The supreme governing body of a non-profit organization. Chapter V

In accordance with Art. 28 of the Law “On Non-Commercial Organizations”, the structure, competence, procedure for the formation and term of office of the governing bodies of a non-commercial organization, the procedure for making decisions by them and speaking on behalf of a non-commercial organization are established by the constituent documents of a non-commercial organization in accordance with the current legislation.

The supreme governing bodies of non-profit organizations are:

For an autonomous non-profit organization - a collegiate supreme governing body;

For a non-profit partnership - the general meeting of members;

For associations and unions - the general meeting of members.

The procedure for managing the fund is determined by its charter.

The main function of the supreme governing body of a non-profit organization is to ensure that the non-profit organization complies with the goals for which it was created.

The competence of the supreme governing body of a non-profit organization includes the following issues:

Changing the charter of a non-profit organization;

Determination of priority areas of activity of a non-profit organization, principles for the formation and use of its property;

Formation of executive bodies of a non-profit organization and early termination of their powers;

Approval of the annual report and annual balance sheet;

Approval of the financial plan of a non-profit organization and making changes to it;

Creation of branches and opening of representative offices of a non-profit organization;

Participation in other organizations;

Reorganization and liquidation of a non-profit organization (with the exception of the liquidation of a foundation, which can only be liquidated on the basis of a court decision).

The constituent documents of a non-profit organization may provide for the creation of a permanent collegiate management body, which may be responsible for resolving such issues as approving the financial plan and making changes to it, creating branches and representative offices, participating in other organizations, as well as approving annual accounts.

Other issues are within the exclusive competence of the supreme governing body of a non-profit organization.

A general meeting of members of a non-profit organization or a meeting of the collegiate supreme governing body of a non-profit organization is considered competent if more than half of its members are present at the said meeting or meeting.

The decision of the general meeting or session is taken by a majority vote of the members present at the meeting or session. The decision of the general meeting or session on issues that are exclusively within the competence of the supreme governing body of a non-profit organization is taken unanimously or by a qualified majority of votes in accordance with the current legislation and constituent documents.

It is easy to see that the supreme governing body of a non-profit organization and its executive bodies resolve fewer issues than the same bodies of a commercial organization. This is primarily due to two reasons.

Firstly, the composition and complexity of the tasks solved by non-profit organizations are significantly inferior to the composition and complexity of the tasks facing an organization created for the systematic receipt and distribution of profits.

Secondly, the decisions taken by the governing bodies of a non-profit organization cannot practically affect the level of personal well-being of its participants or members. All decisions made by them should be aimed at achieving the goals set for the non-profit organization at the time of its creation.

Paragraph 5 of Art. 29 of the Law "On Non-Commercial Organizations" it is prohibited to pay remuneration to members of its supreme management body for the performance of their functions, with the exception of compensation for expenses directly related to participation in the work of the supreme management body.

The executive body of a non-profit organization may be collegiate and (or) sole. He carries out the day-to-day management of the activities of the non-profit organization and is accountable to the highest governing body of the non-profit organization. The competence of the executive body of a non-profit organization includes the resolution of all issues that do not constitute the exclusive competence of other management bodies of the non-profit organization, as determined by the current legislation and the constituent documents of the non-profit organization.

A non-profit organization maintains accounting records and statistical reporting in accordance with the procedure established by the legislation of the Russian Federation.

A non-profit organization provides information about its activities to state statistics and tax authorities, founders and other persons in accordance with the legislation of the Russian Federation and the constituent documents of a non-profit organization.

The specificity of the formation and presentation of reports by non-profit organizations to interested users is that the law significantly restricts the rights of such organizations to close certain types of information (which in organizations of other organizational and legal forms is classified as a trade secret).

In accordance with Art. 32 of the Law "On non-profit organizations" the following data cannot be the subject of a trade secret:

The size and structure of income of a non-profit organization;

Information on the size and composition of the property of a non-profit organization;

Information about the expenses of the organization;

Information on the number and composition of employees;

Information about the remuneration of employees;

Information on the use of unpaid labor of citizens in the activities of a non-profit organization.

For comparison: organizations that are not non-commercial cannot classify as commercial secrets only information about the number, composition of employees, and their wages.

Non-profit organizations (NPOs) are organizations established for the purpose of producing goods and services. The status of NCOs does not allow them to serve as a source of profit for their founders. Thus, in the Civil Code of the Russian Federation, a non-profit organization is defined as an organization that does not have profit making as the main goal of its activities and does not distribute the profits received among the participants. Non-profit organizations are created to achieve social, charitable, educational, scientific and managerial goals, as well as other goals.

The organizational and legal forms of non-profit organizations are:

• - fund;
• - institution;
• - public organization (association);
• - consumer cooperative;
• - non-commercial partnership;
• - an autonomous non-profit organization;
• - association of legal entities (association and union).

The Federal Law of November 12, 1996 "On Non-Commercial Organizations" applies to all non-commercial organizations created or being created on the territory of the Russian Federation insofar as otherwise is not established by other federal laws. This federal law defines the forms of NCOs.

The Federal Law of May 19, 1995 “On Public Associations” defines a public association as “a voluntary, self-governing, non-profit formation created on the initiative of citizens united on the basis of common interests for the implementation of the common goals specified in the charter of a public association”, and cites it the following organizational and legal forms:

• - social organization;
• - social movement;
• - public fund;
• - public institution;
• - body of public initiative;
• - Political Party.

The founding documents of the NPO are:

• - charter approved by the founders (participants, property owner) for a public organization (association), foundation, non-profit partnership, private institution and autonomous non-profit organization;
• - the memorandum of association concluded by their members and the articles of association approved by them for the association or union.

To register a non-profit organization upon its creation, the authorized body or its territorial body shall be provided with:

• - statement;
• - founding documents;
• - the decision to establish an organization;
• - information about the founders;
• - a document confirming the payment of the state fee.

The executive body of an NPO may be collegiate and (or) sole. The supreme governing bodies of NCOs in accordance with their constituent documents are:

• - a collegiate supreme governing body for an autonomous NPO;
• - general meeting of members for a non-profit partnership, association (union).

The competence of the governing bodies of NCOs includes:

• - change of charter;
• - formation of executive bodies;
• - approval of the annual report, balance sheet, financial plan.

A feature of a foreign non-profit non-governmental organization is that it was created outside the territory of the Russian Federation in accordance with the legislation of a foreign state, and its founders (participants) are not state bodies.

Autonomous, private, budgetary institutions also stand out among NGOs.

A private institution is a non-profit organization created by the owner (citizen or legal entity) to carry out managerial, socio-cultural or other functions of a non-commercial nature.

Features of the legal status of budgetary institutions are determined by the Budget Code of the Russian Federation. Yes, Art. 161 of the Budget Code determines that a budget institution carries out operations for spending budget funds in accordance with the budget estimate, it does not have the right to receive credits (loans), independently acts in court as a defendant for its monetary obligations, ensures the fulfillment of its monetary obligations specified in executive document, within the limits of budgetary obligations brought to it.

In order to increase the efficiency of spending budgetary funds through the transition to the financial provision of public services on the basis of the state assignment and the principles of per capita financing, the process of reorganization of budgetary institutions into autonomous institutions is underway.

In accordance with the Federal Law of November 3, 2006 No. 174-FZ "On Autonomous Institutions", autonomous institutions can be created by establishing them or changing the type of an existing state or municipal institution. An autonomous institution is a non-profit organization established by the Russian Federation, a constituent entity of the Russian Federation or a municipality to perform work, provide services in order to exercise the powers of state authorities provided for by the legislation of the Russian Federation, the powers of local governments in the fields of science, education, healthcare, culture, social protection, employment population, physical culture and sports. The income of an autonomous institution is at its own disposal and used by it to achieve the goals for which it was created.

Features of various forms of NCOs are shown in Table 1.

Table 1. Forms of non-profit organizations

Table 1 shows that the organizational and legal forms of non-profit organizations are diverse, and include public and religious institutions, foundations, state corporations, non-profit partnerships, autonomous non-profit organizations, associations of legal entities (associations and unions). Thus, the foundation is a non-profit organization without membership, established by citizens and (or) legal entities on the basis of voluntary property contributions and pursuing social, charitable, cultural, educational or other socially useful goals. The financial resources of the fund are created at the expense of voluntary property contributions in cash, as well as income from entrepreneurial activities that correspond to the goals for which the fund was created. In order to carry out entrepreneurial activities, foundations have the right to create business companies or participate in them. The Board of Trustees of the Foundation, which operates on a voluntary basis, is the body of the Foundation and supervises the activities of the Foundation.

A state corporation is an organizational and legal form that does not have membership, approved by the Russian Federation on the basis of a property contribution and created to carry out social, managerial and other socially useful functions (FZ "On the restructuring of credit organizations"). The property transferred to the state corporation by the Russian Federation shall be the property of the state corporation. A state corporation can carry out entrepreneurial activity only insofar as it serves the achievement of the goals for which it was created, and corresponding to these goals.

A non-profit partnership is a membership-based non-profit organization established by citizens and (or) legal entities to assist its members in carrying out activities aimed at achieving certain goals. Property transferred to a non-profit partnership by its members is the property of the partnership. A non-profit partnership has the right to carry out entrepreneurial activities. A feature of this organizational and legal form is that members of a non-profit partnership, upon leaving it, have the right to receive part of the property, with the exception of membership fees. In addition, upon liquidation of a non-commercial partnership, the part of the property remaining after the satisfaction of creditors' claims is distributed among its members in accordance with the contributed share.

An autonomous non-profit organization is a non-profit organization without membership, which is established by citizens and (or) legal entities on the basis of voluntary property contributions in order to provide services in the field of education, healthcare, culture, science, law, physical culture and sports and other services. Property transferred to an autonomous non-profit organization by its founders (founder) is its property. It has the right to carry out entrepreneurial activities corresponding to the goals for the achievement of which the specified organization was created. Supervision over the activities of an autonomous non-profit organization is carried out by its founders in the manner prescribed by its constituent documents. The founders of an autonomous non-profit organization may use its services only on equal terms with other persons.

NPOs can voluntarily unite into associations (unions) of non-profit organizations. Union members retain their independence and the rights of a legal entity. Union members bear subsidiary liability for the obligations of the union.

Upon withdrawal from the union, a member shall bear subsidiary liability for its obligations in proportion to its contribution within two years from the date of withdrawal. Joining an association (union) of a new member may be conditioned by its subsidiary liability for the obligations of the association (union) that arose prior to its entry.

Voluntary contributions and donations are typical for public associations, charitable foundations, and religious organizations. At the same time, the legislation prohibits receiving financial and other material assistance to political public associations for activities related to their participation in elections from foreign states, organizations and citizens.

head of legal department
autonomous non-profit organization
Regional Financial and Economic Institute (RFEI), Kursk

To prepare this article, the author was prompted by familiarization with the materials of one court case, the cause of which was the conflict between the founders autonomous non-profit organizations in the field of publishing regarding its property and management procedures. The solution of such issues is difficult for the court due to the vagueness and vagueness of a number of rules that do not clearly enough regulate relations within autonomous non-profit organizations. And although the case has not yet been completed, it is still possible to formulate a number of recommendations and proposals that will help regulate the legal status of autonomous non-profit organizations(ANO) and its governing bodies, as well as other types of relations that develop in the process of implementing the competence of such an organization.

In this regard, I would like to draw the attention of readers to a number of issues, the correct, more accurate and detailed settlement of which by the founders themselves can reduce the risk of such conflicts.

The legal status of the system of governing bodies of ANOs is mainly enshrined in the Federal Law "On non-commercial organizations(hereinafter referred to as the Law), in particular in Art. 29, 30 of the Law. Moreover, the legal regulation of the creation and activities of ANO management bodies is much more detailed than, for example, funds and some other non-commercial organizations.

The key issue of the organization and activities of any organization is the system of organization of management and the competence of its bodies. Consider the features of the legal status of the governing bodies of the ANO. In accordance with paragraph 1 of Art. 29 of the Law, the supreme governing body must be formed in ANO. A feature of this governing body of the ANO is that it must be collegial, that is, it must consist of at least two persons. The second obligatory requirement for the structure of ANO management bodies is the obligation to create an executive management body of ANO. The specified body, in turn, can be both collegiate and (or) sole.

The peculiarity of the legal regulation of activities for the management of ANOs is that clause 3 of Art. 10 of the Law establishes that the activities of the ANO are supervised by its founders. The procedure and conditions for the implementation of such supervision should be established by the constituent documents of the ANO. The mechanism for exercising the right of ANO founders to exercise control over ANO activities is not regulated by the Law. Therefore, this issue falls within the competence of the founders of ANO. From the comparison of paragraph 3 of Art. 10 with paragraph 3 of Art. 7 of the Law, it follows that, according to its purpose, the supervisory body of the ANO, which is the founders of the ANO, is an analogue of the board of trustees that exists in the funds.

Article 28 of the Law establishes the procedure for fixing the management system of any non-profit organization, including ANOs, in the Charter. In particular, according to Art. 28 of the Law in relation to each of the governing bodies of a non-profit organization, the Charter of a non-profit organization must necessarily define a number of mandatory provisions.

In particular, the structure and competence of the organization's management bodies should be fixed (that is, the list of management bodies, their hierarchy, subordination, dependence, interrelations, accountability, the mechanism of interaction between various departments, etc.).

An analysis of a number of statutes of ANOs shows that the statutes of most ANOs in various service areas contain, as a rule, these provisions, and in most cases they are reproduced verbatim.

However, when fixing these provisions, it should be borne in mind that when choosing the legal structure of the governing bodies of a non-profit organization, it is important to take into account that the competence of the supreme governing body of a non-profit organization is determined by paragraph 3 of Art. 29 of the Law is imperative. Therefore, when constructing the scope of competence of any of the governing bodies, one should monitor the inadmissibility of duplication or contradictions in the competence of various governing bodies.

The next prerequisite is the regulation of the procedure for the formation of governing bodies by a non-profit organization (that is, by whom and from among whom the members of each of the governing bodies are elected (appointed), in what order and using what procedural procedures), since the level of detail of these features depends on the clarity of creation and work of various governing bodies of the organization.

Important, and sometimes decisive for the performance of certain actions of the bodies and officials of the organization, is the regulation of the terms of office (that is, for how long each of the governing bodies of a non-profit organization is elected, appointed, the procedure for prolonging and early termination of the powers of the governing bodies of a non-profit organization).

A prerequisite is also the regulation of the procedure for making decisions by the governing bodies of a non-profit organization. Moreover, the following criteria are important for a collegial body: quorum, the number of votes required to make a particular decision, in what cases an absolute majority of votes of the members of the governing body is required, who and in what cases uses the right of "veto", can there be a cumulative, remote, absentee voting, what is the procedure for notifying about meetings of the governing body of a non-profit organization).

It is necessary to regulate in detail the procedure for speaking on behalf of a non-profit organization (that is, which governing body represents the organization in business and acts on its behalf without a power of attorney or on the basis of what documents).

Taking into account the fact that ANO, as well as a fund similar to it in this part, are organizations without membership, and that they can exist independently of the persons who created them, the founders of ANO need, when deciding on the creation of an organization without membership, to form the initial composition of the supreme governing body of the ANO in the manner prescribed by the Charter of the ANO. In order to avoid possible conflicts in the field of ANO management in the future, it is advisable to regulate in the Charter as detailed as possible further elective procedures for governing bodies.

The supreme governing body of the ANO

The main function of the supreme governing body of the ANO is to ensure that the ANO complies with the goals for which it was created. These goals can be very diverse. The main requirement for them is that they must be regulated in detail in the Charter of the ANO. Otherwise, the risk increases that certain types of ANO activities, when expanding the scale of ANO activities, may be recognized as inconsistent with the goals of the activities specified in the Charter of the ANO.

In relation to ANOs, in contrast to organizations based on membership (non-profit partnerships, associations (unions), the law does not define the composition, procedure and conditions for the formation of the supreme governing body in relation to the mechanism of its formation. Article 29 of the Law establishes only one mandatory condition in this part : such a governing body of an ANO should be collegiate, and Article 28 of the Law prescribes the procedure for its formation and term of office to be determined in the Charter.

Since the name for the supreme governing body of the ANO is not established by the Law, you can independently establish any name. By analogy with existing names, this can be a council, board, presidium, supreme body, etc.

The literature suggests several possible ways to form the supreme governing body of the ANO. In particular, the authors of the book propose the following constructions:

a) the supreme governing body of the ANO may consist of the founders of the ANO (their representatives), since the rights of the founders to supervise the activities of the ANO do not relate to property rights. As a result, the founders can exercise their rights to manage the organization both personally and through their representatives (at the same time, the charter should provide for such a procedure for the formation of the supreme management body that would take into account cases of the founder’s refusal to participate in management, the procedure for appointing (election) a member of the supreme management body in case of death, termination of the founder's activities).

It seems to me that, in addition to this proposal, the criteria for possible representatives of the founders should be defined;

b) the supreme management body of the ANO may consist of specific persons specified in the Charter. In this case, the authors recommend defining in the Charter the procedure for the formation of the supreme governing body of the ANO, in the event that a person determined by the Charter leaves this body, which, in our opinion, is quite difficult, since with a significant composition of participants, their turnover will have to make changes to the Charter quite often .

c) a combined method of forming the supreme governing body of the ANO, combining cases a) and b). In this option, when creating an ANO, the founders form the supreme governing body of the ANO, consisting of the number of founders and (or) their representatives or (and) specific persons. At the same time, the term of office of the top management of the ANO in the elected composition is established. And in the future (or in the event of early retirement of one of the members of the supreme governing body of the ANO), the supreme governing body of the ANO itself elects a person to be its members (co-optation).

In my opinion, this combined option is not the best, since it also involves the inclusion of specific persons in the management body of the ANO, in the event of their withdrawal, the Charter will again have to be amended.

With a large number of ANO founders, such a procedure can be repeated quite often, and therefore, it will require significant additional time and money. Although it should be noted that under certain conditions and features associated with the inclusion in the management body of the ANO of persons of particular importance to the organization, this option may be acceptable.

The charter may establish various procedures and conditions for the election (appointment) of a person to the supreme governing body of the ANO. They depend on the experience, knowledge and will of the founders.

The procedure for the formation and terms of office, the competence of the supreme governing body of the ANO (its members) must be determined in detail by the Charter. Judicial practice shows that it is precisely the lack of consolidation of these procedural issues that can subsequently lead to serious conflicts and discord among the founders of ANOs and their representatives. When forming the supreme governing body of an autonomous non-profit organization, one must remember and take into account the restrictions established by paragraph 5 of Art. 29 of the Law, according to which persons who are employees of the ANO cannot be more than 1/3 of the total number of members of the supreme governing body of the ANO. The Law does not establish sanctions for violation of this rule, and therefore there is a temptation to violate this rule, especially if the number of ANO founders is small and if there is an unwillingness to involve force from outside. However, in the event of a dispute, violation of this restriction may be the basis for a lawsuit in order to invalidate the procedure for the formation of such an ANO management body.

The competence of the supreme governing body of the ANO, unlike the fund, is unambiguously defined by the Law and contains an exhaustive list of issues (clause 3, article 29 of the Law), namely:

1. Amendment of the Charter of ANO.
2. Determination of priority areas of ANO activity, principles of formation and use of property of ANO.
3. Formation of executive bodies of ANO and early termination of their powers.
4. Approval of the annual report and annual balance sheet of ANO.
5. Approval of the financial plan of ANO and making changes to it.
6. Creation of branches and opening of representative offices of ANO.
7. Participation of ANO in other organizations.
8. Reorganization and liquidation of ANO.

A feature of the competence of the supreme governing body of the ANO is that, unlike the fund, the above list of issues related to the competence of the supreme governing body of the ANO is imperative, that is, it cannot be changed and (or) supplemented by the Charter of the ANO.

Regarding the provision of the required number of participants in the supreme governing body of the ANO, who must be present at the meeting of this body, paragraph 4 of Art. 29 of the Law, in terms of the quorum of the supreme governing body, the ANO establishes: "... a meeting ... is competent if more than half of its members are present at the indicated ... meeting." This norm is imperative and also cannot be changed by amending the Charter of the ANO.

Paragraph 4 of Art. 29 of the Law regulates the procedure for making decisions by the supreme governing body of an autonomous non-profit organization.

They found that:

a) on issues that do not fall within the exclusive competence of the governing body of the ANO: “The decision ... is made by a majority vote of the members present at ... the meeting”;

b) on issues of the exclusive competence of the governing body of the ANO: "The decision ... is taken unanimously or by a qualified majority in accordance with this Federal Law, other federal laws and constituent documents."

This means that in terms of the procedure for making decisions by the supreme governing body of the ANO, the Charter of the ANO cannot establish a different procedure or change the procedure for making these decisions. The norms of the Law only provide an opportunity for an alternative choice from the two options proposed by the legislator: either unanimously or by a qualified majority of votes - only on issues of the exclusive competence of the supreme governing body of the ANO. The Articles of Association should also establish which majority of votes is a qualified majority, namely, for example, 60%, 2/3, 75%, 90%, 100%, and on which issues a qualified majority is necessary.

Members of the supreme governing body of the ANO carry out their functions of participating in management on a gratuitous basis, since, in accordance with paragraph 5 of Art. 29 of the Law: “A non-profit organization is not entitled to pay remuneration to members of its supreme management body for the performance of their functions, with the exception of compensation for expenses directly related to participation in the work of the supreme management body.” But on the other hand, if the members of the supreme governing body of the ANO are someone's representatives (for example, representatives of the founders of the ANO), then nothing prevents the principal at his own expense from establishing remuneration for his representative for the latter to perform representative functions in the supreme governing body of the ANO. In general, this issue is quite complex, controversial and little studied.

"Intermediate" governing body

The constituent documents of the ANO may provide for the creation of a permanent collegial governing body of the ANO (which is neither the highest, nor the executive, nor the control, nor the supervisory one; therefore, for convenience, it is sometimes conventionally called “intermediate”, “interlevel” and “additional” management body) . The jurisdiction of this governing body of the ANO may include the resolution of issues that do not fall within the exclusive competence of the supreme governing body of the ANO. The scope of powers of this governing body of the ANO is determined in the Charter of the organization.

The list of issues within the competence of such an “intermediate” ANO management body is also defined as exhaustive. But in terms of the quorum and the decision-making process by this governing body, the Charter of the ANO may contain different options, since the Law does not establish any conditions for the “intermediate” governing body of the ANO, and therefore, it gives room for combining different approaches.

Apparently, such an “intermediate” governing body of the ANO makes sense, and (or) for various reasons, it is quite difficult to type the established paragraph 4 of Art. 29 of the Law, the quorum for holding a meeting on these issues. However, if the presence of such an “intermediate” management body is necessary, then for this it is required to indicate in the Charter of the ANO all the necessary information regulating the activities of the management body, which are established by paragraph 1 of Art. 28 of the Law.

Executive body of an autonomous non-profit organization

The executive body of the ANO carries out the current management of the activities of the ANO and is accountable to the supreme management body of the ANO. It consists of full-time employees who are in labor relations with the organization.

Paragraph 1 of Art. 30 of the Law establishes three options for the system of executive bodies of a non-profit organization (including autonomous ones). In particular, the executive body of a non-profit organization may be: collegiate and sole, or only sole, or only collegiate.

Since, in accordance with Art. 28 of the Law, the Charter must necessarily indicate the procedure for speaking on behalf of a non-profit organization, then the possibility of representation in the person of a collegial body is very problematic.

The competence of the executive body includes the resolution of all issues that do not constitute the exclusive competence of other management bodies of an autonomous non-profit organization.

If the Charter of the ANO provides for the existence of both a collegial and a sole governing body of the ANO, then based on Art. 28 of the Law, it is necessary in order to avoid violation of the Law and in order not to give rise to conflict situations, it is necessary to clearly define in the Charter of the ANO the competence of each of the governing bodies of the ANO.

When specifying in the Charter other information about the executive bodies of the ANO, one should be guided by the requirements of paragraph 1 of Art. 28 of the Law. When determining the procedure for the formation of executive bodies, you can also use various options and combinations similar to those proposed above.

Supervision of founders over the activities of an autonomous non-profit organization

For an autonomous non-profit organization, the Law does not specify the obligatory existence of a Board of Trustees. Although, perhaps, for ANO, as an organization that does not have membership, such a body would be necessary.

At the same time, paragraph 3 of Art. 10 of the Law provides for the right of the founders to supervise the activities of the ANO in the manner prescribed by its constituent documents. In this regard, the Charter of the ANO should provide for one of several possible options for the implementation of supervision by the founders of the ANO over the activities of the ANO, for example:

a) the founders supervise the activities of the ANO themselves, directly. This option is most convenient when ANO has one or a fairly small number of founders. Otherwise, the supervisor may have quorum problems;

b) the founders supervise the activities of the ANO through the supervisory body of the ANO created by them (in the manner prescribed by the Charter);

c) the founders create an audit commission, appoint an auditor or involve an auditor who supervises the activities of the ANO.

In any case, in order to ensure constant control and supervision over the activities of an ANO, it is advisable to provide in the Charter for the procedure for their implementation, including in cases of refusal of the founder to exercise supervision functions or in the event of death, liquidation of the founder - a legal entity and other possible situations.

The legislator has not established the forms and methods of supervising the activities of the ANO by its founders (whether it will be constant, systematic supervision, periodic selective or extraordinary inspections of the activities of the ANO's management bodies, or by hearing reports from the management bodies on their activities, or through the implementation of an external audit) . The law also does not resolve the issue of the supervisory powers of the founders (supervisory body), i.e., their decisions are fully binding for execution by other bodies and the autonomous non-profit organization itself, or these decisions are advisory in nature. What will be the consequences for the ANO and its governing bodies if the Board of Trustees reveals various violations in the activities of the ANO or the governing bodies of the ANO? What measures and against whom will the ANO founders have the right to apply, in what order? These issues, apparently, need to be regulated by the Charter of the ANO.

Otherwise, the generated conflicts, as a result of the imperfection of the centralized and internal local legal regulation of the implementation by the founders of ANOs of supervision over the activities of ANOs, will suggest forced ways to improve these forms of regulation.

Literature

1. Federal Law of November 30, 1994 No. 51-FZ "Civil Code of the Russian Federation" (as amended on May 23, 2001) // SZ RF. 1996. No. 9, art. 773; No. 34, art. 4026; 1999, no. 28, art. 3471; 2001, no. 17, art. 1644; No. 21, art. 2063.
2. Federal Law of January 12, 1996 No. 7-FZ "On Non-Commercial Organizations".
3. Non-profit foundations and organizations. Legal aspects. - M .: Information and publishing house "Filin", 1997.

Commentary on Art. 29

1. The article does not apply to religious organizations (clause 4, article 1 of the Law). Such organizations act in accordance with their internal regulations, if they do not contradict the legislation of the Russian Federation, and have the legal capacity provided for in their charters (Article 15 of the Federal Law “On Freedom of Conscience and Religious Organizations”).
The procedure for managing the activities of a state corporation, incl. management bodies, the procedure for their formation, the procedure for appointing and dismissing officials of a corporation are determined by the federal law on the creation of a particular corporation (clause 3, article 71 of the Law).
The names of the supreme governing bodies of non-profit organizations are different. It seems quite logical legislative practice that legally fixed the names of the highest governing bodies of non-profit organizations that arose and functioned even before the adoption of the relevant laws.
For example, the commented Law establishes the name of the supreme body of an association (union) - the general meeting, and one of the varieties of non-profit organizations - a public movement - according to the Federal Law "On Public Associations", has retained the name of its supreme body - a congress (conference), which, as you know , was used for several years before the adoption of this law. However, the same federal law also allows another name for the supreme body of the social movement - the general meeting.
The law does not establish an exhaustive list of names of all types of non-profit organizations. Therefore, in the absence of the name of the supreme body in the Law, for example, an autonomous non-profit organization, foundation, the founders of these organizations have the right to independently determine the name of their supreme body in the charters. Of course, the name of the supreme body must comply with the requirements established by law. So, for an autonomous non-profit organization, a requirement is established: the highest body can only be collegiate. Therefore, it can be, for example, a general meeting, but not a president, not a director, etc.
Since the composition and competence of the governing bodies of public and religious organizations are regulated by the laws on these organizations, the commented Law determines the competence of other non-profit organizations.
2. Civil legislation (Article 50 of the Civil Code of the Russian Federation) defines the difference between commercial and non-profit organizations primarily in terms of the goals of their activities: for commercial organizations this is making a profit, for non-profit organizations - other goals not related to making a profit.
A similar practice exists in a number of foreign countries. One of the authoritative experts in the field of foreign civil law, M.I. Kulagin, noted that the institution of a legal entity is used not only in the property sphere, but also to formalize various kinds of collective interests, protect the interests of certain groups of the population (trade union, women's, sports organizations, societies consumers, etc.) (see: M.I. Kulagin. Selected works. - M., Statute, 1997, p. 222).
Non-profit organizations are created to achieve certain goals - social, charitable, cultural, scientific, managerial, etc. It should be borne in mind that entrepreneurial activity is possible within the framework of a non-profit organization only if this activity serves the achievement of the goals for which the non-profit organization was created, and corresponds to these goals.
Depending on how the purpose of the activity of a public association is formulated, the issue of classifying it as a political public association is decided. In accordance with Art. 12, supplemented by the Federal Law of July 19, 1998 “On Amendments and Additions to the Federal Law “On Public Associations” (SZ RF, 1998, N 30, Art. 3608), a political public association is a public association whose charter includes, among others The main goals should be fixed participation in the political life of society by influencing the formation of the political will of citizens, participation in elections to state authorities and local self-government bodies by nominating candidates and organizing their election campaign, participation in the organization and activities of these bodies.
The legislation also defines the signs according to which a public association cannot be recognized as political: if the association is registered as a trade union, religious, charitable organization, national-cultural autonomy, public fund, public institution, body of public amateur performance, if the charter allows membership it contains foreign citizens, foreign or international organizations, etc.
With all the variety of purposes for which non-profit organizations are created, the Law establishes a number of general issues that fall within the competence of the supreme management body of a non-profit organization.
3. The commented article contains an exhaustive list of issues within the competence of the supreme governing body of a non-profit organization. In particular, these include changing the charter of a non-profit organization, determining priority areas for its activities, principles for the formation and use of its property, etc.
In contrast to the federal laws “On Joint Stock Companies” and “On Limited Liability Companies”, the commented Law provides an opportunity for a non-profit organization to create a permanent collegial management body, which may be responsible for some of the issues that fall within the competence of the supreme management body: approval of the annual report and annual balance sheet, approval of the financial plan and making changes to it, creation of branches and opening of representative offices of a non-profit organization, participation in other organizations.
In order to realize this possibility, it is necessary to provide for the creation of such a body and vesting it with appropriate powers in the charter of a non-profit organization. Since the name of this body is not defined by the Law, the founders have the right to give it their own name. The main condition in this case is that the name corresponds to the essence of the activities of the collegial body, for example, council, collegium, etc.
The exclusive competence of the supreme governing body of a non-profit organization includes resolving the following issues: changing the charter of a non-profit organization, determining priority areas for its activities, principles for the formation and use of its property, formation of executive bodies of a non-profit organization and early termination of their powers, reorganization and liquidation of a non-profit organization (with the exception of fund liquidation).
These issues cannot be delegated to other governing bodies of the non-profit organization.
4. The law determines not only the competence of the supreme governing body of a non-profit organization, but also the procedure for exercising its competence. It has been established that the decision of the supreme body is competent if more than half of its members are present at its meeting or session. In this case, the decision is made by a simple majority of votes of those present, and on matters of exclusive competence - unanimously or by a qualified majority in accordance with the requirements of legislation or the constituent documents of a non-profit organization. Consequently, issues related to decision-making related to the implementation of the exclusive competence of the supreme body should also be regulated by the charter of a non-profit organization.
Some readers may get the impression that this paragraph regulates a purely technical issue - the decision-making procedure. Meanwhile, we are talking about the will of a legal entity, and this determines the significance of this procedure.
I would like to recall that the first Russian professor D.I. Meyer (1819-1856), who first developed the course of Russian civil law, noted that the will is not only the property of an individual. “In the same way, of the individual individuals that make up the body of a legal entity, each has its own will, which may or may not coincide with the will of other persons. Therefore, the legislation also has to take into account the will of individual members of the body of a legal entity and decide that either the unanimous will of the members is considered the will of the legal entity, or the will of the majority.
5. The founders of an autonomous non-profit organization may be individuals and (or) legal entities. For employees of this non-profit organization, a restriction has been established in the supreme governing body - their number cannot exceed one third of the total number of members of the supreme body.
From the content of the second paragraph of paragraph 5 of the commented article, it follows that no remuneration for the performance of the duties of a member of the supreme governing body, except for compensation for specific expenses directly related to participation in the work of the supreme governing body, should not be paid. Of course, we are talking only about members of the supreme governing body. Such a restriction is quite logical and follows from the meaning of Art. 10 of the Law, according to which the founders of an autonomous non-profit organization can use its services only on equal terms with other persons.