Features of different types of NGOs, their differences and the purpose of creation. NPOs: their features and differences What legal entities are non-profit organizations

In Russia, there are about thirty forms of non-profit organizations (NPOs). Some of them have similar functions and differ only in name. The main types of NPOs are established by the Civil Code and the Law “On Non-Commercial Organizations” No. 7-FZ of January 12, 1996. There are other normative documents that determine the procedure for the operation of specific forms of NCOs. Let's talk about all types in our article.

Types of non-profit organizations

Since 2008, special grants have been approved by the President to finance NGOs. In six years, their volume has reached 8 billion rubles. Basically, they were received by associations controlled by the Public Chamber. The law distinguishes the following main forms of NCOs:

1. Public and religious associations. It is a community of citizens created voluntarily on the basis of common interests. The purpose of creation is the satisfaction of spiritual and non-material needs.
2. Small communities of peoples. People are united on a territorial basis or consanguinity. They protect their culture, way of life, habitat.
3. Society of Cossacks. They have the goal of preserving the traditions and culture of the Russian Cossacks. Members of the NPO are obliged to perform military service. Such organizations are farm, city, yurt, district and military.
4. Funds. Created to provide social assistance in matters of charity, education, culture, etc.
5. Corporations. They serve to perform social and administrative functions.
6. Companies. Provides services using state property.
7. Non-commercial partnerships (NP). Based on property contributions of members. They pursue goals aimed at achieving public goods.
8. institutions. They are divided into municipal, budgetary, private. Formed by a single founder.
9. Autonomous organizations (ANO). Created to provide services in various areas. It is possible to change the composition of participants.
10. Associations (unions). They operate to protect professional interests. Read also the article: → "".

Choosing the type of NPO, setting goals

An initiative group is formed to create an NGO. It is necessary to decide what type of organization will be registered. Tasks play a primary role in the choice. They are of two types:

1. Internal - an NPO is created in the interests of its members, for their needs and problem solving (NP).
2. External - activities are carried out in the interests of citizens who are not members of an NPO (foundation, ANO).

For example, a tennis club that provides its members with a tennis court and the opportunity to play for free are internal goals, if a school for young tennis players is organized under this NPO, they are external. When determining the nature of the work, it is necessary to take into account the current interests of the members of the association and possible prospects.

Important when choosing an OPF is the number of founders, the possibility of accepting new members, and the property rights of participants.

The table will help determine the type of OPF of the organization being created:

Example. Membership in a kennel club

A group of people are planning to create a club of amateur dog breeders. The goal of the NGO is to exchange experience in breeding breeds, introduce new training methods, help in buying animals, and organize exhibitions.

At the initial stage, it should be established whether the NPO will have members or not. Membership is more suitable for the activities of this club, since more favorable conditions can be created for members compared to outsiders. For example, benefits for the purchase of breeds, feed, etc.

By establishing member privileges, the club will attract new members, and accordingly its popularity will increase, and the amount of contributions will increase. As an OPF for this area of ​​activity, a public organization or NP is most suitable.

Features of NPOs, their difference from commercial organizations

NPOs have some features that distinguish them from commercial structures:

1. Limited legal capacity. Associations can only function in the areas specified in their founding documents and relevant laws.
2. Work in the public interest. The NPO does not set itself the goal of making a profit.
3. Doing business. An NPO can engage in commerce only within the framework of achieving its statutory goals. Profits are not distributed to members.
4. Large selection of organizational and legal forms (OPF). When an NPO is created, a PPF suitable for specific tasks is selected in accordance with the law.
5. Not recognized as bankrupt (except for funds and cooperatives). If there is a debt to creditors, the court cannot declare the organization insolvent. An NPO can be liquidated and property used to cover debt.
6. Financing. The NPO receives assets from members, as well as donations, voluntary contributions, government grants, etc.

Each OPF NPO has its own characteristics. For example, members of cooperatives have the right to share income among themselves.

Advantages and disadvantages of different types of NPOs

Each of the OPF non-profit associations has its own advantages and disadvantages. They are reflected in the table.

Unitary NGOs, that is, those without members, have the advantage of quickly resolving difficulties that arise. The disadvantages include the problem in making final decisions with a large number of founders.

Example. Disadvantage of a unitary NCO

Eight people created the charitable organization "Help" headed by the Board of Founders. The NPO worked successfully, but some of the founders moved, some retired. There is only one manager left. There was a need to amend the Charter. No decision can be made without a vote. It is impossible to collect the rest of the founders.

In this example, time is lost and the organization itself may close. When choosing an OPF, you should be sure of the seriousness of the partners' intentions. The disadvantages of all forms of NCOs are:

• Compliance of activities with the goals approved in the Charter;
• Complicated registration process;
• The specifics of the design of constituent papers, taking into account work tasks;
• Responsibility of the applicant for the information provided in the documents;
• Refusal to register at the slightest inaccuracy in the papers;
• Lengthy verification of documents by the Ministry of Justice;
• Impossibility of distribution of profits.

Advantages:

• Doing business together with social work;
• May not have assets;
• Lack of liability of participants for obligations;
• Simplified reporting;
• The target amounts are not subject to taxation;
• Inherited property is not subject to income tax.

Differences in the main forms of NCOs

The table shows the differences in the main forms of NCOs.

Purposes of creating different forms

• Funds - the formation of property through voluntary contributions and its use for public needs. Have no members. Can engage in entrepreneurship to achieve goals.
• Associations - protecting the interests of participants on the basis of an agreement. They are created by commercial structures for the organization of business management.
• Public organizations - joint work to achieve the goals. They are created by an initiative group of 10 people who are united by common interests.
• Religious associations - confession and familiarization of citizens to the faith, worship, rituals, teaching religion.
• Consumer cooperative - improving the property status of members, providing them with goods and services through the pooling of contributions. When leaving membership, a person receives his share.
• Institutions - implementation of cultural, social, managerial, and other tasks of a non-commercial plan. Funding is provided by the founder.
• ANO - the provision of educational, medical, sports and other services.
• NP - the achievement of social well-being in all spheres of life: health care, culture, art, sports. This form is suitable for the provision of various types of services.
• Communities of small peoples are created by citizens on a voluntary basis. They must have at least three members. People are united on the basis of common interests, territory of residence, traditions, crafts in order to preserve their way of life, culture, and principles of management. These NPOs can engage in commerce to accomplish their goals. When leaving the community, a citizen has property rights.

Taxation and accounting

If a public association does not have commercial activities and taxable assets, it reports to the tax office once a year.

Represents the balance sheet, form 2 and earmarked expenditure report. Non-budgetary fund NCOs submit reports quarterly. In pension - form RSV-1, in social insurance - 4-FSS. NPOs report on the following taxes: VAT, income, property, land, transport. Accounting forms 1 and 2 are also submitted to Rosstat at the end of the year. NCOs applying the simplified tax system annually submit a single tax declaration.

For all non-profit structures, it is mandatory to provide information on the average number of employees and income statements when paying wages. These documents are transferred to the tax office at the end of the year.

• consumer cooperative. Engaged in entrepreneurship. Submits full reports on a quarterly basis. Has no benefits. The Board of the NCO is responsible for the tax information submitted and for the data published in the media. The annual report is subject to verification by the audit commission of the NCO before submission.
• Religious associations. They don't pay income tax. When receiving money and property abroad, NCOs of this form must account for these receipts separately from others. Organizations must submit to the Ministry of Justice information on the results of their work. The NPO is obliged to publish the same data. The report must be submitted by April 15th.
• Accounting in the NP does not provide for benefits and is carried out according to almost the same requirements as in commercial companies.
• Funds. It is necessary to take into account the sources of funds. Reports on accounting and taxes are presented in a general manner.
• Associations. Accounting is carried out according to the estimate. It is drawn up for a year, contains a plan for spending and receiving money.
• Cossack associations submit information about their numbers to the Ministry of Justice. The annual report is compiled by Ataman.

For all types of NPOs, funds received to solve statutory tasks are not subject to income tax. Funds, the receipt of which has a designated purpose and is not related to the sale of goods, the performance of work or services, is not subject to VAT. Payments for the service of the disabled are exempt from personal income tax.

Rubric “Questions and answers”

Question number 1. What is the peculiarity of the formation of ANO?

A characteristic feature of the ANO is that employees cannot make up more than 1/3 of all members of the governing body.

Question number 2. Which NPOs are exempt from paying VAT?

Associations of disabled people, unitary enterprises under healthcare and social protection institutions, organizations with more than 50% disabled people are exempted from VAT.

Question number 3. What is the Register of Undesirable NPOs?

In May 2015, the president signed the Undesirable Organizations Act into law. They include foreign non-governmental NGOs that pose a threat to the Constitution, defense capability and security of the Russian Federation.

Question number 4. What reports do NGOs submit to the Ministry of Justice?

The Ministry of Justice annually submits information about the work of NGOs, the composition of the leadership, and income from foreign sources.

Question number 5. How do political parties report at the end of the year?

Parties within 30 days after the end of the quarter submit to the Central Election Commission information on the receipt and expenditure of funds, a consolidated report is submitted before April 1 of the next year.

So, there are many types of NPOs. When choosing the appropriate form, one should take into account the goals of creating an organization and other features established by law for each OPF.

A non-profit organization is a legal entity that does not pursue profit making as the main goal of its activities and does not distribute the profit received among its participants.

The main features of non-profit organizations in comparison with commercial legal entities are as follows. First, unlike commercial organizations, non-profit organizations are not professional participants in property relations. Therefore, for non-commercial legal entities, the legislator establishes a special (targeted) legal capacity (clause 1 of article 49 of the Civil Code) and allows the use of their property only to achieve the goals specified in their constituent documents (clause 4 of article 213 of the Civil Code).

In modern reality, it turns out that some of the types of legal entities are generally difficult to attribute to non-profit organizations, since in many aspects of their activities they are, in fact, commercial (non-profit partnerships, some types of state corporations). Due to these circumstances, it is very important to clearly define the criteria for distinguishing legal entities into commercial and non-commercial organizations.

In the literature, diametrically opposed positions have developed in this regard. In the domestic doctrine of civil law, the following main features of a non-profit organization are distinguished:

- lack of profit as the main goal of the activity;

- a ban on the distribution of profits between participants in a non-profit organization;

- the possibility of creating non-profit organizations not only in those organizational and legal forms that are provided for by the Civil Code of the Russian Federation, but also in the forms provided for by other federal laws;

– special legal personality;

–target nature of the use of property remaining during liquidation 1 .

A.V. Gabov concluded that not all of these signs in combination can serve as a factor in distinguishing commercial organizations from non-commercial ones, since they often do not find their confirmation in law enforcement practice 2 . For example, the absence of profit as the main goal of activity stumbles upon the possibility of non-profit organizations to engage in entrepreneurial activities. The ban on the distribution of profits between the parties is not compatible with the provisions of Art. 116 of the Civil Code of the Russian Federation, which deals with the activities of consumer cooperatives and establishes that the income received by a consumer cooperative from entrepreneurial activity is distributed among its members. The sign of the targeted nature of the use of property remaining upon liquidation is contradicted, for example, by the right of members of such a non-profit organization as a non-profit partnership to receive property and distribute it among the members of the partnership in accordance with their property contribution. 3

As a result of the above, another researcher, D.V. Novak - proposes to single out only one universal sign of a non-profit organization - impossibility of distribution between participants of the received profit 1 . A similar position is taken by D.I. Stepanov 2 , who distinguishes two basic approaches for distinguishing legal entities into commercial and non-commercial ones: functional (“altruistic”) and economic.

Non-profit, in accordance with the functional approach, will be such an organization that does not have profit as the main goal of its activities and is focused on educating citizens, promoting the ideals of humanism and kindness, for which such an organization will carry out, for example, educational activities or conduct cultural activities. -public events.

At the heart of the economic approach (or the so-called business approach) to determining the essence of a non-profit organization, according to D.I. Stepanov, are not the declared goals of the creation and activities of a legal entity, but the actual economic relations in which specific types of activities are considered as they are present in the real life of a legal entity (and not as they are prescribed in the documents on its creation). According to D.I. Stepanov, the modern vector of development of the scientific differentiation of legal entities into commercial and non-commercial should be based on a more progressive economic approach, characteristic of many developed legal orders. 3

The use of a functional approach will be an obstacle to the development of the activities of non-profit organizations in Russia, since it is based on a regulatory and even permissive procedure for the creation of such legal entities. In fact, this can make such a form of organization completely unattractive for participation in civil law transactions. With this approach, it will be necessary to clearly develop the criteria for the “goal of activity” of a non-profit organization, as well as specific types of these goals, which should be non-profit in nature, which, in the opinion of D.I. Stepanov, it is very difficult to do. one

I.P. Greshnikov generally refuses to recognize the division of legal entities into commercial and non-commercial 2 . Comparing commercial and non-profit organizations, he notes that, despite the difference in their attitude to profit, its distribution and use, profit is still not the main basis for classification. More significant in comparison with it, according to the scientist, are the following:

– the subject of the transaction (a person who declared himself and (or) registered as an entrepreneur or as a commercial organization;

- the subject of activity (commission of entrepreneurial transactions or the solution of managerial, socio-cultural and other tasks).

Analyzing both of the above criteria, I.P. Greshnikov comes to the conclusion that the definition of "non-profit organization" from a formal logical point of view is incorrect, since it does not convey the meaning of the subject in question, and the definition, from the point of view of all logical constructions, should have a positive, not a negative value 3 . In this regard, the researcher proposed to abandon the definition of "non-profit organization" and move on to a more correct from his point of view and well-known even in pre-revolutionary Russian civil law and the legislation of many European countries, the term "civil organization". By the latter, the author understands an organization that pursues a social, cultural and other goal and carries out any activity as its main activity, except for entrepreneurial. 4

This approach has not received distribution in domestic civil law. The term "civilian" in our situation cannot be considered successful, since it does not allow, due to its multi-conceptual nature, to distinguish between such an organization and a commercial one. If a non-profit organization is a civil organization, then why can't a commercial organization be "civil"?

Analyzing all the above points of view, Nuzhdin T.A. believes that two main features that characterize a non-profit organization should be left in the legislation - the main purpose of the activity of such an organization cannot be making a profit, and such profit should not be distributed among the participants of this legal entity. one

In order to give the first of these signs a basic character, it is necessary to clarify terminologically at the legislative level the possibility of a non-profit organization to engage in entrepreneurial activity, replacing the corresponding structure with “auxiliary economic activity”. Other features of a non-profit organization (special legal personality and purposeful nature of the use of property in the liquidation of a non-profit organization) should be optional and take into account the specifics of a particular organizational and legal form. Special legal personality will not be a universal feature due to the possibility for a non-profit organization to carry out other “auxiliary economic activities”. 2

According to Art. 2 of the Law on Non-Commercial Organizations, a non-commercial organization is an organization that does not have profit making as the main goal of its activities and does not distribute the profit received among its participants. The law also stipulates that non-profit organizations can be created to achieve social, charitable, cultural, educational, scientific and managerial goals, in order to protect the health of citizens, develop physical culture and sports, meet the spiritual and other non-material needs of citizens, protect the rights, legitimate interests citizens and organizations, resolving disputes and conflicts, providing legal assistance, as well as for other purposes aimed at achieving public benefits.

Socially oriented non-profit organizations are recognized as non-profit organizations established in the forms provided for by this Federal Law (with the exception of state corporations, state companies, public associations that are political parties) and carrying out activities aimed at solving social problems, developing civil society in the Russian Federation, as well as types of activities provided for in Article 31.1 of the Law on Non-Commercial Organizations, namely:

– social support and protection of citizens;

- preparation of the population to overcome the consequences of natural disasters, environmental, man-made or other disasters, to prevent accidents;

– assistance to victims of natural disasters, environmental, man-made or other disasters, social, national, religious conflicts, refugees and internally displaced persons;

– environmental protection and animal protection;

- protection and, in accordance with established requirements, the maintenance of objects (including buildings, structures) and territories of historical, religious, cultural or environmental significance, and burial places;

- provision of legal assistance on a gratuitous or preferential basis to citizens and non-profit organizations and legal education of the population, activities to protect the rights and freedoms of man and citizen;

- prevention of socially dangerous forms of behavior of citizens;

- charitable activities, as well as activities in the field of promoting charity and volunteering;

- activities in the field of education, enlightenment, science, culture, art, health care, prevention and protection of the health of citizens, promotion of a healthy lifestyle, improvement of the moral and psychological state of citizens, physical culture and sports and promotion of these activities, as well as assistance to the spiritual development of the individual.

Non-profit organizations can be created in the form of public or religious organizations (associations), communities of indigenous peoples of the Russian Federation, Cossack societies, non-profit partnerships, institutions, autonomous non-profit organizations, social, charitable and other foundations, associations and unions, as well as in other forms, prescribed by federal laws.

Also, the Law on Non-Commercial Organizations in Part 4 of Art. 2 gives the concept of a foreign non-profit non-governmental organization, which is legally understood as an organization that does not have profit-making as the main goal of its activities and does not distribute profits among participants, established outside the territory of the Russian Federation in accordance with the legislation of a foreign state, the founders (participants) of which are not government agencies.

For some types of non-profit organizations, there are restrictions on engaging in certain types of activities (clause 2, article 24 of the Law on Non-Profit Organizations). For example, institutions financed by the owner can be participants in business companies and investors in limited partnerships only with the permission of the owner, unless otherwise provided by law (paragraph 4 of article 66 of the Civil Code).

Secondly, the main purpose of the activities of a non-profit organization cannot be profit making (clause 1, article 50 of the Civil Code; clause 1, article 2 of the Law on Non-Commercial Organizations). The performance of non-commercial legal entities in civil circulation is due to the need for material support for their main activity, which should not be entrepreneurial. They are created to achieve social, charitable, cultural, educational, scientific and managerial goals, develop physical culture and sports, to protect health, meet the spiritual and other non-material needs of citizens, protect the rights and legitimate interests of citizens and organizations, resolve disputes and conflicts, provide legal assistance, for other purposes aimed at achieving public benefits (clause 2, article 2 of the Law on non-profit organizations).

The distinction between commercial and non-commercial organizations, as noted in the literature 1 , is a weak point of modern civil legislation. The organizational and legal form of a legal entity is a set of specific features that objectively stand out in the system of general features of a legal entity and significantly distinguish this group of legal entities from all others. Therefore, if the features of the organizational structure of a legal entity, the ways of separating its property, its responsibility, the ways of acting in civil circulation (at least one of these aspects) distinguish it from the others, then we are dealing with an independent organizational and legal form of a legal entity. Otherwise, we are talking about separate varieties of organizations within the same organizational and legal form.

Despite the fact that all non-profit organizations are allowed, albeit with restrictions, to engage in entrepreneurship, they can carry out such activities only insofar as it serves to achieve the goals for which they were created, and corresponds to these goals (paragraph 3 of article 50 of the Civil Code ). In particular, non-profit organizations can carry out profitable production of goods and services that meet the goals of creating a non-profit organization, as well as acquire and sell securities, property and non-property rights, participate in business companies or limited partnerships as investors (clause 2 of Art. 24 of the Law on non-profit organizations). It seems that in a market economy, non-profit organizations should not be deprived of the opportunity to carry out the necessary business operations, and, within the limits established by law, to earn and manage funds themselves, because otherwise they will not be able to fully carry out their main activities.

For example, an educational institution may conduct entrepreneurial activities provided for by its charter, including selling and leasing its property; provide paid educational services, etc. Moreover, from a fiscal point of view, the activity of an educational institution for the sale of its products (works, services) is classified by law as entrepreneurial only in that part in which the income received from this activity is not sent directly to this educational institution and ( or) for the immediate needs of ensuring, developing and improving the educational process (including wages) in this educational institution (Article 47 of the Federal Law of July 10, 1992 "On Education" 1).

A very strange principle prevailed in the legislation regulating the legal status of certain types of non-profit organizations. The legal regulation is based not on the features of the legal form, the structure of subjects of law (as one might expect), but on the specifics of their sphere of activity. Thus, the Federal Law “On Agricultural Cooperation” dated December 8, 1995 No. 193-FZ 2 combines in one document the norms governing the position of both production and consumer cooperatives in agriculture, seeing in them much more similarities than differences. Similarly, the Federal Law “On Charitable Activities and Charitable Organizations” dated August 11, 1995 No. 135-FZ 3 brings together such different types of legal entities as foundations, public organizations, institutions only on the grounds that they are engaged in charity. According to Sergeev A.P. and Yu.K. Tolstoy, the unproductiveness of such a legislative approach is obvious. one

At the same time, the current legislation allows the use of forms of non-commercial legal entities in order to reduce the taxable base. So, in accordance with paragraph 2 of Art. 11 of the Federal Law of March 20, 1996 "On the Securities Market" 2 the activities of the stock exchange may be carried out by a legal entity in the form of a non-commercial partnership or joint stock company. It is not surprising that many stock exchanges (Moscow Central Stock Exchange, etc.) were created in the form of a non-profit partnership, since the taxation of a non-profit organization is more favorable than a commercial one.

Thirdly, as a general rule, the founders (participants, members) of a non-profit organization are not entitled to distribute among themselves the profit (income) received from its activities (clause 1, article 50 of the Civil Code). The exception is some types of non-commercial legal entities, the very design of which involves the distribution of the profit received by the organization between its founders (participants, members). For example, income received by a consumer cooperative from permitted entrepreneurial activities carried out by the cooperative in accordance with the law and the charter is distributed among its members (clause 5, article 116 of the Civil Code).

Fourth, in the liquidation of a non-profit organization, the property remaining after the satisfaction of creditors' claims is directed in accordance with its constituent documents for the purposes for which it was created and (or) for charitable purposes, unless otherwise provided by law. In cases where its use in accordance with the constituent documents of a liquidated non-profit legal entity is impossible, the property turns into state revenue (clause 1, article 20 of the Law on Non-Commercial Organizations). The exception is consumer cooperatives and non-profit partnerships, whose members are entitled to receive a liquidation quota, unless otherwise provided by law or the constituent documents of this legal entity (clause 7, article 63 of the Civil Code; clause 3, article 8 of the Law on non-profit organizations).

Until recently, there was a rule (clause 1, article 65 of the Civil Code), according to which non-profit legal entities, except for consumer cooperatives, charitable and other foundations, could not be declared insolvent (bankrupt). According to paragraph 3 of Art. 1 of the current Bankruptcy Law, any non-commercial legal entities, with the exception of institutions, political parties and religious organizations, can be recognized as insolvent (bankrupt) 1 .

Fifth, non-commercial legal entities can be created in organizational and legal forms provided not only by the Civil Code of the Russian Federation, but also by other federal laws (paragraph 1, clause 3, article 50 of the Civil Code).

1.2. Types of non-profit organizations

I.V. Nikiforov made an attempt to classify non-profit organizations into the following groups 1:

1) classical classification - corporations (trade unions, consumer cooperatives, non-profit partnerships, etc.) and organizations that do not have membership (social movements, foundations, public institutions, bodies of public amateur performance, autonomous non-profit organizations);

2) managing organizations and community organizations (alliances)22. The general purpose of managing organizations is to manage property or perform functions that, for whatever reason, the founder does not want (or cannot) perform independently on his own behalf. To them I.V. Nikiforov refers to foundations, institutions, homeowners associations, consumer cooperatives, autonomous non-profit organizations. Alliances (communities) should be created to achieve auxiliary goals in relation to the main professional (economic) activities and socio-political goals. 2

Based on these goals, the author distinguishes alliances (communities) into two groups: socio-political non-profit organizations (public organizations, public institutions, public movements, public funds, political parties, public amateur performance bodies, national-cultural autonomies) and auxiliary organizations created for assistance to their members in the implementation of the main economic or other professional activities (non-profit partnerships, associations of employers, chambers of commerce and industry) 3 ;

3) organizations of mutual and social benefit. I. V. Nikiforov refers to mutually beneficial organizations organizations that are oriented towards the mutual benefit of their members (unions and associations, consumer non-profit organizations and non-profit partnerships). The organizations of public benefit, according to the scientist, should include those organizations whose goals lie in the sphere of the functioning of society, and not in the interests of the participants. one

The lack of clear criteria for the classification of non-profit organizations in the civil doctrine was the reason that at the legislative level there was a whole block of conflicting legal acts regulating various organizational and legal forms of non-profit organizations. 2

The Civil Code provides for the following organizational and legal forms of non-profit organizations:

1) consumer cooperative;

2) public or religious organization (association);

3) association of legal entities (association or union);

4) fund;

5) institution.

Other federal laws significantly expand this list, allowing the possibility of creating non-profit legal entities also in the following forms:

1) a non-profit partnership, including an association of homeowners; horticultural, horticultural or dacha associations;

2) non-commercial partnership;

3) an autonomous non-profit organization;

4) state corporation;

5) commodity exchange;

6) chamber of commerce and industry;

7) associations of employers.

In turn, the Law on non-profit organizations introduces the following forms of non-profit organizations:

– public and religious organizations (associations). According to Art. 6 of the Law on Non-Commercial Organizations, public and religious organizations (associations) are recognized as voluntary associations of citizens who, in the manner prescribed by law, have united on the basis of their common interests to meet spiritual or other non-material needs and have the right to carry out entrepreneurial activities corresponding to the goals for which they were created.

- communities of indigenous peoples of the Russian Federation. According to Art. 6.1 of the Law on non-profit organizations by communities of indigenous peoples of the Russian Federation (forms of self-organization of persons belonging to indigenous peoples of the Russian Federation and united by consanguinity (family, clan) and (or) territorial-neighborly principles are recognized in order to protect their original habitat, preservation and development of traditional way of life, management, crafts and culture and have the right to carry out entrepreneurial activities that correspond to the goals for which it was created;

- Cossack societies. According to Art. 6.2 of the Law on Non-Commercial Organizations, Cossack societies are recognized as forms of self-organization of citizens of the Russian Federation, united on the basis of a common interest in order to revive the Russian Cossacks, protect their rights, preserve the traditional way of life, business and culture of the Russian Cossacks. Cossack societies are created in the form of farm, village, city, district (yurt), district (departmental) and military Cossack societies, whose members, in the prescribed manner, assume obligations to perform state or other service. Cossack societies are subject to inclusion in the state register of Cossack societies in the Russian Federation, have the right to carry out entrepreneurial activities corresponding to the goals for which they were created;

- funds. According to Art. 6.2 of the Law on non-profit organizations fund a non-profit organization without membership is recognized, 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;

- public corporations. According to Art. 7.1 of the Law on Non-Profit Organizations, a state corporation is a non-profit organization without membership, established by the Russian Federation on the basis of a property contribution and created to carry out social, managerial or other socially useful functions. A state corporation is created on the basis of a federal law. The property transferred to the state corporation by the Russian Federation shall be the property of the state corporation;

- State-owned companies. In accordance with the provisions of Art. 7.2 of the Law on non-profit organizations, a state company is a non-profit organization that does not have membership and was created by the Russian Federation on the basis of property contributions to provide public services and perform other functions using state property on the basis of trust management. A state company is created on the basis of a federal law;

- non-profit partnerships. As stated in Art. 8 of the Law on Non-Profit Organizations, 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 the goals provided for article 2, paragraph 2 Law on non-profit organizations;

- private institutions. According to Art. 9 of the Law on non-profit organizations, 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-profit nature;

- state and municipal institutions. Article 9.1 of the Law on Non-Commercial Organizations refers to state, municipal institutions institutions that are created by the Russian Federation, a constituent entity of the Russian Federation and a municipality, respectively;

- public institutions. According to Art. 9.2 of the Law on Non-Profit Organizations, a budgetary 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 ensure the implementation of the powers provided for by the legislation of the Russian Federation, respectively, of state authorities (state bodies) or local governments in the areas of science, education, healthcare, culture, social protection, employment, physical culture and sports, as well as in other areas;

- autonomous non-profit organizations. As stated in Art. 10 of the Law on Non-Profit Organizations, an autonomous non-profit organization is a non-profit organization that does not have membership and was established to provide services in the field of education, healthcare, culture, science, law, physical culture and sports and other areas. An autonomous non-profit organization may be created as a result of its establishment by citizens and (or) legal entities on the basis of voluntary property contributions. In cases stipulated by federal laws , an autonomous non-profit organization may be created by transforming a legal entity of another organizational and legal form;

– associations of legal entities (unions, associations). Article 11 of the Law on Non-Commercial Organizations states that commercial organizations, in order to coordinate their entrepreneurial activities, as well as to represent and protect common property interests, may, by agreement among themselves, create associations in the form of associations or unions that are non-commercial organizations. At the same time, non-profit organizations may voluntarily unite into associations (unions) of non-profit organizations.

Most non-profit organizations, like commercial organizations, are corporations; built on the basis of a fixed membership: consumer cooperatives, public organizations, non-profit partnerships, etc. However, there are non-profit legal entities that are not corporations: institutions, foundations, autonomous non-profit organizations, etc.

Among non-profit organizations, mixed forms are also found. Charitable public or religious organizations can be called institutions with a corporate structure, since in form they are corporations, but in essence they are institutions (Articles 6, 7, 10, 15 of the Law on Charitable Activities and Charitable Organizations; Articles 8, 10 Law on Freedom of Conscience and on Religious Associations 1). The essential difference between these organizations and classical corporations is the fact that even if a charitable public or religious organization is based on membership, not every one of its members can participate in the management of the organization and its property. The supreme governing body of a charitable organization is its collegiate body, which is formed in the manner prescribed by the charter of this organization (Article 10 of the Law on Charitable Activities and Charitable Organizations).

On the contrary, the Russian Academy of Sciences, the Russian Academy of Medical Sciences, the Russian Academy of Education, the Russian Academy of Arts, and other branch academies of sciences with state status can serve as examples of corporations created in the form of an institution. Formally, these legal entities are non-profit organizations - institutions (Article 120 of the Civil Code). However, in accordance with the legislation of the Russian Federation and the charters of these academies, they are vested with the right to manage their activities, the right to own, use and dispose of the property transferred to them, which is in federal ownership. In particular, they differ from institutions in that they can include structural units - legal entities, having the right to create, reorganize and liquidate them, assign federal property to them, approve their charters and appoint heads (Article 6 of the Federal Law of July 12, 1996 "On Science and State Science and Technology Policy" 1).

To date, the following organizational and legal forms, types and types of non-profit organizations operate in the domestic legal field: consumer cooperative (housing savings 2, agricultural 3, credit consumer cooperatives 4, etc.); public and religious organizations (associations) 5 ; fund; institution 6 ; association of legal entities (association or union); non-profit partnership; bar associations, law firms and chambers of lawyers 7 ; autonomous non-profit organization; state corporation; state company; association of homeowners 8 ; horticultural, horticultural or dacha non-profit partnership 1 ; community of small peoples of the North, Siberia and the Far East 2 ; union (association) of small businesses; commodity exchange 3 ; chamber of commerce and industry 4 ; notarial chamber 5 ; association of employers 6 ; self-regulatory organization of management companies 7 ; self-regulatory organization of arbitration managers 8 ; non-state pension fund 9 ; State Academy of Sciences 10 .

2. NON-PROFIT ORGANIZATIONS AS BUSINESS ENTITIES

2.1 Institutions as business entities

Quite a lot of attention has been paid to the problem of the possibility of non-profit organizations to carry out entrepreneurial activities in the literature, and mainly through the prism of the fact that non-profit organizations are not entitled to carry out the relevant activities, since this contradicts the legal nature of these legal entities. one

Nuzhdin T.A. agrees with G.E. Avilov and E.A. Sukhanov, who believe that “classical approaches to the essence of a legal entity predetermine the need to maintain a clear legislative division of legal entities into commercial and non-profit organizations. Conducting entrepreneurial activity under the guise of a non-profit organization also deliberately distorts the purpose of the appropriate organizational and legal form” 2 .

The current legislation (clause 2, article 24 of the Federal Law “On non-profit organizations) determines that a non-profit organization can carry out entrepreneurial activities only insofar as this serves to achieve the goals for which the organization was created. Such activity is the profitable production of goods and services that meet the goals of creating a non-profit organization, as well as the acquisition and sale of securities, property and non-property rights, participation in business companies in partnerships as a participant.

Without a doubt, the stated legislative norm distorts the essence of a non-profit organization, essentially without distinguishing it from organizations of a commercial profile of activity. As a result, the classification of legal entities in Russian civil law de. facto. is undefined. At the same time, prohibiting non-profit organizations from engaging in any additional activities within the framework of their statutory goals and objectives means blocking their activities as a whole, which may lead to the forced liquidation of a number of such organizations 1 .

An organization created by the owner to perform functions of a non-commercial nature and financed by him in whole or in part is called an institution.

The vast majority of institutions that exist today in Russia are state institutions. The organizational and legal form of the institution turns out to be optimal for the introduction into civil circulation of entities that require a limited amount of rights, necessary only for the material and technical support of their activities. Local and central government bodies, law enforcement agencies, which have broad powers in the field of administrative, financial, criminal law, turn out to be rather modest subjects in the field of property and value relations. The law also allows the creation of institutions by any other entities. Restrictions on this right may be contained in normative acts regulating the legal status of certain types of legal entities. So, according to part 3 of Art. 7 of the Law "On charitable activities and charitable organizations" a charitable organization can be created in the form of an institution only if its founder is another charitable organization (of any kind).

As stated in Art. 9.2 of the Law on non-profit organizations, state, municipal institutions are institutions established by the Russian Federation, a constituent entity of the Russian Federation and a municipality. The types of state, municipal institutions are autonomous, budgetary and state-owned. At the same time, the functions and powers of the founder in relation to a state institution created by the Russian Federation or a constituent entity of the Russian Federation, a municipal institution created by a municipality, unless otherwise provided by federal laws, regulatory legal acts of the President of the Russian Federation or the Government of the Russian Federation, are carried out accordingly by an authorized federal executive body, an executive body of a subject of the Russian Federation, a local self-government body.

Part 1 of Article 115 of the Civil Code of the Russian Federation states that in cases and in the manner provided for law on state and municipal unitary enterprises, on the basis of state or municipal property, a unitary enterprise on the right of operational management (state-owned enterprise) may be created.

According to Art. 120 of the Civil Code of the Russian Federation, an institution is a non-profit organization created by the owner to carry out managerial, socio-cultural or other functions of a non-profit nature

In turn, according to Art. 9.2 of the Law on Non-Profit Organizations, a budgetary 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 ensure the implementation of the powers provided for by the legislation of the Russian Federation, respectively, of state authorities (state bodies) or local governments in the areas of science, education, healthcare, culture, social protection, employment, physical culture and sports, as well as in other areas. At the same time, the law establishes that a budgetary institution carries out its activities in accordance with the subject and goals of activity, determined in accordance with federal laws, other regulatory legal acts, municipal legal acts and the charter.

State (municipal) tasks for a budgetary institution in accordance with the main types of activity provided for by its constituent documents are formed and approved by the relevant body exercising the functions and powers of the founder.

The budgetary institution carries out, in accordance with state (municipal) tasks and (or) obligations to the insurer for compulsory social insurance, activities related to the performance of work, the provision of services related to its main activities, in the areas indicated in the chat. 1 st. 9.2 of the Law on non-profit organizations

A budgetary institution is not entitled to refuse to fulfill a state (municipal) assignment.

At the same time, a budgetary institution has the right, in excess of the established state (municipal) assignment, and also in cases specified by federal laws, within the established state (municipal) assignment, to perform work, provide services related to its main activities, provided for by its constituent document , in the areas specified in paragraph 1 of Art. 9.2 of the Law on Commercial Organizations, for citizens and legal entities for a fee and on the same conditions for the provision of the same services. The procedure for determining the specified fee is established by the relevant body exercising the functions and powers of the founder, unless otherwise provided by federal law.

A budget institution has the right to carry out other types of activities that are not the main types of activity, only in so far as it serves to achieve the goals for which it was created and corresponding to the specified goals, provided that such activities are indicated in its constituent documents.

Autonomous institution according to Art. 2 of the Law on Autonomous Institutions, a non-profit organization created by the Russian Federation, a constituent entity of the Russian Federation or a municipality is recognized 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 , mass media, social protection, employment of the population, physical culture and sports, as well as in other areas in cases established by federal laws (including when carrying out activities to work with children and youth in these areas). And according to Art. 4 of the Law on Autonomous Establishments refers to activities directly aimed at achieving the goals for which an autonomous institution was created.

A distinctive feature of the institution is the nature of its rights to the property used. Institutions are the only type of non-profit organizations that do not have the right of ownership, but only the right of operational management of property. This is due to the close property relationship between the institution and its founder.

The smaller volume of rights to property (Articles 296, 298 of the Civil Code) than that of other non-profit organizations is compensated by the subsidiary liability of the owner for the obligations of the institution. Recovery on the institution's debts may be levied only on its funds and property independently acquired by it 1 . Thus, the property transferred to the institution by the owner is reserved from foreclosures, which is quite natural.

The founding document of an institution is only its charter, approved by the owner. The name of the institution should include an indication of the owner of the property and the nature of the institution's activities, for example: "Private Museum of A. A. Korneev."

In turn, the Budget Code of the Russian Federation in Article 161 defines a budgetary institution as an organization that was created by state authorities of the Russian Federation, state authorities of constituent entities of the Russian Federation or local governments to perform managerial, socio-cultural, scientific and technical or other functions of a non-commercial nature. This activity is financed from the relevant budget (off-budget fund) according to the estimate of income and expenses.

From these definitions it can be seen that the main goals of the activities of budgetary institutions are the provision of public services. Institutions should not be created for profit - after all, they provide services free of charge or at approved rates. But these tariffs nevertheless form the revenue part of the budget.

The Civil Code of the Russian Federation admits that non-profit organizations can carry out entrepreneurial activities (Clause 3, Article 50 of the Civil Code of the Russian Federation). But this is possible to the extent that it helps to achieve the goals for which they were created. Entrepreneurial activity must correspond to the main goals of creating a non-profit organization. Therefore, such an activity can only be optional and not the main one.

The definition of entrepreneurial activity is given in clause 3, part 1, article 2 of the Civil Code of the Russian Federation. Its main features are: independence of conduct, implementation at your own risk, focus on making a profit, systematic, proper status of the person carrying it out.

Entrepreneurial activity cannot be the main activity of a budgetary institution that is a non-profit organization. However, the legislator could not but take into account the fact that in the conditions of Russian reality, institutions have to participate in commodity relations, which is due to the lack of financing by public owners of their main activities related to the achievement of public benefits. Thus, there is a tendency for public institutions to switch to a self-financing system.

In addition, an institution is primarily a legal entity, a kind of fiction designed to participate in civil circulation and ensure its dynamics through entrepreneurial activities.

In accordance with paragraph 2 of Art. 298 of the Civil Code of the Russian Federation, institutions, on the basis of constituent documents, are granted the right to engage in activities that generate income that come at the independent disposal of institutions.

It should be noted that the law in relation to the category "institution" contains two concepts: income-generating activity (clause 2 of article 298 of the Civil Code of the Russian Federation) and entrepreneurial activity (clause 3 of article 50 of the Civil Code of the Russian Federation), about the identity or differences of which the law does not mention.

In Art. 298 of the Civil Code of the Russian Federation, two regimes of property of an institution are given: prescribed by the estimate and independent. The latter is associated with the income-generating, and not with the entrepreneurial activity of the institution. Income-generating activity is recognized by the legislator as a variant of the main activity. According to the meaning of the said norm, if, in accordance with the constituent documents, an institution is granted the right to independently carry out the same activity that is financed according to the estimate, then such activity is income-generating. Entrepreneurial activity of an institution is another matter: it is carried out insofar as it serves to achieve the goals for which the institution was created, and corresponding to these goals (part 2, clause 3, article 50 of the Civil Code of the Russian Federation), i.e. Entrepreneurial activity is allowed as a side, additional, auxiliary activity of the institution.

However, there are also special characteristics inherent in this activity, which are due to the legal status of budgetary institutions. It is worth highlighting some of them. Firstly, the income received from such activities, the institution has the right to spend only for the implementation of the tasks assigned to it, while, like the funds received from the owner, the income received from entrepreneurial activity is also spent exclusively according to the estimate, that is, again, their target destination. Secondly, the entrepreneurial activity of a budgetary institution is of an auxiliary nature in relation to the main activity and is carried out only with the permission of the founder-owner, enshrined in the constituent documents of the budgetary institution. This situation is primarily due to the nature of a budgetary institution - a non-profit organization created for specific purposes, as well as the legal regime of property under the operational management of a budgetary institution. Thirdly, the entrepreneurial activities of budgetary institutions are carried out under their own property responsibility. However, it is limited, since a budgetary institution is responsible for its obligations only with the funds under its management.

And the last thing that distinguishes entrepreneurial activity carried out by budgetary institutions is the legal regime of funds received from entrepreneurial activity, as well as property acquired at the expense of them.

2.2. Non-commercial partnerships as business entities

A non-profit organization whose members retain rights to its property, created to assist its members in conducting activities of general benefit, is called a non-profit partnership.

A non-commercial partnership is the owner of the property transferred to it and is not liable for the obligations of its members, and the latter are not liable for the obligations of the partnership. Its supreme governing body is the general meeting of members.

According to Art. 8 of the Law on Non-Commercial Organizations, a non-commercial partnership is a membership-based non-commercial organization established by citizens and (or) legal entities to assist its members in carrying out activities aimed at achieving the goals provided for in paragraph 2 of Article 2 of the Law on Non-Commercial Organizations.

Property transferred to a non-profit partnership by its members is the property of the partnership. Members of a non-commercial partnership are not liable for its obligations, and a non-commercial partnership is not liable for the obligations of its members, unless otherwise established by federal law.

Typical representatives of this organizational and legal form of legal entities are horticultural, horticultural and dacha non-profit partnerships 1 , as well as stock exchanges 2 . Commodity exchanges also gravitate towards the organizational form of a non-commercial partnership, although a number of authors single them out as an independent type of non-commercial legal entities 3 .

One of the types of non-profit partnership is a self-regulatory organization (SRO), the legal status of which is established by a separate Federal Law of December 1, 2007 No. 315-Ф3 “On Self-Regulatory Organizations”. SRO unites subjects of entrepreneurial or professional activity of the same type to ensure uniform rules for its implementation and control over its implementation. In the future, it is planned that with the popularization of SROs and their creation in various fields of activity, the state will gradually abandon its supervisory functions, since they will be carried out by SROs.

In addition, other non-profit partnerships can be created:

- to meet socio-economic needs (non-profit partnerships of residents for the improvement of the territory, for the implementation of gasification of the village, horticultural, gardening or country non-profit partnerships);

– to satisfy sports interests (for example, equestrian clubs);

- to meet common cultural interests (associations of artists, clubs of writers);

— for self-regulation of internal professional aspects of activity (colleagues of lawyers, notaries, self-regulatory organizations of builders, appraisers), etc.

These examples are by no means a complete list of areas in which non-profit partnerships can be formed.

Since the purpose of the partnership in accordance with the provisions of the Federal Law "On Non-Commercial Organizations" is to assist members of the partnership in the implementation of activities aimed at achieving social and other socially useful benefits, the partnership cannot, for example, choose the type of activity - "Provision of social services with or without provision of accommodation”, which corresponds to the goals of creating an autonomous non-profit organization, defined by Article 10 of the Federal Law “On Non-Profit Organizations”.

A non-commercial partnership has the right to carry out entrepreneurial activities corresponding to the goals for which it was created, except in cases where the non-commercial partnership has acquired the status of a self-regulatory organization.

Income from entrepreneurial activities must be directed to the statutory goals of the partnership. Perhaps this is the main criterion in determining whether a partnership is legally or not carrying out a particular commercial activity, because. it is often impossible or extremely difficult (because of the very broadly stated goals of creation) to determine whether a commercial activity is consistent with the goals of creating a partnership.

Entrepreneurial activity is the profitable production of goods and services that meet the goals of creating a non-profit organization, as well as the acquisition and sale of securities, property and non-property rights, participation in business companies and participation in limited partnerships as a contributor (clause 2, article 24 of the Federal Law "On non-commercial organizations").

A non-profit partnership keeps records of income and expenses for entrepreneurial activities (clause 3, article 24 of the Federal Law "On Non-Profit Organizations").

3. LIABILITY OF NON-PROFIT ORGANIZATIONS FOR OBLIGATIONS

Civil liability is a type of remedial liability and is associated with the restoration of violated rights and the enforcement of unfulfilled obligations.

It occurs for violation of contractual obligations of a property nature or includes compensation for non-pecuniary damage. Full compensation for harm is the basic principle of civil liability. one

Civil liability is based on sanctions associated with additional burdens for the offender (the imposition of an additional civil liability or deprivation of the right belonging to the offender). It is necessary to distinguish measures of civil liability from measures to protect civil rights (sanctions aimed at preventing or suppressing an offense or at restoring the situation that existed before the offense - recognition of a right, awarding an obligation in kind, recognizing a voidable transaction as invalid, etc.). 2

The features of civil liability include the following:

- measures of influence that entail unfavorable consequences of a property nature;

- compensation for the violated right of the injured party;

- proportionality of liability to the nature of the harm caused;

- the application of equal measures of responsibility in terms of volume to different participants in civil legal relations for homogeneous offenses.

Civil liability performs the following functions:

- compensatory;

- stimulating;

- warning;

- penalty.

Forms of civil liability are:

- compensation for damages;

- payment of a penalty;

- loss of deposit;

- loss of retained, pledged property, etc.

Depending on the basis, this liability is divided into the following types: contractual and non-contractual (by law). Depending on the nature of the distribution of responsibility, it is divided into equity, joint and several, subsidiary, recourse.

The basis of civil liability is the composition of a civil offense. The conditions of this liability are the unlawful behavior of the debtor; occurrence of losses of the creditor; the presence of a causal relationship between the behavior of the debtor and the occurrence of losses for the creditor; debtor's fault.

According to O.N. Sadikov, civil liability can be defined as the application of sanctions to the offender-debtor in the interests of another person (creditor), which are expressed in unfavorable consequences property nature. Harm can be material or moral. one

In the absence of one or more conditions of liability, it cannot be imposed, unless otherwise provided by law or contract. The absence of the debtor's fault releases him from liability for breach of obligation (except for special subjects). Enforced recovery of the debtor's property, as a general rule, is possible only in court. The application of remedial sanctions should be carried out on the basis of appropriate procedural forms.

One of the features of any legal entity, including a non-commercial one, is “independent property liability”. The ability to bear independent property liability is expressed in the fact that the organization is responsible for its obligations with its property. The principle of independent civil liability of a legal entity is enshrined in Art. 56 of the Civil Code of the Russian Federation. one

Responsibility should be considered from two perspectives:

– in relation to participants, founders (internal liability),

- in relation to counterparties in transactions, budgetary and extra-budgetary funds for the payment of various mandatory payments, taxes (responsibility of external manifestation).

Acting as a party to a civil law contract, a non-profit organization voluntarily assumes obligations in accordance with the contract being signed, and failure to fulfill such obligations entails holding the organization liable.

A legal entity has the right to voluntarily compensate for damage caused by non-performance or improper performance of the contract. If the first party refuses to fulfill its obligations, the second party has the right to demand satisfaction of the requirements in court. 2

In this case, it is necessary to take into account the fact that transactions on behalf of a non-profit organization are carried out by executive bodies. When exercising civil rights with excess of authority, a dispute arises as to which subject is responsible. Therefore, when considering the issue of liability, one cannot ignore such a category as a conflict of interest.

The phrase "conflict of interest" is new to Russian civil law.

The essence of the "conflict of interest" is disclosed in Article 27 of the Law on non-profit organizations, but the very concept of "the concept of conflict" is not given. A possible conflict situation can be traced through the commission of a transaction by a non-profit organization, in which there is an interest on the part of a number of subjects. The legal status of interested parties, a list of possible actions - all this is clearly spelled out in the named article. one

A transaction in which there is an interest generates negative consequences, and a conflict of interest arises between the interested parties and the non-profit organization. The introduction of a ban on such transactions reflects the legally permitted possibility for non-profit organizations to participate in entrepreneurial activities.

Thus, we can conclude that the legislation does not have a clear legalized definition of a conflict of interest, but provides for the grounds for its occurrence. Unlike commercial organizations, where the legislator leads to a conflict of interest through major transactions and transactions in which there is an interest, for non-profit organizations it is possible to determine the responsible person through the category of conflict of interest.

Thus, non-profit organizations are liable on an equal footing with other subjects of law.

The basis of legal liability is an offense, and the imposition of liability is possible only in a certain procedural order. It should be noted that such a type of non-profit organization as public associations is liable not only for acts that damage the interests of the state, but also for decisions and actions that infringe on the rights of citizens who, in this case, enjoy judicial protection.

When examining the issue of responsibility, the article focuses on a new civil category - a conflict of interest in a non-profit organization. Unlike commercial organizations, where a conflict of interest occurs when making major transactions and transactions in which there is an interest, in non-profit organizations the category "conflict of interest" is aimed at establishing a responsible person in legal relations, which fully reveals one of the elements of the civil law status of non-profit legal entities.
Responsibility of the participants of a legal entity for the debts of the organization The procedure and features of the liquidation of a legal entity within the framework of civil law Persons involved in civil proceedings Persons contributing to justice in civil proceedings

Non-Profit Organizations - legal entities that do not pursue profit making as the main goal of their activities and do not distribute the profit received among the participants (Article 50 of the Civil Code of the Russian Federation).

Separation of non-profit organizations from commercial ones:

• for non-profit organizations economic activity is auxiliary, ensuring their participation in the property turnover, and the civil law status of these organizations is of a secondary nature;
• commercial organizations carry out economic activity, which is the main one for them and is fully regulated by civil law.

Unlike commercial organizations, non-profit organizations are not professional participants in property relations. Therefore, for non-commercial legal entities, the legislator establishes special (targeted) legal capacity(clause 1 of article 49 of the Civil Code) and allows the use of their property only to achieve the goals specified in their constituent documents (clause 4 of article 213 of the Civil Code).

The performance of non-commercial legal entities in civil circulation is due to the need for material support for their core activities, which should not be entrepreneurial.

Non-profit organizations can be created to achieve social, charitable, cultural, educational, scientific and managerial goals, to protect the health of citizens, develop physical culture and sports, meet the spiritual and other non-material needs of citizens, protect the rights, legitimate interests of citizens and organizations, resolve disputes and conflicts, provision of legal assistance, as well as for other purposes aimed at achieving public benefits (Article 2 of the Federal Law of 12.01.1996 N 7-FZ "On Non-Commercial Organizations").

Thus, non-profit organizations carry out activities aimed at the formation of public goods, they are the strongholds of the civil society infrastructure. They participate not in production, but in the redistribution of material goods (the national product). In all other respects, non-profit organizations are full-fledged and permanent participants in property turnover along with commercial organizations.

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A non-profit organization can be created as a result of:

1. its institutions;
2. reorganization of another non-profit organization of the same legal form;
3. as a result of reorganization in the form of transformation of a legal entity of another organizational and legal form (in cases provided for by federal laws).

The decision to create a non-profit organization as a result of its establishment is taken by its founders (founder).

A non-profit corporate organization is the owner of its property.

The charter of a non-commercial corporate organization may provide that decisions on the creation by the corporation of other legal entities, as well as decisions on the participation of the corporation in other legal entities, on the creation of branches and on the opening of representative offices of the corporation, are taken by the collegial body of the corporation.

A non-profit organization is considered to be established as a legal entity from the moment of its state registration in accordance with the procedure established by law, owns or manages separate property, is liable (with the exception of cases established by law) for its obligations with this property, can acquire and exercise property in its own name. and non-property rights, bear obligations, be a plaintiff and defendant in court.

A non-profit organization must have an independent balance sheet and (or) estimate.

A non-profit organization is created without limiting the period of activity, unless otherwise established by the constituent documents of a non-profit organization.

A non-profit organization shall have the right to open accounts in banks in the territory of the Russian Federation and outside its territory in accordance with the established procedure, with the exception of cases established by federal law.

A non-profit organization has a seal with the full name of this non-profit organization in Russian.

A non-profit organization has the right to have:

• stamps and letterheads with their name;
• symbols - emblems, coats of arms, other heraldic signs, flags and hymns, the description of which must be contained in the constituent documents.

List of non-profit organizations

institution- a unitary non-profit organization created by the owner to carry out managerial, socio-cultural or other functions of a non-profit nature (Article 123.21 of the Civil Code of the Russian Federation).

Autonomous non-profit organization - a unitary non-profit organization that does not have membership and was created on the basis of property contributions from citizens and (or) legal entities in order to provide services in the areas of education, healthcare, culture, science and other areas of non-profit activity (Article 123.24 of the Civil Code of the Russian Federation).

religious organization - a voluntary association of citizens of the Russian Federation permanently and legally residing on the territory of the Russian Federation or other persons, formed by them for the purpose of joint confession and dissemination of faith and registered in the manner prescribed by law as a legal entity (local religious organization), an association of these organizations (centralized religious organization), as well as the organization and (or) the governing or coordinating body created by the specified association in accordance with the law on freedom of conscience and on religious associations for the purpose of joint confession and dissemination of faith (Article 123.26

In accordance with Article 50 of the Civil Code, all legal entities in the Russian Federation are divided into and non-commercial.

The purpose of commercial organizations is to make a profit and distribute it among all participants.

The list of types of commercial organizations is closed. These include:

1) business companies and partnerships;

2) unitary, state;

3) production cooperatives.

Non-profit organizations are created Non-profit organizations do not aim to make a profit. They have the right to exercise but the profit cannot be distributed among the participants, it is spent in accordance with the purposes for which the organization was created. During the creation of a non-profit organization, a bank account, an estimate and a personal balance sheet must be formed. The list of non-profit organizations specified in the Code is not exhaustive.

So what legal entities are non-profit organizations?

Non-profit organizations include:

1) Religious, public organizations and associations.

Carry out activities in accordance with the purposes for which they were created. Participants are not liable for the obligations of organizations, and those, in turn, for the obligations of members;

2) Non-commercial partnerships - established by citizens or legal entities. individuals and non-profit organizations based on the principle of membership, to assist the members of the organization in carrying out activities that are aimed at achieving the goals set;

3) The form of a non-profit organization is also an institution - an organization funded by the owner, which was created to carry out managerial and other functions of a non-profit nature. If the property of the institution is insufficient, the owner shall bear subsidiary liability for obligations.

4) Autonomous non-profit organizations. They are created to provide services in the field of education, culture, healthcare, sports, and other services on the basis of property contributions.

5) Non-profit organizations include various kinds of foundations. The Foundation is an organization that does not have membership, pursuing charitable, social, cultural goals and created on the basis of property contributions. It has the right to engage in entrepreneurial activities to achieve the goals of creation.

6) Associations and unions. They are created by commercial organizations in order to coordinate business activities and protect property interests.

7) Non-profit organizations also include consumer cooperatives - associations (voluntary) of citizens and legal entities created to meet material and other needs on the basis of pooling property shares.

Each of the forms of a non-profit organization has its own characteristics that meet the goals of its creation.

Creation of a non-profit organization.

Registration takes place within 2 months. It is necessary to prepare documentation for registration:

Information about the address of the location;

Application for registration, notarized;

Constituent documents;

Decision to establish a non-profit organization;

State fees.

A non-profit organization was created from the moment of state registration, after which it can carry out its activities. Such an organization does not have a term of activity, so it may not re-register. In case of liquidation of a non-profit organization, payments are made to all creditors, and the remaining funds are spent on the purposes for which the organization was created.

A non-profit legal entity is an organization that does not have as its main goal the generation of income and does not distribute the net income received among the participants.

Non-profit organizations may be created in the form of an institution, a public association, a joint-stock company, a consumer association of legal entities in the form of an association (union) and in another form provided for by legislative acts.

From this list of forms, we see that the organizational and legal forms of non-commercial legal entities is not exhaustive and can be supplemented by legislative acts than the organizational and legal forms of commercial legal entities.

A non-profit organization may engage in entrepreneurial activities only insofar as this corresponds to its statutory goals.

Non-profit organizations can be created to achieve social, cultural, scientific, educational, charitable, management goals; protection of the rights, legitimate interests of citizens and organizations; resolution of disputes and conflicts; meeting the spiritual and other needs of citizens; protecting the health of citizens, protecting the environment, developing physical culture and sports; provision of legal assistance, as well as for other purposes aimed at ensuring public benefits and the benefits of its members (participants).

Consider the organizational and legal forms of non-commercial legal entities.

Institution. Article 8 of the Law "On non-commercial organizations" gives the concept of an institution. An institution is recognized as an organization created and financed by its founder for the implementation of managerial, socio-cultural or other functions of a non-commercial nature.

An institution can be formed on the basis of both state and private forms of ownership. Consequently, institutions are divided into public and private.

A state institution is an institution created by the state in accordance with the Constitution and laws of the Republic of Kazakhstan or by decisions of the President of the Republic of Kazakhstan, the Government of the Republic of Kazakhstan and Akims of the capital, regions, cities of republican significance and maintained only at the expense of the state budget, unless otherwise established by legislative acts.

A private institution is an organization that is not part of a state structure, created by individuals and (or) non-state legal entities to carry out managerial, socio-cultural or other functions of a non-commercial nature.

Institutions are government bodies (as subjects of civil law), educational, cultural and sports institutions, etc.

Institutions are not owners of property, but have the right of operational management, and are financed by the owner of its property.

If the institution has insufficient funds to satisfy the claims of its creditors, the owner of the property shall bear subsidiary liability for the obligations of the institution.

Public association. The next organizational and legal form of a non-profit organization is a public association.

According to Art. 11 of the Law of the Republic of Kazakhstan "On non-profit organizations" and Art. 106.Civil Code. A public association is an organization established as a result of a voluntary association of citizens in order to achieve their common goals that do not contradict the legislation of the Republic of Kazakhstan.

Public associations include political parties, trade unions, voluntary societies, creative unions, etc.

The goals that a public association is aimed at are not related to the receipt of profit by its members, citizens unite to satisfy their spiritual and other non-material needs.

The need to determine the legal status of public

associations in the Civil Code relates exclusively to their participation in

property relations and the limits of civil law regulation of relations related to their establishment and activities, should be limited to this area. The legal status of public associations is also determined by the Law of the Republic of Kazakhstan "On property associations", detailed by special legislative acts regulating relations for the creation and operation of their specific types.

The property of a public association belongs to it by the right of ownership. Participants (members) of public associations have no rights to the property transferred by them to these associations, including membership fees.

Non-commercial joint-stock company.

Article 16 of the Law of the Republic of Kazakhstan defines such an organizational and legal form as a non-profit joint stock company, while the Civil Code of the Republic of Kazakhstan does not stipulate such an organizational and legal form at all, resulting in a discrepancy. In addition, the Law “On non-commercial organizations” itself does not clearly explain the procedure for their creation and the specifics of their functioning. In this regard, we believe that it is necessary to either exclude this provision from the Law, or bring it into line with the Civil Code of the Republic of Kazakhstan.

A non-commercial joint-stock company is a legal entity that issues shares in order to raise funds for the implementation of its activities, the income of which is used exclusively for the development of this company. Non-commercial joint-stock companies are not entitled to issue preferred shares, derivatives and convertible securities.

The foundation agreement of a non-commercial joint-stock company is concluded by signing this agreement by each founder or his authorized representative.

A company established as a non-profit organization cannot be transformed into a commercial organization, just as a company established as a commercial organization cannot be transformed into a non-profit organization.

consumer cooperative.

A consumer cooperative is a voluntary association of citizens on the basis of membership to meet the material and other needs of participants, carried out by combining property (share) contributions by its members.

In cases stipulated by legislative acts, legal entities may join a consumer cooperative.

Unlike a production cooperative, a consumer cooperative does not require the personal labor participation of its members in common affairs.

The members of the consumer cooperative are obliged to cover the resulting losses by making additional contributions within three months after the approval of the annual balance sheet. In addition, they jointly and severally bear subsidiary liability for the obligations of the cooperative within the limits of the unpaid part of the additional contribution of members of the cooperative.

The income received by the cooperative cannot be distributed among its members and are directed to the statutory purposes.

A consumer cooperative may be formed by two or more citizens.

In case of liquidation of a consumer cooperative or withdrawal from it, a member of the cooperative has the right to allocate his share in the property of the cooperative, proportional to his share. The heirs of a member of the cooperative have the priority right to be admitted as members of the cooperative, unless otherwise provided by the charter of the cooperative.

A feature of rural consumer cooperatives is the possibility of creating such cooperatives to meet the material and other needs of not only their members, but also other citizens living in rural areas.

Public fund.

A public fund is a non-profit organization without membership, established by citizens and (or) legal entities on the basis of voluntary property contributions, pursuing social, charitable, cultural, educational and other socially useful goals. The main feature of the fund is that the persons who founded the fund do not acquire membership in it and do not participate directly in the management of its affairs.

A public fund may be created by one or more citizens and (or) legal entities. After state registration of a public fund, its founders do not become its members.

Property held on the balance sheet of a public fund is subject to the legal regime of private property.

The procedure for managing a public fund and the procedure for forming its bodies are determined by the charter approved by the founder.

The Charter determines the individual and collegiate management bodies of the public fund. This may be at the discretion of the founders, for example, the president, chairman, director, board, board, meeting of founders. Most often, a board of trustees of the foundation is created, which oversees the activities of the foundation,

making decisions by other bodies of the fund and ensuring their execution, using the funds of the fund, compliance by the fund with legislation.

Article 107 of the Civil Code establishes the mandatory requirements for the charter of the foundation, and obliges the public foundation to publish annually reports on the use of its property in official publications.

Religious association.

A religious association is a voluntary association of citizens who, in accordance with the procedure established by legislative acts, have united on the basis of their common interests in order to satisfy spiritual needs.

Religious associations in the Republic of Kazakhstan are recognized as local religious associations (communities), religious administrations (centers) and their structural subdivisions, as well as religious educational institutions and monasteries.

A religious association may be created by a group of citizens in the amount of at least 10 people.

According to Part 1, Article 8 of the Law “On Religious Associations”, the charter submitted for registration must indicate:

the name, location of the religious association and the territory within which it carries out its activities;

religious affiliation, subject and goals of activity; the structure of a religious association, the procedure for its formation, the competence and terms of office of its governing bodies;

the rights and obligations of a religious association;

the procedure for the formation of the property of a religious association;

the procedure for introducing amendments and additions to the charter of a religious association;

the procedure for the reorganization and liquidation of a religious association.

State registration of religious administrations (centers), associations operating on the territory of two or more regions of the republic, as well as theological educational institutions, monasteries and other associations formed by them, is carried out by the Ministry of Justice of the Republic of Kazakhstan, and registration of local religious associations - by territorial justice bodies.

Due to the fact that today the state pays great attention to non-profit organizations, the committee of the registration service of the Ministry of Justice of the Republic of Kazakhstan analyzed the registration of public and religious associations.

An analysis of the registration of public associations showed that there has been an increase in the growth of registration of public associations whose activities are mainly aimed at satisfying professional and amateur interests, developing scientific, technical and artistic creativity, environmental protection, participating in charitable activities, conducting cultural, educational, sports and recreational activities. work. Statistical data show that the largest number of public and religious associations are registered in South Kazakhstan, East Kazakhstan, Almaty, Zhambyl regions, Almaty city.

Association of legal entities in the form of an association (union).

For the purpose of coordinating their entrepreneurial activities, providing and protecting common property and other interests, commercial organizations may, under an agreement between themselves, as well as jointly with non-profit organizations, create associations in the form of associations (unions).

Associations of legal entities can only be created in the form of an association or union, indicating their organizational and legal form in the name of the legal entity and its constituent documents, including the words "association" or "union".

The property of an association (union) is formed from the contributions of its members, its own activities and other legal receipts. The property transferred by the members of the union of associations (union) shall become its property. An association (union) is the owner of the property on its balance sheet. The property of an association (union) is subject to the legal regime of private ownership. Members of an association (union) retain their independence and the rights of a legal entity. The association (union) is not responsible for the obligations of its members. Members of an association (union) bear subsidiary liability for its obligations only in cases where its size and procedure are provided for by the constituent documents of the association (union). That is, the absence of an indication in the constituent documents of additional responsibility exempts members of the association (union) from it.

Members of an association (union) have the right, at their own discretion, to withdraw from the association (union) at the end of the financial year, unless otherwise provided by the constituent documents. In this case, a member of the association (union) shall bear subsidiary liability for its obligations that arose prior to his withdrawal from the association, in proportion to his contribution within two years from the date of withdrawal. Also, with the consent of the members of the association (union), a new member of the association may enter it. 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.

In the Law of the Republic of Kazakhstan "On non-profit organizations" Art. 17 of which states that non-commercial legal entities can be created in a different organizational and legal form. Chambers of notaries, bar associations, chambers of commerce and industry, chambers of auditors, cooperatives of apartment owners, and other non-profit organizations may be formed in a different organizational and legal form.

Thus, it is necessary to conclude that non-profit legal entities are a form of doing business that does not have as its main goal the generation of income and does not distribute the income received among the participants and has the following organizational and legal forms: institution, public association, joint-stock company, consumer cooperative, fund , a religious association, an association of legal entities in the form of an association (union).