Which organization is a legal entity? Legal entities
According to the civil code of R.F. An individual entrepreneur is an individual who has the right to engage in commercial activities. An entrepreneur is liable for his obligations with all his property.
What form of business is individual entrepreneurship?
Many people cannot understand the organizational and legal affiliation of an individual entrepreneur: is it an individual or a legal entity? Reply to this question indicated in Art. 23 of the Civil Code of the Russian Federation, according to which any citizen has the right to engage in labor activity as an individual entrepreneur without forming a legal entity.
The concept of a legal entity is interpreted differently: it is a registered organization (LLC) with founders and authorized capital. An individual entrepreneur conducts business without one.
It is worth noting that an individual entrepreneur in many cases is vested with the same powers as an LLC. For example, he can also open a current account, enter into contracts and carry out almost the same types of activities, with the exception of some of them.
What's the difference?
| Individual (IP) | Legal entity(OOO) |
|---|---|
| Simplified registration procedure, minimal state duty | Registration requires many documents and higher state fees |
| Responsible to the Law with his personal property | Risks only the share in the authorized capital |
| There is no need to keep accounting records and open a current account | Constant documentary traffic control cash, mandatory opening of a current bank account |
| Disposes of profits at his own discretion | The manager does not have the right to withdraw the proceeds received |
| Cannot engage in any activities | No restrictions on activities |
| Pays contributions to the Pension Fund even if there is no profit | It is possible not to pay contributions to the Pension Fund if there is no income |
| You can't sell your business | There are no restrictions on selling a business |
| Lower penalties | High fines in case of detection of violations under the Tax Code of the Russian Federation |
| Can't attract investors | Opportunity to attract investors |
Thus, each of the organizational and legal forms has its own pros and cons, and any existing individual entrepreneur can register an LLC by contacting the Federal Tax Service with documents, but he will have to pay taxes and fees for all forms of activity.
Example: a citizen, being the founder of an LLC engaged in the production of building materials, decides to sell clothes through an online store. To do this, he has the right to separately open an individual entrepreneur, but he is obliged to pay taxes to the Federal Tax Service, contributions to the Pension Fund and Compulsory Medical Insurance for both organizations.
In this case, asking the question - an individual entrepreneur is a legal entity. face or ordinary physical face? - it is necessary to proceed from the form of business that the citizen conducts. When resolving legal disputes, filling out documents, submitting reports, he will be a legal entity from an LLC, and an individual from an individual entrepreneur.
Consideration of controversial situations in court
In accordance with the Arbitration Procedure Code of the Russian Federation, the Arbitration Court has the right to accept applications from organizations and individual entrepreneurs if the following disputes arise:
- Economic: for example, about debts.
- Administrative: when conducting a business that is not legally registered.
- Organizational: bankruptcy of LLC.
- Tax: failure to pay advance payments on time.
- Corporate: when causing losses caused by co-founders, founders and participants to a legal entity.
- International economic: in case of failure to fulfill obligations by a company registered on the territory of the Russian Federation in relation to a foreign citizen, or vice versa.
When making a decision to impose penalties, the court has the right to be guided by data on the personal property of an individual entrepreneur. If a fine is imposed on an LLC, then the arbitration can only take into account the authorized capital of the organization.
Due to the fact that an individual entrepreneur is an individual, or an organization is a legal entity, all conflicts and disputes between them fall within the competence of the Arbitration Court and are resolved only in judicial procedure.
Addition
There are still questions about the nuances legal status Are you an individual entrepreneur or do you need detailed expert advice on another legal issue? Moneymaker Factory recommends using the online service "Lawyer" to receive professional advice from an experienced lawyer. (Receive the first response within 15 minutes after its publication).
This topic is not clear to almost all students who study law in preparation for exams. And then they go to give up with this ignorance. Meanwhile, it is necessary not only to know the types of legal entities, but also to explain what advantages one or another of them has. This is exactly what we’ll talk about in this article.
The concept of legal entities
A legal entity is a subject of legal relations registered by the state, which has separate property, a bank account and can enter into certain legal relations.
Why are legal entities created? After all, it is possible to conduct individual entrepreneurial activities without registration - as an individual entrepreneur? In fact, these entities register for the following:
To reduce business risks. The fact is that most legal entities have forms of organization in which the people managing them are not responsible for business risks. For example, a legal entity took out a loan from a bank, failed to repay it and declared bankruptcy. At the same time, the head of the legal entity and all his employees will not bear financial responsibility with their personal property!
For capital management. For example, there are three of you so young and daring guys - you decided to open your own business. Vasya invested in renting the building, Olya bought raw materials, and Evgeniy invested in the workers’ first salary.
Our young and daring ones got their first profit. And how will we divide? If they work as individual entrepreneurs (individual entrepreneurs), then I don’t know how they will do it. It might even lead to a stabbing. But if they had registered a legal entity and specified in its charter the shares of profit for each founder, then there would have been no stabbing. Everything would be civilized.
For extended legal relations. It’s easy to sell a legal entity, it’s easy to sell a business.
When registering a legal entity, you need to remember that in advance you need to carefully select the types of activities that are already contained in unified register legal entities. By the way, I recommend reading the article. This will help you understand this material better.
If you want to know other nuances that you need to know here, welcome to our preparation courses for the Unified State Exam in social studies.
Types of legal entities in the civil law of the Russian Federation
First of all, you need to know that all legal entities are commercial and non-commercial (Article 50 of the Civil Code of the Russian Federation). The first ones are created for profit, that is, simply to make money. The second - for other purposes: educational, charitable, religious.
These may include: HOAs (homeowners' associations), bar associations, charitable and other foundations, churches, consumer cooperatives, etc.
Commercial legal entities include:
Business societies (Article 66 of the Civil Code of the Russian Federation)
These legal entities are created to produce goods and provide services. They are considered corporate, that is, they can consist of either one owner or several co-founders. Shares of profits in such companies are distributed in proportion to the participation of their capital in the organization of the company. Co-founders can be both individual entrepreneurs and other legal entities.
Partnerships: full and limited (limited) (Articles 69 and 82 of the Civil Code of the Russian Federation, respectively)
Partnerships are distinguished by the fact that their founders bear full responsibility with their personal property for the obligations of the partnership. In other words, if the company goes bankrupt, the partners of the partnership will pay its debts at their own expense, despite the fact that it is a legal entity.
Limited partnerships differ from general partnerships in that they may include investors. For example, if you see that some partnership is developing well, you can become its investor, having the right to a portion of the profits. But you will also share responsibility in the amount of your contribution.
Peasant farming (Article 86 of the Civil Code of the Russian Federation)
People engaged in farming can create a specific legal entity. You should consult a lawyer about the pros and cons. Because taxes on legal entities differ from taxes on individual entrepreneurs and ordinary individuals.
Limited Liability Company (Article 87)
The best form of organizing a legal entity: its participants do not bear any responsibility financial liability for the activities of a legal entity or its obligations. Of course, there are also some nuances here, which we will discuss during the training courses.
Additional liability company (no longer relevant as of September 1, 2014)
Joint stock company (Article 96 of the Civil Code of the Russian Federation)
This company differs from other business companies in that the authorized capital is divided not into shares between the founders, but into the number of shares. Accordingly, shares can be sold and capital raised for your company. Of course, we must remember that the controlling stake (50% + 1 share) must remain the property of the founder or founders of this company. Otherwise, someone will buy your company - and you will be forced into bondage. Of course, many people dream of being bought. A large giants and are happy to buy up profitable small corporations with great potential.
See what the promotion is.
Public joint stock companies (Article 97 of the Civil Code of the Russian Federation)
Public joint stock companies differ from ordinary ones in that they can place their shares at auction, on stock exchanges and other structures.
Producer cooperatives (Article 106 of the Civil Code of the Russian Federation)
They are created by people for the production, processing and marketing of products. I think everything is clear here too. Often in Unified State Exam tests you may come across the question: what minimum quantity can a person belong to a production cooperative? So, there should be no less of them five Human!
State and municipal unitary enterprises (Article 113 of the Civil Code of the Russian Federation)
Unitary enterprises are commercial enterprises without separate property. They are created in the interests of the state (if they are state-owned) in order for the state to earn money.
I think you have gained a serious understanding of the types of legal entities. Of course, within the framework of one article and video it is impossible to reveal all the nuances of the topic. That is why there are training courses in which we consider all aspects of this topic, which is necessary for passing the Unified State Exam and admission to the university on the budget. All information about the courses is on the button:
Post Scriptum. You can download the video and the presentation on which it was created by clicking on the button social networks:
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Best regards, Andrey Puchkov
Every year, more and more people want to embark on the free voyage of entrepreneurship. One, no matter how original it may seem, is not enough here. It is equally important to determine the form of the legal entity. Only after thoroughly studying the main differences between different types of legal entities can you make the only right decision and register your business. How are they different? different types legal entities and which one is better to choose?
Types of legal entities
The Civil Code of the Russian Federation defines a legal entity as a subject of law, possessing its own property, to which it is liable for all obligations, and participating in civil relations (Civil Code of the Russian Federation, Art. 48).
All legal entities can be classified into two main groups:
- commercial;
- non-profit.
The first group involves activities aimed at making a profit. As for, making a profit is not their main goal. Alternatives to commercial purposes may include social, cultural or educational purposes.
Commercial legal entities
As mentioned above, these are organizations that are created to generate profit and distribute it among the founders. Among commercial legal entities there are:
- General partnerships, the participants of which are liable for all obligations with their personal property.
- Limited partnerships, where some participants are responsible for all personal property, while others are responsible only for the property that they contributed to the organization.
- Limited liability companies (LLC), where participants are liable for obligations only with property invested in the company, and receive profits in proportion to the shares distributed in the authorized capital.
- Companies with additional liability, where, in addition to shares in the authorized capital, participants are also responsible for part of their personal property specified in the charter.
- Joint stock companies, where liability and profit are determined by the number of shares received.
- Production cooperatives that provide for the personal labor participation of members.
- State and municipal unitary enterprises, which are created by the state or municipalities.
Non-profit legal entities
This group includes organizations that are created for various non-profit purposes. These could be:
- consumer cooperatives;
- various religious or public organizations;
- charitable foundations;
- non-profit institutions;
- various associations, associations and unions representing and protecting the interests of their participants.
What are the differences between joint stock companies?
Please note that since the fall of 2014, the concepts of OJSC and CJSC no longer exist. These legal forms disappeared, and were replaced by PJSC and JSC. That is, now we mean OJSC - we say PJSC, we mean CJSC - we say JSC.
What are the main differences between individual entrepreneurs and LLCs is worth understanding with special attention. This can directly affect the income level of your business.
Pros of IP:
- Easy registration and closing procedure.
- Less tax burden and freedom of disposal of current account funds.
- Fewer reports to various funds.
- No need to lead accounting policy and accounting.
- Freedom of movement and control entrepreneurial activity throughout Russia without additional registration.
- Possibility of transition to taxation.
Disadvantages of IP:
- First of all, these are the risks borne by an individual. The fact is that the individual entrepreneur is liable for all the company’s obligations with his personal property, even after the official closure.
- Individual entrepreneurs cannot be sold or re-registered, but only reopened.
- Investors and creditors treat individual entrepreneurs with a lower level of confidence than LLCs, primarily due to the lack of mandatory accounting.
- An individual entrepreneur without the formation of a legal entity is limited in the types of activities. For example, an individual entrepreneur does not have the right to issue alcoholic products and trade it, conduct banking and tour operator activities.
Who are self-employed citizens?
There is another opportunity to provide services or conduct activities that generate income for an individual - self-employment. work directly with the customer, concluding a service agreement with him. In this way they resemble individual entrepreneurs, but special registration in this case is not required.
It is important to remember that, like other individuals, self-employed citizens are required to be responsible for paying tax and insurance contributions. In this case, this responsibility lies entirely with them, since they do not act as employees for whom the employer is responsible.
By a special decree, the so-called micro-businesses, which cannot afford the burdensome contributions of individual entrepreneurs, moved into the sphere of self-employment. These are nannies, tutors, representatives of construction and finishing professions. A bill regulating the institution of self-employed citizens has already been developed. It is expected that for this type of micro-business a similar individual entrepreneur and one-stop registration method will be introduced.
What to choose?
If you still have not decided which organizational and legal form is more profitable, we advise you to clearly identify the main goals, objectives and prospects of the future company, plan a budget and limit the scope of activity:
- If you do not need hired workers, and your scope of activity will be limited to services, the status of a self-employed individual is quite suitable for you.
- If you sooner or later expect to have assistants and act as an employer, then you should think about it.
- If you do not want to risk your personal property and plan to attract third-party investments and credit funds, it is better.
- If you are attracted to the issue of shares and a clear distribution of company income, consider .
- If your activity is not commercial in nature and making a profit is not yours main goal, non-profit public organization or fund.
In any case, no matter what you choose, you can always change the field of activity, close the individual entrepreneur, sell the LLC, leave the joint-stock company and start all over again.
Business is a fascinating game that combines maximum excitement with a minimum of rules. Bill Gates, founder of Microsoft
The term “enterprise” is used as a synonym for a company created as a legal entity.
An enterprise receives the status of a legal entity after state registration, and it has all the characteristics of a legal entity.
Signs of a legal entity:
1. Ownership, possession or use of separate property.
2. The ability to act in economic transactions on one’s own behalf.
3. The ability to meet with your property obligations to counterparties (budget, creditors, partners).
4. The opportunity to be a plaintiff or defendant in court.
5. Possibility to use hired labor.
6. Availability of an independent balance sheet or cost estimate and submission of reports to the relevant tax authorities.
7. Availability of a name containing an indication of the legal form of the enterprise.
The classification of enterprises is extremely broad. It should be noted that the enterprise is the object of study not only of organization theory, but also of a number of other sciences. Enterprise is studied by such sciences as economic theory (microeconomics), enterprise economics, management, marketing, legal sciences, etc. Each of them has its own task and its own subject of study. Therefore, the central object of study for them becomes various types enterprises. For example, for economic theory The most important is the division of enterprises into private enterprise, partnership and corporation. Organization theory pays more attention to other types of enterprises (organizations), the main ones of which will be discussed below.
Based on the objectives of their activities, organizations can be divided into commercial and non-profit.
Commercial organizations are those that pursue profit as the main goal of their activities.
Commercial organizations can be created in the form:
– business partnerships and societies;
– production cooperatives;
– state and municipal unitary enterprises.
Production cooperative– a voluntary association of citizens for joint production or other activities based on their personal labor and the pooling of their shares.
Unitary enterprise – a commercial organization that does not have ownership rights to the property assigned to it by the owner. In the form of unitary enterprises, only state and municipal enterprises.
One of the most important types of typification of organizations is their division according to their organizational and legal form. According to their organizational and legal form, business partnerships and companies are divided into:
– for a general partnership;
– for a limited partnership (limited partnership);
– for a limited liability company;
– to a company with additional liability;
– on joint stock company(open and closed).
Full is a partnership whose participants (general partners) are engaged in entrepreneurial activities and are responsible for the property they own. The profits and losses of a general partnership are distributed among its participants in proportion to their shares in the common share capital.
Limited partnership is a partnership in which, along with general partners, there are one or more participant-investors (limited partners) who bear the risk of loss only within the limits of the amounts of contributions made by them and do not take part in the entrepreneurial activities of this partnership. Limited partners receive a portion of the partnership's profits due to their share in the joint capital.
IN limited liability company its participants bear the risk of loss only to the extent of the value of their contributions.
IN company with additional liability its participants are liable in the same multiple of the value of their contributions. If one of the participants goes bankrupt, his liability is distributed among the others in proportion to their contributions.
Joint stock company(JSC) – This is a company whose authorized capital is divided into a certain number of shares. Shareholders bear the risk of loss only up to the value of their shares.
An open joint stock company has the right to conduct open subscription and sale of shares issued by it.
A closed joint stock company is a joint stock company whose shares are distributed only among its founders.
Non-profit organizations do not set as their goal the extraction of profit and its distribution among participants.
Non-profit organizations can be created in the form of consumer cooperatives, public or religious organizations, charitable and other foundations.
Consumer cooperative is a voluntary association of citizens based on share contributions in order to satisfy material and other needs. The income of consumer cooperatives from business activities is distributed among its members.
Public And religious organizations are voluntary associations of citizens based on their common interests to satisfy spiritual or other non-material needs. They are non-profit, but can carry out entrepreneurial activities to achieve the purposes for which they were created (for example, making candles, crosses, chains in churches, etc.).
Participants of these organizations do not have the right to the property of these organizations.
Foundation is a non-profit organization established on the basis of voluntary property contributions, having social, charitable, cultural, educational or other goals. The Foundation may engage in entrepreneurial activities necessary to achieve the socially beneficial goals for which it was created.
Commercial and non-profit organizations can unite into associations, groups and unions. The most common forms of association in Russia are joint ventures, financial and industrial groups, associations and holdings.
Joint venture is an association of several legal entities, at least one of which is foreign.
Association is called a voluntary association of several independent enterprises to carry out joint activities.
Financial and industrial group(FIG) is an association of production and financial enterprises for joint investment and implementation of a specific narrow type of activity. Enterprises included in the financial industrial group retain their independence.
Holding company is a company that owns controlling stakes or shares in shares of other companies (firms) to control and manage their activities.
Based on the organization of activities, they distinguish between a parent enterprise, a subsidiary, a branch and a representative office.
Parent enterprise (company) are called a completely independent enterprise with dependent structures - a subsidiary, branch or representative office.
Subsidiary is an enterprise whose capital does not predominate in the authorized capital of the entire enterprise, therefore it does not have the opportunity to determine the main decisions of this company. The subsidiary, while formally independent, is actually completely dependent on the parent company. The status of a dependent company implies a situation in which the main company has more than 20% of the voting shares of the joint-stock company.
Branch and representative office are not independent economic entities, but represent separate units parent company located outside its location. The difference between them is that a branch performs all the functions of the parent company in a given territory (including production), and a representative office only represents and protects the interests of the parent company.
Industrial enterprises can be divided by type of industry. The most commonly used division is into a mining enterprise, which extracts natural resources and produces raw materials, and a processing enterprise, which produces final products. In turn, the processing industry is divided into light industry, food industry, heavy industry, etc.
In force various reasons the specialization of the enterprise does not necessarily coincide with administrative structure and the main specialization of the industry. For example, in many industries not related to mechanical engineering (metallurgical, coal and oil mining), there are large factories for the production of machinery and equipment, their
repair. Along with this, in the engineering industry there are metallurgical and chemical enterprises, power plants, transport divisions, etc. Thus, in national economy two definitions of the industry affiliation of an enterprise are used: administrative and organizational And grocery(clean).
When using an administrative-organizational characteristic, the main declared type of activity and the affiliation of the enterprise with a particular department or business union are taken into account. Enterprises that produce, for example, engineering products, will be counted in the industry with which they are administratively connected, for example, in coal.
According to the second sign of the industrial affiliation of manufactured products, the structure and volume of production for each so-called product (pure) industry are determined. In this case, all mechanical engineering enterprises, regardless of their administrative subordination, belong to mechanical engineering; transport enterprises – to the transport industry; construction to construction, etc.
In practice, it is less and less possible to clearly determine the industry affiliation of enterprises, since most of them have intersectoral structure. In this regard, according to the structure of enterprises, they are divided into highly specialized, multidisciplinary and combined.
Highly specialized are considered enterprises that produce a limited range of products of mass or large-scale production, for example, the production of cast iron, rolled steel, castings, packaging for mechanical engineering, the generation and supply of electrical and thermal energy, the production of grain, meat, etc.
Multidisciplinary enterprises, which are most often found in industry and agriculture, produce a wide range of products for various purposes. In industry, they can simultaneously specialize in the manufacture of computers, ships, cars, baby strollers, refrigerators, machine tools, tools, and cargo transportation; in agriculture - growing grain, vegetables, fruits, livestock, feed, etc.
As competition intensifies, many highly specialized enterprises, having strengthened economically, go beyond their previous specialization, dramatically expand the range of products and services and capture new markets. Often such enterprises completely lose their previous industry profile and become inter-industry - diversified enterprises. At the same time, they can be engaged, for example, in the production of various industrial products, construction, transport and commercial operations. The transfer of capital from one sector of the economy to another occurs within the same company.
Diversification turned out to be the main direction of entrepreneurial activity at the end of the twentieth century. The once specialized enterprises were transformed within a short period of time into new category– firms that combine diverse types of entrepreneurial production and commercial activities. In this case, grouping enterprises by industry makes no sense, since only products are grouped.
Combined enterprises most often found in the chemical, textile and metallurgical industries. Their essence is that one type of raw material or finished products at the same enterprise it turns in parallel or sequentially into another, and then into a third type. For example, cast iron smelted in blast furnaces, along with its sale to consumers, is melted at its own enterprise into steel ingots, part of which is sold to consumers, and part goes for further processing into rolled steel at own factory. IN textile industry combination is manifested in the production of fiber from raw materials, yarn from fiber, and linen from yarn.
The most complex combined production is complex use raw materials for the manufacture of products of different structure and chemical composition. In particular, when smelting cast iron from iron ore Valuable components containing non-ferrous and rare metals often go into waste along with the rock.
To extract them, ferrous metallurgy enterprises build non-ferrous metallurgy workshops. In addition, waste from blast furnace and steel production at these enterprises is often processed into building materials. Thus, based on the same feedstock (in this case, iron ore), the enterprise produces products that differ in characteristics, purpose and manufacturing technology.
The classification of enterprises by enterprise size is one of the most common, which is not least due to the special role of small enterprises and the provision of state support to them.
As a rule, all enterprises are divided into three groups based on size: small, medium and large.
When classifying enterprises into one of these groups, the following indicators are used in world practice:
– number of employees;
– volume of turnover;
– amount of profit (income);
– size of the authorized capital;
– cost volume of production;
– cost of basic production assets;
– total value of assets.
Market economy is under pressure from large associations and corporations, whose activities are constantly associated with the threat of monopoly, which destroys competition and leads to many negative consequences. In the fight against this threat government bodies forced to encourage and support the massive development of small and medium-sized businesses. With the assistance of the state, in contrast to the monopoly dictates of the giants, thousands of small producers appear on the sales markets, who do not allow the monopolies to completely impose the conditions of production and sales, as well as the quality of goods and their prices. However, small enterprises appear not only as competitors of monopolies, but also as their satellites. In this case, by agreement and on the basis technical documentation, developed by the largest companies, small enterprises produce the components they need for large companies. This is beneficial to both parties: a large company is freed from the need to set up dwarf production, and a small entrepreneur is provided with constant orders and the patronage of a large company.
An extensive classification of enterprises allows us to assess how different an economic entity can be, defined as a “legal entity,” “firm,” or, finally, “organization.” These differences must be taken into account when analyzing organizations and taking actions to improve their performance.
Lecture 3
Topic: ORGANIZATION AS A COLLECTION OF PEOPLE
Lecture outline:
Related information.
13. Concept and characteristics of a legal entity.
Art. 48 Civil Code of the Russian Federation:legal entity– an organization that has separate property on the right of ownership, right of economic management or operational management; acting in civil circulation on its own behalf and bearing independent property liability.
Signs of a legal entity (in theory, in practice – up to 12 signs):
Organizational unity: A legal entity is an organization or association of two or more persons. Organizational unity finds its outer expression in constituent documents legal entity. Assumes the presence of management and control bodies.
Sign of property isolation(one of the creators is Professor Venediktov: the right of operational management the right of economic management). Civil turnover presupposes the participation of owner organizations in it, however, for certain types of organizations, the possibility of participation is allowed when they own property on the basis of limited property rights (economic management, operational management - Ch. 19 GK). Institutions (possibility of disposal are very limited), as well as state-owned enterprises, have the right of operational management. State and municipal unitary enterprises have the right of economic management of property. External sign property separation: balance sheet or estimate (for institutions).
Speaking in civil circulation on one’s own behalf: emergence, change, termination of civil rights, administrative and judicial protection of violated rights. A legal entity acts in civil circulation under its own name, which includes the name of the organizational and legal form and the name itself. It is also possible to indicate the activity (ex: insurance company), location, company name ( Part IVGK), trademark or service mark ( Art. Art. 1477-1515 GK), commercial designation ( Art. Art. 1538-1541 GK), place of origin of the product (ex: “Bashkir honey”). Performance of legal entities in civil proceedings, court, arbitration court, other organs, possibly through the actions of his organs (as a rule, individual ones).
Sign of independent property liability of a legal entity: the possibility of foreclosure on the property of a legal entity for debts and other obligations (without holding the property of the founders, the state, etc. liable).
PROVISIONS OF THE CONCEPT. Legal entities must have only one founding document- charter. The presence of a constituent agreement as a constituent document is not caused by practical necessity (except for business partnerships, in which the constituent agreement has the force of a charter). At the same time, all legal entities without exception must have charters.
Basic theories of the essence of a legal entity.
First in time - fiction theory: a legal entity is a product of the legal order, i.e. some legal fiction, an artificial construction invented by the legislator. Founder: Pope Innocent IV, who stated in 1245, when asked about the possibility of excommunicating corporations, that a corporation has no soul, but exists only in the imagination of people. The theory of fiction was developed in the 19th century in German civil law (Friedrich Karl von Savigny and Bernhard Winscheid). They considered a legal entity to be an artificial subject, created by law only for the conditional binding to it of subjective rights and obligations, which in reality either belong to its participants - individuals, or remain subjectless. G. F. Shershenevich, who considered legal fictions, also considered legal entities as a fictitious concept not imaginary concepts, but by scientific methods of cognition, and a legal entity is an “artificial subject” of turnover, created to achieve a specific goal. The theory of fiction has also gained currency in Anglo-American law, where a corporation is viewed as “an artificial entity, invisible, intangible and existing only from the point of view of law.”
In development of the theory of fiction, it was put forward theory of "target property"(Alois Brinz). He argued that rights and obligations can both belong to a specific subject and serve a specific purpose (object). In the second case, the subject of law is not required at all, since its role is played by property isolated for this purpose (including those responsible for debts incurred to achieve the corresponding goal). According to tradition, it is endowed with the properties of a subject of law, although this is not necessary. Planiol believed that a legal entity is a collective property, which, as a subject of law, is a legal fiction created to simplify its use. Advantages of the approach: explained the need to recognize a legal entity as a subject of law; disadvantages: excluded such a subject from having his own will and interests (subjectless legal relations).
Another variant of the development of the theory of fiction was "interest theory"(Rudolf von Jering). This theory holds that the rights and obligations of a legal entity actually belong to those actual individuals who actually use the common property and receive benefits from it. Their common interest is what the LE personifies.
In contrast to the theories of fiction, they began to put forward theories that recognize reality a legal entity as a subject of law (“realistic theories of a legal entity”). In Germany, their founders were Georg von Beseler and Otto von Gierke.
Organic theory. Gierke considers a legal entity as a special “corporal-spiritual organism” (“allied personality”). The reality of the existence of such “organisms” presupposes their recognition by law, but not their artificial creation. In Russia, the reality of the legal entity was defended by N. Duvernoy and I. A. Pokrovsky, who called the legal entity “a living cell of the social organism.” The advantage of the approach: the ability to explain the presence of a legal entity’s own will and interests, and thereby its independence as a subject of civil circulation, although equating a legal entity with a private individual was also recognized as artificial. The “natural person” theory spread to American law in the early 20th century.
In civil science Soviet period A number of theories were put forward, primarily in relation to the enterprises and institutions that dominated civil circulation at that time. The theory of legal entities as separate, personified property was rejected. Legal entity is a “social reality” endowed with certain property to achieve socially useful goals or to solve socio-economic problems of the state and society ( theory of social reality D.M. Genkin).
Sometimes it was directly stated that behind a state legal entity there is always the state itself, or the “national collective”, which is the actual owner of its property ( theory of state S.I. Asknasia).
The dominant force in Soviet civil law was collective theory, substantiated in the works of A.V. Venediktova and S.N. Bratusya. According to this theory, a legal entity is a really existing social entity that has a “human substrate” (essence) in the form of a collective of its workers, behind which stands a nationwide collective of workers, organized into a state. Other scholars have emphasized the role of the administration of the state legal entity ( director theory Yu.K. Tolstoy). Since the will of the director is recognized as the will of the legal entity itself and it is through him that the legal entity acquires rights and obligations, the director represents the essence of the legal entity.
During the transition to a market economy, a number of shortcomings of the “collective theory” became obvious: employees of state legal entities, considered as a “human substratum”, in reality are not only participants (founders) of the legal entity, but also part of the “national collective-owner”. It is obvious that the Soviet interpretation of legal entities as an organized team led to neglect of the property side of the matter. As a result, for example, allowing citizens to engage in entrepreneurial activity by creating production cooperatives in accordance with the law presupposed the presence of a “human substratum” (at least three members), but not separate property at the beginning of its activities. Such legal entities could be a simple “dummy”, dangerous for potential counterparties. This theory also does not provide a satisfactory explanation for the existence of “one-person companies,” although they have received significant development in the modern economy, where they are created, among other things, by public legal entities. Declaring them a fiction can hardly be considered a sufficient explanation of their status.
Other concepts have also been put forward:
O.A. Handsome - social connection system;
B.I. Puginsky – some legal remedy, with the help of which a specific organization is allowed to participate in civil circulation.
In modern foreign literature, theories of the essence of legal entities special attention is not given, characteristic even of German jurisprudence is the indication that a legal entity should be considered as legal-technical concept, which serves to recognize “persons or things” (subjects) as legal organizations, and the essence of this concept is explained by numerous theories that “do not have practical significance and do not have much educational value.” This approach is equally inherent in both continental and Anglo-Saxon law.
According to paragraph 1 of Art. 48 of the Civil Code, a legal entity is recognized as an organization that has separate property and is responsible for its obligations, can, in its own name, acquire and exercise civil rights and bear obligations, and be a plaintiff and defendant in court.
Russian civil legislation establishes the mandatory characteristics of a legal entity, the totality of which allows the founders of an organization with such characteristics to raise with the state the question of recognizing it as an independent subject of civil legal relations. These signs include (clause 1, article 48 of the Civil Code):
1. organizational unity;
2. property isolation;
3. independent property liability for its obligations;
4. acting in civil proceedings and in resolving disputes in courts on one’s own behalf.
Organizational unity characterizes any organization as a single whole capable of solving certain problems. It presupposes a certain internal structure of the organization, expressed in the presence of its management bodies, and, if necessary, the corresponding divisions to carry out the tasks assigned to it.
Both the tasks (functions) of the organization and the structure are enshrined in its constituent documents - the charter, the constituent agreement, or in the general regulations on organizations of this type (clause 1 of Article 52 of the Civil Code). They necessarily define the name and location of the legal entity, the procedure for managing its activities (management bodies, their competence, etc.), in most cases, the subject and goals of this activity, as well as other information provided by law for the corresponding types of legal entities . The presence of such documents is a formal expression of organizational unity as a sign of a legal entity.
The property isolation of an organization presupposes that it has some property on the right of ownership (or on limited property rights of economic management or operational management). It is obvious that the absence of its own property excludes the possibility for an organization to independently participate in civil circulation, and thereby to be recognized as a subject of civil legal relations. It is permissible to exist legal entities operating solely on the basis of property, which consists of rights of use (for example, renting a building) and (or) rights of claim (for example, funds in a bank account) and therefore is not the object of proprietary rights.
Property owned by an organization is initially covered by the concept of authorized capital or “authorized fund” (in partnerships - “shared capital”, in cooperatives - “mutual fund”), the size of which is reflected in its constituent documents. As a result of participation in civil circulation, this property usually includes not only things, but also certain rights and obligations (debts). In the property of a legal entity, some special property funds with special legal regime(for example, backup).
All property assigned to an organization is subject to mandatory accounting on its independent balance sheet. The property listed on the organization’s balance sheet characterizes its isolation from the property of the founders (or participants), due to which the presence of an independent balance sheet becomes the most important indicator of the organization’s independence. An independent balance sheet should be distinguished from a separate balance sheet, which for accounting purposes can also be opened to a non-independent division of a legal entity. However, it must be borne in mind that in itself balance sheet organization has primarily accounting significance.
The property isolation of an organization is inextricably linked with its independent property liability for debts. The meaning of separating the property of a legal entity is precisely to isolate such objects that its possible creditors will be able to foreclose (in order to remove other personal property of the founders and participants from under it). It is precisely these purposes that the authorized capital (authorized or mutual fund), which determines the minimum amount of property that guarantees the interests of creditors of a legal entity. A legal entity is liable for its obligations with all its property (clause 1 of Article 56 of the Civil Code), and not just with the funds it has (primarily in its bank accounts).
Founders and participants of a legal entity general rule are not responsible for his debts. But even when such liability is established by law, it always has an additional (subsidiary) nature, that is, it will occur only in the absence or insufficiency of property of the legal entity itself. In addition, in some cases it may be limited in size.
Finally, an indicator of the independence of a legal entity is its performance in civil circulation and in judicial authorities on your own behalf. The name of a legal entity serves to individualize it and is contained in its name, defined in its constituent documents. The name of a legal entity must contain an indication of its organizational and legal form (for example, LLC, state unitary enterprise, charitable foundation), and in some cases, the nature of its activities (clause 1 of article 54 of the Civil Code) (for example, an insurance joint-stock company, a trade union of workers Housing and communal services, voluntary society for the protection of animals). The terms “exchange” and “bank” can be used in the names of only those organizations that have a license to carry out the relevant activities.
Commercial organizations are required to have brand names (company). The right to a company is the absolute exclusive right of a legal entity. The organization receives an exclusive opportunity to use it and has the right to demand the termination of the unlawful (without its consent) use of such a name by other legal entities and compensation for losses caused by this (clause 4 of Article 54 of the Civil Code).
A legal entity must also have an official location (“ legal address"), which is usually determined by the place of its state registration (clause 2 of Article 54 of the Civil Code) and is necessarily indicated in its constituent documents.
It must be emphasized that even if all 4 listed signs are present, it does not lead to automatic recognition of the organization as a legal entity. This requires her state registration in this capacity (clause 2 of Article 51 of the Civil Code), i.e., official recognition of her legal personality by the state.
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