Legal entity under civil law. Legal entities: concept and types. Termination of a legal entity

Commercial legal entities include business partnerships with two organizational and legal forms: general and limited partnership... Commercial legal entities include societies with three organizational and legal forms: a limited liability company (LLC), an additional liability company (ALC) and a joint stock company (JSC) (open or closed). Commercial legal entities also include production cooperatives ... And also unitary enterprises .

OJSC and CJSC are types of joint-stock companies, and not independent organizational and legal forms.

Nowadays, a ban on leaving the LLC is presumed, unless otherwise provided by the charter. That is, an exit is possible with obtaining the real value of the share.

Characteristics of commercial organizations:

These subjects are professional entrepreneurs (stricter standards, but more freedom in relations with other professional entrepreneurs).

The goal is to carry out profitable activities and make a profit

General legal capacity - the ability to have any rights and bear any obligations (with the exception of unitary enterprises, they have special legal capacity).

The list of legal entities in the Civil Code is exhaustive

The ratio of partnerships and companies

Comparative characteristics

Partnerships.

Full partnership- a commercial legal entity of a corporate type, whose members personally carry out the entrepreneurial activities of the partnership and bear unlimited subsidiary liability for the partnership's debts with all their property. The essence of the design is that a partnership is created, but the participants in it are non-standard ( participants conduct activities on behalf of the partnership, and this is the main way of doing business). Each comrade is an entrepreneur (either registered as an individual entrepreneur, or is a commercial legal entity).

That is, one participant can act, but everyone will be responsible. Here is a personal-trust relationship (feducio). A complete partnership is impossible without such a relationship.

In Russian pre-revolutionary law, this form was very common.

Possible 2 complementary ways of doing business(only on the basis of the memorandum of association):

- joint business management- for each transaction, for each action, a unanimous decision of all partners is required, otherwise there will be no transaction

- case management on a commission basis- the comrades issue a power of attorney to one of them, and this one acts on behalf of everyone

This presumes a way of doing things every friend.

If the second (jointly) or third method (based on the order) is installed, then there is a nuance with the counterparty status. If these methods are chosen, then transactions made in violation of these requirements will still be valid according to the general rule (an exception if the counterparty knew about the limitations of the memorandum of association).

Control system. The control system is also simple.

The purpose of the body is to develop the will of a legal entity. In fact, the will is developed quite easily, so a complex organ system is not formed. Management decisions are taken by the general meeting unanimously (the only exception can be laid down in the memorandum of association - decision-making by a majority vote; in the memorandum of association, you can list issues on which unanimity is not required).

Property relations of a full partnership.

The partnership is the owner of the property. At the stage of creation, the founders transfer some assets to the partnership. At the stage of formation, the formation of the joint capital takes place (this is a conditional value, its size should be indicated in the memorandum of association).

Then, in order to register a partnership, the founders must form a pooled capital (the figure specified in the memorandum of association) - transfer money or property to the partnership into the pooled capital.

The contributed capital is divided into shares.

After registration, the partnership can dispose of all the contributed capital.

The Civil Code does not provide for serious consequences of a decrease in assets. There is only one consequence - the prohibition to distribute profits until the pooled capital is restored. This is because there is no purpose to guarantee the interests of creditors. This goal is achieved by other means. The interests of the counterparty are protected by the personal status of the partners, because they are personally liable for the obligations of the partnership (including property).

Therefore, the name of the partnership may include the names or names of the participants (or all, or one name and the words "and company")

Consequences of non-fulfillment of obligations by the partnership.

The liability of the partnership itself (main consequence)

The liability of the subsidiary obliged partners (if the partnership's property is insufficient to meet the creditors' claims). Solidarity of responsibility means that everyone is fully responsible

The consequences of changing the composition of the participants in the partnership.

The exclusion of a participant from the partnership is allowed (only in court, if there are serious reasons)

Comrade is allowed to leave at will.

The exiting participant may demand to pay him the amount that is equivalent to his share in the contributed capital.

If after leaving the partnership only one person remains, then the partnership must either be transformed into a company or liquidated.

A change in the composition is possible in the event of the sale by one of the partners of his share in the pooled capital.

It is also possible to foreclose on a share in the contributed capital.

Since in a partnership there are federal relations, therefore, the other participants may not want a new one to appear in their ranks, therefore, as a general rule, any change in the composition of participants entails the need to liquidate (terminate) the partnership. Exceptions can only be established by the general agreement of the remaining participants.

Change of responsibility in case of change in the composition of participants in a full partnership.

A) The exit of one of the participants. Subsidiary liability for obligations that appeared before its release remains for two years after the release

B) The appearance of a new participant. Such a participant bears subsidiary responsibility for all obligations of the company, including those that arose before it appeared.

In solidarity- in full

Subsidiarity realized in the fact that the requirement is presented first to the partnership, and only then to the comrades.

Limited partnership (limited partnership)

Limited partnership- a legal entity of a corporate type, the participants of which are divided into two categories: general partners (their status is equivalent to the status of partners in a full partnership), limited partners (investors)

The status of limited partners is that they do not participate in management, in entrepreneurial activity, but also do not bear any responsibility for the obligations of the partnership.

The limited partners have corporate rights-requirements with the exception of the right to participate in management.

In a limited partnership there must be at least 1 participant and 1 limited partner, if one of them leaves, then reorganization or liquidation is necessary.

In a limited partnership, there is a pooling of capital, not an association of persons. This is an intermediate construction, the pooling of capitals with the features of the pooling of persons.

Entity- an organization that has a separate property in its ownership, economic management or operational management and is responsible for its obligations with this property, can, on its own behalf, acquire and exercise property and personal non-property rights, be responsible for its obligations, be a plaintiff and defendant in court.

The creation, operation, liquidation of legal entities in Russia is regulated by the Civil Code of the Russian Federation and other laws.

Every legal entity in our country undergoes state registration. At the same time, legal entities must have without fail:

• own separate name;
• internal structure and governing bodies;
• legal address;
• Accounting.

Each legal entity, in addition, has a package of constituent documents that determine its status, rights and obligations.

Legal entities are subdivided into state and private (non-state). Depending on their activities, they are also divided into commercial and non-commercial.

Commercial organizations include partnerships - general partnerships and limited partnerships (limited partnerships); companies - open or closed joint stock companies, with limited or additional liability; production cooperatives and unitary enterprises.

Non-profit legal entities are public associations such as: trade unions; social movements; foundations; bodies of public self-government; political parties; communities of indigenous minorities; chambers of commerce and industry; religious associations; non-profit partnerships, including exchanges; institutions, including public authorities; associations and unions; consumer and specialized (garage-construction, housing, housing-construction) cooperatives; mutual lending societies (credit consumer cooperatives of citizens); as well as public corporations and companies.

By the nature of the relationship with the founders, legal entities are divided into three categories. The first - those, to the property of which the founders have the right of ownership: state and municipal enterprises, institutions. The second is the organizations in respect of which their participants have rights of obligation: business partnerships and societies, cooperatives. The third is legal entities in respect of which their participants do not have property rights: public associations, religious organizations, foundations and associations of legal entities.

Registration of legal entities in Russia is entrusted to the Federal Tax Service. As of November 1, 2017, more than 104 million legal entities were registered, while more than 5 million enterprises have been closed since the beginning of 2017.

Legal entity (Article 48 of the Civil Code)- an organization is recognized that owns, economic management or operational management of separate property and is responsible for its obligations with this property, can acquire and exercise property and personal non-property rights on its own behalf, bear obligations, be a plaintiff and a defendant in court.

Signs of a legal entity:

1) organizational unity;
2) property isolation, i.e. the legal entity owns, economic management, operating management property;
3) independent property responsibility i.e. in case of improper performance by a legal entity of its obligations, the interested person has the right to levy a claim on all property. owned by a legal entity.
4) a legal entity always acts on its own behalf.

Legal capacity of a legal entity(as well as legal capacity) - arises from the moment of making an entry in the state register "on the registration of a legal entity", and ceases from the moment of making an entry in the state register "on the liquidation of a legal entity".
Distinguish between general (a legal entity has the right to be a participant in any civil liability law) and special (a legal entity has the right to have more those rights and obligations that are granted to him by the founder or the law. All non-commercial organizations have it, and from commercial: State and Mun. unitary enterprises) legal capacity.

Bodies of a legal entity can be collegial (general meeting, board of directors), or sole.
Bodies of a legal entity, consisting of members of a legal entity, can be elected or appointed. The list of governing bodies, as well as their competence, is determined by both legislation and priority documents.
Bodies of a legal entity act without a power of attorney (within the limits of their authority).
A legal entity can act independently or through its own governing bodies, or it can act through representatives (any capable person), they act on the basis of a contract of agency or power of attorney.

Types of legal entities:

1) Depending on the purpose of creation: (created for the purpose of making a profit) and (they do not pursue such a goal, although they also have the right to engage in PD, but they send all the profits only for the purposes specified by the charter;

2) Depending on the rights of the founders of a legal entity to its property: legal entities whose founders retain real rights to the property transferred to the authorized capital (in corporate organizations, these are state. Mun. Unitary enterprises; in non-commercial organizations, these are institutions. ) And legal entities in which the founders retain only rights of obligation. There are legal entities whose participants do not retain any property, non-obligation rights to property in the capital of the organization (religious organization)

Legal entity formation:

There are 2a ways to create legal entities: 1) explicit-normative (eliminates the need to obtain prior permission from public authorities to create a legal entity. the creation of some legal entities, in addition to the will of the founder, requires the prior permission of the public authorities. The founder is obliged to provide the constituent documents. For economic partnerships, this is the constituent agreement, for all other organizations, the charter.)

Refusal in state registration is possible only for two reasons:
1) incomplete package of documents;
2) the documents contain unreliable data

The authorized capital of a legal entity:

The obligatory formation of the authorized capital and the requirement for its minimum size is established for commercial organizations, except for economic partnerships. Established capital must guarantee the protection of creditors' rights.

Types of contributions to the authorized capital:

1) money;
2) other things, including securities;
3) property rights, a non-monetary contribution is assessed by the founders, but for economic partnerships and unitary enterprises in cases where the value of the contribution exceeds 200 minimum wages, it is assessed by an independent appraiser. In cases of overestimation, the appraiser is jointly and severally liable with the founders;
4) the right to the results of intellectual activity.

Representative office and branches of legal entities:
A representative office is a separate structural unit located outside the location of a legal entity that represents its interests.
A branch is a separate structural unit located outside the location of a legal entity, representing the interests of a legal entity and an entity. part of its functions.
The head of a representative office or branch is appointed by a legal entity and acts on the basis of a power of attorney.

Reorganization of a legal entity:

Reorganization forms:
1) Separation - i.e. instead of one legal entity that ceases to exist, two or more new legal entities are formed;
2) Allocation - from the structure of a legal entity, as a rule, its subdivision is allocated, which acquires the status of a legal entity;
3) Merger - two or more legal entities cease to exist and by combining assets and liabilities, they form a single new legal entity;
4) Affiliation - 1o or several legal entities ceasing to exist, combine the assets and liabilities of previously existing legal entities. In the event of a merger or accession, the rights and obligations are transferred on the basis of a deed of transfer;
5) Reorganization - the decision on reorganization is made by the participants of the legal entity. Such a decision can be made in a court of law, in the case when the law provides for such a possibility.
The reorganization is considered complete when an entry is made in the state register. General provisions on reorganization are enshrined in the Civil Code, the specifics of reorganization are provided for by the Federal Law "On certain organizational and legal forms of legal entities".

Liquidation of a legal entity:

The decision to liquidate a legal entity is made by the Arb. Courts. The court is obliged to indicate a specific violation of the current legislation, which was the basis for such a decision. Further, the court creates a liquidation commission and all rights and obligations to manage the legal entity are transferred to it. The liquidation commission sends to the tax authority, as well as to the state registration bulletin, information about the decision made, as well as information about the time period for creditors to present their claims, this period should not be less than 2 months. The liquidation commission notifies the creditors of the liquidation of the legal entity, who, within 2 months, have the right to present claims to the liquidation legal entity. Upon the expiration of the period established for the presentation of the creditor's claims, the commission makes settlements with the creditors. The creditors' claims not satisfied due to the missing property are considered extinguished. If, after settlements with creditors, the legal entity has property left, it is distributed among the founders. The sequence of settlements with the creditor is Article 64 of the Civil Code. First priority creditors, citizens to whom the legal entity is responsible for compensation for harm caused to the life or health of employees of the legal entity. In front of any 3 persons, if their life or health has been harmed through the fault of a legal entity.

Insolvency (bankruptcy):
Signs of bankruptcy of legal entities:
1) a legal entity has a debt of at least 100 thousand rubles, with the exception of city-forming enterprises and enterprises of the defense complex;
2) the debtor cannot fulfill his financial obligations within 3 months.
Signs of bankruptcy of an individual:
1) debt in the amount of 10 thousand rubles;
2) failure to fulfill obligations within 3 months;
To be declared bankrupt, it is necessary that the amount of debts exceeds the value of his property.

The following can apply to the Arb. Court:
1) the debtor himself;
2) competitive creditors;
3) bodies authorized to collect compulsory payments in budgetary and non-budgetary form.
Before contacting the Arb. Court, it is possible to apply such a procedure as reorganization (creditors or third parties have the right to provide the debtor with funds to restore the payment capacity). All other procedures are judicial and are introduced on the basis of a court ruling.

Judicial procedure from the moment of recognition of insolvency, the following procedure is introduced:

1) Supervision - valid until the court session, which will consider the issue of introducing the next bankruptcy procedure, or refusing to accept a person as bankrupt. Arb. Court appoints Arb. Manager, his task:
- assess the financial condition of the debtor;
- contribute to the preservation of the debtor's property.
At the stage of supervision, the debtor's management bodies are not removed from their duties, but they are entitled to make a number of transactions only with the agreement of the Arb. Manager;

2) Financial recovery - creditors or third parties have the right to decide on additional funds for the debtor. Completing the stage of observation, the Arb. Court has the right to introduce such a procedure as.

3) External management - the procedure is introduced for 1 year and can be extended for another 6 months. The management bodies of the debtor are removed from business and the initiation of business is entrusted to the Arb. Manager, however, the Arb. Manager has the right to make a number of transactions only with the consent of the meeting of creditors. Upon completion of this procedure, the court can make a decision, either on the restoration of the debtor's solvency, or a decision on the introduction of bankruptcy proceedings. Common to the observation of financial health and external strengthening is the introduction of a maratorium. For the period when the bankruptcy procedure comes into effect, no sanctions are charged on the monetary obligations of creditors. Lenders are only entitled to accrue interest at the Central Bank rate. The size of the rate was determined on the day of the introduction of the corresponding procedure. The Maratorium does not apply to debts to creditors of the 1st and 2nd stages, which have been confirmed by a court act that has entered into legal force. From the moment the bankruptcy procedure was introduced, all creditors' claims were presented only in accordance with the rules of the Bankruptcy Law, including the bankruptcy procedure.

Features of bankruptcy of individuals:

Condition for filing a bankruptcy petition:
1) The presence of a debt of at least 10 thousand rubles;
2) The debtor does not pay off obligations for more than 3 months.
In article 446 of the Code of Civil Procedure there is a list of types of property on which collection cannot be levied. In relation to a citizen, an observation procedure is also introduced, a competition procedure. The register of the creditor's claims is formed according to the general rules, the tender. The mass is formed according to the general rules but taking into account Article 446 of the Code of Civil Procedure.

Peculiarities:
An individual entrepreneur may have creditors whose requirements are related to the maintenance of PD and these creditors may be either competitive or non-competitive. An individual entrepreneur may have creditors whose claims are not related to PD (did not pay utility bills or alimony payments). Creditors whose debt is not related to PD are recorded separately in the register. If the funds are not enough to settle with creditors, they retain the right to present claims later, as the property appears from the debtor. After a decision is made on declaring him a bankrupt, his state registration record is canceled and within a year he cannot be registered as an individual entrepreneur. An amicable agreement can be concluded between the creditor and the debtor (at any stage).

Entity- an organization that has separate property and is responsible for its obligations with this property can, on its own behalf, acquire and exercise property and personal non-property rights, bear obligations, be a plaintiff and defendant in court.

Signs of a legal entity(table 6.1) :

Tab. 6.1. Signs of a legal entity

Types of legal entities.

Legal entities can be classified according to several criteria (Fig. 6.3).

1. By nature of activities legal entities are divided into commercial and non-commercial:

a) commercial are organizations that, as the main goal of their activities, pursue the extraction of profit, as well as distribute profits among the participants. These include business companies and partnerships, production cooperatives, state and municipal unitary enterprises;

b) non-profit are organizations that do not have profit making as the main goal and do not distribute the received profit among the participants. The list of non-profit organizations given in the Civil Code is open. Non-profit organizations can carry out entrepreneurial activity only insofar as it serves to achieve the goals for which they were created.

2. By types of rights of founders (participants) in relation to legal entities or their property are distinguished:

a) legal entities in respect of which their participants have rights of obligation (business companies and partnerships, production and consumer cooperatives). The organization itself becomes the owner of the transferred property;

b) legal entities, to the property of which the founders have the right of ownership or other proprietary right. Thus, state and municipal unitary enterprises, as well as institutions financed by the owner, own property on the basis of the right of economic management or operational management;

c) legal entities in respect of which their participants do not have any property rights (public and religious organizations (associations); charitable and other foundations, associations of legal entities (associations and unions).

Rice. 6.3. Types of legal entities

Legal workshop:

1. Citizen Lvov became addicted to gambling in casinos, where he regularly lost his salary and family budget funds, putting his family in a difficult financial situation. His wife Ilona went to court with a demand to restrict her husband's legal capacity.

Is her claim to be satisfied? Justify the answer.

1. Vasilyeva went to court with a statement declaring her husband dead. In the statement, she indicated that she had no information about the place of her husband's stay for more than 5 years, which was confirmed by a certificate from a housing office from Vasilyev's last place of residence. The court ruled on recognizing her husband as missing, while explaining to Vasilyeva that she could apply to declare her husband dead 2 years after her husband was declared missing.

Was the decision made by the court? Justify the answer.

1. To the summer cottage of a former serviceman, pensioner V.G. Potapenko was constantly raided by "uninvited guests". Tired of counting the losses incurred and finally getting angry with the country robbers, he stayed overnight in the country house. At night, as the pensioner just heard a suspicious noise, he ran out of the house and fired several times from a hunting rifle at dark silhouettes. As a result of the received gunshot wound, one of the boys who stole apples in V.G. Potapenko became disabled.

Are Potapenko's actions lawful? Justify your answer.

Questions for self-control:

1. What kind of relationships are the subject of civil law?

2. List three categories of civil law subjects.

3. What qualities should individuals possess as subjects of civil law?

4. In what case can a natural person be recognized as having limited legal capacity?

6. List the reasons for the incapacity of individuals.

7. Expand the concept of a legal entity.

8. What are the requirements for the property of a legal entity?

9. What documents contain the corporate name of a legal entity?

10. List the types of legal entities.

11. Highlight the distinguishing features of commercial and non-profit organizations.