Organizational and legal forms of commercial organizations: types, characteristics. Abstract: Organizational and legal forms of commercial organizations

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.

Part private property include:

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 form 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. Mixed economy organizations (companies) are those in which the state or any public body combines with private capital for various reasons, for example, state participation in a private company whose activities are in the public interest, or to control and direct its general policies etc. The state, participating in such companies, strives not so much to make a profit, but to direct the policies 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).

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 income declared by the individual entrepreneur himself. 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. 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 general partnership(PT) 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 profit of a general partnership is 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 partnership of faith, or a limited partnership (TV or CT), is recognized as a partnership in which, along with general partners, there are also participant-contributors (limited partners) who do not take part in the business activities of the partnership and bear limited financial liability within the limits of the amounts of contributions made by them. 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 .

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 the association of property shares by its members (participants). 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 labor turnover, which in current conditions is associated with particularly high costs due to the growing costs of training workers for specific activities in this particular organization, etc.

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 taking risky projects and introducing technical innovations.

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 limits of 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.

Limited Liability Company(LLC) is a company whose authorized capital is divided into shares of participants who bear financial liability only within one hundred

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 limits of 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.

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.

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, an LLC has an executive body that carries out the ongoing management of its activities.

Additional liability company(OOD) 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.

To state and municipal unitary enterprises(UP) 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):

1) 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 responsible for the obligations of such an enterprise);

2) based on the right of operational management (state-owned enterprises) - in many ways they resemble enterprises in a planned economy; the state bears subsidiary liability for their obligations if their property is insufficient.

The charter of a unitary enterprise (UE) is approved by the authorized state (municipal) body and contains:

The name of the enterprise indicating the owner (for a state-owned enterprise - indicating that it is state-owned) and location;

The procedure for managing activities, the subject and goals of activities;

The size of the authorized capital, the procedure and sources of its formation.

The authorized capital of the unitary enterprise is fully paid by the owner before state registration. The size of the authorized capital is not less than 1000 times the minimum monthly wage as of the date of submission of documents for registration.

If the value of net assets at the end of the financial year is less than the size of the authorized capital, then the authorized body is obliged to reduce the authorized capital, of which the enterprise notifies creditors.

The property rights of a unitary enterprise are presented in table. 3.2. A unitary enterprise can create subsidiary unitary enterprises by transferring part of the property to them for economic management.

The concept of an enterprise, its characteristics

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

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

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

Enterprises can be classified according to many criteria:

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

Organizational forms of enterprises

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

Business partnerships and societies:

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

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

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

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

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

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

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

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

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

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

Unitary enterprises are divided into two categories:

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

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

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

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

The procedure for creating and liquidating enterprises

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

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

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

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

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

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

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

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

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

F.M. Shelopaev

FINANCE OF ORGANIZATIONS (ENTERPRISES)

Orientation lectures

(extramural)

Topic 1. “Finance and financial mechanism of enterprises”

Forms of economic entities in the conditions

Market economy of Russia

Many entities are involved in economic turnover, characterized by various characteristics and criteria.

Depending on the nature of activity On the one hand, there are business entities that carry out commercial activities aimed at making a profit, and on the other hand, there are business entities for which making a profit is not the main goal of their activity. They carry out entrepreneurial activities only insofar as this corresponds to their statutory objectives.

The next important criterion for classifying business entities is way their participation in economic turnover. In accordance with the Civil Code of the Russian Federation, entrepreneurial activity can be carried out by individuals (citizens) without forming a legal entity from the moment of state registration as an individual entrepreneur and legal entities. Legal entities can be organizations that pursue profit as the main goal of their activities (commercial organizations) or do not have profit as such a goal and do not distribute the profits between participants (non-profit organizations). Thus, economic turnover involves, on the one hand, organizations acting as legal entities, and on the other hand, citizens carrying out activities without forming a legal entity.

In the legal definition a legal entity is an organization that has separate property in ownership, economic management or operational management, is liable with this property for its obligations, can, in its own name, acquire and exercise property and personal non-property rights, perform duties, be a plaintiff and defendant in court. Along with the listed features, a legal entity is required to have an independent balance sheet or estimate. A legal entity is subject to mandatory state registration and acts on the basis of constituent documents, which can be a charter and (or) a constituent agreement.

Citizens are engaged in economic activities from the moment of their state registration as individual entrepreneurs. The legal capacity of an individual entrepreneur is practically equal to the legal capacity of legal entities. He may have the rights and perform the duties necessary to carry out any type of activity not prohibited by law. The activities of an individual entrepreneur may be based on hired labor, but he does not have the right to create enterprises, remaining the owner of the property transferred to him.

Thus, depending on the nature of economic activity and the method of participation in economic turnover, in the commercial sphere there are commercial organizations (enterprises) and individual entrepreneurs, in the field of non-commercial turnover - non-profit organizations.

Organizational and legal forms of commercial organizations

The Civil Code of the Russian Federation identifies business partnerships, business societies, production cooperatives, state and municipal unitary enterprises as the main organizational and legal forms of commercial organizations (enterprises),

In general, based on Art. 2 and Art. 132 of the Civil Code of the Russian Federation, all commercial organizations can be referred to by the term "company".

Differences in the organizational and legal form of enterprises also imply differences in their financial mechanism. These differences manifest themselves in areas such as:

Ø sources of formation of the enterprise’s own capital;

Ø the procedure for distributing profits or covering losses from the economic activities of the enterprise;

Ø limits of financial responsibility of the enterprise for its obligations;

Ø rights, duties and responsibilities of the owners of the enterprise;

Ø procedure for reorganization and liquidation of the enterprise.

Let's consider features of the financial mechanism enterprises of various organizational and legal forms.

Business partnerships and societies commercial organizations with authorized capital divided into shares (contributions) of founders are recognized. Property created from the contributions of the founders, as well as accumulated in the process of activity, belongs to business partnerships or companies on the right of ownership.

Business partnerships can be created in the form of a general partnership and limited partnership.

Full A partnership is recognized, the participants of which (general partners), in accordance with the agreement concluded between them, engage in entrepreneurial activities on behalf of the partnership and jointly and severally bear subsidiary liability with their property for the obligations of the partnership.

The profits and losses of a general partnership are distributed among its participants in proportion to their shares in the share capital, unless otherwise provided by the constituent agreement or other agreement of the participants.

A partnership of faith is a partnership in which, along with the participants who carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with their property (full 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 the amounts of contributions made by them and do not take part in the partnership’s business activities. An investor in a limited partnership has the right to receive a portion of the partnership's profits due to his share in the share capital.

Business companies are created in the form of a joint stock company with limited or additional liability.

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

A joint stock company, the shares of which are distributed only among its founders or other predetermined circle of persons, is recognized closed joint stock company. Such a company does not have the right to conduct an open subscription for the shares it issues or otherwise offer them for acquisition to an unlimited number of persons.

Shareholders of a closed joint stock company have a pre-emptive right to purchase shares sold by other shareholders of this company.

The authorized capital of a joint stock company is made up of the par value of the company's shares acquired by shareholders.

Limited Liability Company is a company established by one or several persons, the authorized capital of which is made up of the value of the contributions of its participants and is divided into shares of sizes determined by the constituent documents. The participants of the company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of the contributions made by them.

Company with additional liability is a company established by one or several persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents. Participants in such a company jointly and severally bear subsidiary liability for its obligations with their property in the same multiple of the value of contributions, determined by the constituent documents of the company. If one of the participants goes bankrupt, his liability for the company's obligations is distributed among the other participants in proportion to their contributions.

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. The subsidiary is not liable for the debts of the parent company (partnership). The parent company or partnership, which has the right to give instructions to the subsidiary company that are binding on it, is jointly and severally liable with the subsidiary company for transactions concluded by the latter in pursuance of such instructions. In the event of insolvency (bankruptcy) of a subsidiary through the fault of the parent company, the latter bears subsidiary liability for its debts. Participants (shareholders) of a subsidiary have the right to demand compensation from the parent company (partnership) for losses caused to the subsidiary through its fault. 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.

These are the forms of organization of business partnerships and societies.

The next form of commercial organization is production cooperatives.

Production cooperative(artel) is a voluntary association of citizens on the basis of membership for joint production or other economic activities (production, processing, marketing of industrial, agricultural and other products, performance of work, trade, consumer services, provision of other services), based on their personal labor or other participation and pooling of property shares by its members. Members of a production cooperative bear subsidiary liability for the obligations of the cooperative in the amount and in the manner prescribed by the law on production cooperatives and the charter of the cooperative.

Property owned by a production cooperative is divided into shares of its members in accordance with the charter of the cooperative. The charter of the cooperative may establish that a certain part of the property constitutes indivisible funds used for the purposes specified in the charter. The decision on the formation of indivisible funds is made by the members of the cooperative unanimously, unless otherwise provided by the charter of the cooperative. The cooperative does not have the right to issue shares.

The profit of the cooperative is distributed among its members in accordance with their labor participation, unless a different procedure is provided by law and the charter of the cooperative. The property remaining after the liquidation of the cooperative and satisfaction of the claims of its creditors is distributed in the same manner.

Finally, the form of commercial organization is state and municipal unitary enterprises.

Unitary enterprise is a commercial organization that is not endowed with the right of ownership to assign property to it by the owner. The property of a unitary enterprise is indivisible and cannot be distributed among contributions (shares, shares), including among employees of the enterprise. Only state and municipal enterprises can be created in the form of unitary enterprises. The property of a unitary enterprise is respectively in state or municipal ownership and belongs to such an enterprise with the right of economic management or operational management. A unitary enterprise is managed by a manager who is appointed by the owner or a body authorized by the owner and is accountable to him. A unitary enterprise is not liable for the obligations of the owner of its property.

Unitary enterprise founded on the right of economic management, is created by decision of an authorized state body or local government body. By decision of the Government of the Russian Federation, on the basis of property in federal ownership, a unitary enterprise based on with the right of operational management(federal government enterprise). The constituent document of a state-owned enterprise is its charter, approved by the Government of the Russian Federation. The Russian Federation bears subsidiary liability for the obligations of a state-owned enterprise if its property is insufficient.

The corporate name of a unitary enterprise must contain an indication of the owner of its property.

A unitary enterprise is liable for its obligations with all the property belonging to it and is not liable for the obligations of the owner of its property (Article 113 of the Civil Code).

Characteristics of organizational and legal forms

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

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

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

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

1. legal entities in respect of which their participants have rights of obligations (business partnerships and societies, production and consumer cooperatives, non-profit partnerships, autonomous non-profit organizations)
2. legal entities to whose property their founders have ownership or other proprietary rights (state and municipal unitary enterprises, including subsidiaries, as well as owner-financed institutions)
3. legal entities in respect of which their founders (participants) do not have property rights (public and religious organizations (associations), charitable and other foundations, associations of legal entities (associations and unions).

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

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

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

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

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

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

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

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

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

Legend:

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

This graph shows the ratio of labor and capital combined in various forms of business organizations. Obviously, the less importance is attached to the labor contributions of the participants, the more developed the form of association that the participants can use.

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

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

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

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

Only individual entrepreneurs can be citizens participating in partnerships.

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

Essential characteristics of organizational and legal forms of COMMERCIAL organizations

General partnership

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

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

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

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

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

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

all transactions are concluded by unanimous decision of the participants;

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

one or some participants may enter into transactions;

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

Limited partnership, based on official authority

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

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

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

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

Limited Liability Company (LLC)

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

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

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

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

Additional liability company (ALC)

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

Joint Stock Company (JSC)

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

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

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

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

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

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

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

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

Producer cooperatives

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

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

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

State and municipal unitary enterprises

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

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

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

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

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

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

Public and religious associations

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

Funds

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

Nonprofit partnerships

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

Establishment

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

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

Autonomous non-profit organization

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

Association (union)

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

Consumer cooperative

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

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

Homeowners' Associations

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

Summary comparative tables of characteristics of organizations

General definition of commercial organizations:

organization - legal entity;

the main goal is to make a profit;

the possibility of distributing profits between participants.

Types of commercial organizations

A Business partnerships

1. general partnership
2. partnership of faith

B Economic companies

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

B Production cooperatives

D State and municipal unitary enterprises

The main features that determine the differences between the forms of commercial organizations are:

1) property rights of the founders (participants) of the organization;

2) composition and number of founders of the organization.

The list of forms of commercial organizations existing in our country is defined in the Civil Code of the Russian Federation. This list includes

■ business partnerships:

general partnership,

limited partnership (limited partnership);

■ business companies:

limited liability company,

additional liability company;

joint stock companies:

closed joint stock company,

public corporation;

■ production cooperative;

■ unitary enterprise.

Let's look at the key features of these forms. Business partnerships and companies have an authorized capital formed from the contributions of the founders (participants) divided into shares. Property created through the contributions of founders (participants), as well as produced and acquired by a business partnership or company in the course of its activities, belongs to it by right of ownership.

General partnership- this is an organization whose participants (general partners), in accordance with the agreement concluded between them, form a share capital and engage in entrepreneurial activities on behalf of the partnership, bearing responsibility for its obligations with the property belonging to them. Participants in general partnerships can be individual entrepreneurs and/or commercial organizations. Management of the activities of a general partnership is carried out by general agreement of all participants. Profits and losses are distributed in proportion to the participants' shares in the share capital. Participants in a full partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership.

Limited partnership (limited partnership) is an organization in which, along with the participants who carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with their property (full partners), there are one or more participants - investors (limited partners). The latter 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. Individual entrepreneurs and commercial organizations can be general partners in limited partnerships. Investors in limited partnerships can be citizens and legal entities with the exception, as a general rule, of state bodies and local governments. The distribution of profits is carried out in proportion to the participants' shares in the share capital.

Participants in business companies can be citizens and legal entities with the exception, as a general rule, of state bodies and local governments.

Limited Liability Company is an organization established by one or more persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents. The number of company participants should not be more than fifty. 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 only to the extent of the value of their contributions. Distribution of profits is carried out in proportion to the shares of participants in the authorized capital.

Additional liability company is a business company established by one or more persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents. Participants in a company with additional liability 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. Distribution of profits is carried out in proportion to the shares of participants in the authorized capital.

Joint Stock 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. The distribution of profits between participants is carried out in proportion to the number of shares they own.

Closed joint stock company is a company whose shares are distributed only among its founders or other predetermined circle of persons. The number of shareholders of a closed company should not exceed fifty.

IN open joint stock company its participants can alienate their shares without the consent of other shareholders. This organization has the right to conduct an open subscription for the shares it issues and their free sale under the conditions established by law and other legal acts.

Production cooperative (artel) – This is a voluntary association of citizens on the basis of membership for joint economic activities based on their personal participation and the association of property shares by its members (participants). Legal entities can also be participants in a production cooperative. The number of members of the cooperative should not be less than five. Members of a production cooperative bear subsidiary liability for its obligations in the amount and in the manner prescribed by the charter. The profit of the cooperative is distributed among its members in accordance with their personal participation, the size of the share contribution, and among members of the cooperative who do not take personal labor participation in the activities of the cooperative, in accordance with the size of their share contribution. By decision of the general meeting of members of the cooperative, part of the profit of the cooperative may be distributed among its employees.

Unitary enterprise is a commercial organization that is not vested with the right of ownership of the property assigned to it by the owner. Only state and municipal enterprises can be created in the form of a unitary enterprise. Unlike other forms of commercial organizations, a unitary enterprise cannot carry out any types of activities that are not prohibited by law. It is limited to the purposes and subject of activity specified in its charter. A unitary enterprise does not have the right to sell, lease, or pledge its property owned by the founder. The founder exercises control over the intended use and safety of the enterprise’s property.

A type of unitary enterprise is government enterprise. It can be created on the basis of federally owned property. A state-owned enterprise is even more limited in its rights compared to a unitary enterprise. It carries out economic activities in accordance with the statutory goals, tasks of the owner and the purpose of the property.