover of the workforce, associated in the current conditions with especially high costs due to the growing costs of training workers for specific activities in this particular organization, etc.

But purely self-managed companies lose out to entrepreneurial ones in a number of ways: in addition to reacting weakly and possibly back to market signals, in the short term they are prone to “underinvestment,” i.e., eating away their profits; in the long run, they are conservative in risky projects and technical innovations.

Joint-Stock Company(JSC) is a company whose authorized capital consists of the nominal value of the shares of the company acquired by shareholders, and, accordingly, is divided into this number of shares, and its participants (shareholders) are liable within the value of their shares (Fig. 3.6) . Joint-stock companies are divided into open and closed (JSC and CJSC). Members of an OJSC may alienate their shares without the consent of other shareholders, and the company itself has the right to conduct an open subscription for issued shares and their free sale. In a CJSC, shares are distributed by closed subscription only among its founders or other predetermined circle of persons, and the number of founders in Russian law is limited to 50 persons.

Limited Liability Company(LLC) is a company whose authorized capital is divided into shares of participants who are liable only within one hundred

Joint-Stock Company(JSC) is a company whose authorized capital consists of the nominal value of the shares of the company acquired by shareholders, and, accordingly, is divided into this number of shares, and its participants (shareholders) are liable within the value of their shares (Fig. 3.6) . Joint-stock companies are divided into open and closed (JSC and CJSC). Members of an OJSC may alienate their shares without the consent of other shareholders, and the company itself has the right to conduct an open subscription for issued shares and their free sale. In a CJSC, shares are distributed by closed subscription only among its founders or other predetermined circle of persons, and the number of founders in Russian law is limited to 50 persons.

But there is also a third, "hybrid" category - a limited liability company and an additional liability company - which simultaneously applies to organizations that unite individuals and organizations that unite capital.

Limited Liability Company(LLC) is a company whose authorized capital is divided into shares of participants who are liable only to the extent of the value of their contributions. Unlike partnerships, an LLC creates an executive body that exercises current management of its activities.

Additional Liability Company(ODO) is essentially a type of LLC. Its features: joint and several subsidiary liability of participants for the obligations of ALCs with their property in the same multiple for all to the value of their contributions, determined in the constituent documents; division in the event of bankruptcy of one of the participants in the ALC of his liability for the obligations of the company between other participants in proportion to their contributions.

to state and municipal unitary enterprises(UE) include enterprises that are not endowed with the right of ownership of the property assigned to them by the owner. This property is in state (federal or subjects of the federation) or municipal property and is indivisible. There are two types of unitary enterprises (Table 3.1):

1) based on the right of economic management (they have wider economic independence, in many respects they act as ordinary commodity producers, and the owner of the property, as a rule, is not liable for the obligations of such an enterprise);

2) based on the right of operational management (state-owned enterprises) - in many respects they resemble enterprises in a planned economy, the state bears subsidiary responsibility for their obligations if their property is insufficient.

The charter of a unitary enterprise (UE) is approved by the authorized state (municipal) body and contains:

The name of the enterprise with an indication of the owner (for state-owned - with an indication that it is state-owned) and location;

The procedure for managing activities, the subject and goals of activities;

The size of the authorized fund, the procedure and sources of its formation.

The authorized capital of the UE is fully paid by the owner before state registration. The amount of the authorized capital is not less than 1000 minimum monthly wages as of the date of submission of documents for registration.

If the value of net assets at the end of the financial year is less than the size of the statutory fund, then the authorized body is obliged to reduce the statutory fund, about which the enterprise notifies creditors.

The property rights of a unitary enterprise are presented in Table. 3.2. A unitary enterprise may create subsidiaries of the UE by transferring to them a part of the property for economic management.

LLC in accordance with the Civil Code of the Russian Federation and the Law on Limited Liability Companies (hereinafter referred to as the Law on Limited Liability Companies) Federal Law “On Limited Liability Companies” dated February 8, 1998 No. 14-FZ (as amended on July 11, December 31, 1998, 21 March 2002) item 1. article 2. ch.1. a business company is recognized, the authorized capital of which is divided among the participants into shares of the sizes determined by the constituent documents. Its participants bear the so-called limited liability for the activities of the company, that is, they are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their contributions. The law allows a company participant to pay the due share in the authorized capital within a certain time, and not at a time.

In this case, participants who have made contributions to the charter capital of the company not in full shall be jointly and severally liable for its obligations within the value of the unpaid part of the contribution of each of its participants. This type of corporation is an invention of German lawyers, made at the end of the 19th century and caused by the requirements of a practice that showed insufficient elasticity of joint-stock companies. Members of a society have in relation to it only obligations, but not real rights to property. A member of a company may claim its property only in cases of its liquidation, upon its withdrawal from it, and in other cases when it must make settlements with it, for example, if it does not receive consent from the other members of the company to alienate a share to another participant.

LLC is a commercial organization, making profit for it is the main goal of its activity. This means that it can carry out any type of entrepreneurial activity, unlike non-profit organizations that have the right to conduct entrepreneurial activity only in so far as it serves to achieve the goals for which they were created. Certain types of activities, the list of which is determined by federal laws, may be carried out by a company only on the basis of a special permit (license). The types of activities subject to licensing are determined by the Federal Law “On Licensing Certain Types of Activities”. Federal Law No. 128-FZ of August 8, 2001 “On Licensing Certain Types of Activities” (as amended on March 13, 21, December 9, 2002, January 10, February 27, March 11, 26, December 23, 2003, November 2, 2004) art. 17. If the conditions for granting a special permit (license) to carry out a certain type of activity provide for the requirement to conduct such activity as exclusive, then the company during the validity period of the special permit (license) has the right to engage only in such types of activities that are provided for by the special permit (license), and related activities.

An LLC is considered to be established as a legal entity from the moment of its state registration. The legal capacity of the company is terminated with its liquidation and an entry about it in the unified state register of legal entities. Unless otherwise specified in the articles of association, the company operates without a time limit. The Company shall be liable for its obligations with all its property and shall not be liable for the obligations of its members. However, there may be exceptions to this rule in certain cases.

The LLC must have a full name in Russian and a postal address at which communication is carried out with it. The location of the company, as a general rule, is determined by the place of its state registration. However, in the constituent documents it may be established that it is the place of permanent location of its management bodies or the main place of its activity. The legislator obliges the company in the full and abbreviated corporate name of the company to use the words "limited liability company" or the abbreviation LLC, respectively, and allows the use of the name of the company in any language.

The Company has a number of features that allow it to establish its place among other business partnerships and companies.

Firstly, LLC, like all business partnerships and companies, is a legal entity. The features contained in the legal definition of a legal entity (Article 48 of the Civil Code of the Russian Federation) - organizational unity, the existence of real rights to property, self-responsibility, acting in circulation, on one's own behalf, procedural legal personality, require different specification for different forms of a legal entity. The only point common to all legal entities is the possibility of acting outside on their own behalf.

Secondly, the lack of liability of the Company's members for the obligations of the LLC. The very name "limited liability company" is not entirely accurate. The Society bears full responsibility for its obligations with all its property, and the participants do not bear any responsibility for the obligations of the Society, except as otherwise provided by law.

In accordance with the Law on Companies, an LLC may create branches and open representative offices by decision of the general meeting of LLC participants, adopted by a majority of at least two-thirds of the total number of votes of the LLC participants, if the need for a larger number of votes for such a decision is not provided for by the charter of the company. The creation of LLC branches and the opening of their representative offices on the territory of the Russian Federation are carried out in compliance with the requirements of the Law and other federal laws, and outside the territory of the Russian Federation also in accordance with the legislation of the foreign state on the territory of which branches are created or representative offices are opened, unless otherwise provided by international treaties Russian Federation.

An LLC may have subsidiaries and dependent business companies with the rights of a legal entity established in the territory of the Russian Federation in accordance with the Law and other federal laws, and outside the territory of the Russian Federation also in accordance with the legislation of the foreign state in whose territory the subsidiary or dependent business company is created , unless otherwise provided by international treaties of the Russian Federation.

• 1. Members of the Company who have made contributions incompletely shall be jointly and severally liable for its obligations within the value of the unpaid part of the contribution of each of the participants (clause 1, article 87 of the Civil Code of the Russian Federation; clause 1, article 2 of the Law on Companies). The subjects of responsibility are all participants who have not fully made the contributions provided for by the constituent documents. The participants of the company are liable to the creditors of the Company, and not to the company. At the same time, the company itself has the right to require the participant to fulfill its obligation - to make a contribution on time, in the prescribed manner and in the form in which it is provided for in the memorandum of association.
• 2. In accordance with paragraph 3. Art. 56 of the Civil Code of the Russian Federation and paragraph 3 of Art. 3 of the Law on Companies, if the insolvency of a legal entity is caused by its participants or other persons who have the right to give instructions binding on this legal entity or otherwise have the opportunity to determine its actions, such persons, in the event of insufficient property of the legal entity, may be assigned a subsidiary responsibility for his obligations. The meaning of the norm is a certain compensation to creditors in the event that the obligations were accepted on behalf of the Company, but the participant or other persons had the opportunity to give mandatory instructions or determine the actions of the legal entity. The following conditions are required for the imposition of subsidiary liability:

The legal basis for the ability to determine the actions of the Company is participation in the capital, providing a majority of votes compared to other participants, or the existence of an agreement on the obligation of instructions and the use of this opportunity.

• 3. In accordance with paragraph 2 of Art. 105 of the Civil Code of the Russian Federation and paragraph 3 of Art. 6 of the Law on Companies, the main company, which has the right to give instructions to the subsidiary that are obligatory for it, is jointly and severally liable with the subsidiary for transactions concluded by the latter in pursuance of such instructions.
• 4. In case of making non-monetary contributions to the authorized capital of the Company, the members of the Company and an independent appraiser within three years from the date of state registration of the Company or the relevant changes in the Charter of the Company, jointly and severally bear subsidiary liability for its obligations in the amount of overestimation of the value of non-monetary contributions (Clause 2, Article 15 of the Law on Companies).

Thirdly, a limited liability company is an organization that combines the property of participants. Therefore, naturally, one should turn to the question of the features of the authorized capital, that is, property. The presence of property ensures the property isolation of the company from its participants and independent responsibility. A company, already at its inception, must have a certain authorized capital, the amount of which is indicated in the constituent documents. Martemyanov V.S. Economic law. T. 1 - M., 2002. - S. 175.

The company, like other business partnerships and companies, has separate property transferred by participants and received in the course of activity, and accounted for on an independent balance sheet (clause 2, article 2 of the Law on Companies). The independent balance reflects all property rights and obligations, receipts and costs. The independent balance includes the property of branches, representative offices and separate subdivisions.

Fourthly, the authorized capital of the company is divided into a certain number of parts (shares). Shares may be equal or unequal. By payment or obligation to pay these shares in a certain amount, the right to membership in the society is acquired. The authorized capital itself consists of a set of contributions of participants.

The participant who has made a contribution loses any real rights to the contributed property, acquiring the right to claim against the company. The size of the participant's share determines the amount (volume) of the participant's obligations under the law of obligations against the company. But in addition to rights, the share also determines the size of the participant's obligations to society. Thus, the share of participation is a set of rights and obligations in a certain amount of each participant in relations with the company, that is, in a broad sense, a share is a complex of legal rights and obligations; in the narrow sense - the share of participation of the participant in the property of the company Rozenberg V.V. Limited Liability Partnership. - SPb., 1999. - S. 27. capital. The share of participation in the form of a set of rights is a kind of counter representation, the equivalent presented in an obligation in exchange for the contribution of the participant.

Fifthly, the existence of obligations between the participants of the society. Internal relations in society consist of the relations of participants among themselves and participants with society. The fact of the existence of a memorandum of association signed by the participants implies the existence of the rights and obligations of the participants in relation to each other for the entire period of the functioning of the company.

A limited liability company, although it is based on the pooling of capital (like any business company) and does not provide for the mandatory participation of the persons creating it in the production, economic, commercial activities of the company, at the same time implies the establishment of closer corporate and economic ties between its participants and the company than, say, in a joint-stock company, which is manifested in: a special procedure for joining a limited liability company; the restriction allowed by the Law on the admission of new persons to its composition; the possibility of redemption by the company of the share owned by the participant; the right of a participant to withdraw from the company with the payment of the actual value of his share and a number of other features characteristic of these structures. At the same time, limited liability companies are quite close to closed joint-stock companies. These relations arise on the basis of a civil law contract, which is a memorandum of association, bind certain persons and have as their content the obligation to take active actions, i.e. these are typical legal obligations.

Sixth, the internal structure of society implies the need for governing bodies, the actions of which are the actions of society itself. The totality of all participants forms only the highest body of society, limited in its actions by the conditions contained in the constituent documents. Volobuev Yu.A. Limited Liability Company. - M.: "Filin", 2004. - S. 19.

An LLC, like a JSC, is a form of a commercial organization, where the status of a participant does not mean that it is mandatory and necessary to participate in the management of the company. Persons who are not members of the company can act as the executive body of the company, and the functions of the sole executive body can be transferred to the manager of a commercial organization or an individual entrepreneur (Article 42 of the Law on Companies).

Seventh, a society may be established by one or more persons. However, the number of its founders cannot exceed more than fifty - the maximum number of participants established by paragraph 3 of Art. 7 of the Companies Act. In addition, a company cannot have as its sole founder (participant) another economic company consisting of one person (clause 2, article 88 of the Civil Code, clause 2, article 7 of the Law on Companies).

In paragraph 2 of Art. 2. The Law on Companies establishes the main provisions necessary for a company to acquire the status of a legal entity:

a) a limited liability company owns separate property, which is accounted for on an independent balance sheet. The source of its formation is, as already noted, the funds contributed by the founders (participants) of the company as a contribution to the authorized capital, as well as property acquired on other grounds provided for by law - as a result of production, economic, commercial activities, etc. (Article 218-219 of the Civil Code).

As contributions to the property of a business company in accordance with Art. 27 of the Law on Companies, monetary funds and other material assets, as well as property or other rights having a monetary value, may be contributed. At the same time, the company may own the objects of intellectual property created by it in the course of its activity - the right to industrial designs, certain technologies, a trademark, etc.

b) the company may, in its own name, acquire and exercise property and personal non-property rights and bear obligations. This is manifested in the exercise of the owner's powers to own, use and dispose of property to meet their own needs, conduct production and economic activities, for charitable and other purposes. The company can make transactions for the alienation of its own property and the acquisition of a new one (contracts of sale, exchange, donation); transfer of their property for rent or temporary use (under a loan agreement); transfer it as a pledge, make it as a contribution to the authorized capital of other business companies, etc.

These rights are freely exercised by the company, except in cases where there are legal restrictions. Yes, Art. 575 of the Civil Code does not allow commercial organizations to donate property to each other. Art. 690 of the Civil Code prohibits commercial organizations from transferring property for gratuitous use to a person who is a founder, a member of this organization, as well as its director, a member of a collegial management or control body.

The company bears obligations related to the exercise of the rights of the owner - care for the maintenance of property belonging to it (Articles 209, 210 of the Civil Code).

• c) another sign of a legal entity is the right to be a plaintiff and a defendant in court. The right to judicial protection is provided for in Art. 11 GK. The Company is independently liable for its obligations, except for the cases established by law.
• d) the society has organizational unity, which is manifested primarily in a certain hierarchy, subordination of the governing bodies that make up its structure, and in a clear regulation of relations between its participants. Thus, a multitude of persons united in a society acts in civil circulation as one person.

Being a commercial organization, the company, in accordance with Art. 49 of the Civil Code and paragraph 2 of article 2 of the Law on Companies has general legal capacity, that is, it can have civil rights and bear civil obligations necessary to carry out any types of activities not prohibited by law. In Article 2 of the Law on Companies, along with this, it is noted that the activities of the company should not contradict the subject and goals specifically limited in the charter of the company. Such restrictions can be established in the charter by decision of either the founders (when creating a company) or the general meeting of participants (by introducing amendments and additions to the Charter), based on the goals for which the company is being created. Transactions made by a company in contradiction to the goals of activity, specifically limited in its constituent documents, are grounds for declaring them invalid by the court at the suit of this company, its founder (participant) or the state body supervising the activities of this legal entity, if it is proved that another the party to the transaction knew or obviously should have known about its illegality (Article 173 of the Civil Code).