State and municipal unitary enterprises. State enterprise

Among the legal entities registered and operating in accordance with the procedure established by law on the territory of the Russian Federation, there are entities that have a special, specific legal status. These include, in particular, state-owned enterprises. Let us consider further their specifics.

general characteristics

A state unitary enterprise is a legal entity that carries out operational management of the material assets entrusted to it. In legal publications it is also called a business institution. On the one hand, a state-owned enterprise is this. This is explained by the purpose of its creation. It is formed primarily to provide certain services, perform work or produce products. At the same time, most of the operating costs are covered from the budget. In addition, government agencies are the main customers.

Specifics

State institutions and enterprises have much in common. First of all, they are united by the lack of opportunity to dispose of (own) the material assets assigned to them. At its core, a state-owned enterprise is one of the forms of implementation by state authorities of their functions. A similar conclusion can be drawn regarding institutions. However, the difference between these entities is that they are formed in different areas. In particular, institutions are created in the scientific, educational, cultural sectors, in the field of social protection, healthcare, physical education, sports, and employment of citizens. A state-owned enterprise is, first of all, a participant in industrial activity. It is created, for example, to produce products of defense or other strategic importance. In this case, a state-owned enterprise is considered commercial, but an institution is not.

Legal status

As noted above, the property right of a state-owned enterprise is the right of operational management. Accordingly, it is impossible to form it on the basis of a combination of material assets classified as the property of the Russian Federation, regions or municipalities. A federal government enterprise is a legal entity with one founder. It is he who may own the material assets entrusted to operational management.

Normative base

From January 1, 1995 until the entry into force of Federal Law No. 161, the fundamentals of the legal status of state-owned enterprises were regulated exclusively by the Civil Code. This provision is specified by Article 6 (in paragraph 6) of Federal Law No. 52, which introduced the first part of the Code. It established that the relevant norms were applied to enterprises formed before the official publication of Part 1 of the Civil Code, operating under the right of economic management and operational management. Along with this Art. 113 of the Code provided that the legal status of the legal entities in question is determined not only by the provisions of the Civil Code, but also by a special law. This normative act, however, was adopted only on November 14, 2002. We are talking, in particular, about Federal Law No. 161.

Additions and amendments

According to Art. 37 Federal Law No. 161, all state-owned enterprises had to bring their charters into compliance with the law. At the same time, the deadline was set until July 1, 2003. Federal Law No. 161 specified some provisions of the Civil Code regulating the rules by which a state-owned enterprise is created and operates. This, in particular, affected articles 48-65 of the Code, as well as art. 113-115. In addition, the law prohibited the formation of subsidiaries by the legal entities in question. Article 115 has undergone the most significant changes. In accordance with the innovations, a legal entity can now be created not only on the basis of state property. This provision allows today to form a municipal government enterprise. This innovation removed the restrictions that existed previously. In particular, before the adoption of the law, the legal entities in question could be formed by government decree and exclusively on the basis of state property. Accordingly, the adopted charters had to be approved by the highest executive body. At the same time, subsidiary liability for the obligations was assigned to the Russian Federation. Liquidation and reorganization of legal entities were carried out only by government decision.

Key requirements of the law

The property of a state-owned enterprise is considered indivisible. It cannot be distributed among shares, units (contributions), including among employees. A government enterprise is a legal entity that can, in its own name, acquire and exercise legal rights (real and personal), and act as a defendant/plaintiff in court. The law requires that you have an independent balance sheet. The full name must include the phrase “State government enterprise.” This requirement applies only to legal entities created on the basis of state property. Accordingly, the names of entities formed in the Moscow Region must contain an indication of their territorial affiliation (“municipal government enterprise”). The name must also contain information about the owner (RF, region or MO). The seal of the legal entity must contain the full name in Russian and an indication of the location. It may also contain names in other (folk or foreign) languages. The location of the enterprise is determined by its state registration address. The details must indicate the postal code, locality, street, house/building, room number (if available). In the event of a change in information about the location of the enterprise, it sends a corresponding notification to the body authorized to carry out state registration of legal entities.

Nuances

It is worth noting that no other laws, except for the Civil Code and Federal Law No. 161, determine the legal status of a state-owned enterprise. This norm is directly enshrined in Article 113 (in paragraph 6) of the Code. As for the duties and rights of owners of material assets entrusted to a state-owned enterprise, the reorganization and liquidation procedures, the legislation does not establish restrictions regarding their regulation by other legal documents. For example, the procedure for the formation and management of government agencies is determined by government decree.

Type of ownership

Continuing the analysis of regulations governing the activities of state-owned enterprises, we can draw a certain analogy with the legal status of institutions. The first classification criterion is the form of ownership. It is the same for all state unitary enterprises (including those created in the Moscow Region) and institutions. This common feature indicates the unity of the goals of the formation of these legal entities. Both institutions and enterprises implement general federal interests, which determines the peculiarities of regulatory regulation.

Founders

The composition of owners for state-owned institutions and enterprises provides for a general restriction. First of all, as mentioned above, there must be one founder. In accordance with regulatory requirements, it can be either the Moscow Region, or the Russian Federation, or a region.

Scope of legal options

According to this criterion, legal entities are classified depending on the range of rights that they are entitled to in relation to the property entrusted to them. When a subject is formed, it must be given certain legal capabilities. Property rights are necessary for the implementation of normal independent activities in accordance with the purposes of the creation. These material assets, as well as objects acquired in the course of work, become (as a general rule) the property of the subject. An exception to this provision are government institutions and enterprises. The owner, by transferring material assets to them, provides legal opportunities with some restrictions. In particular, subjects have the right to exercise operational management. When remains the main owner of material assets. This means that the enterprise can dispose of the entrusted property only with its consent. This equally applies to legal entities created by order of territorial authorities.

Owner

According to Art. 20 Federal Law No. 161, the powers of the legal owner of property transferred to a federal government enterprise in matters of creation, liquidation, and reorganization are exercised by the government. Other legal possibilities are implemented by both the Supreme Executive Institute of Government and other government agencies. Since December 1, 2007, the state corporation Rosatom has also been given the powers of owner. The rules regulating the procedure for the implementation of transferred legal opportunities by it are established by Federal Law No. 317. A corresponding addition was made to Law No. 161. The municipality of material assets transferred to a state-owned enterprise is sold by local authorities within the limits of their competence. The range of their legal capabilities is determined by regulations regulating the status of these institutions.

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 a greater 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

State-owned enterprises are part of the state enterprise. These are enterprises owned by the state treasury.

State-owned factories, factories or farms necessarily fall under state control. This concerns many issues, such as financial incentives for employees, pricing policy, directive planning, etc.

State-owned enterprises must necessarily enter into agreements with organizations for the supply of goods that cover the needs of the state. They have no right to refuse this. In turn, the state must also fulfill its obligations, and in particular: protect the enterprise from bankruptcy, provide benefits on government procurement, help with financing, etc.

There is no need to talk about the high economic efficiency of such enterprises, even despite the fact that they operate under the pressure of strict disciplinary liability. In fact, they are organizations that have been squeezed out of the market system of entrepreneurship and, in fact, are only budgetary.

A certain part of the state budget goes to the costs of maintaining state-owned enterprises. And this automatically leads to the fact that certain control systems are applied to them. Moreover, the number of state-owned enterprises is reduced to a reasonable minimum.
In different countries, the experience of managing such enterprises varies greatly, because the characteristics of each individual country leave their mark.

If, as a clear example, we take the experience of France or the United States and transfer it to Russia, it will immediately become clear that it will not take root here. But there is something that unites the management of state-owned enterprises in all countries. This is government through ministries. Sometimes they are joined by special commissions that function continuously. For example: the Federal Atomic Energy Commission (United States Atomic Energy Commission, AEC) in the USA existed until 1974. Later, its functions were divided between two other organizations.

In Russia, the decision to create a factory or plant on the basis of a liquidated federal state-owned enterprise is made by the Government of the Russian Federation. This is due to the entry into force of Decree of the President of the Russian Federation No. 1003, dated May 23, 1994, “On the reform of state-owned enterprises.”

The activities of a state-owned enterprise are managed by the executive body that approved the charter. However, the immediate manager of, for example, a plant has some independence and is not just an appendage to the state apparatus.

In connection with this distribution of leadership functions, the following trends should be observed at state-owned enterprises:
the presence of a competitive system for selecting personnel occupying the highest positions;
use of an independent expert assessment system;
important decisions must be made collectively;

The formation of a committee, council or commission for the management of state-owned enterprises occurs under the branch body. This is the most effective option, since the formation of such a body in the State Property Committee system does not provide knowledge of the distinctive features of production. The commission must include more than 50% of independent and impartial specialists. These should be financiers, economists, lawyers, representatives of the State Committee of the Russian Federation for Industrial Policy, representatives of the State Committee for Antimonopoly Policy, etc.

State-owned enterprises must be located at the place of their state registration. Each of them must have a postal address. In case of a change of address, the enterprise is obliged to notify the authority responsible for state registration of legal entities.

State-owned enterprises are required to have a full corporate name, including the words “state-owned enterprise”, “municipal state-owned enterprise” or “federal state-owned enterprise”, as well as indicating the owner of the property. It can be a subject of the Russian Federation, a municipality, or the Russian Federation.

The legal activities of all government institutions are determined by Law No. 161-F3.

A unitary enterprise is a commercial organization that carries out production and other economic activities as a state or municipal enterprise and is endowed with the right of economic management or (a state-owned enterprise) the right of operational management in relation to the property assigned to it by the owner.

Among the rules established in relation to unitary enterprises in the Civil Code of the Russian Federation (Articles 113-115) and in the special Federal Law of November 14, 2002 N 161-FZ “On State and Municipal Unitary Enterprises” (hereinafter referred to as the Law on Unitary Enterprises) , the following, in particular, are essential.

Unitary enterprises operate on the basis of the norms of the Civil Code (as written in the Law on Unitary Enterprises), as well as constituent documents (charters). In accordance with this, their legal status is, in principle, the same as the position of other subjects of civil law, legal entities. At the same time, a number of restrictions have been introduced, including when making transactions, which do not allow them to fully participate in commodity-market relations.

Only state and municipal enterprises can be created in the form of a unitary enterprise. The head of the enterprise is appointed by the owner or a body authorized by the owner and is accountable to him.

The property of a state or municipal unitary enterprise (hereinafter referred to as the “enterprise”) is respectively in state or municipal ownership. It belongs to the enterprise under the right of economic management or operational management, which allows the enterprise to participate in civil circulation. This property is indivisible and cannot be distributed among deposits (shares, shares), including between employees of the enterprise. At the same time, the enterprise is liable for its obligations with all its property; but it is not liable for the obligations of the property owner.

The Civil Code of the Russian Federation and the Law on Unitary Enterprises distinguish two main types of unitary enterprises:

An enterprise based on the right of economic management (Article 114 of the Civil Code of the Russian Federation);

An enterprise based on the right of operational management is a state enterprise (Article 115 of the Civil Code of the Russian Federation).

a) An enterprise based on the right of economic management.

The right of economic management, on which enterprises of this type are based, is essentially a property right of general permissible action, close to the right of ownership, with the exception of the right of disposal in its meaning, which affects the fate of state or municipal property. The size of the authorized capital of an enterprise cannot be less than the amount determined by law and necessary to satisfy the claims of creditors. In addition, there are rules related to the procedure and consequences of increasing or decreasing the size of the authorized capital.

Before state registration of an enterprise, its authorized capital must be fully paid by the owner.

The owner of the property of a unitary enterprise, as already noted, is not liable for the debts of the enterprise (except for the cases specified in paragraph 3 of Article 56 of the Civil Code of the Russian Federation, which provides for the possibility of subsidiary liability).

b) A state-owned enterprise based on the right of operational management. The right of operational management is a property right of a licensing order - it allows a state-owned enterprise to carry out strictly defined actions and acts. Enterprises of this type are created, reorganized and liquidated on the basis of federal property, property of constituent entities of the Russian Federation, and municipal property.

The owner of the property bears subsidiary liability for the obligations of the state-owned enterprise if his property is insufficient.

A state-owned enterprise is considered to be a state subject of economic activity, which is based on the right of operational management on the basis of property owned by the state. The main constituent document is its charter, which is approved by the Government of the Russian Federation. The corporate name of such an enterprise must indicate that it is state-owned.

A federal government enterprise is owned by the state or a constituent entity of the Russian Federation.

In relation to the property assigned to such an enterprise, it may exercise the rights of use, possession and disposal, but within the limits established by the laws of the state and which correspond to the goals of any of its activities and the purpose of such property. The owner of property assigned to a state-owned unitary enterprise has the right to dispose of it at his own discretion. A state-owned enterprise can alienate such property or dispose of it in some other way only with the consent of its owner.

The state bears subsidiary liability in the event of a shortage of property. This type of institution is based on the right of operational management.

The owner of all property of a state-owned organization, among other things, determines the procedure for the necessary distribution of income of the enterprise. A state-owned enterprise can be liquidated or reorganized only in accordance with a decision of the Government of the Russian Federation.

Creation of state-owned enterprises

A state-owned enterprise is the type of institution that can be created on the basis of a liquidated state enterprise. This applies to completely different sectors of the state economy. However, there are predominant sectors, which include agriculture and industry.

In order for a state-owned enterprise to be created on the basis of a liquidated enterprise, it must meet several mandatory criteria:

• It is an enterprise that operates only for government agencies.
• The state is the main consumer of this organization's products.
• The enterprise is one of those whose privatization is prohibited by law.

According to Art. 296 of the Civil Code of the Russian Federation, a state-owned enterprise can be liquidated if:

1. The financial resources allocated to him from the federal budget were used for other purposes.
2. There is no profit from the activities of such an enterprise.
3. There was a disposal of real estate without the permission of an authorized government agency.

The formation of a state-owned organization on the basis of a liquidated enterprise gives rise to the emergence of legal succession, according to which the new enterprise is the direct successor of the old one. This means that it is liable for all its obligations, even those that arose even before the emergence of such a right.

State institution status

The legal status of a state-owned unitary enterprise is divided into the following types:

• defining general status;
• establishing the legal regime of property;
• regulating the activities of the organization;
• defining the competence of all management bodies;
• establishing the procedure for reorganization or liquidation of a state-owned enterprise.

Legal status of state-owned enterprises

The legal status of a state-owned enterprise means that the enterprise is a legal entity and at the same time has the right to have a current account in a bank. This assumes that state-owned enterprises are a type of commercial organization and have a corporate name, which is created from the moment of state registration of the enterprise. The right to such a name is a personal non-property right that should not be used by anyone without the consent of its owner. In cases where this right is violated, the company may demand compensation for losses incurred as a result of the illegal use of its business name.

In addition, state-owned organizations have the right, according to Art. 296 of the Civil Code of the Russian Federation, for a service mark and a trademark, which is also his personal non-property right. These rights, as already indicated, are granted to a state-owned enterprise from the moment of state registration and remain with it for ten years, after which they can be extended for the same period. If the rights to a trademark are violated, they are protected in the same way as the rights to a company name.

All with government permission

A state-owned enterprise is an economic institution, that is, a commercial organization that is independently responsible for all its obligations. However, it is not the owner of the property assigned to it.

Since state-owned enterprises are considered legal entities, they have the right to carry out any activity that is related to the performance of work, the production of products, or the provision of any services. The scope of such activities is determined by the government of the Russian Federation.

Legal regime of property at the disposal of a state-owned enterprise

The state is the owner of all types of property owned by state-owned enterprises.

However, the institution is given the right to manage and dispose of this property in accordance with its goals and tasks assigned to it. The state may confiscate from him part of the property that the enterprise does not use or is used for other purposes. A state-owned enterprise does not have the right to alienate such property or otherwise dispose of it without the consent of the state. Selling his products is his main right.

The property base of a state-owned organization, as a rule, consists of property that could remain after the liquidation of the enterprise on the basis of which it was created. All other property resources are his independent acquisition as a result of his commercial activities.

Activities of state-owned enterprises and the implementation of its organization

The activities are carried out by a state-owned organization on the basis of its rights as a legal entity, and its goal is for this enterprise to fulfill its tasks in production, services, etc. The main issue here is how exactly the profit received as a result of the activities of the state-owned institution is distributed. This issue is resolved according to the specifics of the activities of a particular enterprise and on the basis of its financing. The options for how the profit received can be distributed can be different: either it remains in full with the organization and goes to the further development of its activities, or it is partially transferred to the state budget.

All major issues regarding the organization of the activities of a state-owned enterprise are resolved by the Government of the Russian Federation, for example, it sets prices for products, and when receiving loans, the main thing that is needed is a guarantee from the Government of the Russian Federation.

Controls

The main management bodies of a state-owned enterprise are the director and his deputies. The director of the enterprise must act on the principles of unity of command, since he is appointed and approved for this position by the Government of the Russian Federation. His competence includes representing the interests of state-owned enterprises in various fields of activity. He is also dismissed from office by decision of the Government of the Russian Federation.

Reorganization or liquidation of a state-owned enterprise

A state-owned enterprise is a type of organization whose activities can be terminated on the same grounds as the activities of all commercial organizations. This can happen through the liquidation of the enterprise, or reorganization, which is carried out, in turn, in various forms - accession, merger, separation, separation. However, there is one difference here - the legal status of a state-owned enterprise during its reorganization is preserved.

Examples of state-owned enterprises

The main example that can be given here is the field of space exploration. There is only one company in the entire world that builds spaceships. The main part of all the work of this enterprise is carried out by government agencies.

Simpler examples are enterprises operating in the field of agriculture, the defense industry, etc. That is, these are those sectors of production that must satisfy the basic, even vital, needs of the state and its population, therefore it actively participates in their development and financing.

Decisions on any forms of transformation of a federal government enterprise are made by the Government of the Russian Federation.