Organizational legal forms of commercial enterprise. Organizational and legal forms of commercial enterprises

A commercial organization is a legal entity that pursues making a profit as the main goal of its activities, in contrast to a non-profit organization, which does not aim to make a profit and does not distribute the profits between participants.

Main features of a commercial organization:

· The purpose of the activity is to make a profit;

· A clearly defined legal form of organization;

· Distribution of profits between participants of a legal entity.

Also, commercial organizations have all the characteristics inherent in a legal entity:

· Possess separate property for ownership, economic management or operational management, other property rights; the property may be rented;

· Responsible for their obligations with the property they own;

· Acquire and exercise property and non-property rights on their own behalf; bear responsibilities;

· Can be a plaintiff and defendant in court.

Article 50 of the Civil Code of the Russian Federation provides an exhaustive list of organizational and legal forms of commercial legal entities. This means that without changing the Civil Code, other types of commercial legal entities cannot be introduced into civil circulation by any other laws.

Main types of commercial organizations:

1) Among commercial organizations as legal entities special place occupied by business companies and partnerships.

Business companies and partnerships are commercial organizations whose capital is divided into shares owned by its participants. At the same time, there are usually several participants in a business company or partnership, and sometimes even a lot. One participant in a business company can only be in cases expressly provided for by law.

The property of business companies and partnerships is formed from the contributions of its participants and is the property of the company or partnership itself as a legal entity, that is, participants making these contributions lose the right of ownership of this property and the legal entity itself - the business company or partnership - acquires the right of ownership of it. .

Property acquired by a business company and partnership in the process of its commercial activities, also becomes the property of the legal entity. As a contribution, participants in business companies and partnerships can make money, securities, other things or property rights or rights that have a monetary value.

Business partnerships involve, first of all, the association of persons, and then the association of their property. Hence, the identity of the partnership participant has great importance for the activities of this legal entity. The participants of the partnership must participate in the activities of the partnership through their personal entrepreneurial activities, which means that the results of their activities depend on their personal participation. Hence another rule: the participants of the partnership are liable for the obligations of the partnership with their personal property.

Unlike partnerships, business societies, and there are only three of them, are a society with limited liability, additional liability company and Joint-Stock Company- involve the unification, first of all, of capital.

In business companies, the founder is not required to directly participate in entrepreneurial activity this society. A participant in a business company may not be engaged in entrepreneurial activities. He contributed his property, and then the legal entity acts without his participation. To engage in entrepreneurial activity is his right, but not his obligation (compare with a partnership: there a partner is obliged to engage in entrepreneurial activity, without this there can be no partnership). Therefore, the identity of a participant in a business company does not matter as much as in a partnership. Since he is not engaged in entrepreneurial activities, then what difference does it make who he is? And therefore, any subjects of civil law can be participants in a business company, with the exception of bodies state power, departments and municipal formations.

Since the participants of a business company do not participate in its economic entrepreneurial activities, then they are not responsible for the obligations of this legal entity. This is the fundamental difference between business partnerships and business companies.

General partnership and limited partnership

Among the types of business partnerships, a distinction is made between a general partnership and a limited partnership. A general partnership is understood as a commercial organization created as a result of the association of persons and their property on the basis of an agreement concluded between them on joint entrepreneurial activity, the participants of which are liable for its obligations with all their property.

A limited partnership is a commercial organization created as a result of the association of persons and their property on the basis of an agreement on joint entrepreneurial activity, in which some participants (general partners) are liable for its obligations with their property, while others (investors) are not liable for the obligations of this organization .

2) In practice, both types of partnerships are extremely rare. Most entrepreneurs prefer to create limited liability companies and joint stock companies.

Limited Liability Company

Torgservice-Irkutsk LLC is a limited liability company, therefore it has all the characteristics of an LLC discussed below.

Among business companies, the most common are limited liability companies (LLC). A limited liability company is a commercial organization created as a result of a combination of property by several persons who are not liable for the obligations of this organization and have shares in its authorized capital.

Signs that characterize this organizational and legal commercial organization:

The participants of an LLC can be any persons (and not just entrepreneurs, as in partnerships), including commercial and non-profit organizations;

According to the law, one person can be a participant in an LLC. A legal entity or citizen allocates part of his property to this organization, creates an LLC, and then he risks only this property. Thus, this person participates in civil circulation with this allocated property assigned to him;

This organization already has an authorized capital, divided into shares between participants (according to general rule- several participants);

The participants are not liable for the obligations of the company, which is why it is called a limited liability company. LLC participants bear only the risk of losses in the form of the property that they contributed to the authorized capital of the company;

The business name of this legal entity must contain the words “limited liability company” (or LLC).

LLCs, unlike business partnerships, have become quite widespread in business practice in our country, which is due to the fact that LLCs have whole line very convenient features for entrepreneurs:

LLC allows you to reduce the risk of entrepreneurial activity to the amount of the contribution made to this company;

At the same time, LLC assumes and provides the opportunity to really influence the entrepreneurial activities of this company. The participant is not obliged, but has the right to hold some position in the management bodies and thereby influence the business activities of this company;

The circle of LLC participants is usually small. The members of the Society are known to each other and enjoy mutual trust;

A participant in an LLC has the right to leave the company at any time (the consent of other participants is not required) and take his share, that is, that part of the company’s property that falls on his share in the authorized capital.

Minimum size authorized capital LLC - 10,000 rubles.

A rather rare OPF is the Company with an additional liability (ALC), which has the same characteristics as an LLC, with some exceptions. Participants in an ODO are liable for the obligations of the company, but not with all their property, but only with some part of it, and in the same multiple of the amount of the contribution made. For example, the charter says that participants in an ALC are liable twice as much. This means that if a participant made a contribution in the amount of 100 thousand rubles, then if the property of the ALC is not enough to pay creditors, he bears a maximum liability of 200 thousand rubles. In fact, an ALC is a transitional form from a general partnership to a society as an economic organization.

Joint-Stock Company

Most legal scholars consider the joint-stock company (JSC) to be the highest organizational and legal form of a business company.

A joint stock company is understood as a commercial organization created as a result of the merger of the property of several persons who are not liable for the obligations of this organization and own shares certifying their obligatory right of claim to this company.

JSC as an organizational and legal form of a legal entity is characterized by the following features:

The participants of a JSC can be any subjects of civil law, including the creation of a JSC with one shareholder;

The authorized capital of this company is divided into shares of equal par value (in LLC - into shares);

Shareholders are not liable for the obligations of this company;

Shareholders may not participate in the activities of this company;

The main constituent document of a JSC is the charter;

The corporate name of this legal entity must contain the words “joint stock company” (or JSC);

The connection between participants in society and their personalities are of minimal importance;

You can leave a joint stock company only by selling or otherwise alienating your shares;

One of the main features of a joint-stock company as an organizational and legal form is the stability of the property base of this legal entity.

JSC as a legal entity makes it possible to concentrate huge capital within this legal entity, dispersed among many shareholders. Therefore, joint-stock companies have always been considered as a way to concentrate capital. Typically, a joint-stock company is created when it is necessary to collect the capital necessary for some kind of entrepreneurial activity, to concentrate it within the framework of one subject of civil law - a legal entity,

The property or capital of a joint-stock company is collected through special securities called shares. Shares facilitate the process of civil turnover and make it much faster.

Disadvantages of JSC:

Small shareholders do not have the opportunity to really influence the activities of this company;

The managers of a joint-stock company who manage its activities acquire unlimited opportunities to dispose of property of which they are not the owners. Thus, there is a need to ensure proper control over the executive bodies of the joint-stock company and protect the rights of small shareholders.

There are two types of JSC - open joint-stock company (OJSC) and closed joint-stock company (CJSC).

public corporation

The JSC is characterized by the fact that:

Its participants can alienate their shares without the consent of other shareholders, that is, this company is open to any participant in civil circulation. Any participant in civil transactions can purchase shares of a joint-stock company; there are no restrictions here. At the same time, any shareholder at any time can sell his shares to any subject of civil law;

An open joint-stock company can carry out an open subscription for shares according to the following algorithm: a joint-stock company is formed, the issue of shares is announced and registered, and anyone can purchase them on the stock exchange;

The number of shareholders of an OJSC is not limited.

Closed joint stock company

CJSC is characterized by the fact that:

The alienation of shares to CJSC shareholders is limited by the pre-emptive right of purchase by other shareholders. Similar to the procedure for alienating shares in an LLC, you must first offer shares to other shareholders, and only if they refuse can you sell the shares to a third party;

Shares in a closed joint stock company are distributed among a limited number of participants, between specific persons, and are not sold on the stock exchange;

The number of shareholders in a closed joint stock company should not exceed 50.

Thus, a closed joint stock company is a kind of intermediate form between a limited liability company and an open joint stock company.

Production cooperative

A production cooperative is a commercial organization that is an association of citizens on the basis of membership for joint economic activity(not entrepreneurial), based on their personal labor participation.

As a legal entity, a production cooperative is characterized by the following features:

It is an association of citizens who organize themselves to work;

The basis of the association is membership in the cooperative;

Members of the cooperative participate in the activities of the cooperative through personal labor;

Not only personal labor, but also property participation in the activities of the cooperative is required;

Membership in a cooperative on the basis of only a share contribution without personal labor participation is in principle permitted, but in certain amounts - no more than 25 percent of the amount of share contributions. The existence of members of the cooperative who do not participate in the activities of the cooperative through their labor is also allowed. But there should be no more than 25 percent;

A legal entity can also be a member of a cooperative that contributes only a share;

Members of a production cooperative bear subsidiary liability (subsidiary liability implies that if the property of the cooperative is not enough to cover obligations, the remaining debt is reimbursed by the shareholders) for the obligations of this legal entity in the amount established by the charter of the cooperative;

The corporate name of this legal entity must contain the actual name of this cooperative and the words “production cooperative” or “artel” (these are synonyms);

The constituent document here is the charter adopted at the general meeting of members of the cooperative;

The number of members of the cooperative must be at least 5. The maximum number is not limited;

The property base of the cooperative's activities is formed by the share contributions of the members of the cooperative.

Unitary enterprise

A unitary enterprise can only be based on state or municipal property.

A unitary enterprise has the following characteristics:

Unlike business companies, partnerships and production cooperatives, the enterprise itself does not have ownership rights to property. The owner of this property continues to be the founder of this enterprise. This property is assigned to the unitary enterprise itself either on the right of economic management, or on the right of operational management, on the so-called limited property right;

The property of a unitary enterprise is not distributed among the employees of this enterprise, it is indivisible, and there can be only one owner of a unitary enterprise;

The governing body of a unitary enterprise is sole. This is usually the director or CEO, who is appointed as the owner of the property of this unitary enterprise. Collegial forms of governance are not allowed;

The following may be the owner of a unitary enterprise:

The Russian Federation as a subject of civil law,

Subjects Russian Federation,

Municipal entities.

The concept of an enterprise, its characteristics

An enterprise is an independently operating entity created (established) in accordance with current legislation to produce products, perform work or provide services in order to meet public needs and make a profit.

After state registration the enterprise is recognized legal entity and can participate in economic turnover. It has the following characteristics:

• the enterprise must have separate property in its ownership, economic management or operational management;
• the enterprise is liable with its property for the obligations that arise in its relations with creditors, including to the budget;
• the enterprise acts in economic transactions on its own behalf and has the right to enter into all types of civil contracts with legal entities and individuals;
• the enterprise has the right to be a plaintiff and defendant in court;
• the enterprise must have an independent balance sheet and promptly submit reports established by government agencies;
• the enterprise must have its own name containing an indication of its organizational and legal form.

Enterprises can be classified according to many criteria:

• by appointment finished products enterprises are divided into those producing means of production and those producing consumer goods;
• on the basis of technological commonality, an enterprise with continuous and discrete production processes is distinguished;
• Based on size, enterprises are divided into large, medium and small;
• Based on specialization and scale of production of similar products, enterprises are divided into specialized, diversified and combined.
• by type production process enterprises are divided into enterprises with a single type of production, serial, mass, experimental.
• Based on the characteristics of activity, industrial enterprises, trade enterprises, transport enterprises and others are distinguished.
• According to the form of ownership, a distinction is made between private enterprises, collective enterprises, state enterprises, municipal enterprises and joint enterprises (enterprises with foreign investment).

Organizational forms of enterprises

In accordance with the Civil Code of the Russian Federation, the following organizational forms can be created in Russia commercial enterprises: business partnerships and societies, production cooperatives, state and municipal unitary enterprises.

Business partnerships and societies:

• general partnership;
• limited partnership (limited partnership);
• limited liability company,
• additional liability company;
• joint stock company (open and closed).

Full partnership. Its participants, in accordance with the agreement concluded between them, are engaged in entrepreneurial activity and are liable for its obligations with the property belonging to them, i.e. Unlimited liability applies to the participants of the general partnership. A participant in a general partnership who is not its founder is liable on an equal basis with other participants for obligations that arose before his entry into the partnership. A participant who has left the partnership is liable for the obligations of the partnership that arose before the moment of his withdrawal, equally with the remaining participants, for two years from the date of approval of the report on the activities of the partnership for the year in which he left the partnership.

Partnership of faith. It is a partnership in which, along with the participants who carry out entrepreneurial activities on behalf of the partnership and are responsible for the circumstances of the partnership with their property, there are participant-investors (commandists) who bear the risk of losses within the limits of their contributions and do not take part in the implementation of the partnership’s entrepreneurial activity. activities.

Limited Liability Company. This is a company founded by one or more persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents. Participants in a limited liability company bear the risk of losses associated with the activities of the company to the extent of the value of their contributions.

Company with additional liability. A special feature of such a company is that its participants bear subsidiary liability for the company’s obligations in the same multiple of the value of their contributions. All other provisions of the Civil Code of the Russian Federation on a limited liability company can be applied to a company with additional liability.

Joint-Stock Company. It is recognized as a company whose authorized capital is divided into a certain number of shares. The participants of the company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of the shares they own. A joint stock company, the participants of which can freely sell their shares without the consent of other shareholders, is recognized as an open joint stock company. Such a company has the right to conduct an open subscription for the shares they issue and their free sale under the conditions established by law. A joint stock company, the shares of which are distributed only among its founders or other predetermined circle of persons, is recognized as a closed joint stock company. Such a company does not have the right to conduct an open subscription for shares issued by it.

Features of the functioning of joint stock companies are as follows:

• they use effective method mobilization of financial resources;
• dispersion of risk, because each shareholder risks losing only the money he spent on purchasing shares;
• participation of shareholders in the management of the company;
• shareholders' right to receive income (dividend);
• additional opportunities for staff incentives.

Production cooperatives. This is a voluntary association of citizens on the basis of membership for joint production or other economic activities based on their personal labor or other participation and the association of property shares by its members (participants). Members of a production cooperative bear subsidiary liability for its obligations. The profit of the cooperative is distributed among its members in accordance with their labor participation. The property remaining after the liquidation of the cooperative and the satisfaction of the claims of its creditors are distributed in the same manner.

State and municipal unitary enterprises. A unitary enterprise is a commercial organization that is not vested with the right of ownership of the property assigned to the owner. The property of a unitary enterprise is indivisible and cannot be distributed by contribution (shares, units). Including between employees of the enterprise. Only state and municipal enterprises can be created in the form of unitary enterprises.

Unitary enterprises are divided into two categories:

• unitary enterprises based on the right of economic management;
• unitary enterprises based on the right of operational management.

The right of economic management is the right of an enterprise to own, use and dispose of the property of the owner within the limits established by law or other legal acts.

The right of operational management is the right of an enterprise to own, use and dispose of the owner’s property assigned to it within the limits established by law, in accordance with the goals of its activities, the owner’s tasks and the purpose of the property.

The right of economic management is broader than the right of operational management, i.e. An enterprise operating on the basis of the right of economic management has greater independence in management. Enterprises can create various associations.

The procedure for creating and liquidating enterprises

Newly created enterprises are subject to state registration. From the moment of state registration, the enterprise is considered created and acquires the status of a legal entity. For state registration of an enterprise, the founders present the following documents:

• application for registration of an enterprise, drawn up in any form and signed
• founders of the enterprise;
• constituent agreement on the establishment of an enterprise;
• the charter of the enterprise approved by the founders;
• documents confirming the deposit of at least 50% of the authorized capital of the enterprise into the account;
• certificate of payment of state duty;
• a document confirming the agreement of the antimonopoly authority to create an enterprise.

The constituent agreement must contain the following information: the name of the enterprise, its location, the procedure for managing its activities, information about the founders, the size of the authorized capital, the share of each founder in the authorized capital, the procedure and method for making contributions by the founders to the authorized capital.

The charter of the enterprise must also contain information: the organizational and legal form of the enterprise, name, location, size of the authorized capital, composition and procedure for distribution of profits, formation of enterprise funds, procedure and conditions for the reorganization and liquidation of the enterprise.

For certain organizational and legal forms of enterprises, the constituent documents (constituent agreement and charter), in addition to those listed, contain other information.

State registration is carried out within three days from the date of submission necessary documents, or within thirty calendar days from the date postal item specified in the receipt for payment of the constituent documents. State registration of an enterprise may be refused if the submitted documents do not comply with the law. The decision to refuse state registration can be appealed in court.

Termination of an enterprise's activities can be carried out in the following cases:

• by decision of the founders;
• due to the expiration of the period for which the enterprise was created;
• in connection with the achievement of the purpose for which the enterprise was created;
• if the court invalidates the registration of an enterprise due to violations of the law or other legal acts committed during its creation, if these violations are irreparable;
• by a court decision, in case of carrying out activities without proper permission (license) or activities prohibited by law, or with repeated or gross violation of the law or other legal acts;
• in the event that an enterprise is declared insolvent (bankrupt) if it is unable to satisfy the claims of creditors.

An important point when creating and liquidating enterprises is also to inform the Federal Tax Service at the place of registration of the enterprise, as well as providing the tax service with information about the opening or closing of a current account. Interaction with the Federal Tax Service is generally mandatory at any stage of business and you should not forget about it, because There are fines for failure to provide certain information and reports.

Organizational legal forms organizations are determined by Chapter 4 of the Civil Code of the Russian Federation. As noted above, the organizational and legal form determines:

how the authorized capital is formed;

goals of the organization;

features of enterprise management;

profit distribution and a number of other points.

The following organizational and legal forms of commercial organizations are distinguished:

partnership (full partnership and limited partnership);

company (limited liability company, additional liability company, joint stock company);

unitary enterprise (municipal unitary enterprise and state unitary enterprise);

production cooperative.

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

consumer cooperatives;

institutions;

charitable and other foundations;

public and religious organizations;

associations or unions.

Partnerships. Business partnerships And society are commercial organizations with authorized (share) capital divided into shares (contributions) of founders (participants). Partnerships are associations of individuals and (or) legal entities that come together to joint activities, the property of the partnership is formed from the contributions of the participants. The partnership can be organized as follows:

full partnership;

limited partnership (limited partnership).

General partnership- this is a partnership whose participants (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with the property belonging to them. A general partnership is created and operates on the basis of a constituent agreement. All participants have equal rights in the management of the partnership, that is, any of the participants can assume obligations on behalf of the partnership, and this obligation automatically falls on all other participants, therefore, between general partners there must be high degree trust. A feature of a general partnership is that all partners bear full responsibility for the obligations of the partnership, which also applies to the personal property of the founders.

Limited partnership (limited partnership) assumes that, in addition to full participants (comrades), it includes one or more participant-investors (commandists). That is, participant-investors only invest in the activities of the partnership, but do not participate in its management and bear the risk of losses on the obligations of the partnership only within the limits of their contribution. If a participant-investor begins to interfere in the activities of such a company, then it must be reorganized into a general partnership.

The authorized capital (share capital) of any partnership is formed from contributions from all participants. Profit (or losses) is distributed in proportion to the share of participants in the share capital, unless otherwise provided by the constituent documents.

Society. A company is a commercial organization established by one or more persons, the authorized capital of which is divided into shares determined by the constituent documents. It follows from this that companies, unlike partnerships, involve the pooling of capital. Participants of the company are not liable for the obligations of the company and bear the risks of losses associated with its activities, within the limits of the value of the contributions made. The company can be created in the form of:

limited liability companies;

additional liability companies;

joint stock company (open joint stock company and closed joint stock company).

Limited Liability Company (LLC). A limited liability company is a company established by one or more persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents; Participants in 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 limits of the value of their contributions.

Thus, the authorized capital of a limited liability company is formed from the contributions of the founders, and their liability is limited to their contribution. At the same time, the number of LLC participants should not exceed 50 people. If the number of participants in the company exceeds this established value, then either the company within a year must either transform into an open joint-stock company or into a production cooperative, or must reduce the number of participants, or it will be liquidated in court.

Supreme body The management of the company is a meeting of founders, which must be held at least once a year; the organization’s charter may also provide for the formation of a board of directors (supervisory board). Management of the current activities of the company is carried out by the sole executive body of the company or the sole executive body of the company and the collegial executive body of the company. The executive bodies of the company are accountable to the general meeting of the company's participants and the board of directors (supervisory board) of the company.

Net profit of the company is distributed based on the results of the reporting period in proportion to the contribution of each participant.

In addition to the Civil Code of the Russian Federation, the activities of LLCs are regulated by the Law “On Limited Liability Companies”.

Additional liability company (ALS). A company with additional liability is a company founded by one or more persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents; Participants of such a company jointly and severally bear subsidiary liability for its obligations with their property in the same multiple of the value of their contributions, determined by the constituent documents of the company. In the event of bankruptcy of one of the participants, his liability for the obligations of the company is distributed among the remaining participants in proportion to their contributions, unless a different procedure for the distribution of liability is provided for by the constituent documents of the company. That is, in a company with additional liability, it is assumed that its participants have additional liability for the obligations of the company. The additional liability is typically a multiple of the contribution (e.g., four times, eight times the contribution, etc.). As a rule, the largest investor or foreign partner insists on additional responsibility.

The rules of the Civil Code on limited liability companies apply to an additional liability company.

Joint-Stock Company. A joint stock company is a company whose authorized capital is divided into a certain number of shares; Participants of a joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of the shares they own. A joint stock company can be created in the form of:

open joint stock company (OJSC);

closed joint stock company (CJSC).

A joint stock company, the participants of which can alienate the shares they own without the consent of other shareholders, is recognized as open joint stock company. Such a joint stock company has the right to conduct an open subscription for the shares it issues and their free sale under the conditions established by law and other legal acts. An open joint stock company is obliged to annually publish for public information an annual report, balance sheet, and profit and loss statement.

A joint stock company whose shares are distributed only among its founders or other predetermined circle of persons, is recognized as a closed joint stock company. Such a company does not have the right to conduct an open subscription for the shares it issues or otherwise offer them for acquisition to an unlimited number of persons. Shareholders of a closed joint stock company have a pre-emptive right to purchase shares sold by other shareholders of this company. The number of participants in a closed joint-stock company should not exceed 50 people, otherwise it is subject to transformation into an open joint-stock company within a year, and at the end of this period - liquidation through court proceedings, unless their number decreases to the limit established by law. In cases provided for by the law on joint stock companies, a closed joint stock company may be required to publish an annual report, balance sheet, and profit and loss account for public information. Comparative characteristics CJSC and OJSC are given in table. 7.

Table 7 - Comparison of OJSC and CJSC by main parameters

The highest management body of a joint stock company is general meeting shareholders, which must be held at least once a year. The meeting of shareholders elects a board of directors (supervisory board) and an audit commission (auditor). In turn, the board of directors selects the general director. The board of directors and the general director are the executive body and are involved in the day-to-day management of the company; the audit commission controls their activities. Distribution of profits in a joint stock company is carried out in the form of payment of dividends on shares.

The activities of joint stock companies, in addition to the Civil Code of the Russian Federation, are regulated by the Law “On Joint Stock Companies”. The Civil Code of the Russian Federation also distinguishes the concepts subsidiary and dependent company. A company is recognized as a subsidiary if another (main) business company (partnership), due to its predominant participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise has the opportunity to determine the decisions made by such company. Essentially, more than 50% of the authorized capital of a subsidiary company is formed by another company (or partnership), due to which the latter has the ability to manage such a company. That is, such a company is an independent economic entity, an independent legal entity, but since more than 50% of its authorized capital belongs to another person, the activities of this company will be determined by another person.

In this case, the subsidiary company is not liable for the debts of the main company (partnership). The parent company (partnership), which has the right to give mandatory instructions to the subsidiary, is jointly and severally liable with the subsidiary for transactions concluded by the latter in pursuance of such instructions. The parent company (partnership) is considered to have the right to give mandatory instructions to the subsidiary company only if this right is provided for in the agreement with the subsidiary company or in the charter of the subsidiary company.

In the event of insolvency (bankruptcy) of a subsidiary due to the fault of the main company (partnership), the latter bears subsidiary liability for its debts. Shareholders of a subsidiary have the right to demand compensation from the parent company (partnership) for losses caused to the subsidiary through its fault. Losses are considered caused by the fault of the main company (partnership) only in the case where the main company (partnership) used the right and (or) opportunity available to it for the purpose of committing an action by the subsidiary, knowingly knowing that as a result of this the subsidiary would suffer losses.

A company is recognized as dependent if another (dominant) company has more than 20 percent of the voting shares of the first company. Another (dominant) company, having a significant share in the authorized capital, has the opportunity to participate in the management of such a company or, at a minimum, its opinion will be taken into account when making decisions. A company that has acquired more than 20 percent of the company's voting shares is obliged to immediately publish information about this in the manner determined by the federal executive body for the securities market and the federal antimonopoly body.

It should be emphasized that subsidiary and dependent companies are not separate organizational and legal forms, but only a reflection of the fact that another company may have a predominant role in the management of such companies. Otherwise, these are ordinary societies.

Unitary enterprise. A unitary enterprise is a commercial organization that is not vested with ownership rights to the property assigned to it. The property of such an organization is an indivisible whole and cannot be distributed among shares, deposits, shares, etc., including between employees - this is the principle of unitarity (indivisibility of property). The authorized capital of an enterprise is formed by the owner (state or municipal government bodies) by transferring it to the enterprise.

State and municipal enterprises can be created in the form of unitary enterprises. The property of a state or municipal unitary enterprise is, respectively, in state or municipal ownership (which must be reflected in the company name of the enterprise). The size of the authorized capital of a state municipal enterprise should not be less than 5,000 minimum wages, of a municipal unitary enterprise - 1,000 minimum wages. The property is transferred by the owner to a state or municipal unitary enterprise:

on the right of economic management;

with the right of operational management.

A state or municipal unitary enterprise, to which property belongs under the right of economic management, owns, uses and disposes of this property within the limits determined in accordance with the Civil Code. Thus, the right of economic management presupposes that the owner of property under economic management decides on the creation of an enterprise, determining the subject and goals of its activities, its reorganization and liquidation, appoints a director (manager) of the enterprise, exercises control over the intended use and safety of property belonging to the enterprise property. The owner has the right to receive part of the profit from the use of property under the economic control of the enterprise. An enterprise does not have the right to sell real estate property owned by it under the right of economic management, rent it out, pledge it, make a contribution to the authorized (share) capital of business companies and partnerships, or otherwise dispose of this property without the consent of the owner.

With the right of operational management, on the basis of a state or municipal enterprise can be created state-owned enterprises(that is, a state-owned enterprise is a unitary enterprise created with the right of operational management). A state-owned enterprise, in relation to the property assigned to it, exercises, within the limits established by law, in accordance with the goals of its activities, the tasks of the owner and the purpose of the property, the rights of ownership, use and disposal of it. The owner of property assigned to a state-owned enterprise has the right to withdraw excess, unused or misused property and dispose of it at his own discretion.

In general, we can say that the right of operational management implies stricter control over the use of property - the property is used in accordance with the purposes determined by the owner.

It should also be noted that a unitary enterprise, in addition to the property assigned to it by the right of economic management or by the right of operational management by the owner, can form property at the expense of income from its activities.

In the management structure, one can highlight the fact that the head of such an enterprise is appointed by the owner of the property (or a person authorized by him); The director of the enterprise is accountable to the owner. The procedure for distributing the profit of a unitary enterprise is determined by the owner. As a rule, the owner has the right to receive a portion of the net profit.

In addition to the Civil Code of the Russian Federation, the activities of unitary enterprises are regulated by the Law “On State and Municipal Unitary Enterprises”.

Production cooperative. A production cooperative (artel) is a voluntary association of citizens on the basis of membership for joint production or other economic activities (production, processing, marketing of industrial, agricultural and other products, performance of work, trade, consumer services, provision of other services), based on their personal labor and other participation and association by its members (participants) of property share contributions. Participation in a production cooperative by legal entities is also allowed. The number of cooperative members must be at least 5.

The authorized capital of production capital is formed through share contributions. The highest governing body is the meeting of participants. If the number of participants exceeds 50 people, then a supervisory board can be created. The executive body of the management is the board and its chairman.

The profit of a production cooperative is distributed among its members in proportion to their labor participation, unless otherwise provided by the charter. By decision of the general meeting of members of the cooperative, part of the profit of the cooperative may be distributed among its employees.

In addition to the Civil Code of the Russian Federation, the activities of production cooperatives are regulated by the Law “On Production Cooperatives” and the Law “On Agricultural Cooperation”.

Characteristics of organizational and legal forms

Classification, that is, division into different organizational and legal forms must be done subject to three rules:

• unity of the basis of division (it is impossible to divide films into interesting, color and foreign)
• completeness of division (you cannot divide people into blondes and brunettes - brown-haired and bald people will remain “restless”)
• the significance of the basis of division (if we are interested in the carrying capacity of the vessel, then we should not classify ships according to whether their captain is single or married).

a) According to availability as the main purpose of creation and the activities of a legal entity with the intention to make a profit, they are all divided into two groups (Article 50 of the Civil Code of the Russian Federation):

1. Commercial organizations which can be created in the form of business partnerships and societies, production cooperatives, state and municipal unitary enterprises
2. Non-profit organizations, which can be created in the form of consumer cooperatives, public or religious organizations (associations), owner-financed institutions, charitable and other funds, as well as in other forms provided by law.

1. legal entities in respect of which their participants have rights of obligations (business partnerships and societies, production and consumer cooperatives, non-profit partnerships, autonomous non-profit organizations)
2. legal entities to whose property their founders have ownership or other proprietary rights (state and municipal unitary enterprises, including subsidiaries, as well as owner-financed institutions)
3. 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).

c) By organizational and legal form(OPF) legal entities are divided into:

It is impossible, in our opinion, to classify subsidiaries and dependent business companies as a special organizational and legal form, since they are created in one of the specified OPFs and differ only in the degree of dependence on other organizations.

It should also be recalled once again that any legal entity has the right to form representative offices, branches, branches, but without the status of a legal entity and without the right to be a party to a transaction on its own behalf.

As an additional criterion (basis) for the classification of legal entities, the scope of legal capacity can be distinguished:

• organizations with general legal capacity that have the right to engage in any type of activity (all business partnerships and companies)
• organizations with special legal capacity, engaged only in those types of activities that are defined by their charters (all other organizations).

To understand the essence and basis of the differences between commercial organizations, one should recall the history of the emergence and development of entrepreneurial activity.

At first, the artisan, the merchant, relying on his subsistence economy and property, using his abilities, produced goods.

Then, in connection with the expansion of market needs and the need for cooperation, the artisan and trader began to unite with their colleagues, combining not so much capital as labor resources(personal and hired).

As such associations developed and their size increased, they began to unite not so much labor as capital.
The historical process of changing the ratio of labor and capital in business structures can be characterized by the following graph:

Legend:

IP - individual entrepreneur
PT - general partnership
KT - limited partnership
PC - production cooperative
LLC - limited liability company
ODO - additional liability company
CJSC - closed joint stock company
OJSC - open joint stock company

This graph shows the ratio of labor and capital combined into various forms commercial organizations. Obviously, what less than value given to the labor contributions of the participants, the more developed the form of association can be used by the participants.

From the graph it becomes clear why the participants in a general partnership only enter into an agreement, and the shareholders only approve the charter.

This schedule also reflects the responsibility of the participants for the debts (obligations) of the organization they created.

Business partnerships differ from business societies in that partnerships bring together persons (individuals and/or legal entities), and companies bring together capital. This means that participants in societies MAY not participate in its activities, but participants in partnerships MUST participate.

From this, as well as from the fact that participants in partnerships bear full responsibility for the debts (obligations) of the partnership, it follows that there is a prohibition on the participation of one person in several partnerships.

Citizens - participants of partnerships can only be individual entrepreneurs.

It should be noted that the legislation uses three terms to define participants in partnerships and companies: founder, participant, shareholder. The founder is a participant recorded in the constituent documents during the state registration of the organization, and the features of his status, as a rule, disappear after registration. A shareholder is a participant in a joint stock company.

Essential characteristics of organizational and legal forms of COMMERCIAL organizations

General partnership

A form that is practically not used in Russia. A general partnership assumes full joint liability of the founders (participants) for the obligations of the partnership with ALL their property and belongings. With joint and several liability of debtors, any creditor has the right to collect debts from any debtor in full (and the joint and several debtors will then deal with each other).

But in conditions of legal instability, tax and administrative lawlessness, it is undesirable to put all your property at risk of bankruptcy.

Participants in a general partnership are individual entrepreneurs or legal entities who have pooled their efforts and capital to conduct joint business activities.

The law does not establish the minimum amount of the share capital of a general partnership, because If this capital is insufficient, creditors foreclose on all the property of the partnership participants.

Conducting partnership affairs (management, concluding transactions) is possible in several options:

each participant himself enters into transactions for which everyone is responsible;

all transactions are concluded by unanimous decision of the participants;

all transactions are concluded by decision of the participants, adopted by a majority of votes;

one or some participants may enter into transactions;

a combination of these methods depending on the type and scale of the transaction.

Limited partnership, based on official authority

Participants are liable to the extent of their contributions to the authorized capital, but there is an exception to this rule. The main external difference between this form of organization and a general partnership is that it has two types of participants.

Some participants bear full (unlimited) liability and have the right to manage the partnership, other participants-investors (limited partners) simply invest their capital in the partnership, have the right to receive profits, but are not liable for the obligations of the partnership (except for the risk of loss of investment) and do not participate in business management. The investors do not even sign the memorandum of association creating this partnership. The investor may not be an individual entrepreneur.

This form is transitional from partnerships to societies, firstly, in terms of the degree of responsibility: from full responsibility from the first type of participants to the limited liability of participant-investors, and, secondly, by the degree of participation: from personal participation to capital participation.

It also combines the serious advantages of partnerships and societies. The issuer - the capital investor - takes less risk if the manager(s) bear full responsibility.

Limited Liability Company (LLC)

A form of capital pooling, combined with the possibility of personal participation in the activities of the organization. That is why LLC is the most common form.

This organizational form requires the creation of management bodies, and therefore the development of a charter regulating issues of internal and external activities society.

The management system is at least two-level: the general meeting of participants and the executive body. A collective executive body (board, directorate) is possible, but there must be an official speaking on behalf of the organization without a power of attorney

According to Art. 56 of the Civil Code, “if the insolvency (bankruptcy) of a legal entity is caused by the founders (participants), the owner of the property of the legal entity or other persons who have the right to give instructions mandatory for this legal entity or otherwise have the opportunity to determine its actions, on such persons in case of insufficiency the property of a legal entity may be subject to subsidiary liability for its obligations.” Vicarious liability is a liability in which, in the absence of sufficient property of a legal entity, the debtors' claims are made against the participants, and they pay with their property.

Additional liability company (ALC)

It differs from a limited liability company in that the participants are liable not only within the authorized capital, but also in addition to a certain amount that is a multiple of the authorized capital. For example, the authorized capital of an ALC is 10 million rubles. The charter stipulates that the company bears additional liability in the amount of five times. This means that if the company’s property is insufficient, creditors can receive 50 million rubles from the participants, and from any of them, since the participants are jointly and severally liable.

Joint Stock Company (JSC)

The most detailed legislatively regulated form of organization, because In addition to the Civil Code, the Law of the Russian Federation “On Joint Stock Companies” applies.

The essence of creating a joint-stock company is the founder’s announcement of the creation of a joint-stock company, i.e. issuing securities (shares) for sale and offering a certain or indefinite number of persons to buy these securities, thereby forming the authorized capital.

This is how a joint stock company differs from an LLC, during the creation of which the contributions (contributions) of all founders are clearly defined and there is no assumption in the charter that the authorized capital CAN increase to a certain amount.

The next difference from an LLC is that in a limited liability company there is the possibility of “withdrawing” from the membership with the withdrawal of one’s share of the property. In a joint stock company this cannot be possible, because When “entering” the company, the participant (shareholder) did not contribute property, but bought shares. Accordingly, he, as the owner of the securities, has the right to sell them to someone who wants to buy them, but does not have the right to demand that the company return to him the property (or its value) of the company. This provision prevents the risk of undermining the viability and capacity of the society if participants leave.

Another difference between an LLC and a JSC is that in a joint-stock company there is always the possibility of alienating shares to third parties (not shareholders), and the charter of an LLC may contain a ban on the alienation of shares to third parties. To compensate for this limitation, as already noted, a participant in an LLC may, upon exit, demand the value of his share of property from the company.

The Law of the Russian Federation “On Joint-Stock Companies” has quite seriously changed the legislation regulating this form of organization.

On the one hand, the law quite thoroughly spells out guarantees and mechanisms for protecting the rights of shareholders, regardless of the size of the block of shares they own. (For example, the right of a shareholder to sell his shares to the company if he disagrees with the decision of the general meeting, detailed regulation of the procedure for preparing and holding a general meeting, etc.)

On the other hand, measures are provided to protect the management of the organization from the interference of incompetent shareholders in resolving private production issues, from the possibility of making decisions that bring short-term income and undermine the development of production. (For example, limiting the competence of the general meeting to a range of strategic issues, restrictions on the payment of dividends, consideration at the meeting of a number of issues only on the recommendation of the Board of Directors, etc.)

Producer cooperatives

A production cooperative is recognized as a voluntary association of citizens (participation of legal entities is also allowed) on the basis of membership for joint production or other economic activities based on their personal labor and other participation and the association of property shares by its members (participants).

As a rule, membership in a cooperative is based on personal labor, the payment of a property contribution determined by the charter, the equality of each member (each has only one vote), and the dependence of income on labor participation. Members of a cooperative are not entrepreneurs (as in partnerships).

Members of a cooperative bear subsidiary liability for the obligations of the cooperative in the amount and in the manner prescribed by the law on production cooperatives and the charter of the cooperative (Article 107 of the Civil Code of the Russian Federation).

State and municipal unitary enterprises

The main feature of these forms is that they are not the owners of their property. The state or municipalities transfer property to these enterprises on the right of economic management, i.e. with restrictions on the right to dispose (transfer, alienate) property. Therefore, when determining the status of these enterprises, their powers when concluding transactions, it is necessary to take into account the rules (norms) of Article 294-300 of the Civil Code of the Russian Federation, as well as the provisions of the Federal Law of the Russian Federation “On State and Municipal Unitary Enterprises”.

The term “unitary” in the name of these enterprises determines the indivisibility of their property, i.e. complete absence of the possibility of dividing the authorized capital into shares, shares, etc. Therefore, it is impossible for other legal entities or individuals to take part in or obtain a share in such an enterprise. By the way, the term “authorized capital” in these enterprises is transformed into “authorized capital” because the property is not alienated by the founder, is not transferred into ownership, but is given for economic management - to a certain “fund”.

A state unitary enterprise differs from its counterparts in that it is based on property that is federally owned, and in that the property is transferred to operational management, and not to economic management. It follows from this that the owner - the Russian Federation - is responsible for the debts of a state-owned enterprise, while the owner of a state and municipal enterprise is not responsible for its debts.

Unlike most commercial organizations, enterprises have special rather than general legal capacity. The consequence of this is that the owner of the property, approving the charter of the enterprise, establishes the goals of its creation and the subject of its activities. Transactions that are concluded in violation of the subject of the activity are void (Article 168 of the Civil Code of the Russian Federation).

It would be useful to note that the indication of the subject of activity in the constituent documents of commercial organizations with general legal capacity is not necessary, and the absence of such a list cannot serve as a basis for any restrictions on their economic independence.

Essential characteristics of organizational and legal forms of NON-PROFIT organizations

Public and religious associations

Citizens (and only they) have the right to organize public associations in various forms (organizations, institutions, movements, foundations, public amateur bodies, unions of public associations) to satisfy any needs. These organizations are authorized to conduct business activities consistent with the goals of creating the organization. Therefore, if there is a need to use this form to conduct business, you should carefully formulate the goals of the organization in order to combine the subject of entrepreneurship with these goals.

Funds

The main difference between a foundation and other forms is that the founders of the foundation, after its establishment and registration, lose all rights to the foundation and its property. The fund exists as if on its own and is governed by a board of trustees. The foundation can engage in entrepreneurship only through the business companies it creates.

Nonprofit partnerships

Absolutely new form. The association of members' property is similar to a limited liability company, but the members of the partnership have the right to receive the contributed property or its value upon withdrawal or expulsion from the partnership.

Establishment

An organization fully or partially financed by the founder - the owner of the institution's property. The founder is liable for the obligations of the institution if the latter is insufficient Money(not property). The founder can be a citizen or a legal entity.

The law does not specify how many founders there can be. The term "owner" is used. Therefore, a collective founder-owner (several owners owning shared or joint property) is not excluded.

Autonomous non-profit organization

A hybrid of a foundation and a non-profit partnership. There is no membership, property is not returned to the founders, management is carried out by an autonomous (independent of the founders) body. But he has the right to do business.

Association (union)

This organization unites only legal entities. Members of the association bear subsidiary liability for its debts even for two years after leaving the association. Does not have the right to do business.

Consumer cooperative

The most familiar form to everyone (ZHSK, GSK, etc.). An exotic variety of it - consumer cooperation(a vestige of “consumer unions”), which, in accordance with the Law of 1992, is a “society of shareholders.”

Members of the cooperative are annually obliged to cover any losses with their contributions.

Homeowners' Associations

Similar to a housing construction cooperative, but after construction is completed. Designed to organize public utilities for privately owned housing stock.

Summary comparison tables characteristics of organizations

General definition of commercial organizations:

organization - legal entity;

the main goal is to make a profit;

the possibility of distributing profits between participants.

Types of commercial organizations

A Business partnerships

1. general partnership
2. partnership of faith

B Economic companies

3. limited liability
4. with additional responsibility
5. joint stock closed and open

B Production cooperatives

D State and municipal unitary enterprises

Federal Agency for Education

State educational institution

higher professional education

"Kovrov State Technological Academy

named after V.A. Degtyarev"

Department of Management

in the discipline "Commercial Law"

on the topic: Organizational and legal forms of commercial organizations.

Supervisor:

Yu.A. Lapin

Executor:

Art. gr. ZMN-106

E.A. Bolshakova

Kovrov 2008

Introduction…………………………………………………………………………………...3

Business partnerships………………………………………………………4

Business companies……………………………………………………………7

Production cooperatives………………………………………………………..11

State and municipal unitary enterprises………..14

Conclusion…………………………………………………………….18

List of used literature…………………………………...19

Introduction:

In accordance with Art. 50 of the Civil Code, legal entities can be organizations that pursue the extraction of profit as the main goal of their activities (commercial organizations) or do not have such a goal and do not distribute the resulting profit among participants (non-profit organizations).

The main criterion for distinguishing them is the main purpose of the activity - making a profit or not. Neither the form of ownership (state, cooperative, etc.), organizational and legal form, nor other circumstances matter at all.

Commercial organizations can act in the form of: business communities (JSC, 000, ALC), partnerships (full and limited), production cooperatives. This list is closed - rental, national, collective, etc. are excluded from the range of commercial organizations. organizations mentioned in previous legislation.

The most popular commercial organizations are business entities. They are often confused with business partnerships. Meanwhile, an integral feature of any partnership is the direct participation in its activities of the persons who founded the partnership, while the property of the founders (their capital) is combined in the company. There may not be a merger of the founders’ property ( we're talking about not about share capital, but about other property). On the other hand, the participants of the company, along with pooling their capital, may also take part in its activities, or they may not.

Organizational and legal forms (OLF) of commercial organizations

Commercial organizations (organizations pursuing profit as the main goal of their activities (clause 1 of Article 50 of the Civil Code of the Russian Federation)) can be created in the following organizational and legal forms.

1. Business partnerships (clause 2 of article 50 of the Civil Code of the Russian Federation)

Business partnerships are recognized as commercial organizations with share capital divided into shares (contributions) of founders (participants) (Clause 1, Article 66 of the Civil Code of the Russian Federation).

Organizational and legal forms of business partnerships:

general partnership (clause 2 of article 66 of the Civil Code of the Russian Federation).

Full partnerships are partnerships whose participants (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with the property belonging to them (Clause 1, Article 69 of the Civil Code of the Russian Federation);

If the members of a general partnership are individuals, then they acquire the status of citizen-entrepreneurs, however, these individuals do not undergo special registration (individually, outside the framework of the general partnership), although they receive an individual certificate of registration as an entrepreneur.

The agreement is the only constituent document of the partnership. Since it does not have an authorized capital and the minimum amount of share capital is not defined, the constituent agreement must reflect such specifics of a general partnership. Mandatory information of the constituent agreement is established by clause 2 of Art. 52 Civil Code and paragraph 2 of Art. 70 GK. Other information included in the contract must not contradict the requirements of the law. The founding agreement of the partnership, as well as changes and additions to it, are subject to state registration.

In this agreement, the founders undertake to create a general partnership. This document should contain information about:

1. the procedure for joint activities of general partners to create this type of commercial organization;

2. conditions for the transfer of property to the general partnership;

3. conditions for the participation of general partners in his activities;

4. conditions and procedure for distribution of net profit among general partners;

5. the procedure and conditions for the distribution of losses from the activities of the partnership between its participants;

6. procedure for managing the partnership;

7. the procedure for the withdrawal of general partners from its composition;

8. the size and composition of the share capital;

9. the amount, composition, timing and procedure for general partners to make their contributions to the share capital. Each participant is obliged to make at least half of his contribution to the share capital by the time of registration of the partnership. The rest of the contribution must be made within the time limits established by the constituent agreement;

10. the amount and procedure for changing the shares of each of the partnership participants in the share capital;

11. company name. It must contain either the names (names) of all its participants and the words “full partnership”, or the name (name) of one or more participants with the addition of the words “and company”, as well as “full partnership” (see Articles 54, 69 of the Civil Code );

12. location of the partnership; It is determined by the place of state registration;

13. other information provided by law or subject to inclusion in the constituent agreement at the insistence of the participants (otherwise the agreement will not be considered concluded, Article 432 of the Civil Code).

Since a general partnership is a commercial organization, there is a need for the day-to-day management of its affairs. After all, it is necessary to conclude deals with partners, interact with tax authorities, statistics, labor and employment authorities, etc.

Participation in the activities of the partnership can be expressed in various forms. Thus, a general partner must take part in management, in the formation of property, in the conduct of common affairs, in concluding contracts, making other transactions, etc. Since the participants of the partnership created a commercial organization, it is obvious that they jointly carry out business activities, perform certain work: manufacturing goods, providing services, storing, selling finished products, etc. Specifically, this or that form, as well as the degree of participation of everyone, is stipulated in the constituent agreement.

Limited partnership (limited partnership) (Clause 2 of Article 66 of the Civil Code of the Russian Federation).

Limited partnerships (limited partnerships) are partnerships in which, along with the participants who carry out business activities on behalf of the partnership and are liable for the obligations of the partnership with their property (general partners), there are one or more participant-investors (limited partners) who bear the risk of losses, related to the activities of the partnership, within the limits of the amounts of contributions made by them and do not take part in the partnership’s business activities (Clause 1 of Article 82 of the Civil Code of the Russian Federation).

The position of general partners participating in a limited partnership and their responsibility for the obligations of the partnership are determined by the rules of the Civil Code of the Russian Federation on participants in a general partnership.

A person can be a general partner in only one limited partnership.

A participant in a general partnership cannot be a general partner in a limited partnership.

A general partner in a limited partnership cannot be a participant in the general partnership.

The business name of a limited partnership must contain either the names of all general partners and the words “limited partnership” or “limited partnership,” or the name (title) of at least one general partner with the addition of the words “and company” and the words “partnership.” on faith" or "limited partnership".

If the name of an investor is included in the business name of a limited partnership, such investor becomes a general partner.

The rules of the Civil Code of the Russian Federation on general partnership are applied to a limited partnership insofar as this does not contradict the rules of the Civil Code of the Russian Federation on limited partnership. See Article 82 of the Civil Code of the Russian Federation. "Basic provisions on partnership in faith."

2. Business companies (clause 2 of article 50 of the Civil Code of the Russian Federation)

Business companies are recognized as commercial organizations with authorized capital divided into shares (contributions) of founders (participants) (Clause 1, Article 66 of the Civil Code of the Russian Federation).

Organizational and legal forms of business companies:

joint-stock company (clause 3 of article 66 of the Civil Code of the Russian Federation; clause 1 of article 2 of the Federal Law “On Joint-Stock Companies”).

Joint-stock companies are those whose authorized capital is divided into a certain number of shares; Participants in a joint stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of the shares they own (Clause 1, Article 96 of the Civil Code of the Russian Federation; Clause 1, Article 2 of the Federal Law "On Joint Stock Companies") .

Types of joint stock companies:

public corporation.

Open joint stock companies are joint stock companies whose participants can alienate their shares without the consent of other shareholders (clause 1, article 97 of the Civil Code of the Russian Federation; clause 2, article 7 of the Federal Law “On Joint Stock Companies”);

closed joint stock company.

Closed joint stock companies are joint stock companies whose shares are distributed only among the founders or other predetermined circle of persons (clause 2 of article 97 of the Civil Code of the Russian Federation; clause 3 of article 7 of the Federal Law “On Joint Stock Companies”);

limited liability company (clause 3, article 66 of the Civil Code of the Russian Federation; clause 1, article 2 of the Federal Law “On Limited Liability Companies”).

Limited liability companies are recognized as companies founded by one or more persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents; Participants in 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 the contributions made by them (Clause 1, Article 87 of the Civil Code of the Russian Federation; Clause 1, Article 2 of the Federal Law "On Limited Liability Companies" );

company with additional liability (clause 3 of article 66 of the Civil Code of the Russian Federation).

Companies with additional liability are recognized as companies founded by one or more persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents; Participants of such a company jointly and severally bear subsidiary liability for its obligations with their property in the same multiple of the value of their contributions, determined by the constituent documents of the company (Clause 1, Article 95 of the Civil Code of the Russian Federation).

To conduct business activities in the field of small and medium-sized businesses, the most preferred organizational and legal forms of commercial organizations and enterprises are a closed joint-stock company (CJSC) and a limited liability company (LLC).

CJSC and LLC have much in common, including:

The same procedure and conditions for conducting economic and financial activities and taxation;

The same size of the minimum authorized capital (equal to 100 times the minimum wage) and the procedure for its formation;

The same restrictions on the number of founders (from one to fifty persons, both legal entities and individuals).

CJSC and LLC have several fundamental differences that should be taken into account when choosing between these two organizational and legal forms, namely:

a) Much greater protection of the property interests of an LLC participant compared to a CJSC shareholder:

When leaving an LLC, its participant is paid the actual value of his share in the LLC’s property (determined on the basis of the LLC’s financial statements) in cash or, with the consent of the leaving participant, he is given property of the same value in kind;

In a closed joint-stock company, the property and assets of a joint-stock company can be distributed among shareholders only in the event of its liquidation, and the exiting shareholder has the right to sell his shares at market value, which, despite the significant amount of the net assets of the closed joint-stock company, can be very small.

On the other hand, this state of affairs makes a closed joint-stock company, compared to an LLC, much more secure, due to the lower likelihood and possibility of “taking away” the company’s property by exiting shareholders.

b) In accordance with the requirements of the current legislation, a closed joint-stock company, after its state registration, must register the issue of its shares in Federal service on financial markets (FSFM). The procedure for registering the issue of shares is mandatory, is paid additionally and takes time, however, while the shares are registered with the Federal Financial Markets Service, the CJSC, from the moment of its state registration, has the right to fully carry out economic and financial activities without any restrictions.

c) From the point of view of the established psychological and everyday perception of LLCs and CJSCs as subjects of economic and financial relations, CJSCs are preferable compared to LLCs, because is considered an enterprise with a higher status and is perceived with much greater respect and trust, both by business partners and, often, by officials at various levels.

Thus, an LLC is a simpler and cheaper legal form to create, which, based on the prevailing psychological and everyday perception, has a much lower business reputation compared to a closed joint-stock company and is less trustworthy.

Next most common in business transactions, the organizational and legal form of a commercial organization is an open joint-stock company (OJSC). An OJSC has the same differences from an LLC as a CJSC. Compared to a closed joint-stock company, an open joint-stock company has an even higher business status and the following differences:

a) The authorized capital of the JSC is 1000 minimum sizes wages (for CJSC – 100).

b) At the end of each economic and financial year, the JSC is obliged to invite an independent audit organization (auditor) to conduct an audit.

c) The JSC is obliged to annually publish in the media accessible to all shareholders of this JSC its annual report, balance sheet, profit and loss account, as well as other information established for the JSC by current legislation.

d) The number of shareholders in an OJSC is not limited.

e) In case of a change in the composition of shareholders (without changing the total amount of the authorized capital, par value and number of shares):

CJSC is obliged to carry out state registration of such changes in the manner prescribed by current legislation;

OJSC is limited only to entering information about changes in the composition of shareholders into its internal document-register of shareholders.

f) When a shareholder sells his shares:

In a closed joint-stock company: other shareholders of this closed joint-stock company have a preemptive right to purchase the shares being sold at the offer price;

In an OJSC: a shareholder has the right to sell his shares to any person of his choice.

3. Production cooperatives (clause 2 of article 50 of the Civil Code of the Russian Federation)

Production cooperatives (artels) are recognized as voluntary associations of citizens on the basis of membership for joint production or other economic activities (production, processing, marketing of industrial, agricultural and other products, performance of work, trade, consumer services, provision of other services), based on their personal labor and other participation and association by their members (participants) of property share contributions (Clause 1 of Article 107 of the Civil Code of the Russian Federation; Article 1 of the Federal Law “On Production Cooperatives”).

The production cooperative has a corporate name. Article 107 of the Civil Code does not oblige to indicate in the name the surname (name) of one or more members of the cooperative (as is established for business partnerships). However, if they all decide that the business name should reflect the name of one or even all members of the cooperative, then that is their right.

The founding document of a production cooperative is the charter.

The charter must contain information about:

1. company name. It includes the name of the organization and the words “production cooperative or artel”;

2. location of the cooperative. It is determined by the place of its state registration (Article 54 of the Civil Code);

3. the amount of share contributions, composition (for example, the amount of money, a Volga car) and the procedure for making them;

4. liability of members of the cooperative for violation of obligations to make share contributions;

5. the nature and procedure for labor and other participation (for example, if a member of the cooperative is a legal entity) in the activities of the cooperative and their responsibility for evading such participation;

6. the procedure for distribution of profits and losses. It should be taken into account that the profit of the cooperative is distributed among its members in accordance with their personal labor and (or) other participation, the size of the share contribution, and among members who do not take personal labor participation - based on the size of the share contribution. The part of the profit remaining after paying taxes and fees, as well as after directing the profit for other purposes determined by the general meeting (Article 12 of the Federal Law of 05/08/96 “On Production Cooperatives”) is subject to distribution. The part of the profit distributed among the members of the cooperative in proportion to the size of their share contributions should not exceed 50% of the profit to be distributed between them;

7. the amount and conditions of subsidiary liability of members of the cooperative for its debts. A production cooperative is the only commercial organization, the subsidiary liability of whose members for the obligations of the cooperative is determined in the manner and amount provided for by its charter;

8. the composition and competence of management bodies and the procedure for their decision-making (including on issues on which decisions are made unanimously or by a qualified majority of votes);

9. the procedure for paying the value of a share to a person who has ceased membership in the cooperative;

10. the procedure for the entry of new members;

11. procedure for leaving the cooperative. A member of the cooperative must submit a written application no later than 2 weeks before leaving the cooperative;

12. grounds and procedure for exclusion from the cooperative. It is allowed only by decision of the general meeting (if a member of the cooperative has not made a share contribution within the established period or does not fulfill the duties assigned to him by the charter);

13. the procedure for forming the property of a production cooperative. It is formed not only from share contributions, but also from profits received, property transferred by other persons, and from other legal sources;

14. list of branches and representative offices;

15. procedure for reorganization and liquidation of the cooperative.

The supreme governing body is the general meeting of its members. In a cooperative with more than 50 members, a supervisory board may be created. Only members of the cooperative can be members of the supervisory board and board members of the cooperative, as well as the chairman of the cooperative. The executive bodies of the cooperative include the board and (or) the chairman of the cooperative. A member of a cooperative cannot simultaneously be a member of the supervisory board and a member of the board (chairman).

The general meeting of members has the right to consider and make decisions on any issue of the formation and activities of the cooperative.

4. State and municipal unitary enterprises (clause 2 of article 50 of the Civil Code of the Russian Federation)

Unitary enterprises are commercial organizations that are not vested with the right of ownership to the property assigned to them by the owner. The property of a unitary enterprise is indivisible and cannot be distributed among contributions (shares, shares), including among employees of the enterprise (clause 1 of Article 113 of the Civil Code of the Russian Federation).

Only state and municipal enterprises can be created in the form of unitary enterprises (clause 1 of Article 113 of the Civil Code of the Russian Federation).

The property of state or municipal unitary enterprises is respectively in state or municipal ownership and belongs to such enterprises with the right of economic management or operational management (clause 2 of Article 113 of the Civil Code of the Russian Federation).

Organizational and legal forms of state and municipal unitary enterprises:

unitary enterprise based on the right of economic management.

Unitary enterprises based on the right of economic management are recognized as unitary enterprises created by decision of an authorized state body or local government body, the property of which is in state or municipal ownership and belongs to them on the right of economic management (Articles 113, 114 of the Civil Code of the Russian Federation);

1. A unitary enterprise based on the right of economic management is created by decision of an authorized state body or local government body.

2. The constituent document of an enterprise based on the right of economic management is its charter, approved by the authorized government agency or local government authority.

3. The size of the authorized capital of an enterprise based on the right of economic management cannot be less than the amount determined by the law on state and municipal unitary enterprises.

4. The procedure for forming the authorized capital of an enterprise based on the right of economic management is determined by the law on state and municipal unitary enterprises.

5. If at the end of the financial year the value of the net assets of an enterprise based on the right of economic management turns out to be smaller size authorized capital, the body authorized to create such enterprises is obliged to reduce the authorized capital in the prescribed manner. If the value of net assets becomes less than the amount determined by law, the enterprise may be liquidated by court decision.

6. If a decision is made to reduce the authorized capital, the enterprise is obliged to notify its creditors in writing.

A creditor of an enterprise has the right to demand termination or early fulfillment of an obligation for which this enterprise is a debtor, and compensation for losses.

7. The owner of the property of an enterprise based on the right of economic management is not liable for the obligations of the enterprise, except for the cases provided for in paragraph 3 of Article 56 of this Code. This rule also applies to the liability of the enterprise that established the subsidiary for the obligations of the latter.

a unitary enterprise based on the right of operational management (federal state enterprise).

State unitary enterprises based on the right of operational management (federal state-owned enterprises) are recognized as unitary enterprises formed by decision of the Government of the Russian Federation on the basis of property in federal ownership and based on the right of operational management (Article 115 of the Civil Code of the Russian Federation).

1. In cases and in the manner provided for by the law on state and municipal unitary enterprises, a unitary enterprise with the right of operational management (state-owned enterprise) can be created on the basis of state or municipal property.

2. The constituent document of a state-owned enterprise is its charter, approved by an authorized state body or local government body.

3. The corporate name of a unitary enterprise based on the right of operational management must contain an indication that such an enterprise is state-owned.

4. The rights of a state-owned enterprise to the property assigned to it are determined in accordance with Articles 296 and 297 of this Code and the law on state and municipal unitary enterprises.

5. The owner of the property of a state-owned enterprise bears subsidiary liability for the obligations of such an enterprise if its property is insufficient.

6. A state-owned enterprise may be reorganized or liquidated in accordance with the law on state and municipal unitary enterprises.

Conclusion

Commercial organizations, being a legal entity, may have civil rights corresponding to the goals of their activities provided for in their constituent documents, and bear related responsibilities.

Commercial organizations can carry out any type of activity not expressly prohibited by law, i.e. endowed with general legal capacity. This is what takes into account rapidly changing market relations to a greater extent.

May acquire civil rights and obligations. its participants. A general partnership serves as such an example: each participant has the right to act on behalf of the partnership, unless otherwise provided by the constituent agreement.

Differences between organizations: the founder of a company can be one person, but in partnerships this is unacceptable. But you should pay attention to some other restrictions.

Participants in general partnerships can only be individual entrepreneurs or commercial organizations. When registering general partnerships, they cannot be participants in general partnerships.

List of used literature.

1. Civil law V.V. Pavlenko, E.I. Tarantsova. - Rostov N./D. Phoenix:, 2005-256p.