Federal government enterprises number of participants. A federal government enterprise is established by a decision of the Government of the Russian Federation

The fundamentals of the legal status of state-owned enterprises are established by the norms of the Civil Code of the Russian Federation, Federal Law of November 14, 2002 No. 161FZ “On State and Municipal Unitary Enterprises”1 (hereinafter referred to as the Law on Unitary Enterprises).

A state-owned enterprise is a unitary enterprise based on law operational management. In accordance with this Law, a commercial organization is recognized as unitary if it is not endowed with the right of ownership of property assigned to it by the owner. The property of a state-owned enterprise is indivisible and cannot be distributed among deposits (shares, shares), including among employees of the enterprise. Depending on the owner, a state-owned enterprise can be federal, owned by a constituent entity of the Russian Federation, or be a municipal state-owned enterprise.

In addition to state-owned enterprises, according to the legislation of the Russian Federation, unitary enterprises are created based on the right of economic management.

According to the Law on Unitary Enterprises, a state-owned enterprise does not have the right to create subsidiaries, but it is given the right, in agreement with the owner, to create branches and open representative offices. In accordance with Decree of the Government of the Russian Federation of December 3, 2004 No. 7391, a federal government enterprise must coordinate these issues with the federal executive body under whose jurisdiction it is located. In addition, a state-owned enterprise can be a participant (member) of commercial organizations, as well as non-profit organizations in which legal entities are allowed to participate. The decision on the participation of federal government enterprises in a commercial or non-profit organization is made by federal executive authorities in agreement with Federal agency on management federal property.

A state-owned enterprise has special legal capacity. In relation to state-owned enterprises, the legislation provides for full property liability for their obligations. At the same time, an essential feature of their legal status is the obligation of the owner to bear subsidiary liability for their obligations if the property of the enterprise itself is insufficient. As a result, state-owned enterprises are not subject to insolvency (bankruptcy) legislation.

A state-owned enterprise is established by decision of the Government of the Russian Federation, or an executive body of a constituent entity of the Russian Federation, or an authority local government. The decision defines the goals and subject of activity of the state-owned enterprise. The Law on Unitary Enterprises provides an exhaustive list of cases of creating enterprises of this type:
if the predominant or significant part of the products produced, work performed or services provided is intended for federal state needs, the needs of a constituent entity of the Russian Federation or a municipal entity;
- if it is necessary to use property, the privatization of which is prohibited, including property necessary to ensure the security of the Russian Federation, the functioning of air, rail and water transport, and the implementation of other strategic interests of the Russian Federation;
if necessary, carry out activities for the production of goods, provision of services sold at prices established by the state in order to solve social problems;
if necessary, the development and production of certain types of products withdrawn from circulation and limited circulation;
if necessary, carry out certain subsidized types of activities and conduct unprofitable production;
if necessary, to carry out the activities provided for federal laws exclusively for state-owned enterprises.

The constituent document of a state-owned enterprise is its charter, approved by the authorized government agency or local government authority. The charter of a federal government enterprise is approved by the Government of the Russian Federation. The content of the charter and the procedure for amending it are determined in Art. 9 of the Law on Unitary Enterprises. State registration of a state-owned enterprise is carried out in accordance with the Registration Law. It should be noted that in state-owned enterprises an authorized capital is not created.

The peculiarities of the legal status of a state-owned enterprise are largely determined by the legal regime of its property, which, as already noted, is assigned to the enterprise with the right of operational management1. It is also important to note that the Law on Unitary Enterprises provides for a special procedure for the distribution of enterprise income, which must be determined by the Decree of the Government of the Russian Federation, authorized bodies state power subjects of the Russian Federation or local governments.

The legislation provides the owner of the property of a state-owned enterprise with broad powers, the list of which is given in Art. 20 of the Law on Unitary Enterprises. Let's name some of them:
making decisions on the creation of an enterprise, reorganization and liquidation, approval of the charter;
determining the goals, subject, types of activities of the enterprise, giving consent to its participation in other legal entities, in associations of commercial organizations;
determining the procedure for drawing up, approving and establishing indicators of plans (programs) for the financial and economic activities of the enterprise;
appointment to the position of the head of the enterprise, conclusion of an employment contract with him;
coordinating the hiring of a chief accountant and concluding an employment contract with him;
giving consent to the disposal of property, including transactions related to the provision of loans, guarantees, guarantees, with other encumbrances, assignment of claims, transfer of debt, conclusion of a simple partnership agreement, to carry out major transactions, as well as transactions in which there is a interest, and other transactions;
exercising control over the intended use and safety of property;
approval of indicators economic efficiency activities of the enterprise, monitoring their implementation;
approval of accounting and other reporting, making decisions on conducting audits, determining the amount of payment for auditor services;
confiscation of excess, unused and improperly used property from a state-owned enterprise;
bringing to the government enterprise mandatory orders for the supply of goods, performance of work, provision of services for state or municipal needs;
approval of estimates of income and expenses.

The implementation of these powers of the owner of a federal government enterprise is carried out by the federal executive body in charge of which the enterprise is located, the Federal Agency for Federal Property Management. The division of powers between these bodies is carried out by Decree of the Government of the Russian Federation of December 3, 2004 No. 739.

Liquidation and reorganization of federal state-owned enterprises included in the list strategic enterprises and strategic joint stock companies, approved by Presidential Decree Russian Federation dated August 4, 2004 No. 1009, are carried out by the Government of the Russian Federation on the basis of a decision of the President of the Russian Federation.

The sole executive body of a state-owned enterprise is its director, appointed by the owner and accountable to him. The manager must act in the interests of the enterprise, in good faith and wisely. Legal status the head of the enterprise is determined by Art. 21 of the Law on Unitary Enterprises and labor legislation. It must be emphasized that the head of the enterprise is responsible for losses caused to the state-owned enterprise by his guilty actions (inaction). The owner of the enterprise may sue him for compensation for such losses. In cases provided for by federal laws, collegial advisory bodies may be formed at state-owned enterprises.

The peculiarities of the legal status of a state-owned enterprise should also include publicity financial statements, its presentation to authorized bodies, the possibility of the owner establishing cases of mandatory annual audit.

The civil legal status of unitary enterprises is determined by the Civil Code (§ 4 Chapter 4, Art. 113-115), Federal Law of November 14, 2002 No. 161-FZ “On State and Municipal Enterprises” (hereinafter referred to as the Federal Law on Enterprises), and others federal laws and by-laws.

The Civil Code (Article 113) enshrines the following main distinctive features unitary enterprise.

A unitary enterprise is a commercial legal entity.
Property assigned to a unitary enterprise does not belong to it by right of ownership.
The property of a unitary enterprise is indivisible and cannot be distributed among contributions (shares, shares), including among employees of the enterprise.
The constituent document of a unitary enterprise is the charter.
The body of a unitary enterprise is the manager, who is appointed by the owner or a body authorized by the owner and is accountable to him.
Unitary enterprises, unlike other organizational and legal forms of commercial organizations, have special legal capacity.

A unitary enterprise is a commercial legal entity. This allows the legal regime of commercial organizations (entrepreneurs) to be extended to unitary enterprises both in civil relations (increased risk, liability regardless of fault, application of bankruptcy procedures, etc.) and in tax relations (income tax, value added tax, property, etc.). At the same time, making a profit is not really the main goal of a unitary enterprise. Already at its creation, it may be assumed that it is impossible to make a profit (the need to carry out activities in order to solve social problems (including the sale of certain goods and services at minimum prices), as well as to organize and conduct procurement and commodity interventions to ensure the food security of the state, etc. .). This especially applies to state-owned enterprises.

Property assigned to a unitary enterprise does not belong to it by right of ownership. A unitary enterprise owns, uses and disposes of state or municipal property assigned to it under a limited property right (economic management or operational management - Article 294-300 of the Civil Code). This means that in the process of entrepreneurial activity the enterprise does not risk its own property, thereby only partially carrying out it at its own risk (working capital and finished products). This fundamental difference between an enterprise and other commercial legal entities also predetermines many particular features of the legal status of an enterprise in economic turnover: a general limitation of its civil legal personality (Article 3 of the Federal Law on Enterprises), general limits for the disposal of assigned property by an enterprise (Article 18 of the Federal Law on Enterprises), special prohibitions on carrying out specific transactions for the disposal of this property (Article 6 of the Federal Law on Enterprises), special restrictions on carrying out certain types of transactions (Articles 6, 18, 22-24 of the Federal Law on Enterprises). The owner retains powers in relation to the property of the unitary enterprise: formation, increase and decrease of it authorized capital(Articles 13-15 of the Federal Law on Enterprises), approval of transactions (Articles 6, 18, 22-24 of the Federal Law on Enterprises), withdrawal of part of the profit (Article 17 of the Federal Law on Enterprises). In addition, the owner, in accordance with Art. 20 of the Federal Law on Enterprises controls the use and safety of property owned by the enterprise.

The property of a unitary enterprise is indivisible. The indivisibility of the property of a unitary enterprise means, firstly, the inadmissibility of distributing property according to contributions (shares, shares) between the founders. In other words, a unitary enterprise can have only one founder. Secondly, the law imposes a ban on the distribution of an enterprise’s property, and primarily the authorized capital, between its employees. Wage-earners of a unitary enterprise not only cannot be part of the founders, but are generally excluded from the process of managing its property, including its distribution based on the results of the work of the unitary enterprise. Such decisions are made only by the owner and management bodies of the unitary enterprise.

Unitary enterprises can only be created on the basis of state or municipal property, which means that granting such enterprises limited real rights is one of the ways to exercise public property rights. Therefore, their founders can only be the Russian Federation, a subject of the Federation or a municipal entity. The possibility of applying in some cases the rules on unitary enterprises to other organizational and legal forms of entrepreneurial activity should not be regarded as an exception to this rule.

Types of unitary enterprises. The Civil Code (Articles 113-115) distinguishes between two types of unitary enterprises: those based on the right of economic management and those based on the right of operational management (state-owned enterprises). In accordance with Part 2 of Art. 2 of the Federal Law on enterprises in the Russian Federation, the following types of unitary enterprises are created and operate:

unitary enterprises based on the right of economic management - a federal state enterprise and a state enterprise of a constituent entity of the Russian Federation, municipal enterprise;
unitary enterprises based on the right of operational management - a federal government enterprise, a government enterprise of a subject of the Federation, a municipal government enterprise.

Organizational unity. The constituent document of a unitary enterprise is its charter.

The Charter is approved by authorized state bodies of the Russian Federation, state bodies of a constituent entity of the Federation or local government bodies.

The charter of a unitary enterprise must contain:

full and abbreviated corporate names of the unitary enterprise; indication of the location of the unitary enterprise; goals, subject, types of activities of a unitary enterprise;
information about the body or bodies exercising the powers of the owner of the property of the unitary enterprise;
name of the unitary enterprise body (manager, director, general director);
the procedure for appointing a head of a unitary enterprise, as well as the procedure for concluding, amending and terminating an employment contract with him in accordance with labor legislation and other regulatory legal acts containing labor law norms;
a list of funds created by a unitary enterprise, the size, procedure for the formation and use of these funds;
other information provided for by the Federal Law on enterprises.

In addition to the above information, the charter, in particular, must contain information about the size of its authorized capital, the procedure and sources of its formation, as well as the directions for using profits.

The charter of a state-owned enterprise must contain information about the procedure for the distribution and use of income of a state-owned enterprise.

Changes to the charter of a unitary enterprise are made by decision of a state body of the Russian Federation, a state body of a constituent entity of the Russian Federation or a local government body authorized to approve the charter of a unitary enterprise.

Changes to the charter of a unitary enterprise are made in the manner determined by the Government of the Russian Federation or a local government body.

Changes made to the charter of a unitary enterprise or the charter of a unitary enterprise in new edition, are subject to state registration in the prescribed manner (Article 10 of the Federal Law on the enterprise).

Changes made to the charter of a unitary enterprise or the charter of a unitary enterprise in a new edition become valid for third parties from the moment of their state registration, and in cases established by the Federal Law on enterprises, from the moment of notification of the body carrying out state registration of legal entities.

Bodies of a unitary enterprise. The management of the activities of a unitary enterprise is carried out by its sole manager - director ( general director). The head of a unitary enterprise is appointed by the owner of the property of the unitary enterprise. The head of a unitary enterprise is accountable to the owner of the property of the unitary enterprise.

The head of a unitary enterprise acts on behalf of the unitary enterprise without a power of attorney, including representing its interests, makes transactions on behalf of the unitary enterprise in the prescribed manner, approves the structure and staff of the unitary enterprise, hires employees of such an enterprise, enters into contracts with them, changes and terminates employment contracts, issues orders, issues powers of attorney in the manner prescribed by law.

The head of a unitary enterprise organizes the implementation of decisions of the owner of the property of the unitary enterprise.

The head of a unitary enterprise does not have the right to be a founder (participant) legal entity, hold positions and engage in other paid activities in state bodies, local governments, commercial and non-profit organizations, except teaching, scientific and other creative activity, engage in entrepreneurial activity, be the sole executive body or a member of the collegial executive body of a commercial organization, except in cases where participation in the bodies of a commercial organization is included in job responsibilities this leader, as well as take part in strikes.

The head of a unitary enterprise is subject to certification in the manner established by the owner of the property of the unitary enterprise.

The head of a unitary enterprise reports on the activities of the enterprise in the manner and within the time frame determined by the owner of the property of the unitary enterprise.

In cases provided for by federal laws and legal acts issued in accordance with them, advisory bodies (scientists, pedagogical, scientific, scientific and technical councils and others) may be formed in a unitary enterprise. The charter of a unitary enterprise must determine the structure of such bodies, their composition and competence.

Legal capacity of a unitary enterprise. A unitary enterprise may, on its own behalf, acquire and carry out property and personal moral rights, bear responsibilities, be a plaintiff and a defendant in court. A unitary enterprise is a legal entity, and therefore a legal subject of civil circulation: in accordance with Art. 48 of the Civil Code, it can, on its own behalf, acquire and exercise property and personal non-property rights, bear obligations, and be a plaintiff and defendant in court.

One of the differences between a unitary enterprise and all other legal entities pursuing profit as the main goal of their activities (commercial organizations) is the special legal capacity directly provided for by law for a given organizational and legal form, no matter what field of business its activities relate to. This is the fundamental difference between a unitary enterprise and all those commercial legal entities whose special legal capacity is secured by their constituent documents. Transactions of a unitary enterprise made in violation of special legal capacity, the content of which is indicated by its charter, are void, while extra-statutory transactions of other commercial legal entities are contestable.

The principle of special (target) legal capacity of a unitary enterprise means, firstly, that a legal entity was created to achieve certain goals and has the right to engage only in certain types of activities; and secondly, that it does not have the right to take actions that deprive it of the opportunity to engage in the activities for which this legal entity was created. Endowing state legal entities with special legal capacity contributes to the solution of those economic tasks for which they are established and prevents improper and uncontrolled use of state (municipal) property.

Boundaries of legal capacity of a unitary enterprise. The law establishes two important general restrictions on the legal capacity of a unitary enterprise. Firstly, unitary enterprises do not have the right to enter into transactions that contradict the goals and subject of their activities, as defined by the charter of the enterprise. Such transactions are void on the basis of Art. 1681. Secondly, a unitary enterprise based on the right of economic management has the right to dispose of the property belonging to it only within the limits that do not deprive it of the opportunity to carry out statutory activities after the transaction. This applies to both real estate and movable property (Article 18 of the Federal Law on Enterprises). In cases where the actions of an enterprise (including those carried out in accordance with the requirements of paragraph 2 of Article 295 of the Civil Code of the Russian Federation) to alienate or provide for long-term use to other persons movable and immovable property assigned to the enterprise under the right of economic management, directly involved in production process of the enterprise, lead to the impossibility of using the owner’s property for its intended purpose, the corresponding transactions are invalid on the grounds provided for in Art. 168 of the Civil Code, regardless of whether they were committed with the consent of the owner (the body authorized by him).

A unitary enterprise does not have the right to create another unitary enterprise as a legal entity by transferring part of its property to it (a subsidiary). This prohibition is due to the fact that the creation of subsidiaries led to the redistribution of assets of the unitary enterprise.

A unitary enterprise can carry out certain types of activities, the list of which is determined by Federal Law, only on the basis of a license. Licensed activities include types of activities, the implementation of which may entail damage to the rights, legitimate interests, health of citizens, defense and security of the state, cultural heritage peoples of the Russian Federation and whose regulation cannot be carried out by methods other than licensing (Article 4 of the Federal Law of August 8, 2001 “On licensing of certain types of activities”). The right to engage in such activities (and not the opportunity to have rights and obligations associated with such activities) arises after receiving a license - a special permit to carry out a specific type of activity. The list of types of such activities can only be established by law. It is given in the Federal Law “On Licensing of Certain Types of Activities” (Article 17). In pursuance of this Law, the Government of the Russian Federation approved special provisions on licensing specific types activities, the federal bodies that carry out licensing are identified, as well as the types of activities the licensing of which is carried out by the executive authorities of the constituent entities of the Federation.

A unitary enterprise is obliged to notify the tax inspectorate about permission to engage in a licensed type of activity (obtaining a license) (clause 3 of Article 84 of the Tax Code of the Russian Federation). If the licensed activity is the main one for the enterprise, a copy of the license must be submitted to the servicing bank at the place where the current account was opened.

Property isolation. The property of a unitary enterprise is formed at the expense of property assigned to the unitary enterprise on the right of economic management or on the right of operational management by the owner of this property; income of a unitary enterprise from its activities; other sources that do not contradict the law.

The specifics of exercising the right of economic management and the right of operational management in relation to real estate located outside the Russian Federation and which is federal property, as well as securities, shares, shares in legal entities located outside the Russian Federation, are established by the Government of the Russian Federation.

When the ownership of a state or municipal enterprise as a property complex is transferred to another owner of state or municipal property, such an enterprise retains the right of economic management or the right of operational management of the property belonging to it.

The right to property assigned to a unitary enterprise on the right of economic management or on the right of operational management by the owner of this property arises from the moment of transfer of such property to the unitary enterprise, unless otherwise provided by federal law or established by the owner’s decision to transfer the property to the unitary enterprise. Consolidation of the right of economic management is accompanied by the transfer of property and its acceptance onto the balance sheet of a unitary enterprise. Moreover we're talking about about the independent balance sheet of the person who actually uses this property in his financial and economic activities, and not a consolidated or some other balance sheet that performs purely accounting functions.

Of particular importance in the composition of the property is the authorized capital of a unitary enterprise. The authorized capital of a state or municipal enterprise determines the minimum amount of its property, which guarantees the interests of the creditors of such an enterprise.

The authorized capital of a state or municipal enterprise can be formed from money, as well as valuable papers, other things, property rights and other rights that have a monetary value.

The size of the authorized capital of a state or municipal enterprise is determined in rubles.

The size of the authorized capital of a state enterprise must be no less than 5 thousand. minimum sizes wages established by federal law on the date of state registration of a state-owned enterprise.

The size of the authorized capital of a municipal enterprise must be no less than 1 thousand minimum wages established by federal law on the date of state registration of the municipal enterprise.

Federal laws or other regulatory legal acts may determine the types of property at the expense of which the authorized capital of a state or municipal enterprise cannot be formed.

In a state-owned enterprise, an authorized capital is not formed.

The authorized capital of a state or municipal enterprise must be fully formed by the owner of its property within three months from the date of state registration of such an enterprise.

The authorized capital is considered formed from the moment the corresponding amounts of money are credited to a bank account opened for these purposes and (or) transfer in the prescribed manner to a state or municipal enterprise of other property assigned to it on the basis of the right of economic management (other property assigned to state or municipal enterprises on right of economic management) in full.

Independent property liability. A unitary enterprise, having civil legal capacity, also bears independent property liability for its obligations with all the property belonging to it (Article 7 of the Federal Law on Enterprises). This is due to the fact that the organizational and legal form of a commercial legal entity serves the purpose of limiting the property risks of its founder (founders) by the size of the property transferred to such a legal entity (assigned to it).

The obligations of a unitary enterprise are obligations in which it acts as one of the parties - as a creditor or as a debtor. Some obligations (rights and obligations) are acquired by him independently on his own behalf (actions of the bodies of a unitary enterprise), others - by persons acting on his behalf within the framework of the authority enshrined in a power of attorney (head of a branch or representative office), others - by persons assigning obligations to him by force of law (responsibility for the actions of employees).

A unitary enterprise is liable for its obligations with all its property. Both unitary enterprises based on the right of economic management and unitary enterprises based on the right of operational management bear full property liability for their obligations.

The main object that is subject to foreclosure according to the claims of creditors of a unitary enterprise is its funds in the bank account and in the cash register of the enterprise.

In accordance with Art. 94 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings” in the event that the debtor-organization does not have Money sufficient to repay the debt, the foreclosure is applied to other property belonging to him by right of ownership, right of economic management or right of operational management (with the exception of property withdrawn from circulation or limited in circulation), regardless of where and in whose actual use it is located.

A unitary enterprise is not liable for the obligations of the owner of its property (the Russian Federation, a subject of the Federation, a municipal entity). The principle of independent property liability means the separate liability of a unitary enterprise and its founder. Because of this, a unitary enterprise is not liable for the obligations of the owner of its property (the Russian Federation, a subject of the Federation, a municipal entity), and the owner of a unitary enterprise, accordingly, is not liable for the obligations of the enterprise.

The Russian Federation, a subject of the Federation, or a municipal entity are not liable for the obligations of a state or municipal enterprise, except in cases where the insolvency (bankruptcy) of such an enterprise is caused by the owner of its property. In these cases, if the property of a state or municipal enterprise is insufficient, the owner may be assigned subsidiary liability for its obligations. The Russian Federation, constituent entities of the Federation or municipalities bear subsidiary liability for the obligations of their state-owned enterprises if their property is insufficient.

Brand name and other means of identification. The individualization of a unitary enterprise is associated with its recognition as a subject of law (legal entity). It is ensured using a certain set of legal methods that provide all other persons with the opportunity to identify a legal entity and the results of its activities. These include methods of individualization of a legal personality - company name, commercial designation, location, emblem; methods of individualizing the results of a legal entity’s activities - trademark, service mark, appellation of origin of goods; ways to individualize the document flow of a legal entity - seals, stamps, forms.

A company name is the most important means of individualizing a unitary enterprise in civil circulation. In accordance with Art. 54 of the Civil Code, a legal entity has its own name, which contains an indication of its organizational and legal form. A legal entity that is commercial organization, must have a company name (clause 4 of article 54 of the Civil Code). The name of the legal entity must be indicated in its constituent documents (clause 3 of Article 54 of the Civil Code). In accordance with these requirements, a unitary enterprise must have a corporate name, and this name must be indicated in its charter.

The full corporate name is fixed in the charter of the unitary enterprise (Article 9 of the Federal Law on Enterprises) and is recorded on the round seal of the unitary enterprise, on stamps and document forms (Article 2 of the Federal Law on Enterprises). Every unitary enterprise is required to have one. On the contrary, an abbreviated company name is assigned to the enterprise and fixed in the charter at the discretion of the founder. But if the enterprise has it, then regulations determine General requirements to use this variant of the name (Articles 2 and 9 of the Federal Law on Enterprises).

Brand name regulations according to accounting, it does not apply to the intangible assets of a unitary enterprise (see Order of the Ministry of Finance of the Russian Federation dated December 27, 2007 No. 153n “On approval of the Accounting Regulations “Accounting for Intangible Assets” PBU 14/2007”). The company owns exclusive right using your company name as a means of individualization, including by indicating it on signs, forms, invoices and other documentation, in announcements and advertising, on goods or their packaging. Disposal of the exclusive right to a company name (including by alienating it or granting another person the right to use the company name) is not allowed (Article 1474 of the Civil Code).

The location of the enterprise is important both for its individualization and for a number of legal relations in which a unitary enterprise participates. So, for example, the location of the creditor is associated with the place of fulfillment of the monetary obligation (Article 316 of the Civil Code), and the location of the defendant is associated with the jurisdiction of the claimed claim (Article 28 of the Code of Civil Procedure, Article 35 of the Arbitration Procedure Code). Tax legislation links the location of the legal entity with the place of registration of the unitary enterprise with the tax authorities (clause 1 of Article 83 of the Tax Code of the Russian Federation).

A unitary enterprise must have a round seal containing its full corporate name in Russian and an indication of the location of the unitary enterprise. The seal of a unitary enterprise may also contain its corporate name in the languages of the peoples of the Russian Federation and (or) foreign language. A unitary enterprise has the right to have stamps and forms with its corporate name, its own emblem, as well as a duly registered trademark and other means of individualization.

The location (address) of a unitary enterprise is determined taking into account the rules of its state registration. Its address must be located within the jurisdiction of the registration authority (within its territorial competence) and coincide with the address (location) of the permanent executive body (director) of the unitary enterprise. The address (location) of the permanent executive body (director) must be indicated in the application for state registration of a unitary enterprise (Resolution of the Government of the Russian Federation of June 19, 2002 No. 439 “On approval of document forms used for state registration of legal entities and requirements for their registration"). The location of a unitary enterprise is also indicated in its charter (Articles 52, 113 of the Civil Code). Thus, the location of a unitary enterprise is not identical to the place of its registration, but is determined by it.

The location (postal address) of a unitary enterprise must be determined taking into account real estate legislation: it cannot be located in residential premises, in the case of using someone else’s real estate(not owned by the owner of the enterprise’s property), the location of the enterprise must be agreed with the owner and determined by the registered right to someone else’s property.

Features of establishment, reorganization and liquidation. The civil legal capacity (the ability to have civil rights and obligations) of a unitary enterprise arises, like that of any other legal entity, at the time of its creation (clause 3 of Article 49 of the Civil Code). A unitary enterprise is considered created as a legal entity from the date of making the corresponding entry in the Unified State Register of Legal Entities with the features established by Art. 10 Federal Law on enterprises. Unitary enterprises are usually created without any specific time limit.

The founder of a unitary enterprise can be the Russian Federation, a subject of the Russian Federation or a municipal entity.

The decision to establish a federal state enterprise is made by the Government of the Russian Federation or federal executive authorities in accordance with acts defining the competence of such bodies.

The decision to establish a federal state enterprise is made by the Government of the Russian Federation.

The decision to establish a state enterprise of a constituent entity of the Russian Federation or a municipal enterprise is made by the authorized government body of a constituent entity of the Russian Federation or a local government body in accordance with acts defining the competence of such bodies.

A federal government enterprise is established by a decision of the Government of the Russian Federation. A state-owned enterprise of a subject of the Federation is established by a decision of the state authority of the subject of the Federation, which, in accordance with the acts defining the status of this body, is granted the right to make such a decision.

A municipal government enterprise is established by a decision of a local government body, which, in accordance with the acts defining the status of this body, is granted the right to make such a decision.

A state or municipal enterprise can be created in the following cases:

the need to use property the privatization of which is prohibited, including property that is necessary to ensure the security of the Russian Federation;
the need to carry out activities in order to solve social problems (including the sale of certain goods and services at minimum prices), as well as to organize and conduct procurement and commodity interventions to ensure the food security of the state;
the need to carry out activities provided for by federal laws exclusively for state unitary enterprises;
the need to carry out scientific and scientific-technical activities in sectors related to ensuring the security of the Russian Federation;
the need to develop and manufacture certain types of products that are in the sphere of interests of the Russian Federation and ensure the security of the Russian Federation;
the need to produce certain types of products that are withdrawn from circulation or have limited circulation.

A government enterprise can be created in the following cases:

if its creation is provided for by federal laws or international treaties Russian Federation;
if the predominant or significant part of the products produced, work performed, services provided is intended for federal state needs, the needs of a constituent entity of the Russian Federation or a municipal entity;
the need to use property, the privatization of which is prohibited, including property necessary to ensure the security of the Russian Federation, the functioning of air, rail and water transport, and the implementation of other strategic interests of the Russian Federation;
the need to carry out activities for the production of goods, performance of work, provision of services sold at prices established by the state in order to solve social problems;
the need to develop and produce certain types of products that ensure the security of the Russian Federation;
the need to produce certain types of products that are withdrawn from circulation or have limited circulation;
the need to carry out certain subsidized activities and conduct unprofitable production;
the need to carry out activities provided for by federal laws exclusively for state-owned enterprises.

The decision to establish a unitary enterprise must determine the goals and subject of the unitary enterprise’s activities.

The procedure for determining the composition of property assigned to a unitary enterprise on the right of economic management or on the right of operational management, as well as the procedure for approving the charter of a unitary enterprise and concluding a contract with its director, is established by the Government of the Russian Federation, authorized government bodies of the constituent entities of the Federation or local government bodies.

Reorganization of a unitary enterprise can be carried out in the form of:

mergers of two or more unitary enterprises;
joining one or more unitary enterprises to a unitary enterprise;
dividing a unitary enterprise into two or more unitary enterprises;
separation from a unitary enterprise of one or more unitary enterprises;
transformation of a unitary enterprise into a legal entity of a different organizational and legal form in the cases provided for by this Federal Law or other federal laws.

Unitary enterprises can be reorganized in the form of merger or accession if their property belongs to the same owner.

A change in the type of a unitary enterprise, as well as a change in the legal status of a unitary enterprise due to the transfer of ownership of its property to another owner of state or municipal property (the Russian Federation, a constituent entity of the Russian Federation or municipality).

In the event of a change in the type of a unitary enterprise, as well as the transfer of the property of a unitary enterprise to another owner of state or municipal property (the Russian Federation, a constituent entity of the Russian Federation or a municipal entity), appropriate changes are made to the charter of the unitary enterprise.

The transfer of property is considered to have taken place from the moment of state registration of the changes made to the charter of the unitary enterprise.

Unless otherwise provided by Federal Law, the property of unitary enterprises that arose as a result of reorganization in the form of division or separation belongs to the same owner as the property of the reorganized unitary enterprise.

When a state-owned enterprise is transformed into a state or municipal enterprise, the owner of the property of the state-owned enterprise bears subsidiary liability for six months for the obligations transferred to the state or municipal enterprise.

A unitary enterprise is considered reorganized, with the exception of cases of reorganization in the form of merger, from the moment of state registration of newly emerged legal entities.

When reorganizing a unitary enterprise in the form of merging another unitary enterprise with it, the first of them is considered reorganized from the moment an entry on the termination of the affiliated unitary enterprise is made in the Unified State Register of Legal Entities.

A unitary enterprise, no later than 30 days from the date of making a decision on reorganization, is obliged to notify in writing about this all creditors of the unitary enterprise known to it, and also place a message about such a decision in the press, which publishes data on state registration of legal entities. In this case, the creditors of the unitary enterprise, within 30 days from the date of sending them a notification or within 30 days from the date of publication of a message about such a decision, have the right to demand in writing the termination or early fulfillment of the relevant obligations of the unitary enterprise and compensation for losses.

State registration of unitary enterprises newly emerged as a result of reorganization, making a record of the termination of unitary enterprises, as well as state registration of changes and additions made to the charter are carried out in the manner established by the Federal Law on State Registration of Legal Entities, only upon presentation of evidence of notification of creditors in the manner established clause 7 art. 29 Federal Law on enterprises.

If the separation balance sheet does not make it possible to determine the legal successor of the reorganized unitary enterprise, the newly emerged unitary enterprises bear joint liability for the obligations of the reorganized unitary enterprise to its creditors in proportion to the share of the property (rights) of the reorganized unitary enterprise transferred to them, determined in value terms.

The procedure for liquidating a unitary enterprise is determined by the Civil Code, the Federal Law on Enterprises and other regulatory legal acts.

A unitary enterprise can be liquidated by decision of the owner of its property.

A unitary enterprise may also be liquidated by a court decision on the grounds and in the manner established by the Civil Code and other federal laws.

Liquidation of a unitary enterprise entails its termination without transfer of rights and obligations by way of succession to other persons.

If a decision is made to liquidate a unitary enterprise, the owner of its property appoints a liquidation commission.

From the moment the liquidation commission is appointed, the powers to manage the affairs of the unitary enterprise are transferred to it. The liquidation commission acts in court on behalf of the liquidated unitary enterprise.

If, during the liquidation of a state or municipal enterprise, it is established that it is unable to satisfy the demands of creditors in full, the head of such an enterprise or the liquidation commission must apply to the arbitration court with an application to declare the state or municipal enterprise bankrupt.

according to the civil legislation of the Russian Federation, a unitary enterprise based on the right of operational management. According to Art. 115 of the Civil Code of the Russian Federation in cases provided by law on state and municipal unitary enterprises, by decision of the Government of the Russian Federation, on the basis of property in federal ownership, a unitary enterprise based on the right of operational management (federal unitary enterprise) can be formed. The founding document of a corporate enterprise is its charter, approved by the Government of the Russian Federation. The Russian Federation bears subsidiary liability for the obligations of the enterprise if its property is insufficient. K. p. can be reorganized or liquidated by decision of the Government of the Russian Federation.

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STATE ENTERPRISE

in accordance with the civil legislation of the Russian Federation, it is a unitary enterprise based on the right of operational management.

According to Art. 115 of the Civil Code of the Russian Federation, in cases provided for by the law on state and municipal unitary enterprises, by decision of the Government of the Russian Federation, on the basis of property in federal ownership, a unitary enterprise based on the right of operational management (federal K.p.) can be formed. The founding document of K.p. is its charter, approved by the Government of the Russian Federation. Brand name K.p. must contain an indication that the enterprise is state-owned. The Russian Federation bears subsidiary liability for the obligations of K.p. if his property is insufficient. K.p. may be reorganized or liquidated by decision of the Government of the Russian Federation. See t.zh. UNITARY ENTERPRISE.

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A unitary enterprise is a state or municipal enterprise that is a commercial organization that is not vested with the right of ownership of the property assigned to it (the property is indivisible and cannot be distributed among deposits). The owner of the property of such an enterprise is a society (state) represented by the Government of the Russian Federation or the government of a constituent entity of the Russian Federation or a self-government body represented by a municipality. There are two subforms of unitary enterprises:

· on the right of economic management;

· with the right of operational management (federal government enterprise).

The property of a unitary enterprise, with the right of economic management, is in state or municipal ownership. It is created by decision of the authorized state (municipal) body.

The owner is not responsible for the obligations of such an enterprise. The enterprise is liable for its obligations with all its property and is not liable for the obligations of the owner.

Such a unitary enterprise owns, uses and disposes (by agreement with the owner) of property, and can create a subsidiary unitary enterprise by transferring part of its property to it for economic management.

The owner of such an enterprise has the right to receive part of the profit of a unitary enterprise, resolves issues of creation, reorganization and liquidation of the enterprise, determines the subject of its activities, control over the use and safety of property.

The authorized capital of such a unitary enterprise is fully paid by the owner before state registration. The size of the authorized capital of a unitary enterprise is regulated by law. If the net asset value at the end of the financial year smaller size authorized capital, then the authorized body is obliged to reduce the authorized capital, of which creditors are notified.

The property of a unitary enterprise, with the right of operational management, is in the state ownership of the Russian Federation. Such an enterprise is created by the Government of the Russian Federation. The Government of the Russian Federation bears subsidiary (additional) liability for the obligations of such an enterprise (it is called a federal government enterprise).

A unitary state-owned enterprise, based on the right of operational management, independently only owns and uses property in accordance with the goals of its activities and the tasks of the owner. It can dispose of property only with the consent of the owner (the Government of the Russian Federation). The owner has the right to withdraw equipment from such a unitary enterprise that is unnecessary or not used for its intended purpose.

The state-owned enterprise independently sells its products.

The procedure for distributing income of a state-owned enterprise is determined by the owner of its property.

It is extremely important to distinguish the term “enterprise” from the term “institution”. An enterprise is, as a rule, an organization that conducts entrepreneurial activity for the purpose of generating income. Institution is an organization that, as a rule, carries out social functions (government agency, educational, health functions, cultural, etc.).

Institutions do not have the right to dispose of property assigned to it, acquired using funds allocated to it according to estimates by the owner (in our case, the state or municipality). If, in accordance with the constituent documents, the institution is granted the right to carry out income-generating activities, then the income received from such activities and the property acquired from these incomes comes to the independent disposal of the institution and is accounted for as a separate balance sheet.

State and municipal property is in the institution with the right of operational management.

When the ownership of a state and municipal enterprise is transferred to another person, the rights of economic management and operational management are retained.

A federal government enterprise can be created if one of the following conditions is met:

if the activities carried out by him are permitted by federal laws exclusively for state enterprises;

if the predominant or significant part of the products produced by the enterprise (work performed, services provided) is supplied for federal government needs.

The constituent document of a state-owned enterprise is its charter, approved by the Government of the Russian Federation. The corporate name of an enterprise based on the right of operational management must contain an indication that the enterprise is state-owned. The rights of a state-owned enterprise to the property assigned to it are determined in accordance with Articles 296 and 297 of the Civil Code of the Russian Federation.

The Russian Federation bears subsidiary liability for the obligations of a state-owned enterprise if its property is insufficient (Article 115 of the Civil Code of the Russian Federation).

The head of a federal government enterprise is a civil servant, whose appointment to a position and dismissal from it is carried out in the manner established by the legislation of the Russian Federation for civil servants. The head of a federal government enterprise enjoys all rights and bears all obligations provided for by law and the charter of the enterprise.

In cases where the state refuses to conclude a state contract or contracts with a state-owned enterprise, ensuring in the aggregate the purchase from the enterprise of at least 50% of its products, the enterprise must be liquidated or reorganized within 6 months in accordance with the established procedure, including by transforming it into an open joint-stock company type.

State commercial enterprise

A unitary enterprise based on the right of economic management is created by decision of an authorized state body or local government body. 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 (Article 114 of the Civil Code of the Russian Federation).

The property of a state commercial enterprise is formed from funds allocated for specific purposes from the relevant budget, property transferred to the enterprise by the owner, income from one’s own business activities, and other sources.

The charter of a state commercial enterprise indicates the size of its authorized capital, which cannot be less than 1000 minimum monthly wages established by law or larger amount established by the legislation of the Russian Federation on the date of registration of the enterprise.

A state commercial enterprise is obliged to:

form a reserve fund in the amounts determined by its charter and amounting to at least 10% of its authorized fund, allocating for these purposes the remaining profit at its disposal until the reserve fund reaches the established value;

use the reserve fund funds exclusively to cover losses, as well as to repay budget loans and pay interest on targeted government loans in the event of insufficient funds of the enterprise;

transfer to the appropriate budget part of the profit remaining at its disposal after paying taxes and other obligatory payments and forming a reserve fund in amounts determined by the owner within 10% of the enterprise’s net profit.

A unitary enterprise based on the right of economic management can create another unitary enterprise as a legal entity by transferring to it, in the prescribed manner, part of its property for economic management (subsidiary enterprise).

The rights of a state commercial enterprise to the property assigned to it are determined in accordance with Article 295 of the Civil Code of the Russian Federation.

The degree of property separation varies among different enterprises.

Thus, the degree of property isolation of state unitary enterprises that are not the owners of the state property transferred to them is expressed in the assignment of such property to them under the right of economic management. It is clear that in relation to this property the enterprise has a smaller set of rights than the owner in relation to his property.

The owner of property under economic management, in accordance with the law, decides on the creation of an enterprise, determining the subject and goals of its activities, its reorganization and liquidation, appoints the head of the enterprise, and exercises control over the use for its intended purpose and the safety of the property belonging to the enterprise. 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 property owned by it under the right of economic management, lease it, 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.

Institutions that are not the owners of the property assigned to them own and use it with the right of operational management. The rights of such a legal entity in relation to the property assigned to it are even narrower than in the exercise of the right of economic management. Such an enterprise has the right to alienate or otherwise dispose of its property only with the consent of the owner of this property. When the ownership of an institution is transferred to another person, this institution retains the right of operational management of its property.

The previously existing scheme of relations between the state and economic entities in the construction industry assumed the possibility of managing construction organizations only through vertical structures and management connections through command and administrative influence. Currently, such a scheme is outdated for the bulk of functioning construction organizations.

The command-administrative system required construction organizations to flawlessly execute instructions “from above.” At the same time, construction organizations themselves were obliged to spend earned funds (profit) on production and social development in strictly allocated amounts, receive raw materials from suppliers assigned to them and transfer finished products to predetermined consumers at stable prices established by higher management bodies. The consumer was tied to the manufacturer by plan and could not create competition in those economic conditions.

During the transition to new economic relations and the transformation of previous management bodies at all levels, the management vertical was completely disrupted. In addition, when state-owned enterprises were transformed into joint-stock companies, the principles of their management changed. The state (or a body authorized by it) can directly influence the economic activities of a joint-stock enterprise by owning a controlling stake.

The distribution of construction organizations by type of ownership is presented in the table below.

Table 4

	Quantity, thousand units	Percentage
Total number of organizations
Including by type of ownership:

mixed
individual
municipal