The only organizational and legal form is commercial. Forms of commercial organizations

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 references…………………………………...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 are not talking about shared capital, but 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 contain 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.

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 business name of a limited partnership includes the name of an investor, 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 on limited partnership. Cm. .

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 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 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 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).

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The legal capacity of legal entities, unlike citizens, even within the same organizational and legal form can be different. The legal capacity of a legal entity arises from the moment of its state registration. In addition, for certain types of activities determined by law, legal entities must obtain a special permit - a license.

According to current legislation, all legal entities, including business organizations, are divided into two large groups.

The first includes those business organizations that have general legal capacity. They may have civil rights and bear civil responsibilities necessary to carry out any type of business activity not prohibited by law. The circle of such legal entities includes commercial organizations (with the exceptions established by law. Making a profit for them is the main goal of their activity; they are professionally engaged in entrepreneurship. These include:

General partnership

A general partnership is recognized as 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 responsible for its obligations and property belonging to them. Management of the activities of a general partnership is carried out by general agreement of all participants. As a rule, each participant in a general partnership has one vote. Participants jointly and severally bear subsidiary liability with their property for the obligations of the partnership.

General partnerships are typical primarily for agriculture and the service sector; As a rule, they are small enterprises whose activities are quite easy to control.

Partnership of Faith

A limited partnership (limited partnership) is a partnership in which, along with the participants, carrying out business activities on behalf of the partnership and being liable for its obligations with their property (general partners). There are one or more participant-investors (limited partners) who bear the risk of losses associated with 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.

Since this legal form allows one to attract significant financial resources through an almost unlimited number of limited partners, it is typical for larger enterprises.

Limited Liability Company (LLC)

Such a company is recognized as a company founded by one or several persons, the authorized capital of which is divided into shares determined by the constituent documents; LLC participants are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the size (value) of the contributions made by them. The authorized capital of an LLC is made up of the value of the contributions of its participants. An LLC has no public liability. This legal form is most common among small and medium-sized enterprises.

Additional liability company

A company whose participants jointly and severally bear subsidiary liability for the obligations of the company with their property in the same multiple of the value of their contributions, determined by the constituent documents of the company itself. The characteristics of the liability of participants in an ALC determine the existence of this organizational and legal form of commercial organizations

Joint Stock Company (JSC)

A company whose authorized capital is divided into a certain number of shares is recognized as such; The participants of the 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 whose participants can alienate their shares without the consent of other shareholders is considered open. Such a joint-stock company has the right to subscribe for shares issued by it and to sell them freely under the conditions established by law. An open joint-stock company is obliged to annually publish for public information an annual report, balance sheet, and profit and loss account.

A joint stock company whose shares are distributed only among its founders or other predetermined circle of persons is considered closed. The constituent document of a joint-stock company is its charter. The authorized capital of a joint-stock company is made up of the nominal value of the company's shares acquired by shareholders. The supreme management body of the JSC is the general meeting of shareholders. The advantages of the joint-stock form of organization of enterprises are: the ability to mobilize large financial resources; the ability to quickly transfer funds from one industry to another; the right to freely transfer and sell shares, ensuring the existence of companies, regardless of changes in the composition of shareholders; limited liability of shareholders; separation of ownership and management functions. The legal form of a joint stock company is preferable for large enterprises where there is a great need for financial resources.

Producer cooperatives

A production cooperative (artel) is a voluntary association of citizens on the basis of membership for joint production activities based on their personal labor and other participation and the association of property shares by its members (participants). In Russia they were known as artel partnerships 6.

A production cooperative is a commercial organization. The founding document of a production cooperative is its charter, approved by the general meeting of its members. The number of members of the cooperative should not be less than five. The property owned by the PC is divided into shares of its members in accordance with the charter of the cooperative. The cooperative does not have the right to issue shares. A member of the cooperative has one vote when making decisions at the general meeting.

A special type of commercial organizations are subsidiaries and dependent business companies. A business company is recognized as a subsidiary if another (main) business company or partnership, by virtue of a 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. A business company is recognized as dependent if another (predominant, participating) company has more than 20% of the voting shares of the joint-stock company or 20% of the authorized capital of the limited liability company.

The second group includes legal entities - holders of special legal capacity. The essence of special legal capacity is that its holders can have only those civil rights that correspond to the goals of the activity provided for in their constituent documents, and bear the responsibilities associated with this activity. This group consists of:

a) commercial organizations that, as an exception to the general rule, do not have general legal capacity (state and municipal unitary enterprises and other types of organizations provided for by law, for example banks, insurance organizations). Unitary enterprises, as well as other commercial organizations in respect of which special legal capacity is provided, do not have the right to enter into transactions that contradict the goals and subject of their activities, defined by law or other legal acts. Such transactions are void.

The state and other public legal entities, as subjects of commercial law, have legal capacity and legal capacity. Moreover, the legal capacity of these subjects in the field of commercial law as part of civil law is special 7.

The state and administrative-territorial entities should be classified as special, distinct from citizens and legal entities, participants (subjects) of commercial legal relations.

State and municipal unitary enterprises

A unitary enterprise is a commercial organization that is not endowed with the right of ownership to the property assigned to it by the owner.

Some enterprises (the majority of them) own property under the right of economic management, while others – under the right of operational management. The legislation establishes types of activities that can be carried out exclusively by state enterprises (production of weapons and ammunition, narcotic and nuclear substances, processing of precious metals and radioactive elements, etc.).

b) non-profit organizations (making profit is not their main goal, and the profit received is not divided between the participants of the organization). These include: consumer cooperatives (they are the only type of non-profit organization in which income received from business activities is distributed among its members); public or religious organizations (associations) financed by the owner of the institution; charitable and other foundations; other organizational and legal forms provided for by law. In particular, the Federal Law “On Non-Profit Organizations” of January 12, 1996. two such forms have been introduced: non-profit partnership and autonomous non-profit organization.

Non-profit organizations can be created to achieve social, charitable, cultural, educational, scientific and managerial goals, to protect the health of citizens, develop physical culture and sports, satisfy the spiritual and other non-material needs of citizens, protect the rights and legitimate interests of citizens and organizations, resolve disputes and conflicts, providing legal assistance, as well as for other purposes aimed at achieving public benefits. It must be emphasized: non-profit organizations can carry out entrepreneurial activities only insofar as it serves the achievement of the goals for which they were created and is consistent with these goals. Such activities include the profit-generating production of goods and services that meet the goals of creating a non-profit organization, as well as the acquisition and sale of securities, property and non-property rights, participation in business companies and participation in limited partnerships as an investor. A non-profit organization keeps records of income and expenses for business activities.

Commercial organizations are organizations whose main goal is to generate profit and distribute it among participants

Commercial organizations:

• 1. Business partnership:
  • - Full partnership
  • - Limited partnership
• 2. Economic company:
  • - Open Joint Stock Company (OJSC)
  • - Closed Joint Stock Company (CJSC)
  • - Limited Liability Company (LLC)
  • - Additional liability company (ALC)
  • - Subsidiary Business Company (DHO)
• 3. Production cooperative:
  • - Agricultural artel (collective farm) SPK
  • - Fishing artel (collective farm) RPK
  • - Cooperative farm (koopkhoz) SKH
• 4. State municipal (unitary) enterprises:
  • - State (state) enterprise GKP
  • - Municipal enterprise

Business partnerships and companies are commercial organizations with authorized (share) capital divided into shares (contributions) of founders (participants). The property of such partnerships, collected from contributions, produced and acquired in the course of the activities of the business partnership, belongs to them by right of ownership.

Economic partnership

A general partnership is an association of two or more persons, the participants of which (general partners), in accordance with an agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership.

Participants in a full partnership jointly and severally bear additional (subsidiary) liability with their property for the obligations of the partnership. This means that the responsibility of all participants is proportional to the size of their contribution. Thus, if the property of the partnership is not enough to pay off the debts, then the partners are liable with their personal property, in proportion to the contributions made to the organization. A person can be a member of only one general partnership. The number of participants is not limited. A general partnership is created and operates on the basis of a constituent agreement, which is signed by all its participants. If, as a result of losses incurred by the partnership, the value of its net assets becomes less than the amount of its share capital, the profit received by the partnership is not distributed among the participants until the value of the net assets exceeds the size of the share capital.

By the time of registration of a general partnership, each participant is obliged to make at least half of his contribution to the share capital of the partnership. The rest must be paid by the participant within the time limits established by the constituent agreement. If this obligation is not fulfilled, the participant is obliged to pay the partnership 10% per annum on the unpaid part of the contribution and compensate for the losses caused, unless otherwise provided in the constituent agreement.

Providing for the possibility of a participant's withdrawal from a general partnership, he is required to declare his refusal to participate in the partnership at least six months before the actual withdrawal. An agreement between participants in a partnership to waive the right to withdraw from the partnership is void. Next, the participant who has left the partnership is paid the value of part of the property corresponding to his share in the share capital, and by agreement with him it is possible to issue the property in kind. At the same time, the shares of other participants increase. According to the law, a participant in a partnership has the right to transfer his share or part of it in the share capital to another participant or a third party, subject to the consent of all members of the partnership.

A general partnership is liquidated in the event that there is only one participant left in it (except for the norms for the liquidation of legal entities in accordance with the Civil Code of the Russian Federation). Such a participant has the right, within six months, to transform such a partnership into a business company in the manner prescribed by the Code.

Limited partnership (limited partnership) - a partnership 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, there are one or more participant-investors (limited partners) who bear the risk of losses associated with 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.

In a limited partnership, along with general partners, the so-called limited partners take part in the formation of the share capital, i.e. investors who do not take part in business activities, but receive profit and bear the risk of loss within the limits of the amount of the deposit made. This form allows you to attract additional capital from persons interested in profitable investment of their free funds. The contribution can be made not only in cash, but also in the form of providing premises, vehicles and other means. This form expands the economic base of the partnership and allows it to accumulate funds for large-scale entrepreneurial activities. 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. It is created and operates on the basis of a constituent agreement, which is signed by all general partners.

A limited partnership is liquidated upon the departure of all investors participating in it. However, general partners have the right, instead of liquidation, to transform the limited partnership into a general partnership.

Economical society:

A joint stock company is a company 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 limits of the value of the shares they own.

A joint stock company, from the point of view of an individual entrepreneur, is the optimal form of organizational and legal registration of entrepreneurial activity. It can be created by one person or consist of one person in the event that one shareholder acquires all the shares of the company.

Shareholders have the right to a share of the JSC's income. The portion of the profit paid to the owner of the stock is called a dividend. The part that is not paid as dividends is called retained earnings.

By law, a joint stock company cannot have a business company consisting of one person as its sole participant.

Types of joint stock companies:

• - open (JSC)
• - closed (closed joint-stock company)

Open Joint Stock Company (OJSC)

An open joint stock company is a joint stock company whose participants can freely sell and buy shares of the company without the consent of other shareholders. It can carry out an open subscription for shares it issues, which can be freely traded on the stock market. This implies complete openness of the society and careful control over its activities, therefore it is obliged to publish annually for public information:

• - annual report;
• - balance sheet;
• - profit and loss account;

and annually engage a professional auditor to review and confirm the annual financial statements.

The highest management body in a joint stock company is the general meeting of shareholders. The competence of the general meeting is:

• - change of the company's charter
• - change in the size of the authorized capital
• - approval of annual reports and balance sheets, distribution of profits and losses
• - formation of executive bodies and early termination of their powers
• - decision on reorganization or liquidation of the company
• - election of the audit commission
• - solving other issues

If the number of shareholders exceeds 50 people, then a Board of Directors (Supervisory Board) is created. Its competence is determined by the charter of the joint-stock company.

The executive body of a JSC can be collegial (board, directorate) and/or individual (director, general director). He carries out the current management of the company's activities and is accountable to the Board of Directors and the general meeting of shareholders. OJSC, as well as CJSC, are a fairly popular form of entrepreneurship both in Russia and throughout the world. As a rule, open joint stock companies are large companies.

Closed Joint Stock Company (CJSC)

A closed joint stock company is a company whose shares are distributed only among its founders (among a predetermined circle of persons), when the form of open subscription for shares issued by the company is not used and they cannot be freely sold and bought on the stock market.

A potential buyer cannot simply instruct his broker to purchase a certain number of shares. Initially, the shares of such a company are distributed privately, and shareholders can dispose of them only with the consent of the company. This financial constraint is a major factor determining the size of companies, which tend to be small and medium-sized.

The number of members of a closed joint-stock company cannot exceed 50 (if this number of shareholders is exceeded, the company must transform into an open joint-stock company through re-registration).

A closed joint-stock company is not required by law to disclose information about itself to the extent required from an OJSC; however, it is required to submit an annual report to the Companies Registration Office, which is open to inspection by any member of the public.

At the moment, the majority of small and medium-sized enterprises in Russia are closed joint-stock companies, which makes this form of business the most popular.

Limited Liability Company (LLC)

A company founded by one or more persons, the authorized capital of which is divided into shares, according to the founders of the document (charter of the enterprise). Participants are not liable for obligations and bear the risk of losses within the value of their contributions.

Unlike state and municipal unitary enterprises, the property of which their founders have ownership or other property rights, limited liability companies (as well as other types of business entities, business partnerships and production cooperatives) are characterized by what their participants have in relation to their rights of obligation.

In private economic practice, LLC is the most popular organizational and legal form among commercial organizations.

At the same time, a limited liability company is characterized by the fact that current (operational) management in the company (as opposed to partnerships) is transferred to the executive body, which is appointed by the founders either from among themselves or from among other persons. The participants of the company retain the rights to strategically manage the company, which they exercise by holding periodic general meetings of participants. Unlike joint stock companies, the competence of the general meeting of participants of a limited liability company can be expanded at the discretion of the participants themselves; additional rights may also be granted to individual participants.

Unlike joint stock companies, the profit of a limited liability company can be divided among the company's participants not only in proportion to their shares in the authorized capital of the company, but also in another way in accordance with the Charter of the company (if a different procedure is provided for by the Charter).

Unlike participants in a joint-stock company (shareholders), a participant in a limited liability company can not only sell (or otherwise assign) his share in the authorized capital of the company, but also withdraw from the company, demanding payment of the value of a part of the property corresponding to his share in the authorized capital of the company , if provided for by the Charter of the company. Participants in a limited liability company, as well as the company itself, have a preemptive right to purchase the share of one of the participants if he intends to sell his share to third parties. Also, the company’s charter may provide for a ban on the alienation of participants’ shares to third parties.

Additional liability company (ALC)

A company with additional liability is a company founded by one or more persons; it is in many ways similar to a limited liability company.

Its authorized capital is divided into shares in accordance with certain constituent documents. Participants in a given society can be individual citizens, legal entities, citizens and legal entities, as well as (public organizations). It should be noted that state bodies, as well as local government bodies, do not have the right to act as participants in the company unless otherwise provided by law.

This company can be opened by one person who is its one-time participant. As deposits (shares), participants can make cash, buildings, structures, machines, raw materials, materials, securities, as well as intellectual property in the form of know-how (recipe, technical idea, new technology, etc.). All non-monetary contributions are subject to unanimous approval by the general meeting of the founders of the company.

The only difference is that in an ALC there is additional subsidiary liability for the obligations of the company. Such liability does not apply to the entire property of the participants, but only to its part, which is predetermined by the constituent documents of the company.

If one of the participants goes bankrupt, his additional liability is divided among the others (proportionally or in another order). Therefore, the total amount of additional guarantees to the company’s creditors remains unchanged.

The specificity of an ALC is in the exclusive form of a property obligation of participants for its debts.

Subsidiary Business Company (DSO)

Any business company can be recognized as a subsidiary and dependent company: a joint stock company, a limited or additional liability company. A characteristic feature of subsidiaries and dependent companies is that the main (“parent”) company not only influences their decision-making, but is also responsible for the debts of the subsidiaries.

A business company is recognized as a subsidiary if:

• 1. in its authorized capital the participation of the main company or partnership prevails;
• 2. there is an agreement between them;
• 3. The main company or partnership may determine the decisions taken by this company.

Recognition of a company as a subsidiary had certain consequences for the main company or partnership: it had to be responsible to creditors for the actions of the subsidiary. Thus, when concluding a transaction at the direction of the main company (partnership), the main and subsidiary companies become jointly and severally liable. In case of bankruptcy of a subsidiary due to the fault of the main company (partnership), the latter is liable for the debts of the subsidiary to its creditors subsidiaryly, i.e. only if there is insufficient property of the subsidiary to pay off debts. In this case, the subsidiary is not liable for the debts of the main company (partnership). If a subsidiary company suffers losses due to the fault of the main company (partnership), then it has the right to demand compensation from the main organization, provided that its guilt in these losses is proven.

A business company is recognized as dependent if another (predominant, participating) company has more than twenty percent of the voting shares of a joint-stock company or twenty percent of the authorized capital of a limited liability company. Often dependent companies mutually participate in each other's capital. Such relationships do not give rise to joint or subsidiary liability for debts.

Production cooperative (artel)

A certain place in the system of commercial organizations belongs to the production cooperative (artel). This organizational and legal form of business 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, etc.), based on their personal labor and other participation and association by its members (participants) of property share contributions. The law and constituent documents of a production cooperative may provide for the participation of legal entities in its activities. A production cooperative is a commercial organization.

Such cooperatives bear subsidiary liability for the obligations of the cooperative (as in business partnerships) and carry out their activities on the basis of a charter with the formation of management bodies (similar to business societies). But unlike the latter, the management of a production cooperative is carried out according to the principle of “one person - one vote” and does not depend on the size of its property contribution.

The charter of the cooperative, in addition to generally accepted information, must contain conditions on the amount of share contributions of members of the cooperative; on the composition and procedure for making share contributions by members of the cooperative and their responsibility for violating the obligation to make share contributions; on the nature and procedure for the labor participation of its members in the activities of the cooperative and their responsibility for violating the obligation of personal labor participation; on the procedure for distributing profits and losses of the cooperative; on the amount and conditions of subsidiary liability of its members for the debts of the cooperative; on the composition and competence of the management bodies of the cooperative and the procedure for their decision-making, including on issues on which decisions are made unanimously or by a qualified majority of votes.

The number of members of the cooperative should not be less than fifty.

In foreign countries, these cooperatives have not received such significant development. They are not focused on generating income and profit; their goal is to provide assistance to members of the cooperative and those in need.

State and municipal state enterprises

A state and municipal unitary enterprise is a commercial organization that is not vested with the right of ownership to the property assigned to it by the owner. This property cannot be distributed among deposits, shares, shares, including between employees of the enterprise.

Only state and municipal enterprises could be created in a unitary form. The property with which they are endowed is respectively in state or municipal ownership and belongs to enterprises with the right of economic ownership or operational management. The governing body of a unitary enterprise is a manager appointed by the owner (or a body authorized by the owner). The owner of the property of an enterprise based on the right of economic management is not liable for the obligations of the enterprise. Equally, an enterprise of this type is not liable for the debts of the property owner.

Thus, measures for the economic isolation of unitary enterprises are clearly and strictly defined.

The constituent document of an enterprise based on the right of economic management is its charter, approved by an authorized state body or local government body. The authorized capital is fully paid by the owner before state registration. The size of the authorized capital is 1000 times the minimum wage. The owner resolves the following issues: creation, reorganization and liquidation of the enterprise; determining the subject and goals of its activities: control over the use and safety of property. The owner has the right to receive a portion of the profit.

A unitary enterprise can create a subsidiary unitary enterprise by transferring part of the property to it for economic management.

commercial organization- an organization whose purpose is activity aimed at making a profit.

Types of commercial organizations

According to legal status, commercial enterprises can be divided into:
1) business partnerships and societies
2) production cooperatives
3) state and municipal unitary enterprises.

Business partnerships- represents an association of legal entities who are liable, with the exception of investors, for the obligations of the partnership with all their property. There are no requirements for the formation of authorized capital. In partnerships, affairs are managed by the participants themselves; no management bodies are created.

Business societies- are associations of capital, the participants of the company do not bear responsibility for its obligations, they bear only the risk of losses in relation to the amount of their contribution to the authorized capital, the exception is ALC. The interests of the company's creditors are guaranteed by the organization's property, including the authorized capital (its minimum size is established by law).

Participants of business partnerships and societies have the right:

Receive information and activities of the organization;
- the right to participate in the management of the organization;
- the right to receive dividends or part of the profit;
- the right to receive the remaining property upon liquidation of the organization;
- the right to terminate membership in this organization.

General partnerships- the constituent document is the contract. Only commercial organizations and individual entrepreneurs can be founders. You can be a member of only one general partnership. The name of the organization indicates the organizational and legal form and the name of at least one founder (1st general partner). The founders bear joint liability for the obligations of the partnership with all their property. The partners of the partnership manage together. As a general rule, each of the partners has the right to enter into legal relations with 3 persons on behalf of the partnership (conclude agreements), otherwise may be provided for in the founding agreement, that is, the management of affairs is entrusted to 1 or several partners, and the rest have the right to act under a power of attorney issued by the partners. constituent agreement. General partners have the right to leave the partnership by giving notice no later than 6 months in advance. In this case, he will bear responsibility on an equal basis with the remaining partnerships for obligations arising during the two years preceding his exit. There must be at least 2 founders (participants); if only one general partnership remains, then it must be liquidated or transformed into a business company.

Limited partnerships(faith partnerships) - there may be 2 groups of participants:

1) general partners (the same rules apply to this group as for general partners in general partnerships);
2) investors (can be individuals, legal entities, state bodies and local self-government bodies, unless prohibited by law. The investor has the right to receive dividends and information about the activities of the partnership, he is not responsible and does not participate in the conduct of the affairs of the partnership. CTs exist as long as they have at least one general partner and one investor. If all investors leave, the CT is either liquidated or transformed into a general partnership or business company. The constituent document is a constituent agreement if the name of the investor is indicated in the name, then he is a full comrade.

LLC and ODO (limited liability company and additional liability company)- the founders can be any subjects of Civil Law, they can be one subject, but he cannot be the founder of a business company consisting of one founder. The founders enter into a memorandum of association which defines their rights and obligations. It is also the founding document. If there is only one founder, then he has the right to make decisions on the creation of an organization. The founders of an LLC are not liable for its obligations and bear the risk of losses within the limits of their share in the authorized capital. The minimum authorized capital is 10,000 rubles, 50% must be contributed at the time of registration, the rest within a year.

The authorized capital can be increased:

Due to additional contributions from participants, the decision is made at the general meeting;
- the authorized capital can be increased due to the additional contribution of the participant;
- the increase can occur due to the entry of a 3rd person into the company;
- the increase may occur at the expense of the company’s property, the decision is made by the general meeting with at least 2/3 votes.
There is no redistribution of shares; their nominal value increases.

Decrease in the nominal value of the share;
- the company has the right to buy out shares.

Members of the company have the right:

Leave this company (upon exit, the company is obliged to pay the value of the share in the authorized capital and pay the value of part of the company’s property in proportion to the share of this participant in the authorized capital);

Sell ​​your share in the authorized capital, exchange or donate (as a general rule, alienation of a share is possible by another participant in the company, however, the charter may provide for special conditions. Alienation of a share to 3rd parties is possible if there is no prohibition in the charter. When selling or exchanging a share, you must notify in writing of the members of the company. The remaining members of the company have a pre-emptive right to purchase, given 30 days. If the pre-emptive right to purchase is violated, the participants in court may demand the transfer of the rights and obligations of buyers to themselves. If the remaining members of the company do not take advantage of the pre-emptive right to purchase, this right can be exercised by the company itself. This transaction requires notarization, otherwise it is invalid. The transfer of a share is possible not only on the basis of a transaction, but also due to legal succession (inheritance).

Controls:

The supreme governing body is the general meeting, it can be regular or extraordinary (the grounds for its holding may be provided for by the charter and can be convened on the initiative of: the board of directors, the sole executive body, the audit commission, the auditor of the company, as well as a participant with 10% of the votes. Execution The director is in charge of current activities.

ALC - the rules established for LLCs apply to them, with the exception of the rules on the liability of company participants for its obligations. Participants bear subsidiary (additional) liability for the obligations of the company with all their property in proportion to their share in the authorized capital.

Joint-Stock Company is a commercial organization whose authorized capital is divided into a certain number of shares. The founders of a JSC can be any legal entity; a JSC can consist of one founder, but another business company, also consisting of one founder, cannot be the sole founder. The founders enter into a constituent agreement, which by its nature is an agreement on joint activities. The only constituent document is the charter. Shareholders are not liable for the company's obligations; they bear the risk of losses in the amount of the value of the shares.

Types of Joint Stock Companies:

CJSC (closed joint stock company) - shares are initially distributed among the founders, and subsequently the shareholders can be either the founder or another circle of persons determined by the charter. The maximum number of shareholders is 50. The minimum authorized capital is 10 minimum wages.
OJSC (open joint stock company) - shares of the first issue are distributed only among the founders, and subsequently the shares are freely circulated. The number of shareholders is not limited. The minimum authorized capital is 1000 minimum wages.

The authorized capital after its full payment can be increased:
- by placing additional shares;
- by increasing the nominal value of shares.

The authorized capital may be reduced:
- by reducing the nominal value of shares;
- by reducing the total number of shares.

Shareholders' rights:

As a general rule, a JSC is not obliged to repurchase shares.
If a shareholder did not take part in the voting or voted against:
- making a major transaction;
- decision on reorganization;
- on amendments to the charter;
- approval of the charter in a new edition, if this worsens the rights of shareholders.
On the voting day, a list of shareholders is compiled. Requests for ransom are sent in writing. The deadline for sending demands is 45 days from the date of adoption, by the general meeting, of the decision from the moment the requests for redemption are sent; the shareholder has no right to make transactions with these shares. The JSC is obliged to repurchase the shares within 30 days from the date of approval of the report. Shares are repurchased at the market price.

JSC management bodies:

The supreme governing body is the general meeting; it can be annual or extraordinary. In a joint stock company with more than 50 shareholders, a board of directors or a supervisory board may be created. Current management of activities is carried out by a sole executive body (general director, director, etc.)
The JSC is also required to annually publish a report on financial/economic activities.

Producer cooperatives- members of the PC can be individuals who have reached the age of 16 and who take personal labor participation in the activities of the cooperative. The share of PC members who do not participate in its activities cannot exceed 25%. The property of the PC is divided into shares and a mutual fund is created in the PC. Management is carried out by the general meeting, if there are more than 10 members of the PC, a board is elected, if there are more than 50, a supervisory board can be created. The management of current activities is carried out by the chairman of the board, elected by the general meeting. The profit of the PC is divided by decision of the general meeting depending on personal labor participation, unless otherwise provided by the charter.

State and Municipal Unitary Enterprises- enterprises are endowed with only special legal capacity. The constituent document is the charter. The founders are government bodies of the Russian Federation or its constituent entities or municipalities. The minimum size of the authorized capital for Municipal enterprises is 1000 minimum wages. State enterprises - 5000 minimum wage. The founder appoints the head of the enterprise. The manager is accountable to the founder. Profits are not subject to division. The owner of a property unitary enterprise is the founder. The property is transferred to a unitary enterprise with the right of economic management or to state-owned enterprises with the right of operational management. State-owned enterprises cannot be declared bankrupt, because the founder bears subsidiary liability. The enterprise uses the property transferred under the right of economic management to conduct business activities, but the disposal of real estate property is allowed only with the consent of its owner. The founder who transferred the property to operational management has the right to withdraw it if he considers that the property is being used for other purposes or is not being used effectively.

The variety of forms of ownership is the basis for the creation of various organizational and legal forms of organizations. According to the current Russian legislation, there are various organizational and legal forms of commercial organizations.

Depending on who owns the organization, the form of ownership is determined. The legislation of the Russian Federation provides for the following forms of ownership: private, state, property of public organizations (associations) and mixed.

Private property includes:

a) property of individual citizens, including property of personal subsidiary plots, vehicles and real estate;

b) property of an association of citizens (full partnerships);

c) property of groups of individuals - limited liability partnerships, joint-stock companies (closed and open, property of cooperatives);

d) property of business associations (business companies and partnerships, concerns, holdings, associations, unions, etc.);

e) mixed ownership of citizens and legal entities. State property consists of objects:

a) federal (RF) property;

b) property of constituent entities of the Russian Federation (republics, territories, regions, autonomous districts and the cities of Moscow and St. Petersburg);

c) municipal (districts, districts, prefectures) property.

Mixed ownership is formed as a combination of different forms of ownership. Organizations (companies) with a mixed economy are companies in which the state or any government body is combined with private capital for various reasons, for example, government participation in a private company, activities

which meets state interests, or to control and direct its general policy, etc. The state, participating in such companies, strives not so much to make a profit, but to direct the policy of these organizations. This is where the duality of such a system sometimes lies, since, on the one hand, a situation may arise when board members representing the state help weaken the company’s production and financial responsibility and seek to impose on it the government’s point of view, which does not always help its successful activities. On the other hand, such a company expects to receive various kinds of privileges. To balance these interests, it is necessary that state representatives participate in the economic activities of the company and bear responsibility for its economic performance.

Based on their form of ownership, organizations can be divided into private and public (Fig. 3.3).

Organizations in the private sector of the economy differ depending on whether one or more persons are its owners, on the responsibility for its activities, and on the method of including individual capital in the total capital of the organization. The public sector of the economy is state (federal and federal subjects) and municipal enterprises (this refers not so much to the fact that the state acts as an entrepreneur, but to the fact that state or public enterprises operate on the principles of entrepreneurship).

Business entities

Private sector (entrepreneurial activity of citizens without legal education

business entities and partnerships and societies, cooperatives)

Public sector

(state: federal, constituent entities of the Federation and municipal enterprises)

General Entrepreneurial Principles

Rice. 3.3. Typology of enterprises by type of ownership

An individual entrepreneur (IP) is a capable citizen who independently, at his own risk and under personal individual responsibility, carries out entrepreneurial activities and is registered for these purposes in the prescribed manner.

The individual entrepreneur bears full responsibility for the obligations with all the property belonging to him, with the exception of that which has been foreclosed in accordance with the Civil Code of the Russian Federation. This means that collection of an individual entrepreneur’s debts can also be imposed on his personal property that is not involved in business activities.

State registration as an individual entrepreneur occurs without the formation of a legal entity, but he is a full participant in civil circulation, therefore legal norms governing the activities of commercial organizations apply to him. An individual entrepreneur can, after paying taxes, dispose of the profits at his own discretion. A simplified form of the taxation system is provided for it, which consists of quarterly payment of taxes on the declared

the individual entrepreneur's own income. Personal income of individual entrepreneurs is subject to tax levied in the same way as income tax from citizens.

An individual entrepreneur has the right to create commercial organizations. After registering as a commercial organization, an individual entrepreneur can hire and fire workers. He can invest his capital in other areas of activity, making a profit from it. The number and value of property owned by an individual entrepreneur is not limited by law. Land plots of an enterprise, property complexes, buildings, structures, equipment, securities, etc. may be privately owned. An individual entrepreneur can be a participant in a general partnership, as well as enter into agreements on joint activities (in the form of a simple partnership).

In Russia, individual entrepreneurs have the same rights as legal entities. According to the Law “On Investment Activities in the Russian Federation”, foreign citizens can also engage in entrepreneurship. All investors enjoy equal rights; protection of these rights is guaranteed by the state, regardless of the form of ownership.

An individual entrepreneur is the head of a peasant (farm) enterprise operating without forming a legal entity.

The state registration of a citizen as an individual entrepreneur loses force and his activities are terminated from the moment:

A court decision declaring an individual entrepreneur insolvent (bankrupt);

Receipt by the registering authority of an entrepreneur’s application to cancel his state registration and quality as an entrepreneur and the registration certificate previously issued to him;

Death of a citizen;

Recognition of a citizen by a court decision as incompetent or partially capable (in the absence of the consent of the trustee for the ward citizen to engage in entrepreneurial activity).

An individual entrepreneur who is unable to satisfy the demands of creditors related to the implementation of business activities may be declared insolvent (bankrupt) by a court decision.

Individual entrepreneurship is a priority for people who are able to individually control the decision-making process. The advantage of sole ownership is payment only of income tax, which makes his business more stable and attractive, as well as independence in the distribution of profits. An important advantage of an individual business is its mobility when changing areas of activity.

Commercial organizations are divided into three large categories: organizations uniting individual citizens (individuals); organizations combining capital and state unitary enterprises (Fig. 3.4). The first include business partnerships and production cooperatives. The Civil Code clearly distinguishes between partnerships - associations of persons that require the direct participation of the founders in their activities, and companies - associations of capital that do not require such participation, but involve the creation of special management bodies. Business partnerships can exist in two forms: general partnership and limited partnership.

In a general partnership (LP), all its participants (general partners) are engaged in entrepreneurial activities on behalf of the partnership and bear full financial responsibility for its obligations. Each participant can act on behalf of the partnership, unless the constituent agreement establishes a different procedure. The profits of a general partnership are distributed among the participants, as a rule,

in proportion to their shares in the share capital. For the obligations of a general partnership, its participants bear joint liability with their property.

A limited partnership, or limited partnership (TV or CT), is recognized as a partnership in which, along with general partners, there are also participants-contributors (limited partners) who do not take part in the entrepreneurial activities of the partnership and bear limited financial liability within the limits of the amounts contributed by them deposits. Essentially, TV (CT) is a complicated type of PT.

In a general partnership and limited partnership, shares of property cannot be freely assigned; all full members bear unconditional and joint liability for the organization’s liabilities (responsible with all their property).

Business partnerships (HT), like business companies (CO), are commercial organizations with authorized (share) capital divided into shares (contributions) of founders (participants). Differences between HT and HO appear, in relation to their more specific forms, in the methods of their formation and functioning, in the characteristics of their subjects in terms of the degree of material responsibility of these subjects, etc. In the most general form, all these differences can be interpreted in the context of the relationship between corporate partnerships .

Commercial organizations whose main activity is making a profit (Article 50 of the Civil Code, clause 2)

Business partnerships and societies (Articles 66-68 of the Civil Code)

Production cooperatives (Articles 107-112 of the Civil Code)

State unitary enterprises (Art.

113 GK)

Business partnerships

Business societies

On the right of economic management (Article 114 of the Civil Code)

Full partnership (Article 69-81 of the Civil Code)

Limited partnership

(Article 82-86 Civil Code)

With the right of operational management of an enterprise with additional liability (Article 95 of the Civil Code) Subsidiary unitary enterprise with the right of economic management of a Limited Liability Company (Article 8794 of the Civil Code)

/ Closed JSC

Joint-stock companies (JSC) (Article 96-104 of the Civil Code)

Open JSC Subsidiary Business Company (Article 105 of the Civil Code)

Dependent business company (Article 106 of the Civil Code)

Rice. 3.4. Organizational and legal forms of commercial organizations

A production cooperative (PrK) 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 its association

members (participants) of property shares. The features of the PrK are the priority of production activities and personal labor participation of its members, the division of the property of the PrK into shares of its members (Fig. 3.5).

Cooperatives and organizations with the participation of workers in management and profits, which have spread in a mixed economy, have certain advantages over enterprise-type companies in labor productivity, social climate and labor relations, and income distribution. The introduction of essentially socialist principles of organization into economic activities (participation of workers in management, profits and share ownership) is seen as a means of overcoming the difficulties that entrepreneurial-type organizations constantly face: bureaucratization of management structures in large corporations; weak interest of workers in the success of the company (since their remuneration is still limited by salary); losses from strikes and labor conflicts; high turnover of labor, associated in current conditions with especially high costs due to the growing costs of training workers for specific activities in this particular organization, etc. Cooperative for performing various types of work (mining, solving scientific and technical problems ) Manufacturing (profile - production of goods) 1 Construction and repair (profile - provision of construction and repair services)

Sales (profile - sales of products produced by partners, mainly wholesale trade)

Trade (profile - trade in partner products, mainly retail)

Rice. 3.5. Types of cooperatives

But purely self-managing companies are inferior to entrepreneurial ones in a number of ways: in addition to weak and possibly counter-response to market signals in the short term, they tend to “underinvest”, that is, to eat away their profits; In the long term, they are conservative in risky projects and the introduction of technical innovations.

A joint stock company (JSC) is a company whose authorized capital consists of the nominal value of the company's shares acquired by shareholders and, accordingly, is divided into this number of shares, and its participants (shareholders) bear financial liability within the value of the shares they own (Fig. 3.6). Joint Stock

Companies are divided into open and closed (OJSC and CJSC). Participants in an OJSC can alienate their shares without the consent of other shareholders, and the company itself has the right to conduct an open subscription for issued shares and their free sale. In a closed joint-stock company, shares are distributed by private subscription only among its founders or other predetermined circle of persons, and the number of founders in Russian legislation is limited to 50 persons.

A limited liability company (LLC) is a company whose authorized capital is divided into shares of participants who bear financial liability only to the extent of one hundred

A joint stock company (JSC) is a company whose authorized capital consists of the nominal value of the company's shares acquired by shareholders and, accordingly, is divided into this number of shares, and its participants (shareholders) bear financial liability within the value of the shares they own (Fig. 3.6). Joint-stock companies are divided into open and closed (OJSC and CJSC). Participants in an OJSC can alienate their shares without the consent of other shareholders, and the company itself has the right to conduct an open subscription for issued shares and their free sale. In a closed joint-stock company, shares are distributed by private subscription only among its founders or other predetermined circle of persons, and the number of founders in Russian legislation is limited to 50 persons. Shares are securities, evidence of contribution of a share to the authorized capital, giving the right to vote at the general meeting and the right to receive dividends as part of the profit -? The stock price depends on supply and demand on the stock exchange and the "street market"

A controlling stake belongs to one individual or legal entity, allowing the holder to control the activities of the JSC

Unpacking of shares, exchange of shares for other securities at the initiative of JSC Fig. 3.6. Characteristics of shares

But there is a third, “hybrid” category - a limited liability company and an additional liability company - which simultaneously applies to organizations that unite individuals and organizations that unite capital.

A limited liability company (LLC) is a company whose authorized capital is divided into shares of participants who bear financial liability only to the extent of the value of their contributions. Unlike

partnerships in an LLC, an executive body is created that carries out the current management of its activities.

An additional liability company (ALC) is essentially a type of LLC. Its features: joint subsidiary liability of participants for the obligations of an ALC with their property in the same multiple of the value of their contributions, determined in the constituent documents; In case of bankruptcy of one of the participants of an ALC, division of his responsibility for the obligations of the company between other participants in proportion to their contributions.

State and municipal unitary enterprises (UE) include enterprises that are not vested with the right of ownership to the property assigned to them by the owner. This property is in state (federal or federal subjects) or municipal ownership and is indivisible. There are two types of unitary enterprises (Table 3.1):

Table 3.1

Types of unitary enterprises Unitary enterprise Property Creation Responsibility of the enterprise On the right of economic management In state or municipal ownership By decision of an authorized state (municipal) body The owner is not responsible for the obligations of the enterprise On the right of operational management (federal state enterprise) In state ownership By decision of the Government of the Russian Federation The enterprise is liable for all its obligations with all its property and is not liable for the obligations of the owner. The Government of the Russian Federation bears subsidiary liability for the obligations of a state-owned enterprise: 1) those based on the right of economic management (they have greater economic independence, in many ways they act like ordinary commodity producers, and the owner of the property, as a rule, is not liable for the obligations of such an enterprise);