Legal status of legal entities. Legal status of the body of a legal entity. Development and formation of a package of constituent documents required for registration of a legal entity
A legal entity as a subject of civil legal relations has a number of features that distinguish it from other subjects of civil law. In particular, the following main specific functions of a legal entity can be distinguished:
1. Registration of collective interests. The design of a legal entity allows in a certain way to organize, streamline the internal relations between its participants, transforming their will into the will of the organization as a whole, which gives the legal entity the opportunity to act in civil circulation on its own behalf as a single entity.
2. Pooling of capital. Legal entities (especially joint-stock companies) are a convenient form of long-term concentration of capital to achieve any goals, and above all entrepreneurial goals.
3. Money management. A legal entity is a convenient tool for the flexible use of capital (belonging to many persons or one person) in various areas of business. Well developed legislation legal entities ah, stock exchanges and securities serves as one of the means of capital management on a national scale and is a powerful factor in the management and self-regulation of the economy.
4. Limitation of entrepreneurial risk. The design of a legal entity allows to reduce the amount of possible entrepreneurial risk of participants (usually in the amount of the amount of the contribution made).
The main features and characteristics of a legal entity are contained in its definition, which has not undergone significant changes compared to the previous legislation. According to paragraph 1 of Art. 48 of the Civil Code, a legal entity is an organization that has separate property and is liable for its obligations, can, on its own behalf, acquire and exercise civil rights and bear civic obligations, be a plaintiff and defendant in court.
This definition contains the following features of a legal entity: organizational unity, property isolation, independent property liability, the ability to independently act in civil circulation on its own behalf.
organizational unity. This feature is that any legal entity has a certain internal structure and management bodies. This organization acts as a single entity capable of solving certain social problems and is distinguished by the presence structural divisions managed from a single center.
It is also expressed in the definition of the goals and objectives of the organization, in establishing the competence of the governing bodies and the procedure for their activities. Employees and managers should know what a legal entity is as a single entity, what this entity will do, who manages it and how, what constitutes property. Organizational unity is fixed in the charter of a legal entity, or in the memorandum of association, or in a single (model) charter approved by its founder or a body authorized by him for institutions of this kind.
Property segregation. The sign of property isolation implies that the property of a legal entity is separated from the property of other legal entities (including higher ones), from the property of its founders (participants), from the property of all other subjects of civil law, including state or municipal entities.
An external expression of property isolation is the presence of an organization's authorized capital (in business companies), share capital (in business partnerships), statutory fund (in state, municipal unitary enterprises); and its accounting and accounting reflection can serve as an independent balance sheet or estimate.
Independent property liability. Independent property liability of a legal entity is a consequence of its property isolation (Article 56 of the Civil Code). The new Civil Code retained the previously existing rule that a legal entity is liable for its obligations with all its property. The presence of such a rule is due to the fact that for a legal entity, as noted above, the principle of separate property is characteristic (the property of a legal entity is specially separated from the property of the founders and the property of other persons in order to limit the liability of the founders to the value of property contributions).
First of all, it should be noted that the law establishes the principle of separate liability of participants and the legal entity itself. In accordance with it, a legal entity is liable for its own obligations. The founder (participant) of a legal entity or the owner of its property is not liable for the obligations of the legal entity, and the legal entity, in turn, is not liable for the obligations of the founder (participant) or owner, except as provided for by the Civil Code or the constituent documents of the legal entity. So, according to paragraph 1 of Art. 75 of the Civil Code, participants in a full partnership bear subsidiary (additional) liability for the obligations of the partnership as a legal entity.
Speech in civil circulation on your own behalf. Speaking in civil circulation on its own behalf implies the possibility of a legal entity on its own behalf to acquire and exercise property and personal non-property rights, bear obligations, be a plaintiff and defendant in court. Legal entities acquire rights and bear obligations through their bodies, which act on the basis of the law and constituent documents.
Availability similar sign is caused by the fact that the subjects of civil law acquire civil rights and assume civil obligations under a certain identifying and individualizing designation.
The company name of a legal entity must contain an indication of its organizational and legal form and the actual name of the legal entity, which cannot consist only of words denoting the type of activity.
A legal entity must have one full company name and may have one abbreviated company name in Russian. A legal entity is also entitled to have one full company name and (or) one abbreviated company name in any language of peoples Russian Federation and/or foreign language.
To legal entities in Art. 48 of the Civil Code, for the first time, such a concept as an organizational and legal form is used. At the same time, there is no legal definition of it in the legislation itself. If we proceed from the term itself, then we are talking about the form of organization of a legal entity provided for in the legislation.
In the literature, one can find the following definitions of the organizational and legal form of legal entities. So, according to S.E. Zhilinsky, “the organizational and legal form embodies the essential organizational and legal signs which are common to legal entities, business organizations of various types”.
By definition I.V. Eliseeva, "the organizational and legal form is a set of features that objectively stand out in the system of common features of a legal entity and significantly distinguish this group of legal entities from all others."
The last definition seems to be the most accurate.
An important feature of a legal entity is the presence of its location. The location of a legal entity is determined by the place of its state registration on the territory of the Russian Federation by indicating the name of the settlement (municipal formation). State registration legal entity is carried out at the location of its permanent executive body. In the absence of such an executive body - at the location of another body or person authorized to act on behalf of a legal entity by virtue of a law, other legal act or constituent document (clause 2, article 54 of the Civil Code of the Russian Federation, clause 2, article 8 of the Federal Law dated 08.08.2001 No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”). Information about the location of a legal entity is included in its constituent document and is indicated in the Unified State Register of Legal Entities (clause 4, article 52, clause 5, article 54 of the Civil Code of the Russian Federation).
For participation in civil law relations a legal entity must be endowed with such features as legal capacity and legal capacity. Moreover, in contrast to the legal capacity of individuals, the legal capacity of legal entities occurs simultaneously with legal capacity.
This is probably why the Civil Code of the Russian Federation defines only the legal capacity of a legal entity, without saying anything about legal capacity. In particular, in paragraph 1 of Art. 49 of the Civil Code only states that a legal entity may have civil rights corresponding to the objectives of the activity provided for in its constituent documents, and bear the obligations associated with this activity. Civil legal capacity of a legal entity, i.e. the ability to have civil rights and bear obligations may be general (universal), like citizens, or limited (special).
The legal capacity of legal entities will differ depending on whether it is a commercial or non-commercial legal entity. So, commercial organizations, with the exception of unitary enterprises and other types of organizations provided by law, may have civil rights and bear civil obligations necessary to carry out any types of activities not prohibited by law. The new Civil Code supports the central, fundamental idea of the role of the general norms of the Civil Code on legal entities. According to paragraph 4 of Art. 49 GK civil status legal entities and the procedure for their participation in civil circulation (Article 2) are regulated by this Code. Features of the civil legal status of legal entities of certain organizational and legal forms, types and types, as well as legal entities established to carry out activities in certain areas, are determined in accordance with this Code, other laws and other legal acts.
By general rule the legal capacity of a legal entity arises from the moment it is entered into the Unified State Register legal entities of information about its creation and terminates from the moment of entering information about its termination into the specified register. The new Civil Code supports the central, fundamental idea of the role of the general norms of the Civil Code on legal entities. According to paragraph 4 of Art. 49 of the Civil Code, the civil status of legal entities and the procedure for their participation in civil circulation (Article 2) are regulated by this Code. Features of the civil status of legal entities of certain organizational and legal forms, types and types, as well as legal entities established to carry out activities in certain areas, are determined in accordance with this Code, other laws and other legal acts.
Thus, all norms individual laws both civil law and public law nature, regulating the status of the relevant organizations as legal entities, must comply with the norms of the Civil Code on legal entities.
To engage in certain types of activities, a legal entity must have a license, membership in a self-regulatory organization or a certificate issued by a self-regulatory organization on admission to a certain type of work. So, in paragraph 3 of paragraph 1 of Art. 49 of the Civil Code were amended, according to which, in cases established by law, a legal entity can engage in certain types of activities only on the basis of a special permit (license), membership in a self-regulatory organization or a certificate issued by a self-regulatory organization on admission to a certain type of work. Accordingly, legal capacity and legal capacity arise from the moment these requirements are met.
As in the previous legislation, the new Civil Code retained the provision that a legal entity acquires civil rights and assumes civil obligations through its bodies acting in accordance with the law, other legal acts and the charter (the previous legislation spoke of constituent documents).
Bodies of a legal entity may be sole or collegiate. Examples of sole bodies are directors, presidents, etc. The collegiate bodies include the board, general meeting and etc.
The procedure for formation and the competence of the bodies of a legal entity are determined by law and the constituent document.
However, a legal entity does not always conduct its business through the authorities. According to paragraph 2 of Art. 53 of the Civil Code of the Russian Federation, in the cases provided for by the Civil Code, it may acquire civil rights and assume civil obligations through its participants, without creating special bodies. So, in a full partnership and in a partnership on faith, on behalf of a legal entity, its participants act - full partners (Articles 72, 84 of the Civil Code).
The exercise by a legal entity of its powers is also possible through a representative. The representative of a legal entity, in contrast to the body, is an external, extraneous subject of law in relation to the legal entity. His powers are based on a power of attorney issued to him by a legal entity, an indication of the law or an act authorized to do so. government agency or local government.
Art. 53.1 of the Civil Code for the first time establishes the responsibility of a person authorized to act on behalf of a legal entity, members of the collegial bodies of a legal entity and persons determining the actions of a legal entity. Thus, the novelty of the current legislation is to strengthen the property liability of persons authorized to act on behalf of the relevant legal entity (i.e. individuals who are its governing bodies), as well as members of its collegial bodies (supervisory boards, boards, etc.). ) and persons actually determining (controlling) its actions. All these persons must compensate for the losses caused by them to a legal entity if it is proved that in the exercise of their rights and performance of duties they acted in bad faith or unreasonably, including if their actions (inaction) did not correspond to the usual conditions of civil turnover or ordinary business risk. At the same time, normal business risk, justified by the conditions of turnover, must exclude the liability of these persons.
Such liability may also arise for members of the collegiate bodies of a legal entity, with the exception of those who voted against the decision that caused losses to the legal entity, or, acting in good faith, did not take part in the voting. It is impossible not to pay attention to the fact that there are a number of evaluative concepts that only the court can establish.
In its own way legal nature this liability is civil, since these persons are obliged to compensate for the losses caused through their fault to the legal entity. The legislator did not specify what kind of losses should be compensated, however, it can be concluded that we are talking about full compensation for losses, that is, real damage and lost income will be compensated. It should be specially emphasized that such liability cannot be limited by an agreement, its terms will be considered void (clause 5, article 53.1 of the Civil Code of the Russian Federation).
The problem of the legal status of legal entities in Russia is very relevant today. This is due to the continuous growth market economy, modernization of property institutions and development of new economic forms. Our article will give a detailed description of the main elements of the legal status of a legal entity.
Jur. face in Russia: concept and essence
Legal entities take the most active part in civil circulation. According to article 48 of the Civil Code of the Russian Federation, jur. a person is an organization that owns separate property and is liable for its obligations. It is known that such organizations can acquire and exercise property and personal non-property powers, as well as perform duties and bear responsibility for them.
The main attributes of any Russian jur. person will have a seal, a document on state registration and an open current account in banking organization. However, these are only external elements that give the most general idea of the subject of civil legal relations. What can be said about the legal status of a legal entity? What features are typical for organizations of this type? First, it is a formal unity. A person is considered legal only if it has a charter, constituent documents and a special provision. In all these papers, the goals, objectives of the organization, its essence and structure should be clearly indicated. Secondly, the organization must have separate property. According to him, legal a person is responsible and performs his duties. Finally, thirdly, any legal entity is obliged to act in civil circulation on its own behalf.
Commercial and non-commercial activities
The concept of the legal status of a legal entity contains a division into commercial and non-commercial activities. According to paragraph 1 of Article 48 of the Civil Code of the Russian Federation, an organization may acquire and exercise property and personal non-property rights on its own behalf. Priority is given to the first or second permission group. The final status of the legal entity will depend on this. faces.
A commercial organization is a person who aims to extract the maximum profit from their activities. Such a person has a clearly defined organizational form and company name. All profits are distributed among the participants of the organization, while all members are involved in the management of legal entities. face. Organizations of a commercial type can be created in the form of cooperatives, unitary enterprises and partnerships.
Non-profit legal a person, on the contrary, does not aim at making a profit. All funds earned go to charity or to improve the organization. As a rule, sports, scientific, educational, cultural and other institutions have a non-commercial character.
How then is the legal status of a legal entity determined? It all depends on the type of activity that the organization implements.
Civil law status of a legal entity
Bodies can be classified into three legal groups. Thus, they can act as subjects of civil, administrative and constitutional law. As subjects of the constitutional sphere of relations, jur. individuals have the most general rights and responsibilities. These are, for example, the focus on the development of human rights and freedoms, freedom economic activity and much more. In the Civil Code, the status of legal faces are revealed in more detail.
As subjects of civil legal relations, organizations have legal personality - the most important component legal status. Legal personality includes powers, duties, legal guarantees and elements of organizational responsibility. In many ways, the status of organizations depends on the direction of their activities. So, a non-profit instance will be very different from a commercial one - starting from the formation and implementation of activities, and ending with the procedure for liquidation. The concept of legal capacity is worth a little more detail below.
The concept of legal capacity of legal entities
What are the elements of the legal status of legal entities? Legal professionals refer here to powers, duties, responsibilities, and guarantees of rights. From all this, there are three most important components of any subject of civil legal relations: it is legal capacity, legal capacity and tortiousness. These elements add up to legal personality. How does all this relate to a legal entity? 
Article 49 of the Russian Civil Code legal capacity is determined. faces. According to the law, legal capacity is the ability to exercise civil rights and bear obligations. This process can be general or specific. General legal capacity is the exercise of any duties and powers, which, however, do not contradict current legislation. Special legal capacity is the presence of such rights by a person that correspond to the goals of his activity and are fixed in the law.
All commercial legal persons have common legal capacity. It doesn't even affect specific view activities as set out in the statute. Non-profit organizations are required to prescribe their goals and objectives in the charter, on the basis of which legal capacity will be built.
Thus, the legal capacity of organizations as subjects civil process determined by the totality of duties and powers that constitute the legal status of a legal entity.
The concept of the administrative and legal status of legal entities
Having dealt with the constitutional and civil status of organizations, it is worth paying attention to the administrative sphere. What place do legal entities occupy here?
The administrative and legal status of organizations is a set of duties and powers that are implemented through the following actions:
The administrative and legal status of organizations, therefore, consists of the presented components. Here are the main guarantees of rights:
- a ban on state interference in the activities of organizations (with the exception of cases specified by law);
- protection of property;
- avoidance of monopolies;
- prohibition on inappropriate refusal to register an organization.
For ease of use administrative rules all organizations are divided into state (federal and regional), municipal (district, city, rural and others), and private.
In this way, administrative status organizations regulates issues of security and quality implementation of legitimate functions.
Foreign legal entities
Legal status organizations located abroad is somewhat different from the legal status of domestic legal entities. In this case, private international law plays a significant role - that is, domestic legislation complicated by foreign legal elements. At the same time, the law proceeds from the law of the country in which the organization itself is located. Attention should be paid to the Convention "On legal assistance CIS countries" of 1993, which states that the legal capacity of legal entities is determined by the legislation of the organization's trustee country. Naturally, a foreign legal entity must not violate the rules and regulations of the Russian Federation, otherwise it will be subject to sanctions. 
According to Russian laws, foreign organizations have the opportunity to make any legal transactions without state permission. This also applies to foreign trade. Moreover, foreign organizations located in Russia have the right to protect their rights in courts.
The state is ready to support foreign legal entities that have shown themselves well in the world market. Major contracts and deals can be concluded with reputable organizations.
The procedure for the formation of legal entities. faces
The decision to establish an organization is made by the founders. There may be one founder, in which case he makes all decisions alone. A charter is created, which is approved by the state body. The constituent documentation prescribes the terms, methods and procedure for creating a person, as well as the amount of property.
An important step in the process of forming a legal entity is registration with state bodies. The founders submit to the authorities all necessary documentation, which is carefully checked for violations. As a result, information about the organization is entered into single register legal persons. Registration may be refused if violations are nevertheless found. 
What are founding documents? Regardless of the type of legal entity, the most important document here is the charter. If we are talking about a partnership, then a memorandum of association will be required. The main document of state corporations will be the Federal Law "On State Corporations".
What should the charter of a legal entity contain? First, it is information about the organizational legal form instances. This includes data on the location of the person, his name, the number of founders, etc. Secondly, this is information on the procedure for managing the activities of citizens who are members of the organization.
Thus, the rules on the process of forming an organization constitute an essential part of the legal status of a legal entity.
Reorganization and liquidation of the organization
Legal form faces can be changed different ways. The first reorganization option is called a merger. In this case, two or more organizations are merged into one. The new instance becomes the legal successor. The original legal entities lose their activities.
The second option is joining. It should not be confused with merging, although the processes themselves are similar. In the case of affiliation, there is a transfer of rights and obligations from the person who terminated the activity to another, acting person.
Separation is the third option for transforming the organization. In this case, one legal entity is liquidated, but two or more new instances with original rights are created at its expense. A similar process is selection. However, in this case, the reorganized person is not liquidated, but only transfers part of its duties and powers to the newly created authorities.
The final form of reorganization is transformation. The organization is changing form, and with it the features of the legal status. A legal entity created instead of the original instance takes on only a part of the old powers.
Liquidation of legal entities is possible in two ways: by a court decision and by own will founders. Judgment issued in response to a claim by a state, municipal or local authority. The main reasons may be a violation of the law, incorrectly executed documentation, inconsistency of the activities carried out with the goals established by the law, etc.
Commercial organizations
The characteristics of each type of commercial organization will help to qualitatively get acquainted with the legal status of entrepreneurs-legal entities. It should be noted right away that all elements of legal capacity may well be applicable to organizations aimed at making a profit. This means that the commercial legal a person may include property isolation, organizational unity, civil liability and representation in court. All of these criteria apply to partnerships, societies, cooperatives and unitary enterprises.
Article 66 of the Civil Code of the Russian Federation states that a business partnership is an instance whose property is divided into shares of the founders. All shares constitute the authorized capital. Partnerships can be full and limited (temporary). There are limited partnerships in which the participants bear the risk of losses for each other. 
Farms may have the legal status of individuals or legal entities. In the first case, a form of individual entrepreneurship is created, which, however, is limited by certain limits. The economy, as a legal entity, operates on the basis of a charter and ownership rights. Members of the organization bear subsidiary responsibility.
Societies are the second type of commercial organization. They can be open, closed and joint stock. In the latter case, the property of the legal persons are divided into shares, which can be ordinary and preferred.
Production cooperatives are also called artels. Members of such societies are engaged in production, processing, marketing of industry and other work on a voluntary basis. Participants are jointly responsible for the property of the cooperative.
The last commercial instances are unitary enterprises - state or municipal. Their peculiarity lies in the fact that all property is indivisible, and therefore cannot be divided into shares, shares, etc.
Non-Profit Organizations
Organizations whose main goal is not to make a profit differ significantly from commercial instances. Legal regulation of the status of a legal entity of a non-commercial type is carried out depending on the form and direction of activity. 
most frequent form non-profit organization is a consumer cooperative - an institution based on voluntary membership, created in order to meet material or spiritual needs. All proceeds go towards the improvement of the organization.
The remaining forms are not similar to each other: these are social and political movements, religious associations, Cossack societies, lawyers and notary chambers, minorities, charitable foundations and much more. A feature of all these instances is a non-commercial orientation.
Ekaterina Solovieva, Deputy Head of the Department of Registration and Liquidation of Legal Entities and Individual Entrepreneurs of the Legal Bureau "Constanta" in Vladimir
Fleeting essence change Russian state created numerous gaps and problematic moments in legislation, revealed numerous administrative barriers for business, required not only a fundamental change in the economic system as the basis for reform, but also the rules of law that act as the legal shell of these processes.
Of particular interest against the background of all the changes is such an institution of civil law as legal entities. It is very important to consider this legal institution in more detail, to find the most acceptable solutions for society to build it.
The definition of a legal entity is the starting point for the further development of the entire array of legislation that constitutes the institution of a legal entity. At the same time, it is important to remember that both the growth of the economy and the flourishing of the personality of every citizen of Russia depend on the dry constructions of the norms of this particular institution of civil law.
The definition of a legal entity is given by Article 48 of the Civil Code of the Russian Federation: "" A legal entity is an organization that owns, manages or manages separate property and is liable for its obligations with this property, can acquire and exercise property and personal non-property rights on its own behalf, bear duties, to be a plaintiff and a defendant in court "".
Let's take a closer look at this definition.
As follows from the text of the Civil Code of the Russian Federation, a legal entity has four features:
Organizational structure;
The presence of separate property;
The ability to acquire and exercise rights on one's own behalf;
Opportunity to be a defendant and a plaintiff in court.
The founders who need a legal entity must, of their own free will, create the first two signs for their organization: organizational unity (it follows and is determined by what is written in the charter by the founders) + property independence(through the authorized capital, fund, estimate or obligation, the existence of which is proved by the decision and actions of the founders on their formation). Having become a legal entity as a result of state registration, the organization, by the will of the law, acquires the remaining features: the right to enter into transactions, the right to be a plaintiff.
The term "organization" implies that the legal entity has a certain structure, and this, in turn, provides for the existence of an authorized management body with one or another competence, established rules for relationships within the organization and interaction of the organization with external entities. That is why the law provides for clearly defined forms of organizations and the content of their constituent documents.
The organization will acquire the status of a legal entity if it has property independence and isolation. On the one hand, it is not liable for the debts of its founders (participants), on the other hand, the founders (as a rule) are not liable for the debts of a legal entity. Subsidiary, additional liability of founders for the debts of commercial organizations arises only if they are at fault in bankruptcy, and this is a special conversation.
It should be noted that the provision of art. 48 of the Civil Code of the Russian Federation - "" owns ... separate property "" - should be understood not only as the obligation of the founders to transfer such property to the organization before its state registration, but also the separation-separation of property established by law, acquired by a legal entity in the course of its activities. Therefore, the opinion of the founder of the enterprise that the property of the enterprise is his property is, of course, unlawful.
And, finally, if an organization has these characteristics, it, as a legal entity, acquires the opportunity to act on its own behalf in the field of civil circulation, i.e. conclude transactions, be a plaintiff and a defendant in court.
Naturally, the organization must undergo state registration, during which the presence of the necessary signs, including seemingly minor ones (the presence of its own name, the presence of an address, etc.) is revealed and confirmed. After all, for example, a public organization can be created and can function without state registration, but it will receive the rights of a legal entity only after state registration.
Thus, the definition of a legal entity contains the first two requirements for an organization, one procedural requirement (registration) and the last two signs arising from its status.
The presence of all these signs of a legal entity in an organization must be enshrined in the constituent documents (memorandum of association, charter, regulation).
Therefore, a more complete definition of a legal entity could look like this:
A legal entity is an organization endowed by the founders with separate property and / or having it on the right of ownership, economic management or operational management, which, as a result of state registration, acquires the right on its own behalf to acquire and exercise property and personal non-property rights, the obligation to answer for its obligations with this property, bear other obligations, be a plaintiff and defendant in court.
We will classify organizations of legal entities on three grounds.
1. According to the presence of the intention to make a profit as the main goal of creating and operating a legal entity, they are all divided into two groups:
Commercial organizations that can be created in the form of business partnerships and companies, production cooperatives, state and municipal unitary enterprises;
Non-profit organizations that can be created in the form of consumer cooperatives, public or religious organizations (associations), institutions financed by the owner, charitable and other foundations, as well as in other forms provided by law.
2. According to the type of rights that founders (participants, shareholders) have in relation to a legal entity, all legal entities are divided into three groups:
Legal entities in respect of which their participants have liability rights(economic partnerships and companies, production and consumer cooperatives, non-profit partnerships, autonomous non-profit organizations);
Legal entities on whose property their founders have the right of ownership or other real right (state and municipal unitary enterprises, including subsidiaries, as well as institutions financed by the owner);
Legal entities in respect of which their founders (participants) do not have property rights (public and religious organizations (associations), charitable and other foundations, associations of legal entities (associations and unions).
3. According to the legal form (OPF), legal entities are divided into:
Commercial organizations:
1. Business partnerships and companies, including: general partnerships; limited partnerships (limited partnerships); limited liability companies; additional liability companies; joint-stock (closed and open) companies.
2. Production cooperatives.
3. Unitary enterprises: state; municipal; state-owned.
Non-profit organizations:
1. Public associations: organizations; institutions; movement; funds; bodies of public initiative; unions of public associations.
2. Religious organizations.
4. Non-commercial partnerships.
5. Institutions.
6. Autonomous non-profit organizations.
7. Associations (unions).
8. Consumer cooperatives.
9. Associations of homeowners.
Unlike commercial organizations, the list non-profit organizations is open, i.e. federal laws may provide for other organizational and legal forms (OPF).
As an additional criterion (grounds) for the classification of legal entities, the scope of legal capacity can also be distinguished:
Organizations with general legal capacity having the right to engage in any type of activity (all business partnerships and companies);
Organizations with special legal capacity, engaged only in those activities that are determined by their charters (all other organizations).
A legal entity as a subject of civil law has civil capacity and capacity. However, they differ significantly from the legal capacity and legal capacity of citizens. If citizens first have legal capacity, and legal capacity arises after a certain time (reaching a certain age, while citizens may be subject to restrictions in legal capacity related to the state of health), then legal entities do not have such a gap in the time of emergence of legal capacity and legal capacity. They arise for a legal entity simultaneously, from the moment of its state registration. Such a break is also impossible upon termination of a legal entity - they are also lost simultaneously at the time of completion of the liquidation of a legal entity upon making an appropriate entry about this in the state register of legal entities.
The legal capacity of citizens is general: they can have any civil rights and obligations that the law allows. The legal capacity of legal entities is built in such a way as to ensure the achievement of the goals indicated by the founders. Therefore, the legal capacity of legal entities can be both general and special, giving them the opportunity to acquire and accept only such rights and obligations that are related to their main or related activities.
The preservation of special legal capacity for certain types of legal entities is due to the fact that they are created to achieve specific goals established by their founders. It's obvious that state institutions or public organizations, created with certain social or cultural goals, cannot ignore the interests of the founders, using their legal personality in conflict with these tasks and acquiring rights and obligations that go beyond the functions they perform (for example, to engage in commercial activities).
In addition, legal entities cannot have rights that are held only by citizens, such as civil rights arising from kinship.
It should also be taken into account that the implementation of certain types of activities requires special permits - licenses obtained from the state.
The procedure for licensing is determined by the Law on Licensing certain types activities, which contains an extensive list of certain types of activities, for the implementation of which it is necessary to have a license (more than one hundred positions).
The founders of commercial organizations can define a list of activities that the legal entities they create must be engaged in, or directly indicate the types of activities that they cannot be engaged in. Such restrictions on general legal capacity are also valid for other participants in civil transactions, but only when they knew or should have known about it. Transactions that go beyond such limitations of general legal capacity are considered voidable.
Legal entities that have special legal capacity by direct indication of the law (non-commercial organizations, unitary enterprises, etc.) have the right to make only such transactions that correspond to the goals of their activities established for them in the constituent documents. Transactions made outside these limits are considered null and void. It does not matter whether the participants in the turnover knew about such restrictions or not.
A legal entity makes transactions through its bodies. They should be understood as a person (sole body) or a group of persons (collective body) who, without a power of attorney, represent the interests of a legal entity in relations with third parties. The body of a legal entity not only acts in civil circulation on its behalf (the actions of the body are considered as the actions of the legal entity itself), but also manages and manages its current activities. The body of a legal entity is a part of a legal entity and cannot be considered as an independent subject of law.
Bodies of a legal entity are obliged to act on its behalf in good faith and reasonably. If by its actions the body of a legal entity causes losses to the organization, it is obliged to compensate them.
In some cases, the interests of a legal entity may be expressed by other persons. Thus, entities that are not bodies of a legal entity may represent its interests on the basis of a power of attorney. The constituent documents of a legal entity may indicate the right certain persons act on his behalf without a power of attorney (for example, a deputy director). The actions of employees of a legal entity to fulfill its obligations are considered to be the actions of the legal entity itself.
Representative offices and branches of legal entities.
In order for a legal entity to perform part of its functions outside its location, it may create territorially separate structural subdivisions. A representative office represents the interests of a legal entity and ensures their protection. The branch, in addition to such powers, performs all other or part of the functions of a legal entity (for example, conducts production activities). A branch (representative office) is endowed with property by the legal entity that created it, and acts on the basis of the regulations approved by it. Branch (representative office) is not a legal entity; he component a legal entity and does not have civil legal personality. Such a subdivision cannot act in circulation on its own behalf, but can only act on behalf of the legal entity that created it. To do this, the legal entity appoints the head of the branch (representative office) and issues him a power of attorney, on the basis of which the head of the relevant separate subdivision (as individual) acts on behalf of the legal entity itself. Information about branches and representative offices must be indicated in the constituent documents of the legal entity that created them.
Means of individualization of a legal entity.
In the most obvious way, a legal entity is individualized by assigning a name to it. The name of a legal entity consists of an indication of its organizational and legal form (limited liability company, unitary enterprise), as well as the name itself - a verbal (letter) designation, which is given to it by the founder (founders). The names of legal entities, whose property is assigned to them by the founder (property owner) on the right of economic management or operational management, include an indication of the owner of the property (for example, a federal unitary enterprise, municipal institution). The names of all non-profit organizations, as well as a number of commercial ones, include an indication of the nature of the activity (agricultural consumer cooperative, Insurance Company, commercial bank, etc.).
Corporate name of the legal entity must contain an indication of its organizational and legal form and the actual name of the legal entity, which cannot consist only of words denoting the type of activity.
The right to use a company name (firm) is subject to protection from the moment of state registration of a legal entity under a company name.
Location of the legal entity is determined by the place of its state registration, which is carried out at the location of its permanent executive body, and in the absence of such a body - another body or person entitled to act on behalf of a legal entity without a power of attorney. State registration individual entrepreneur performed at his place of residence.
The location of a legal entity is indicated in its constituent documents by indicating a specific address: city (other settlement), street, house number, office (room) number.
The location plays a decisive role in establishing the jurisdiction of a dispute involving this legal entity, the place of conclusion of contracts, the place of execution of civil obligations, and the obligation to pay taxes.
Legal entities are created by the will of their founders, however, the state (public authority), in the interests of all participants in the property turnover, controls the legality of their creation.
The process of forming a legal entity includes actions of persons initiating its creation, and authorized state bodies, giving this initiative legal effect. Depending on the degree of participation of the first or second group of subjects in the process of creating a legal entity, there are several ways to form legal entities.
In case of an undisclosed order, in order for an organization to be considered established, only the will of the founders is necessary. The intervention of state or other bodies in this case is not required.
The permit procedure is valid only for banks, insurance companies and sometimes for transport companies.
The administrative procedure assumes that to create a legal entity, it is enough administrative act founder, state registration of a legal entity is not required. This order prevailed during the period of domination of the planned economy in the USSR, when legal entities were created on the orders of authorized state bodies.
Currently used in the Russian Federation, the direct-to-regulatory (or standard-to-intact, declarative, registration) procedure consists in the fact that in order to form a legal entity, the founders sign and submit to the registering authority a package of documents provided for by law. This body carries out state registration of a legal entity in the absence of grounds for refusing such registration. The consent of any state body, including the registering one, is not required for the creation of a legal entity. The list of grounds for refusal of registration is strictly limited.
A legal entity in the Russian Federation is considered to be established from the moment of its state registration - making an appropriate entry in the Unified State Register of Legal Entities.
Subjects of civil legal relations are individuals, legal entities and special entities -
Russian Federation, subjects of the Russian Federation and municipalities. The legal status of each of them is established by subsection. 2 sect. I of the Civil Code of the Russian Federation, referred to as "Persons".
Individuals - How is that Russian citizens and foreign citizens, as well as stateless persons. Their legal status is not equivalent, for example, paragraph 3 of Art. 15 RF LC limits foreign citizens and stateless persons in legal opportunities to possess on the right of ownership land plots located in the border areas.
The civil law characteristic of the status of individuals is legal capacity and legal capacity.
Legal capacity arises at the moment of his birth and ceases at death. Fixing legal capacity for every citizen equally is the most striking expression of the principle of equality in civil law. According to Art. 17 of the Civil Code of the Russian Federation, the legal capacity of citizens is the ability to have civil rights and bear obligations. The content of legal capacity is revealed through the following powers of citizens:
- o the ability to own property; inherit and bequeath property;
- o engage in entrepreneurial and any other activities not prohibited by law;
- o create legal entities independently or jointly with other citizens and legal entities;
- o make any transactions that do not contradict the law and participate in obligations; choose a place of residence;
- o have the rights of authors of works of science, literature and art, inventions and other legally protected results intellectual activity;
- o have other property and personal non-property rights.
The law establishes the principle of the inadmissibility of depriving and limiting the legal capacity of a citizen (Article 22 of the Civil Code of the Russian Federation), according to which no one can be limited in legal capacity except in cases and in the manner established by law. The complete or partial waiver of a citizen's own legal capacity or other transactions aimed at such a waiver are void, except in cases where such transactions are permitted by law.
In order to exercise their rights and obligations, citizens are given a name from birth.
The second defining moment of the legal status of a citizen (after the name) is his place of residence. The place of residence of minors under 14 years of age, or citizens under guardianship, is the place of residence of their legal representatives - parents, adoptive parents or guardians (Article 20 of the Civil Code of the Russian Federation). Article 2 of the Law of the Russian Federation of June 25, 1993 No. 5242-1 "On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation" calls the place of residence a residential building, apartment, office dwelling, specialized houses (dormitory, hotel - a shelter, a house for a mobile fund, a special home for lonely elderly people, a boarding house for the disabled, veterans, etc.), as well as other residential premises in which a citizen permanently or predominantly lives as an owner, under a lease (sub-lease), contract lease or on other grounds stipulated by the legislation of the Russian Federation.
Legal capacity of a citizen - this is the ability of a citizen to acquire and exercise civil rights, create for himself civic obligations and fulfill them.
Unlike legal capacity, legal capacity arises in full with the onset of adulthood, i.e. upon reaching the age of 18. Depending on the age and state of health, the law distinguishes between incapacitated, partially capable, partially capable and fully capable citizens.
To incompetent include minor citizens aged from the moment of birth to six years (their interests are represented by parents or a social institution), as well as citizens, recognized by the court incapacitated (guardianship is established over them). On behalf of a citizen recognized as incompetent, transactions are made by his guardian. If the grounds by virtue of which the citizen was declared incompetent have disappeared, the court recognizes him as capable. On the basis of a court decision, the guardianship established over him is cancelled.
limited capacity are citizens who were limited by the court in their legal capacity due to the abuse of alcohol or drugs, putting their family in a difficult financial situation. Guardianship is established over him. Such citizens have the right to independently make only small household transactions. Persons with limited legal capacity may enter into other transactions, as well as receive earnings, pensions and other incomes and dispose of them only with the consent of the trustee. However, unlike disabled citizens such a citizen independently bears property liability for transactions made by him and for the harm caused to him. If the grounds by virtue of which the citizen was limited in legal capacity have disappeared, the court cancels the restriction of his legal capacity. On the basis of a court decision, the guardianship established over a citizen is cancelled.
Partially capable minors between the ages of 6 and 18 are recognized. However, in this group one should distinguish between minor citizens (from 6 to 14 years old) and minors (from 14 to 18 years old).
Per underage and transactions are made on their behalf only by their parents, adoptive parents or guardians. However, minors can independently make small household transactions; transactions aimed at gratuitous receipt of benefits that do not require notarization or state registration; transactions for the disposal of funds provided by a legal representative or with the consent of the latter by a third party for a specific purpose or for free disposal. Property liability for transactions of a minor, including transactions made by him independently, shall be borne by his parents, adoptive parents or guardians, unless they prove that the obligation was violated through no fault of theirs. These persons, in accordance with the law, are also liable for harm caused by minors.
Minors aged 14 to 18 make transactions with the written consent of their legal representatives - parents, adoptive parents or guardian. A transaction made by such a minor is also valid if it is subsequently approved in writing by his parents, adoptive parents or guardian.
Minors aged 14 to 18 have the right to independently, without the consent of their parents, adoptive parents and guardian: dispose of their earnings, scholarships and other incomes; to exercise the rights of the author of a work of science, literature or art, an invention or other legally protected result of his intellectual activity; in accordance with the law, make deposits in credit institutions and dispose of them; make transactions that minors can make.
Fully capable citizens adult or emancipated citizens who have reached the age of 16.
According to Art. 27 of the Civil Code of the Russian Federation, a minor who has reached the age of 16 may be declared fully capable if he works but employment contract, including under a contract, or with the consent of parents, adoptive parents or a guardian, is engaged in entrepreneurial activities. A minor is declared fully capable (emancipation) by decision of the guardianship and guardianship body with the consent of both parents, adoptive parents or guardian, or in the absence of such consent - by a court decision.
In the case when the law allows marriage before reaching the age of 18, a citizen who has not reached that age acquires legal capacity in full from the time of marriage. Legal capacity acquired as a result of marriage is retained in full even in the event of divorce before the age of 18. When declaring a marriage invalid, the court may decide on the loss by the minor spouse full capacity from the date determined by the court.
Individuals also include individual entrepreneurs, they have special rights and responsibilities. In particular, such features apply to cases of insolvency (bankruptcy) of an individual entrepreneur. According to Art. 25 of the Civil Code of the Russian Federation, an individual entrepreneur who is unable to satisfy the claims of creditors related to the implementation of his entrepreneurial activities may be declared insolvent (bankrupt) by a court decision. From the moment such a decision is made, his registration as an individual entrepreneur becomes invalid. The basis for declaring an individual entrepreneur bankrupt is his inability to satisfy the claims of creditors for monetary obligations and (or) fulfill the obligation to make mandatory payments (Article 214 of the Federal Law of October 26, 2002 No. 127-FZ "On Insolvency (Bankruptcy)").
legal entity recognized as a registered organization that is different property segregation. An organization can be recognized as a legal entity only if it legally owns, uses and disposes of property. Such property can be held by a legal entity both on the right of ownership and on another right, for example, in economic management or operational management.
To do this, legal entities must have an independent balance sheet or estimate. Such a right can be assigned both directly to a legal entity and to its founders or participants.
Legal entities, on the property of which 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).
An important feature of a legal entity, in addition to property isolation, is Name. The name and location of a legal entity are the means of its individualization and then)" are indicated in the constituent documents. According to Article 54 of the Civil Code of the Russian Federation, a legal entity has its own name, containing an indication of its organizational and legal form.
The names of non-commercial organizations, and in the cases provided for by law, the names of commercial organizations must contain an indication of the nature of the activity of the legal entity.
Commercial organizations must have a business name. The location of the legal entity is of no small importance. It is determined by the place of its state registration. State registration of a legal entity is carried out at the location of its permanent executive body, and in the absence of a permanent executive body - another body or person entitled to act on behalf of the legal entity without a power of attorney.
Legal capacity of a legal entity arises at the time of its creation and terminates at the time of making an entry on its exclusion from the register (clause 3, article 49 of the Civil Code of the Russian Federation). Consequently, a legal entity can acquire rights and bear obligations only after registration, or rather, a legal entity is considered created from the date of making the corresponding entry in the unified state register of legal entities (and. 2, article 51 of the Civil Code of the Russian Federation). AT otherwise(lack of an entry on the creation of an organization in the register) transactions made by an organization that has not been registered cannot give rise to rights and obligations, they are void, and documents drawn up by non-existent organizations cannot be reliable and legal.
An integral feature of legal entities is independent legal responsibility. This means that legal entities are independently responsible for their obligations with the property that belongs to them legally.
We call the next feature organizational unity, which must be inherent in the legal entity. According to paragraph 1 of Art. 53 of the Civil Code of the Russian Federation, a legal entity acquires civil rights and assumes civil obligations through its bodies acting in accordance with the law, other legal acts and constituent documents. Depending on the composition, single and collegiate bodies legal entity. This feature implies the presence of a hierarchy in the organization, a certain management order, structural divisions, departments that are subordinate to the management bodies and supreme authorities in the organization. Legal entities can independently act in court as a plaintiff and a defendant.
Some legal entities operate only after obtaining permits (licenses). Legal regulation of such types of activity is carried out on the basis of the Federal Law of 08.08.2001 No. 128-FZ "On Licensing Certain Types of Activities" and the Law of the Russian Federation of 11.03.1992 No. 2487-1 "On Private Detective and Security Activities in the Russian Federation".
A legal entity acts on the basis of a charter, or a constituent agreement and a charter, or only a constituent agreement. In cases provided for by law, a legal entity that is not a commercial organization may act on the basis of general position about organizations of this type. The constituent agreement of a legal entity is concluded, and the charter is approved by its founders (participants). They must necessarily reflect the name of the legal entity, its location, the procedure for managing the activities of the legal entity, as well as other information provided by law for legal entities of the corresponding type.
Within the meaning of the current Russian civil law, all legal entities depending on the purpose of the activity divided into commercial and non-commercial organizations.
To commercial include organizations that have profit as the main goal of their activities (clause 1, article 50 of the Civil Code of the Russian Federation), namely: business partnerships and companies, production cooperatives, state and municipal unitary enterprises. They further distribute the profit received in one way or another among their participants (founders). Commercial organizations cannot be created in any other organizational and legal forms, except for those named (clause 2, article 50 of the Civil Code of the Russian Federation).
Non-commercial organizations are created to achieve social, charitable, cultural, educational, scientific and managerial goals, in order to protect the health of citizens, develop physical education and sports, meeting the spiritual and other non-material needs of citizens, protecting 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. Such organizations include consumer cooperatives, public and religious organizations (associations), institutions, foundations and other types of legal entities expressly provided for by law (for example, chambers of commerce and industry and non-profit partnerships). The Civil Code of the Russian Federation does not contain an exhaustive list of non-profit organizations, but provides for the possibility of their appearance only in the forms established by law.
In private international law, there are entities that, along with individuals, act as subjects of private law relations. They are Russian legal entities and foreign organizations.
Russian legal entity – a legal entity established in accordance with the legislation of Russia
Foreign organization - a legal entity or organization in a different legal form, established in accordance with the law of a foreign state. As can be seen from this definition, foreign organizations may or may not have the status of a legal entity.
In order for a foreign organization to participate in private law relations, it must be recognized in the territory of another state as a subject of such legal relations, and also be allowed to carry out economic activities.
Entity - an organization that has separate property 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.
However, right different states the question of which organization has the status of a legal entity and which does not is resolved differently. For example, under UK law general partnership is not a legal entity, but according to the legislation of Russia and France, it has such a status. Moreover, a legal entity may be established in an organizational and legal form not known to the law of another state. For example, transport companies and savings banks are legal entities under German law. public law, although such organizational and legal form is not known Russian law.
Each state has its own types of legal entities: sole proprietorship, limited liability partnership, unlimited liability partnership, joint-stock companies, investment funds (trusts), cooperatives, etc. Therefore, internal relations, including those with participants in a legal entity, are also important in determining its status.
As already mentioned, legal capacity is the potential (abstract) ability of the subject to have rights and bear obligations. The content of the legal capacity of a legal entity is the rights and obligations that it has under the legislation of a particular state (civil, labor, procedural). Legal capacity arises from the moment of its creation and terminates at the moment of completion of its liquidation.
There are general and special legal capacity of legal entities. General legal capacity means that a legal entity can acquire any rights and bear any obligations, just like a natural person. With special legal capacity, a legal entity has the right to enter into only such relations that are necessary to achieve the goal specified in the law or in its constituent documents.
The capacity of a legal entity is manifested through the actions of its bodies. It arises from the moment of creation of a legal entity or from the moment of obtaining a permit (license) to engage in a certain type of activity and terminates at the moment of completion of its liquidation or termination of the permit.
In civil circulation, a legal entity acquires rights and assumes obligations through its bodies acting in accordance with the law and constituent documents ( CEO, chairman of the board of directors or president) or through its members.
Legal entities may also have branches and representative offices, which are their separate subdivisions located outside their location. A representative office represents and protects the interests of a legal entity, and a branch may perform some or even all of the functions of a legal entity, including the functions of a representative office.
Foreign legal entities established in accordance with foreign law may open their branches and representative offices on the territory of the Russian Federation (part 3 of article 4 federal law"On Foreign Investments in the Russian Federation".
Legal status of a legal entity determined by the personal law of the legal entity. There are several approaches to establishing the personal law of a legal entity:
1) settlement theory proceeds from the fact that the legal status of a legal entity is determined by the law of the country where its governing body (board, council, assembly) is located. This theory was embodied in the legislation of Germany, France, Egypt, Greece;
2) theory of incorporation is based on the provision that the legal status of a legal entity is determined by the law of the state where it is established. It is used in the UK, USA, Canada and Russia;
3) location theory proceeds from the fact that the legal status of a legal entity is determined by the law of the country where it carries out its main activity. It is applied in a number of developing countries;
4) control theory is based on the provision that the legal status of a legal entity is determined by the law of the country whose founders own more than 50% of the authorized capital of a legal entity.
In Russia, the personal law of a legal entity is the law of the country where the legal entity is established. It can also be used when determining the new position of a foreign organization that is not a legal entity. Article 1203 of the Civil Code of the Russian Federation states that the personal law of a foreign organization that is not a legal entity according to foreign law, is considered the law of the country where this organization is established.
Currently, foreign organizations can operate on the territory of the Russian Federation through their branches and representative offices established in Russia, as well as by acquiring a share (contribution) in the authorized (share) capital of a legal entity created or newly created in Russia. In the second case, the legal status of a legal entity will be determined according to Russian law, since the place of its establishment is Russia.
In Russia, as a general rule, foreign organizations are subject to national treatment. According to paragraph 1 of Art. 2 of the Civil Code of the Russian Federation, the rules established civil law, apply to relations involving ... foreign legal entities, unless otherwise provided by federal law. According to Part 1 of Art. 4 of the federal law "On foreign investment in the Russian Federation" legal regime activity of foreign investors cannot be less favorable than the legal regime of activity granted to Russian investors.
However, there is an exception to general regime, which consists in the need to obtain permission from the competent authorities of the Russian Federation to acquire rights and carry out certain types of activities. Thus, branches of a foreign legal entity established on the territory of the Russian Federation have the right to carry out entrepreneurial activity in Russia, and representative offices to represent and protect the interests
sy of a legal entity from the date of accreditation. Accreditation is carried out by the State Registration Chamber under the Ministry of Justice of the Russian Federation.
