A legal entity is an organization that has separate property in ownership, economic management or operational management and is liable for its obligations with this property, can acquire and exercise property and personal non-property rights on its own behalf, bear obligations, be a plaintiff and defendant in court.
Legal entities must have an independent balance sheet and (or) estimate.
In connection with participation in the formation of the property of a legal entity, its founders (participants) may have rights of obligation in relation to this legal entity or real rights to its property.
Legal entities in respect of which their participants have rights of obligations include business partnerships and companies, production and consumer cooperatives.
Legal entities, on whose property their founders have the right of ownership or other real right, include state and municipal unitary enterprises, as well as institutions.
Legal entities in respect of which their founders (participants) do not have property rights include public and religious organizations (associations), charitable and other foundations, associations of legal entities (associations and unions).
Depending on the main purpose of the activity (Article 50 of the Civil Code) legal entities are divided into
commercial and non-commercial.
The main purpose of the activity commercial organization is the receipt of profit and the possibility of its distribution among the participants.
A non-profit organization is an organization that does not have profit making as the main goal of its activities and does not distribute the profits received among the participants (clause 1, article 2 of the Federal Law of January 12, 1996 N 7-FZ On non-profit organizations).
The classification of legal entities into commercial and non-commercial makes it possible to identify all types of legal entities, determine (allocate) the legal status of their specific groups and distinguish between organizations with different types of legal personality, provide for their organizational and legal forms and thereby exclude the possibility of creating organizations not enshrined in law. At the same time, doubts are expressed in the legal literature as to how justified the division of legal entities into commercial and non-profit organizations, which has received legal consolidation, from the point of view of both the sequence of its implementation and the practical consequences associated with it. Some commercial organizations are endowed with general legal capacity, others with a special one; not only a commercial organization (except for state-owned enterprises), but also a non-profit organization (consumer cooperative or fund) can be declared bankrupt; some cooperatives (production) are commercial organizations, others (consumer) are non-profit, although consumer societies are actively engaged in entrepreneurial activities.
At the same time, it should be recognized that such a division of legal entities is a fundamental step that is of paramount importance in the systematization of all legal entities as participants in civil legal relations.
In paragraph 2 of Art. 50 of the Civil Code contains an exhaustive list of commercial organizations. These include:
1) business partnership:
a) general partnership;
b) limited partnership (limited partnership);
2) economic company:
a) limited liability company
b) an additional liability company;
c) joint stock company
d) production cooperative (artel)
e) state (municipal) unitary enterprise
Let us consider in more detail the commercial activities of a legal entity.
Business partnerships
Business partnerships in Russian law are understood as contractual associations of several persons for joint management entrepreneurial activity under a common name.
Business partnerships can be created in the form of a general partnership and a limited partnership (partnership in limited partnership) (clause 2, article 66 of the Civil Code of the Russian Federation).
A business partnership, the participants of which jointly and severally bear subsidiary (additional) liability for its obligations with all their property, is called a general partnership. It arises on the basis of an agreement between several participants (general partners), which can only be entrepreneurs - individual or collective.
A feature of a full partnership is that the entrepreneurial activity of its participants is recognized as the activity of the partnership itself, and if there is a lack of partnership property to pay off its debts, creditors have the right to demand satisfaction from the personal property of any of the participants or from all full partners (clause 1, article 69 of the Civil Code of the Russian Federation) . The liability of general partners for the debts of the partnership with personal property, in turn, leads to two important consequences.
Firstly, it makes it superfluous to make any special demands on the joint capital of the partnership, because the property of each of the comrades becomes the most important guarantee for the repayment of possible debts. Therefore, the law does not require a partnership to have mandatory minimum property, although he must have a certain share capital and, in fact, always has it.
Secondly, it explains the importance of the mandatory indication in the company name of a full partnership of the names (or company names) of its participants (clause 3, article 69 of the Civil Code). Based on this indication, the counterparties of the partnership will also evaluate its potential solvency, taking into account the solvency of individual partners. Therefore, the partnership indicates in its business name the names (or business names) of all or the most wealthy participants, adding the words "and company, general partnership."
The only founding document of a general partnership is memorandum of association(Article 70 of the Civil Code of the Russian Federation). In managing the affairs of a partnership, each participant usually has one vote, unless the memorandum of association provides otherwise: for example, the dependence of the number of votes of a participant on the size of his property contribution. Therefore, in resolving issues related to the activities of a general partnership, the unanimity of all its participants is necessary, if the constituent agreement does not provide for cases when the decision is made by a majority vote of the comrades (clause 1, article 70 of the Civil Code of the Russian Federation).
Participants of a general partnership may also agree in the memorandum of association on joint business activities (if there is a unanimous decision of all participants to complete each partnership transaction) or entrust it to one or more more experienced and reputable participants (clause 1, article 72 of the Civil Code of the Russian Federation). The memorandum of association contains information on the size and composition of the share capital, which provides information on the size of the share of each employee and the procedure for its payment.
A kind of general partnership can be considered a limited partnership. A business partnership consisting of two categories of participants: general partners (complementary partners), jointly and severally bearing subsidiary liability for its obligations with their property, and fellow contributors (limited partners) who are not liable for the obligations of the enterprise, is called a limited partnership (or limited partnership).
The position of participants in limited partnerships with full responsibility determined according to the general rules on general partnerships and their participants (clause 2, article 82 of the Civil Code of the Russian Federation). Accordingly, limited partners are excluded from entrepreneurial activities and management of partnership affairs, and retain only the right to receive income from their contribution, and therefore they are forced to trust general partners in terms of the appropriateness of using these contributions. Hence the traditional Russian name "kommandites" - a partnership on faith (Article 82 of the Civil Code of the Russian Federation).
The only founding document of a limited partnership, as well as a general partnership, is a foundation agreement drawn up and signed only by participants with full civil liability.
A limited partnership is preserved if it has at least one general partner and one contributor (clause 1, article 86 of the Civil Code of the Russian Federation), and if all its contributors leave, then the general partners have the right to either decide on liquidation or transform into a full partnership. These rules do not, therefore, preclude the participation in such a partnership of a "company of one person" as a general partner, and the natural person who created it - as a contributor.
Upon liquidation of a limited partnership, investors have a priority right over general partners to receive their contributions from the property remaining after the satisfaction of other creditors of the partnership, and if after that the partnership retains the remainder of the property, they participate in its distribution on an equal basis with general partners (clause 2 article 86 of the Civil Code of the Russian Federation).
Similarly full partnership the company name of a limited partnership must contain the names (names) of all or at least one general partner (in the latter case - with the addition of the words - "... and the company"). The inclusion of the name of the contributor in the firm name of a partnership on faith automatically leads to its transformation into a full partner in the sense of unlimited and joint liability with one's personal property for the partnership's debts (clause 4, article 82 of the Civil Code).
The advantages of a partnership include ease of organization: the absence of special management bodies does not require the development of a charter, all issues of functioning are stipulated in the memorandum of association. The disadvantages should be considered the strict liability of general partners with personal property for the debts of the partnership.
Economic companies.
Limited liability companies.
Business companies are organizations created by one or more persons by combining (separating) their property for doing business.
A limited liability company is a company established by one or more persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; participants of a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their contributions (clause 1, article 87 of the Civil Code of the Russian Federation).
LLC is one of the most commonly used forms today, and for small businesses, the most common form. There are about one and a half million registered limited liability companies in Russia.
The law allows a company participant to pay the due share in the authorized capital within a certain time, and not immediately. In this case, the participants who have not fully contributed to the authorized capital of the company shall be jointly and severally liable for its obligations.
Since 2009, the constituent agreement has been excluded from the number of constituent documents. The procedure for exiting participants from the society has been significantly revised, as well as many other points. At the same time, the charter does not provide for the reflection in the charter of information about the size, ownership and nominal value of shares in the authorized capital of the company, which eliminates the need to amend the charter with each change in the structure of the charter capital of the company.
A participant in an LLC can withdraw from the company regardless of the consent of other participants and at the same time withdraw his share from the property of the company (Article 94 of the Civil Code of the Russian Federation). The procedure and terms for the issuance of the property or cash equivalent attributable to its share should be determined by the constituent documents of the company itself.
An LLC can be established by one person who becomes its sole member. An LLC cannot have another economic company consisting of one person as the sole participant.
The number of participants in an LLC should not exceed fifty. If the number of participants exceeds the specified limit, the LLC must be transformed into an OJSC or a production cooperative within a year.
The supreme body of a limited liability company is the meeting of its participants, which has exclusive competence in resolving some of the main issues of the society's life (Article 91 of the Civil Code of the Russian Federation). The executive bodies of the company have "residual competence", i.e. has the right to resolve all issues of management and activities of the company that are not referred to the exclusive competence general meeting.
A variety of limited liability companies is a company with additional liability (in Russia there are about eight hundred such companies), differing only in that if its property is insufficient to satisfy the requirements of creditors, the participants in such a company can be held additionally liable with property belonging to them personally, and in a solidary manner (Article 95 of the Civil Code of the Russian Federation). However, the amount of this liability is limited: it does not concern all of their property, which is typical for general partners, but only part of it - the same for all participants in a multiple of the amount of their contributions.
From this point of view, this society occupies, as it were, an intermediate position between societies and partnerships.
The advantages of a limited liability company for those who create it in the Russian Federation are the opportunity for participants to take a direct part in the business activities of the company; lack of liability for the obligations of the company (as general rule) and risk limited to the extent of the equity interest assumed.
joint-stock companies.
A joint-stock company is a commercial organization formed by one or more persons who are not liable for its obligations, with an authorized capital divided into shares, the rights to which are certified by securities - shares.
In modern Russia, a joint-stock company is the most common form for organizations of large and medium-sized businesses, and enterprises big business more often exist in the form of open joint-stock companies, medium-sized enterprises - in the form of closed joint-stock companies.
The main characteristics of modern Russian joint-stock companies are the division of capital into shares and limited liability.
In accordance with Article 97 of the Civil Code of the Russian Federation joint-stock companies are divided into two types: an open joint-stock company and a closed joint-stock company.
Open Joint Stock Companies. The authorized capital of the company is made up of the nominal value of the shares of the company acquired by the shareholders. The minimum authorized capital is one hundred thousand rubles. The authorized capital can be contributed as in cash, and property, property rights, or other rights having a monetary value.
The term of activity is not limited, unless otherwise provided by the Charter of the Company. The supreme management body in the OJSC is the General Meeting of Shareholders of the Company. The exclusive competence of the General Meeting is established by the Law (Article 48 of the Federal Law of December 26, 1995 N 208-FZ On Joint Stock Companies).
Management of the current activities of the company is carried out by the sole executive body of the company (for example, CEO) or the sole executive body of the company and the collegial executive body of the company (for example, director and management or board). The executive bodies of the company are accountable to the general meeting of participants in the company and the board of directors (supervisory board) of the company.
The Company shall be liable for its obligations with all its property. The Company is not liable for the obligations of its shareholders. If the insolvency (bankruptcy) of the company is caused by the actions (inaction) of its shareholders or other persons who have the right to give instructions binding on the company or otherwise have the opportunity to determine its actions, then these participants or other persons, in the event of insufficient property of the company, may be assigned a subsidiary responsibility for his obligations.
The constituent document of JSC is the Charter. The company's articles of association must state:
full and abbreviated corporate name of the company; information about the location of the company; type of company (open or closed); the number, par value, categories (ordinary, preferred) shares and types of preferred shares placed by the company; rights of shareholders - owners of shares of each category (type); information about the structure and competence of the management bodies of the company and the procedure for making decisions by them; the procedure for preparing and holding a general meeting of shareholders, including a list of issues on which decisions are made by the management bodies of the company by a qualified majority of votes or unanimously; information on the size of the authorized capital of the company; information about branches and representative offices of the company; information on the amount of the dividend and (or) the value paid upon liquidation of the company (liquidation value) on preferred shares of each type; information on the procedure for converting preferred valuable papers.
An open joint-stock company has the right to be transformed into a limited liability company or a production cooperative in compliance with the requirements established for these organizational and legal forms. The Company, by unanimous decision of all shareholders, has the right to be transformed into a non-profit partnership.
An open joint stock company is a form of doing a fairly large business. This is due both to the fact that it is easier to attract large capitals, and to the fact that it is quite complex shape reporting. Also, there is a need to hold meetings of shareholders, and in the case when there are hundreds and thousands of shareholders, this may create some difficulties in providing all the formalities. It is convenient to choose such an organizational and legal form when conducting a large business.
Closed Joint Stock Companies. CJSC is a fairly common form of doing business in Russian Federation, however, less popular than limited liability companies. In addition to purely legal differences, there are also economic ones. Today, if we proceed from the legislation on joint-stock companies, then legal support A CJSC actually requires more effort than maintaining an LLC, and therefore more financial costs than an LLC. First of all, this is due to the fact that a CJSC has a register of shareholders and the need to maintain it, as well as the need for initial registration of the issue of shares (in addition to registering the company itself). In a joint-stock company, a shareholder can only sell shares. A shareholder may demand the purchase of shares by the company only in cases strictly defined by law.
production cooperatives.
A production cooperative is a voluntary association of citizens ( individuals) based on membership, created for joint economic activity, which is based on personal labor participation and the pooling of property contributions. At the same time, members of such a cooperative bear additional responsibility for its debts in case of a shortage of property of the cooperative itself within the limits established by law and the charter of the legal entity.
A production cooperative is one of the rare forms of doing business in Russia today. This is due to the fact that the cooperative is more an association of personal labor contributions than capital. And the subsidiary liability (ie, additional) of the members of the cooperative for the obligations of the cooperative also does not allow this organizational and legal form to spread throughout the vastness of the Russian Federation.
The current legislation makes it possible for legal entities to participate in a production cooperative (clause 1 of article 107 of the Civil Code of the Russian Federation), primarily commercial organizations that are able to ensure the introduction of significant property contributions to establish the material and financial position of cooperatives. However, the participation in them of non-profit organizations (charitable and other foundations, consumer cooperatives), as well as individuals who make only property contributions, but are not involved in personal labor activity. At the same time, their participation in a production cooperative should be limited so as not to turn it into an economic society. The number of members of a cooperative cannot be less than five.
It should be noted the responsibilities of the members of the cooperative. They are as follows: make a share contribution; participate in the activities of the cooperative by personal labor or by making an additional share contribution, minimum size which is determined by the charter of the cooperative; comply with the internal regulations established for members of the cooperative, taking personal labor participation in the activities of the cooperative; bear subsidiary liability for the debts of the cooperative provided for by this Federal Law and the charter of the cooperative.
The charter of the cooperative is its only founding document, and the main requirements for its content are provided for in clause 2 of article 108 of the Civil Code of the Russian Federation, which highlights the conditions for the payment of share and other contributions (in particular, the entrance fee), including for "financial participants", on the labor participation of members of the cooperative in its activities; on the amount of subsidiary liability of members of the cooperative for the debts of the latter (usually a multiple of a share contribution or equity participation).
Members of a production cooperative have the right to participate in the management of its affairs, and receive part of the profit, a liquidation quota (the balance of property distributed among the members of the cooperative after its liquidation and satisfaction of creditors' claims); free exit from the cooperative with the receipt of its share; transfer of a share or part thereof to other persons.
The production cooperative is the sole owner of its property. The division of his property into shares does not lead to the creation of common shared ownership, but is only a way to determine the amount of possible claims of a cooperative member to this commercial organization in the event of its withdrawal. In a production cooperative, a unit (authorized) fund, a reserve (insurance) fund, as well as indivisible funds (funds to be divided among the members of the cooperative only in the event of its liquidation, after satisfaction of creditors' claims) and other funds are necessarily formed.
The system of cooperative bodies consists of a general meeting of its members ( supreme body), Supervisory Board and executive bodies: board and (or) chairman (clause 1 of article 110 of the Civil Code). Mandatory for cooperatives is the principle of staffing its bodies only from among the members.
specific feature legal status cooperative is that a member of a particular cooperative is both its employee and its owner. At the same time, subsidiary liability helps to ensure the stability of the cooperative's property base.
State and municipal enterprises.
Another type of commercial organizations are state and municipal enterprises. The specificity of these subjects of civil law lies in the fact that their property is located, respectively, in the state or municipal property and belongs to such an enterprise on the right of economic management or operational management(Clause 1, Article 113 of the Civil Code). Therefore, they are the only type of commercial legal entities that do not have the right of ownership to their property, but a secondary right in rem. Thus, a state (municipal) enterprise is a legal entity established by the state or a local government for entrepreneurial purposes or for the purpose of producing especially significant goods (work or services), whose property is state (municipal) property.
The constituent documents of state and municipal enterprises are the charter.
Unlike other entrepreneurial legal entities, the management bodies of state and municipal enterprises, as a rule, are of a sole nature. The enterprise is headed by a manager who is appointed and dismissed by the owner or a body authorized by the owner (clause 4, article 113 of the Civil Code).
There are unitary enterprises based on the right of economic management and unitary enterprises based on the right of operational management.
Unitary enterprises based on the right of economic management are created by the decision of the authorized state body or local self-government body and exist at the expense of self-generated profits. At the same time, the owner of the property of an enterprise based on the right of economic management is not liable for the obligations of such an enterprise, except in cases of subsidiary liability for the obligations of a legal entity that went bankrupt as a result of its instructions.
Before state registration unitary enterprise based on the right of economic management, its owner is obliged to fully pay the authorized capital. Consequently, the phased formation of the statutory fund for unitary enterprises, unlike other commercial organizations, is not allowed.
The legal status of a unitary enterprise based on the right of operational management (federal state enterprise) is very specific. On the one hand, a state-owned enterprise is created to produce products (perform work, provide services) and, therefore, carry out commercial activities. On the other hand, it can carry out its economic activities at the expense of budgetary funds allocated by the federal treasury. Thus, the legal capacity of the executed enterprise occupies an intermediate position between the legal capacity of a commercial and non-commercial organization, i.e. such a legal entity can be loosely characterized as an "entrepreneurial institution".
A unitary enterprise based on the right of operational management is created by a special decision of the Government of the Russian Federation on the basis of federally owned property (clause 1, article 115 of the Civil Code).
A new form of legal entity - economic partnership.
In April 2011, it became known that the Government was going to introduce a new organizational and legal form of a legal entity - an economic partnership operating on the basis of a share principle. Experts have an ambivalent attitude towards the idea: on the one hand, economic partnerships will add freedom to young innovative companies, on the other hand, this may lead to additional disputes in legal civil law.
According to the draft law, a business partnership is a commercial organization established by two or more persons, in the management of which the partners who have contributed their share take part. The contribution can be not only monetary, but also in the form of property and intangible assets. Creation of a partnership by reorganizing an existing legal entity (merger, division, separation, transformation) is not allowed.
In addition, state bodies and local governments cannot act as partnership participants, and the number of equity holders should not exceed 50 people. Otherwise, the partnership must be transformed into a joint-stock company within a year. If the number of participants in an economic partnership is reduced to one person, it must be liquidated.
As conceived by the initiators of the law, a new legal form must appeal to investors. "Partners are not liable for the obligations of the partnership and bear the risk of losses associated with the activities of the partnership, within the amount of their contributions," the document says. The management of the activities of the economic partnership is carried out in proportion to the shares in the share capital of the partnership.
“The adoption of the draft law on economic partnership will add degrees of freedom to young innovative companies,” says Vasily Markov, manager of Deloitte's tax practice. However, the introduction of a new organizational and legal form may require additional clarifications of tax legislation. “For example, in the currently existing wording of the bill in economic partnerships, it is possible to distribute profits disproportionately to ownership shares. At the same time, tax legislation defines dividends as a distribution of profits proportional to ownership shares. Therefore, questions may arise regarding the interpretation of the distribution of profits of economic partnerships in tax legal relations,” Markov explains.
A source familiar with the document believes that the use of the form of economic partnership may be of interest to any business that rests on specific people, be it a consulting company, law practice or dental office. “The ability to introduce flexible forms of business management, profit distribution, exit and entry into the business is what is missing existing forms LLC and CJSC,” he says.
Jan Gritans, Director General of ACG MEF-Audit, on the contrary, considers economic partnerships and investment partnerships (another legal form that is being discussed in the government) as absolutely useless new legal structures. In his opinion, they can lead to additional disputes in legal civil law. “The number and forms of legal entities have already been specified in the first part of the Civil Code of the Russian Federation and special federal laws. The introduction of derivative elements of the symbiosis of a simple partnership and business partnerships, which are practically in essence business partnerships and investment partnerships, is an extra ground for discussions that can be decided in courts, and the interpretation and introduction of new sections substantive law will only make life harder for lawyers and judges,” he warns.
Yevgeny Arbuzov, partner at the Art de Lex Center for the Protection of Entrepreneurs and Investors, explains that economic partnerships are similar in form to Western Limited liability companies (LLCs). As a rule, they are in demand by small companies managed by agreement of the parties. On the this moment the closest analogue of LLC in Russia is LLC and limited partnership. “Initially, it was assumed that the possibilities of investment mechanisms would be expanded - they would be attractive and understandable for foreign investors,” he explains the strategy of the authorities. However, in principle, one could choose another way - to change the Russian organizational and legal forms and make them more flexible and close to foreign investors.
Civil Code of the Russian Federation. Part one. Section 1. Article 48.
Reading 9 min. Views 94 Published on 07/15/2018
According to regulatory documents, a legal entity is an organization that owns a number of assets that are used to pay off various obligations. Constant change market economy have led to the emergence of a large number of different companies that have a number of specific differences from each other. It is these differences that are used by experts to classify legal entities into separate groups. In this article, we propose to consider different kinds commercial organizations and discuss their key features.
A commercial organization is a legal entity that, after registering a company, pursues making profit as the main goal of its activities.
"Commercial organization" - the essence of the concept
Legal entities engaged in economic activities for the purpose of generating revenue are classified as commercial entities. According to the established procedure, this classification includes various companies, municipal and state companies, production cooperatives and partnerships. It should also be noted that the regulatory authorities allow the creation of commercial entities to merge with other organizations. Such a merger is referred to as unions and associations of legal entities.
Each business entity owns different assets. These assets include both property and financial resources. It should be noted that property values can be both owned by the company and used on a leasehold basis. The assets of the legal entity are used to meet existing financial and debt obligations. According to the established rules, such companies have the right to use only those assets that are owned by the organization to cover debt obligations. Members of the management of such a structure have the legal right to engage in the development of their company in order to increase profits.
All profits generated are distributed according to the investment level of each member.
Commercial organization - what is it? Before proceeding to the study of this issue, you should familiarize yourself with the meaning of this structure. As mentioned above, the category of commerce includes persons who receive regular profit from their activities. Based on this, it can be assumed that the main goal of such companies is the organization of economic activity in order to extract financial resources. The funds received are distributed among the participants of a particular structure, according to the level of their investments. It should be mentioned that in the current laws there is a clear description of the organizational and legal form of such structures.
The fiftieth article of the Civil Code of the Russian Federation contains a number of criteria that determine the organizational and legal forms of entities belonging to the category of commerce. This means that in order to introduce new varieties of commercial structures, the regulatory authorities need to make adjustments to the above legislative act.
The main classification of commercial organizations - by types of organizational and legal forms Accepted activity classification
All business entities can be divided into two conditional groups. The first group includes corporations managed by founders and members of the managerial level, who have corporate rights. It is important to note that this group includes several subgroups. These subgroups include farms, partnerships and industrial societies.
The second group includes all municipal and state companies. A distinctive feature of these business entities is the lack of ownership of the assets received from the owner of the business. This means that the managerial link does not have corporate rights for the management of the company.
As a rule, such organizations are created under close state control.
What is the difference between non-profit and commercial structures
Non-profit organizations have a number of specific differences from commercial entities. The main difference is the main goal of the company. So, commercial structures conduct economic activities in order to obtain a regular income. In addition, the direction of the subject's activity should be taken into account. As practice shows, commercial structures work for the benefit of only the founders. Non-profit companies strive to provide comfortable conditions for all participants in the structure, which is the basis for achieving the maximum level of social benefits.
In commercial organizations, all profits received by the enterprise are distributed among the members of its management. The remaining funds are directed to the further development of the company, the development of new markets and other goals that will increase the amount of revenue. In non-profit structures, profit is most often completely absent. Speaking about the differences between commercial and non-profit organizations, one should pay attention to Special attention to the nature of their activities. The first type of company is engaged in the manufacture marketable products and the provision of services, while the latter are engaged in the provision of social benefits to various segments of the population.
According to experts, the structures under consideration have differences in the form of employees. In the case of commercial entities, each employee of the organization receives payment for the fulfillment of his labor obligations. Non-profit organizations, in addition to the work of their staff, involve volunteers and volunteers in the performance of various works. The last difference between these structures is the company registration procedure itself. To register a commercial company, the owner of the company or a person representing the interests of the founding council must apply to the tax authority. A non-profit structure is registered by the justice authorities.
A non-profit organization does not aim to make a profit and does not distribute the profits received among the participants Types of commercial organizations
The current regulatory legal acts set out the criteria for determining all forms of commercial organizations. Let's get acquainted with the description of each type of commercial entities.
General partnerships
General partnership - a feature of this form is the presence of a share capital, which is based on the investment of members of the founders' council. All income received is divided proportionally, according to the amount of invested capital. It should be noted that all members of the partnership are jointly responsible for financial obligations. The partnership's property can be used to repay credit debts. According to experts, today this form of commerce is registered quite rarely.
Production cooperatives
This form of commercial structures is often referred to as artels. Such companies are created with the help of the association of citizens to organize a joint business. Each member of a cooperative engaged in the production of marketable products can make a personal contribution to the development of the organization, by labor participation or financial contributions. It should be noted that in this case a commercial structure can be organized by both ordinary citizens and legal entities.
In addition to production cooperatives, there are such types of organizations as:
- consumer cooperative.
- Insurance and credit cooperation.
- Construction and economic cooperatives.
When such a company is formed, a “Charter” is created, which prescribes the level of responsibility of all its participants. According to the established rules, in order to create a cooperative, it is necessary to assemble a founding council of more than five people.
LLC (limited liability companies)
Such organizations can have either one owner or belong to the founding council. As a rule, the board of founders consists of legal entities and individuals. The statutory fund of such an organization consists of capital shares contributed by members of the company. It is important to note that all members of the company are not responsible for the financial and other obligations of the company. This means that only the property and assets of the company itself are used to repay loans and debt obligations. G The main distinguishing feature of such organizations is the presence of mandatory rights for each founder. According to statistics, this organizational and legal form is used by most companies operating in Russia.
Commercial organizations have all the features inherent in a legal entity Quite often you can hear the question: is LLC a commercial or non-profit organization? According to the definition of current legal documents, this form of ownership refers to commercial structures, since the main purpose of the LLC is to make a profit. Based on this fact, we can conclude that companies belonging to this category have the right to engage in any type of business. It should be noted that in order to certain directions organizations need to obtain licenses and other permits.
JSC (joint stock companies)
The considered organizational and legal form is most often used by entities belonging to the category of medium and large businesses. The entire authorized capital of such companies is divided into shares. The main distinguishing feature of such organizations is the limited liability of securities holders. To date, the following classification of joint-stock companies is used:
- closed societies;
- public organizations.
Each of these structures includes several subgroups. So, business partnerships are one of the varieties of public joint-stock companies (joint stock company).
State and municipal unitary enterprises
The structure under consideration has a number interesting features. The main difference of this structure is the lack of ownership of the company's property values. According to the established rules, municipal unitary enterprises have property values that are not subject to division between owners. This means that all assets and funds of the firm cannot be divided into shares or contributions. It should be emphasized that all property assets belong to the company on the rights economic management. According to experts, the owners of such firms are liable for financial obligations solely with the company's assets.
Team partnerships
This structure is based on a savings fund created by two categories of persons: general partners and limited partners. The first group of persons carries out the economic activity itself on behalf of the entire company. It should be noted that these persons are liable for financial obligations, not only with the property assets of the company, but also with personal values. Persons acting as a contributor are liable only for the investments made. According to experts, this form of organizations is registered quite rarely.
According to the rules established by the current legislation, only private entrepreneurs and owners of organizations belong to the category of full participants. The status of contributors could be obtained by both organizations and ordinary citizens.
Commercial organization clearly defined legal form in the law Companies with additional liability
This form of commercial activity was abolished in 2014. A distinctive feature of an ALC is the presence of one or more founders. The authorized capital of such companies is divided into several shares, the size of which is determined by the constituent documentation. All members of the founding council of such a company are financially responsible in the form of their own property values.
The main features of commercial organizations
The main feature commercial structure is the overall goal of economic activity aimed at extracting stable income. The current legislation has a clear definition of all existing organizational and legal forms of such companies. All finances received by these structures are distributed among its owners.
It should be noted that all subjects of commerce have exactly the same characteristics as legal entities. This means that the owners of the company are responsible to the regulatory authorities, business partners and other persons for both their own property values and the assets of the companies. Each establish a business entity has a number of rights and obligations. This indicates that these citizens can be called up as defendants and plaintiffs in court proceedings.
Conclusions (+ video)
Experts in the field of entrepreneurship say that today, on the territory of Russia, there are more than a dozen different forms of commercial entities that differ in their internal structure. This fact shows that every person who wants to do business on behalf of a legal organization has the legal right to choose the most appropriate form of business, based on their preferences and goals.
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The main criterion by which legal entities are classified in Russian legislation is established in Art. 50 of the Civil Code, which considers commercial and non-profit organizations.
Both groups are full-fledged participants in civil circulation. However, there are significant differences between them, which determine the special legal status of each.
The concept and main features of commercial organizations
The law does not contain the concept of a commercial organization, close to scientific, but its main features are formulated in Art. 48, 49 of the Civil Code, as well as in parts 1 and 2 of Art. 50 GK.
Signs of commercial organizations:
- The main objectives of the activities of such legal entities are to make a profit. This means that the charter of the organization must contain a corresponding provision. Its presence or absence can be noted officials during registration. His absence serves as a basis for denial of it.
- Commercial organizations, as a rule, have a general legal capacity. This means that such legal entities have legal grounds for engaging in any type of non-prohibited activity. The exception is municipal and state unitary enterprises. They can carry out activities within the framework of the purposes for which they were created. Legislation governing the position of market participants in various sectors of the economy may also impose restrictions. Examples can be found in the financial sector. Organizations performing the functions of banks or insurance companies may not engage in other activities.
- Mandatory state registration. Only after that the legal entity becomes a participant in civil circulation.
The concept of a commercial organization
The characteristic of commercial organizations according to the main features allows us to formulate the concept of this legal entity.
A commercial organization should be understood as a legal entity whose main goal is to make a profit, capable, as a rule, of carrying out any activity that is not prohibited by legal norms.
The concept and main features of non-profit organizations
The above articles of the Civil Code contain a description of commercial and non-profit organizations. This classification makes it possible to distinguish the latter by a number of features.
- The main distinguishing feature is the purpose of establishing non-profit organizations. Such a structure performs other functions than a commercial legal entity and they are not related to making a profit. Humanitarian, social, political and other aspirations can serve as goals.
- Nonprofit organizations have limited legal capacity. It is determined by the purpose of creation. At the same time, entrepreneurial functions that meet this requirement are also possible.
- Another sign is the inability to distribute profits among the founders. If there is one, it serves as an additional financial basis to achieve the goals for which such an organization was created.
- Special organizational and legal forms. As in the case of commercial legal entities, there is a closed list that defines the types of these organizations.
- To start activities, state registration is required. In some cases, it is much more complex and involves a greater number of necessary actions. An example is the registration of political parties carried out in the Ministry of Justice.
concept non-profit organization
The provisions of the law characterizing these legal entities, allow us to derive the most complete concept.
Non-profit organizations should be understood as duly registered legal entities of certain organizational and legal forms, the goals of which are to achieve results in the public, humanitarian, political and other spheres that are not related to making a profit, capable of performing functions within the specified framework and not distributing the received financial resources between founders.
How to distinguish a for-profit organization from a non-profit?
Such a classification of legal entities can be carried out according to their main features.
The characteristics of for-profit and non-profit organizations paint a clear picture of how one differs from the other.
Differences can be found in the text of the founding document. Comparison of their initial sections will help establish the goals of creating organizations. The difference will be in the presence or absence of profit making as the main one.
However, not every citizen has access to documents of organizations. In this case, types of organizational and legal forms will help. It is by their name that the organization can be classified as commercial or non-commercial.
Forms of commercial organizations
The list of types of commercial organizations is given in Part 2 of Art. 50 GK. These include:
- Economic companies. This is the most common form. Among them there are joint-stock companies, including public and non-public (PJSC and CJSC, respectively) and limited liability companies.
- production cooperatives. Their peak came in the perestroika years. However, today it is a rare type of commercial organization.
- Economic partnerships, which are even rarer than production cooperatives.
- Business partnerships.
- Municipal and state unitary enterprises.
- Peasant (farming) farms.
Forms of non-profit organizations
The legislation provides for a large number of forms of such legal entities (part 3 of article 50 of the Civil Code). Therefore, it is easier to act by elimination method.
Non-commercial organizations should include all legal entities that are not related to commercial ones. In practice, such forms as political parties, foundations, public organizations, consumer cooperatives, HOA, bar associations and education.
All existing organizations are divided into two main groups: commercial and non-commercial. Each of the presented forms operates on the basis of the current legislation, while pursuing different goals. About what a commercial organization is, the formation of its finances and the main differences from a non-profit will be discussed in the article.
The essence of a business organization
A commercial organization (CO) is a legal entity whose main purpose is to make profit and distribute it among all participants.
In addition, the CO has features inherent in legal entities:
- the presence of separate property in ownership, economic management or operational management;
- the possibility of renting out the property;
- fulfillment of obligations on the basis of their property;
- acquisition, exercise on behalf of the property of various rights;
- appearing in court as a plaintiff or defendant.
Finance of a commercial organization
The finances of commercial organizations are the main link in the financial system. They cover most of the processes aimed at the production, distribution, use of GDP in monetary terms. There is another definition according to which the finances of enterprises are monetary or other relationships that arise in the implementation of different types entrepreneurship, as a result of the formation of personal capital, target funds, their use, further redistribution.
From an economic point of view, the finances of KOs are subject to grouping between the following individuals and groups:
- founders when creating an enterprise;
- organizations and enterprises in the production, further sale of goods, works, services;
- divisions of the enterprise - when determining sources of financing;
- organization and employees;
- enterprise and parent organization;
- enterprise and CO;
- financial state system and enterprise;
- banking system and enterprise;
- investment institutions and enterprises.
At the same time, the finances of KOs have the same functions as state or municipal finances - control and distribution. Both functions are closely related.
The distribution function involves the formation of initial capital, its further distribution in such a way as to take into account the interests of all business units of the organization, producers of goods and the state.
The basis of the control function is keeping records of expenses associated with the release, sale of products, control over the formation and distribution of cash funds.
The basis of financial management of commercial organizations is a certain financial mechanism, represented by the following elements:
- financial planning is an indispensable condition for the existence of any enterprise. Planning is required not only when opening a CO, but also at the stage of the entire development. In the course of planning, the expected results and incomes are compared with investments, the capabilities of the enterprise are identified;
- financial control over organizations, the form of ownership of which is non-state, by state authorities is carried out in terms of fulfilling obligations to tax authorities, as well as when using funds from the state budget. This occurs when the KO receives monetary amounts in the form of state aid. Types of control - audit, on-farm;
- analysis of the implementation of forecasts and plans. It does not necessarily check the execution of plans. This analysis is more focused on identifying possible causes deviations of planned indicators from forecasted values.
Modern activity classification
The Civil Code of the Russian Federation defines the following forms of KO:
- A business partnership is a CO in which the authorized capital is divided into shares between all its participants. Participants are liable for the obligations of the company with their own property;
- economic society - an organization where the authorized capital is divided into shares between the participants, but they are not liable for the obligations of the company with their property;
- production cooperative - an enterprise uniting on a voluntary basis citizens who take collective, personal, labor or other participation in activities, making share contributions;
- state or municipal unitary enterprise - an enterprise created by the state (municipal authorities). At the same time, the enterprise is not endowed with ownership rights to the property that is assigned to it.
According to Art. 50 of the Civil Code of the Russian Federation there is only a list of the above commercial organizations. Therefore, without preliminary amendments to this legal act, it will not be possible to put into circulation any other law on FGM.
What is the difference between a for-profit organization and a non-profit organization?
First, let's look briefly at the similarities between the two types of organizations.
There are not very many of them:
- both types of enterprises operate in market environment, therefore, in the course of functioning, they can act as sellers of goods, works or services, their buyers;
- each such enterprise must earn money resources, manage funds, invest them in different directions;
- The goal of every enterprise is to ensure that income fully covers current expenses. The minimum task is the ability to work without loss;
- Both organizations are required to keep accounting records.
Thus, it can be argued that the principle of operation of commercial and non-commercial organizations is identical. However, there are quite a few criteria by which they differ from each other.
| difference | commercial organization | Non-profit organization |
| Field of activity | Created for profit | Created to achieve goals that have nothing to do with the material base |
| original target | Increase in own value, increase in income of all owners | Performance of the work indicated by the charter of the organization related to the provision of services without subsequent receipt of profit by persons who are members of the founders |
| Important line of business | Production, sale of goods, works, services | Charity |
| Profit distribution procedure | All profits received are subject to further distribution among the participants or are transferred for the development of the company | The concept of "profit" does not exist. Its founders operate with the definition of “target funds”, which are directed to the implementation of specific cases, while not subject to distribution among the participants |
| The target audience | Consumers of goods, works, services | Clients, members of the organization |
| Organization staff | Working personnel are accepted on conditions civil law contracts(GPA) | In addition to employees working on the terms of the GPA, the staff includes volunteers, volunteers, and the founders themselves take part in the work |
| Sources of income | Own activities, equity participation in the profits of third-party companies | Funds, state, investors, business (external income), membership fee, rental of own premises, operations in the stock markets (internal income) |
| Organizational and legal form | LLC, JSC, PJSC, PC (production cooperative), MUP, various partnerships | Charitable or other foundation, institution, religious association, consumer cooperative, etc. |
| Legal capacity restrictions | Universal or general. Possess civil law, fulfill obligations, on the basis of which it is allowed to engage in any activity, if it does not contradict the current legislation | Limited legal capacity. They have only those rights that are reflected in the statutory documents |
| Authority registering an enterprise | Tax office | Ministry of Justice |
These are the main differences between the two types of enterprises. Another nuance is bookkeeping. Non-profit organizations have much more complicated bookkeeping, so their creators have to use the services of highly qualified accountants.
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 the implementation of 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 combining share property contributions.
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;
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 the event 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.