Every person who decides to take on such a risky and responsible business as a business always asks the primary question of choosing the organizational and legal form of the future company. At this stage, the following problems are solved: Which form will bring more profit and ensure the competitiveness of the business? Who should I be: an individual entrepreneur or a legal entity?

In order to understand all the issues and not make a mistake in choosing, it is better to seek advice from specialists. The law firm “Azbuka Prava” will advise you and help you with preparing documents for registering a company.

Each option has its own advantages and disadvantages. Which? Here you need to understand everything in order.

Individual entrepreneur (IP)

Surely you have heard the abbreviation “IP” more than once in the news or someone you know used it in a conversation. What is hidden behind such a concept as “IP”? This remains to be seen.
On at the moment, An individual entrepreneur (IP) is an individual. a person registered in accordance with legislative norms and implementing commercial activities without forming a legal entity.
Individual entrepreneur, as an organizational and legal form of doing business, is the simplest, not requiring much time and effort in its formation and registration. When creating an individual entrepreneur you need:

• passport,
• copy of passport,
• statement.

This form does not require the creation of a charter and constituent documents, describing in detail the activities of the company.
It is also necessary to take into account that the fee for state registration of individual entrepreneurs is minimal and amounts to 800 rubles.

Another aspect when choosing individual entrepreneurship can be the special tax regime. Since January 1, 2013, individual entrepreneurs have the opportunity to conduct business under the patent tax system. The purpose of a patent is to simplify taxation. When purchasing a patent, an entrepreneur certain period exempt from personal income tax payment, VAT, personal property tax. There are a number of requirements to obtain a patent. Today it is:

• revenue for a calendar year should not exceed 60 million rubles,
• the number of employees involved in the process should not exceed 15,
• The activities of the individual entrepreneur must be carried out in one specific region (the application must be submitted at the place of business activity.)
• the main requirement: the activity must fit one of the items on the officially approved list.

It is necessary to take into account the fact that the cost of a patent is calculated annually, and also directly depends on the level of inflation in the country and the volume of revenue for previous years of commercial activity.

Recently, another significant advantage has appeared for individual entrepreneurs. It's about about tax holidays, which imply exemption from paying taxes to the state budget in order to refinance the profits received for development own business. The right to tax holidays can be used by businessmen who have chosen individual entrepreneurs as the form of running their own business.

However, the IP form has a number of disadvantages. First of all, this is the full property liability of the entrepreneur for his obligations. Simply put, in the event of failure to fulfill obligations on the part of the individual entrepreneur, the entrepreneur will be required to respond in full for liabilities with personal property directly in his possession. As an exception, in this case, only the most necessary property is used: an apartment (if this is the only home for the owner), home furnishings and household items, etc.
Another drawback is that an entrepreneur does not have the right to additionally attract partners to an individual entrepreneur without changing his status. If partners appear in a business, there is an urgent need to register a legal entity with several founders.
In today's economic climate, entrepreneurs most often register a small business as an individual entrepreneur.

Society with limited liability(LLC) is a business company that is established by one or more people, the authorized capital of which is divided into shares, shares, etc. The participants of the organization are both the owners of these shares and the founders of the company. In this case, the founders bear the risks and full responsibility for possible financial losses that may arise in the process of conducting financial economic activity only in the amount of their shares in authorized capital.
Speaking in simple language, if the company does not live up to its expectations and, as a result, the company goes out of business, then the collection will only cover the property of the organization, but in no case the own property of its founders.

Such a distinction between the obligations of the owners of the company is relevant for both LLC and joint stock companies.

However, it should be noted that there is an important exception in this case. If it is proven that the company was forced to declare itself bankrupt due to the fault of its owner or owners, then in this case, if there is a shortage of legal property. persons, the penalty is also applied to the personal property of the owners.

A limited liability company is a predominantly acceptable form for both small and medium-sized businesses. For this reason, today large number firms, especially the large business segment, are formed as LLCs. The reason for such ubiquity of this type of organizational and legal form of business is the ease of creation, high level management control over the activities of both the company as a whole and the individual employee. Also significant advantages are efficiency, mobility, and simple change of organization members. For the profitable and competitive functioning of a company in the modern economic market, the company needs a constituent agreement, which defines the procedure and rules for the founders to conduct a joint business, the size authorized capital(MC), shares of each participant in the UK, etc.

In addition, the company needs a charter, which sets out the defining information about the organization.
Speaking about the authorized capital of the company, it is important to note the fact that its size for an LLC must be at least 10 thousand rubles. At the time of registration of a limited liability company, the management company must be paid at least half. The balance must be repaid by the founders of the company during the first year of operation of the company.

Joint stock company

A joint stock company is an organization formed by individuals who have combined their property into a management company, divided into the number of shares that are secured by securities, i.e., this is a certain activity aimed at making a profit, in which the management capital is divided into a certain number of securities (for example, shares , bonds).

Until recently, joint stock companies were divided into closed and open (CJSC, OJSC). To date legislative bodies of the Russian Federation, amendments were made to the Federal legislation. As a result, instead of closed and open joint-stock companies, public and non-public companies were formed.

Non-public joint-stock company (JSC, former CJSC)

Shares of this type of joint stock company are distributed only among its owners or a previously formed circle of persons. Securities may not be offered by mere listing of shares on stock exchanges or otherwise offered to the public. A JSC may include no more than 50 shareholders. If this limit is exceeded, the JSC must undergo the procedure of transformation into a PJSC (Public JSC).
By and large, the difference between LLC and JSC is almost invisible.

In both cases, the founders, as owners of the business, need to enter into an agreement that prescribes the procedure and rules that are fully capable of regulating their implementation of the joint functioning of the company, the size of the charter capital, the categories of shares they issue, the procedure for their issue and sale, etc.
The next particularly important and necessary document of the company, as with an LLC, is its charter.
The starting amount of the capital for a joint-stock company, as well as for an LLC, is set at 10,000 rubles. Distinctive feature is that the charter capital of a joint-stock company consists of shares. Often shares are uncertificated, and all necessary information about their owners is stored in electronic form in the register of shareholders.

The issue of shares is subject to mandatory registration in the Federal Service for financial markets. In addition, you will need additional time to register the issue of shares.

Due to a number of similarities between LLC and JSC, it is becoming increasingly difficult to choose a specific organizational and legal form of the company. In this regard, many do not immediately pay attention to the difference between these forms in the form of splitting shares (monetary and shareholding). In addition, there is an opinion that an organization registered as a joint-stock company (formerly a closed joint-stock company) is more profitable and competitive than in the form of an LLC. However, in reality this is not entirely true. At the moment, a fairly large number of large companies, increasingly, prefer to retain LLCs. In addition, lawyers involved in registering companies are increasingly advising clients to opt for an LLC.
This is due to a number of reasons. The procedure for registering an LLC is simpler and faster. The sale of a company is impossible without the consent of absolutely all its participants. In other words, an LLC is a stronger structure compared to a joint stock company.

Public joint stock company (PJSC, former OJSC)

Public JSC (PJSC, former OJSC). Public joint stock company PJSC (formerly Open Joint Stock Company - OJSC) is one of the forms of joint stock company. The main difference between a PJSC and a JSC is that participants in a public joint stock company have the right to freely dispose of their shares. To do this, they do not need to obtain approval from other shareholders. PJSC issues shares to bearer, i.e., any person can purchase them.
Another advantageous difference between a Public JSC and a Non-Public JSC is the number of shareholders. In a PJSC it is unlimited, there are no problems with buying and selling shares.

As a consequence of these privileges, the size of the Criminal Code. Its size must be at least 100 thousand rubles.

This organizational and legal form is typical and highly profitable for large public companies. Firms of this kind, as is customary, are quite capable of attracting external investment in their business project or entering general exchanges (within the country and abroad).

Which type should you choose?

In this case, the first thing you need to pay careful attention to is the level of responsibility for performance results.
It is necessary to remember that an individual entrepreneur (individual entrepreneur) is liable for his obligations with absolutely all property owned by him, with the exception of property that is protected from coverage by law.

In case of registration of a legal entity. of a person (limited liability company, joint stock company) liability for any results of its activities is limited to the amount of the value of the contribution made to the capital company.

Second: the complexity of registering a company and the cost of registration.

The easiest way is to register as an individual entrepreneur; organizational costs will also be insignificant and practically unnoticeable for your pocket.

For legal entities individuals, the costs of registration will significantly exceed the costs of an individual entrepreneur. This process will also be more time-consuming and painstaking.
Third: the value of the Criminal Code.

In order to register as an individual entrepreneur, it is not necessary to have an authorized capital. This is largely an additional advantage for business and individual entrepreneur status.

For correct design legal persons must pay at least 50% of the total capital. For LLCs and JSCs, the authorized capital must be at least 10,000 rubles, and for PJSCs, 100,000 rubles.

Fourth: accounting, tax accounting and taxation.

For individual entrepreneurs, the requirements for maintaining accounting (financial) records are the simplest and most understandable. For reference financial statements at the legal face, it is almost impossible to do without special knowledge. In this case, the most the right decision is to employ a qualified and competent accountant. However, when using special regimes There is practically no tax difference.

The requirements for maintaining tax records are the same, but in practice individual entrepreneurs the attitude is softer.

From all of the above it follows that it is quite difficult to answer the question “Who should I be?” it's practically impossible. It is necessary to conduct a thorough and detailed analysis their abilities, capabilities and prospects. All the nuances should be taken into account, because the well-being of the company depends on them.

On September 1, 2014, serious changes to the Civil Code came into force, which significantly affected. This is how the classification of organizational and legal forms and their names changed, for example: OJSC became PJSC, and CJSC simply JSC; Some forms were generally abolished, such as a company with additional liability and other amendments. In connection with these innovations, the question arises of what organizational and legal form to choose in accordance with the new provisions of the Civil Code of the Russian Federation.

It is worth noting that now everything legal entities are divided into corporate and unitary organizations, and business companies, in turn, into public and non-public. In addition, the list of non-profit organizations has become closed; a total of 11 such forms are indicated, but first things first.

Changed list of commercial organizations

The organizational and legal forms enterprises on the basis of which it is possible to create a commercial organization. Two things need to be noted right away important points things to consider when deciding to create a new company:

1. the creation of any additional liability companies (ALS) is no longer allowed (Clause 4, Article 66 of the Civil Code of the Russian Federation);
2. closed and open business companies were replaced by two other types: public (PJSC) and non-public (JSC and LLC).

According to the new provisions of the Civil Code of the Russian Federation, it can be said that the organizational and legal form of LLC has not undergone major changes, but JSCs should be called differently. Now a new legal entity. a person cannot be an OJSC or CJSC, but only a PJSC (public) or JSC (non-public), respectively. At the same time, existing closed and open joint-stock companies do not need to be re-registered, and they can change their names if other changes are made to the Unified State Register of Legal Entities.

Legal entities: unitary and corporate

Since September 1, 2014, such concepts have been introduced to classify organizations as unitary and corporate enterprises. What type of company is can be understood by the following signs: whether the founders are participants (members) of the company and whether they can form the supreme body (clause 1 of article 65.1 of the Civil Code of the Russian Federation). Therefore, if:

• founders can be participants (members), take part in meetings, form a supreme body, etc. - the organization is corporate (LLC, JSC, etc.);
• founders cannot be participants and do not take part - the organization is unitary (SUE, MUP, etc.).

Corporate companies thus refer to corporations, which are all business entities, for example. Unitary, on the other hand, are mostly state-owned. enterprises in which the founder is the state or a municipal body, which is reflected in the name.

Business companies: non-public and public

As we have already noted, amendments to the Civil Code of the Russian Federation divided business companies, which include LLCs and JSCs, into public and non-public. Thus, all LLCs became non-public. At the same time, such companies do not need to change anything either in the name, or in the charter, or in other documents. Also classified as non-public are those joint stock companies whose shares do not participate in open trading, that is, former closed joint stock companies. Now they should be called simply .

The same companies whose shares and other securities are publicly available on the market are classified as . At the same time, automatically all JSCs that meet the criteria of publicity (this applies to former JSCs) became PJSCs.

Since joint stock companies are now divided into other types, it would be logical to change their names, open joint-stock company, to public joint-stock company, etc. However, the law does not require mandatory bringing of the charter into compliance with the law. And this can be done, as we have already noted, together with other changes to the Unified State Register of Legal Entities.

By the way, the merger of LLCs and former closed joint-stock companies into one type of non-public companies is not accidental; experts have long noted their forced similarity. Since the shares of the CJSC were not traded on the market, but were distributed among shareholders only according to other criteria. Now, by the way, in the Civil Code of the Russian Federation, participants in a non-public joint-stock company do not have a preemptive right to purchase shares.

Participants of PJSC and JSC: rights and obligations

The new provisions of the code provide for increased requirements specifically for public companies. As for non-public ones, on the contrary, for them there is more freedom in corporate relationships. Let's take a closer look at what the specific rights and obligations for PJSC are in the updated code (Article 97 of the Civil Code of the Russian Federation):

• the name must indicate that the JSC is public;
• mandatory creation of a collegial governing body (number of members - at least 5);
• the register of shareholders must be maintained by a special registrar organization that has the appropriate license;
• the maximum number of shares owned, as well as the maximum number of votes that can be granted to him, cannot be specified for shareholders;
• the charter cannot stipulate the need to obtain someone’s consent to alienate shares;
• No one can have a preemptive right to purchase shares, except for the situations described in clause 5 of Art. 97 Civil Code of the Russian Federation;
• all PJSCs must regularly disclose information about themselves on the securities market;
• the scope of rights of PJSC participants is determined by the shares they own in the authorized capital;
• management of a PJSC can only be carried out within the framework of existing legislation and clauses that contradict it cannot be spelled out in the charter, for example, expanding the competencies of the meeting of shareholders, which by law are not inherent in them, etc.

Let's now compare the rights and obligations of non-public joint-stock companies:

• in the name of non-public joint stock companies it is necessary to leave only the phrase “joint stock company”;
• the register of shareholders must be maintained by a special registrar organization that has the appropriate license;
• Every year it is necessary to conduct an audit (by an independent auditor) of the company’s financial statements, the initiator of which can be a shareholder with a share (total) in the authorized capital of 10% or more;
• the rights of JSC participants may be distributed disproportionately to their shares in the authorized capital, that is, the ratios may be different;
• it is possible to make changes to the management procedure of a joint-stock company if there is unanimous consent of the participants;

What provisions can be included in the charter of a non-public joint-stock company?

Non-public joint-stock companies, unlike public joint-stock companies, have the opportunity to include provisions in the charter (by unanimous decision of the participants) that differ from those approved by Russian legislation, this concerns the management of the company. So, in particular, you can:

1. Grant the collegial management body (supervisory board) or executive body (board) the right to consider issues that are prescribed by law for the general meeting of shareholders (GMS), for example. This can be done in addition to decisions on the following issues:

• amending the existing charter or adopting it new edition;
• approval of the number and composition of the company’s management bodies, if their formation is the competence of the General Assembly;
• election of members of management bodies and early termination of powers;
• clarification or determination of the number, par value and category of shares and the rights granted by them;
• disproportionate increase in the authorized capital, occurring due to a change in the shares of its participants or the admission of other persons to the membership;
• approval of internal regulations and other non-constituent documents.

2. The supervisory board of a joint-stock company can partially or completely assign the functions of the board, which may preclude the creation of this body in the company.

3. Behind the sole executive body of the JSC ( general director) the functions of the board can be assigned (transferred).

4. The company, represented by its participants, may refuse to create an audit commission or prescribe situations when this still needs to be done.

5. The JSC can itself prescribe the procedure for convening, preparing and holding the General Meeting, as well as making decisions. The main thing is that these provisions do not contradict the law: they do not make it difficult for participants to attend, obtain information, etc.

6. Rules regarding the conduct, number of participants, etc. can be established regarding the supervisory board and management.

7. It is allowed to register the pre-emptive right to acquire a share in the authorized capital of an LLC or shares in a JSC, and it is also possible to establish a maximum share of participation in the authorized capital of an LLC.

8. The general meeting of shareholders may include those issues that it is not required to consider by law.

In addition, the charter non-public company Both LLC and JSC can introduce provisions that differ from the general established procedure for this document, if their inclusion is expressly permitted by the existing law. This is how you can write it:

• exclusion requirement in judicial procedure member of the company (with payment to him in full actual value share due to him) if his actions harm the company or impede its work.
• restrictions regarding the maximum number of shares, votes, etc. for one shareholder.

Which organizational form to choose in connection with changes to the Civil Code of the Russian Federation

The most significant question for companies, and especially joint-stock companies, was the choice: whether to maintain the previous form or choose a different one. For example, instead of a closed joint-stock company, become an LLC, etc. Initially, there was even an opinion that it was necessary to transform the closed joint-stock company into an LLC. However, as it turned out later, all this is not necessary. And it is possible to bring the charter into compliance with amendments to the Civil Code by making changes according to the standard procedure. And this can be done together with the introduction of other amendments to the Unified State Register of Legal Entities.

So, in particular, an OJSC can retain its form of a joint stock company and its open status, which has been transformed into a public one. Therefore, all JSCs that meet the definition of publicity, that is, their shares are traded on the market, automatically become PJSCs. And also those JSCs whose names indicate publicity. However, if the shares are no longer publicly available and there is no indication of publicity in the name, such a company can no longer be considered a public joint-stock company.

As for former closed joint-stock companies, they can also retain their previous form without making major changes, but only by removing the word “closed” from the name. If their shares are in the public domain or they add the word “public” to their name, then they can become a PJSC, that is, change their type.

If the former closed joint stock company or open joint stock company no longer wants to be a joint stock company, then it can transform into an LLC or business partnership, but not into an NPO or unitary enterprise, since this possibility has been excluded from September 1, 2014 from the Civil Code of the Russian Federation.

In any case, management will have to decide which organizational form to choose on its own, based on the situation. And if there is a need to change something, then, therefore, it is necessary to move in this direction. We hope that our article about changes to the Civil Code and the features of new JSCs and LLCs will help you make the right decision.

See also:

From June 19, 2017, the organization changed its legal form from OJSC to JSC.
The organization (hereinafter referred to as JSC) notified suppliers and contractors of the change of name from OJSC to JSC. Apart from this, nothing has changed: the activity continues, the tax identification number is the same, etc.
Is it possible to take primary documents suppliers that indicate the old organizational and legal form, to tax accounting for the purposes of calculating VAT and income tax?

On this issue we take the following position:
When changing (clarifying) the name of a legal entity (JSC), its reorganization does not occur, the legal entity with the old name does not terminate, does not change the organizational and legal form, etc. A legal entity does not withdraw from legal relations and, on the same basis, bears rights and fulfills obligations in relation to its own counterparties.

Justification for the position:
According to Federal Law dated 05.05.2014 N 99-FZ "On amendments to Chapter 4 of Part One Russian Federation and on the recognition as invalid of certain provisions of legislative acts of the Russian Federation" (hereinafter referred to as Law No. 99-FZ), the constituent documents, as well as the names of legal entities created before the entry into force of this Law, are subject to being brought into compliance with the norms of the Civil Code of the Russian Federation (as amended of this Law) upon the first change in the constituent documents of such legal entities. At the same time, it is stated that changing the names of organizations created before the entry into force of this law in connection with bringing it into compliance with the norms of the Civil Code of the Russian Federation does not require amendments to the title and other documents containing the previous one. name of the organization.
It should also be taken into account that in paragraph 23 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 N 19 “On some issues of application of the Federal Law “On Joint Stock Companies”” it is stated that a change in the type of joint stock company in any case is not a reorganization of such a company.
Thus, the bringing of a joint stock company’s constituent documents into compliance with the amendments made to the Russian Federation N 99-FZ, from the point of view of legislation, is only a change in the name. There is no succession or transfer of rights. Moreover, the law specifically states that changes to documents containing the previous name of the organization are not required.
Accordingly, a change in the details of one of the parties to the contract, including its name or designation, does not entail for the other party a change in existing obligations, their termination or the emergence of new ones, as well as the need to make changes to contracts in connection with a change in the name of one of the parties (FAS Moscow District dated 05/16/2014 N F05-4714/14, Moscow City Court dated 10/28/2014 N 33-38004/14).
Thus, when the name of a legal entity is changed, it does not leave the legal relationship and, on the same basis, bears rights and fulfills obligations in relation to its own counterparties. In support of the above, one can cite the legal position set out, in particular, in the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 22, 2012 N 14953/11, paragraph 23 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 N 19, as well as in the Federal Antimonopoly Service of the West Siberian District dated 01.04 .2014 N F04-2426/14 in case N A27-688/2013.
Primary accounting documents must comply with the requirements of December 6, 2011 N 402-FZ “On Accounting” (hereinafter referred to as Law N 402-FZ). In particular, the name of the economic entity that compiled the document is one of the main and mandatory details of the primary accounting document (Law N 402-FZ, paragraph 1, clause 13 of the Regulations on maintaining accounting and financial statements in the Russian Federation, approved by the Ministry of Finance of Russia dated July 29, 1998 N 34n). Please note that the name of the recipient of the primary document is not included among the main details.
From the point of view of taxation, confirmation of expenses incurred (performed, incurred) by the taxpayer with documents drawn up in accordance with the law is one of mandatory conditions acceptance of expenses for the purposes of taxation of profits of organizations (Tax Code of the Russian Federation).
If an organization is recognized as a VAT payer, then the indication of its name is one of the mandatory details of the invoice, which gives the right to its counterparties to accept for deduction the VAT submitted by it on such an invoice (, Tax Code of the Russian Federation). At the same time, the norms of the Tax Code of the Russian Federation regarding the indication in the invoice of the name of the taxpayer as mandatory details do not contain references to its constituent documents. However, such a requirement is provided for in paragraphs. “c”, “and” clause 1 of the Rules for filling out an invoice used in VAT calculations (approved by the Government of the Russian Federation dated December 26, 2011 N 1137).
At the same time, the Tax Code of the Russian Federation states that errors in invoices that do not prevent tax authorities from carrying out tax audit identify, in particular, the seller and (or) buyer, are not grounds for refusal to accept VAT amounts for deduction.
Unfortunately, judicial practice We were unable to find situations that fully correspond to those stated in the question. Note, however, that the courts, when assessing the reality of transactions and documentary evidence expenses of taxpayers analyze the entire set of circumstances of the possible receipt by a taxpayer of an unjustified tax benefit, such as: signing of documents by unidentified persons, lack of personnel and production capacity for conducting activities by the taxpayer or its counterparties, etc. (see Presidium of the Supreme Arbitration Court of the Russian Federation dated 04/20/2010 N 18162/09, dated 06/08/2010 N).
It should be noted that even if it is established that documents were signed by unidentified persons, income tax expenses and VAT deductions are recognized as legitimate if there is evidence of the reality of the transactions performed and due diligence is exercised (see, for example, resolutions of the North Caucasus District dated June 11, 2015 N F08- 3452/2015, AS of the Central District dated 01/29/2015 in case N A62-489/2014, dated 10/22/2014 in case N A62-49/2014, FAS Central District dated 02/25/2014 in case N A62-2369/2013, dated 05.29.2013 in case No. A35-7542/2012, Moscow District dated 10.18.2013 in case No. A40-162037/12-115-1161, dated 02.12.2013 in case No. A40-31075/12-91-157, etc. ).
In the Volga District AS of October 15, 2014 N F06-15848/13 in case N A65-27018/2013, in which the supplier who changed his name appeared, in particular, it is said: “The tax authority’s arguments that the primary documents contain unreliable and contradictory information (incorrect address, checkpoint, name, seal, as well as full name of the manager) do not indicate the absence of business transactions. There is no evidence that the applicant at the time of execution of the work was aware of the renaming of the Orlan company to the Oktava limited liability company, as well as. The tax authority did not provide evidence that the work was not actually performed."
Since the previous name makes it possible to unambiguously and reliably identify the JSC as an actual party in transactions with counterparties and cannot indicate that it has unjustifiably received a tax benefit, the JSC has no grounds for making changes to the primary documents and invoices received from counterparties.
We believe that a JSC can take into account for the purpose of calculating income tax, VAT and other taxes, primary accounting documents and invoices issued after changes were made to the Unified State Register of Legal Entities and containing the old name (OJSC). At the same time, primary documents must confirm the reality of the transactions performed and be signed by authorized persons.
To completely eliminate tax risks, a JSC can submit an official request to its tax authority.

Note:
In order to avoid tax risks, a taxpayer may, on the basis of the Tax Code of the Russian Federation and the Tax Code of the Russian Federation, contact the Ministry of Finance of Russia or the tax authority at the place of registration of the organization to receive written clarification on this issue. Let us recall that in accordance with the Tax Code of the Russian Federation, the taxpayer’s compliance with written explanations given to him by a financial or tax authority on the procedure for calculating, paying a tax (fee) or on other issues of applying the legislation on taxes and fees is a circumstance that excludes the person’s guilt in committing a tax offense. In this case, the taxpayer is not liable for committing a tax offense.

Prepared answer:
Expert of the Legal Consulting Service GARANT
auditor, member of the Russian Union of Auditors Mikhail Bulantsov

Response quality control:
Reviewer of the Legal Consulting Service GARANT
auditor, member of RSA Gornostaev Vyacheslav

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

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:

• by appointment finished products 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 production process enterprises are divided into enterprises with a single type of production, serial, mass, experimental.
• according to the characteristics of activity they distinguish industrial enterprises, trade, transport and others.
• According to the form of ownership, private enterprises, collective, state, municipal and joint ventures(enterprises with foreign investment).

Organizational forms of enterprises

In accordance with the Civil Code of the Russian Federation, the following may be created in Russia: organizational forms commercial enterprises: 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).

General partnership. Its participants, in accordance with the agreement concluded between them, are engaged in entrepreneurial activity and bear responsibility 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 founded by one or more persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents. Participants in a limited liability company 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 a limited liability company 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 company's participants are not liable for its obligations and bear the risk of losses associated with the company's activities, 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 effective way mobilization of 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 property of the owner 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 necessary documents, or within thirty calendar days from date postal item specified 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 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.

The most important feature of the classification of an economic entity in a market economy is the division of an economic entity based on the organizational and legal forms of enterprises, which are regulated by the state through Civil code RF (Civil Code of the Russian Federation).

The Civil Code introduces the concepts of “commercial organization” and “non-profit organization”.

A commercial organization pursues profit as the main goal of its activities. A non-profit organization does not pursue making a profit as the main goal of its activities, and if it receives a profit, it is not distributed among the participants of the organization (Fig. 2.2).

Rice. 2.2. Structure of organizational and legal forms of organizations

In table 2.1. definitions of organizational and legal forms are formulated.

Table 2.1.

Structure of organizational and legal forms

Business partnerships

In accordance with current legislation, two types of business partnerships can be formed in the Russian Federation: general partnership And partnership of faith(limited partnership).

A general partnership is recognized as a partnership whose participants (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with the property belonging to them (Article 69 of the Civil Code of the Russian Federation).

It follows from this that such a partnership is a contractual association, since it is created and carries out its activities on the basis of a constituent agreement, which is signed by all participants of the partnership. Therefore, when registering a general partnership, presentation of the Charter to the registration chamber is not required, since this document is not provided for by current legislation for commercial organizations of this type.

The law imposes certain requirements on the content of the memorandum of association. The requirements of the law are mandatory and the participants of the general partnership must strictly follow the relevant legal provisions when drawing up the memorandum of association.

The constituent agreement of a general partnership specifies both information common to all legal entities and those that reflect the specifics of the general partnership. The first group of information includes: order joint activities to create a partnership; conditions for transferring your property to him and participating in his activities; location; address and others. To the second group: size and composition share capital; the size of the shares of each participant in the share capital; provisions on the liability of participants for violation of obligations to make contributions and others.

The peculiarity of a general partnership is that its formation requires the presence of share capital. It is necessary, firstly, so that a general partnership can be registered, since the presence of such a condition is directly provided for by the current regulations on the procedure for registering legal entities. The share capital plays the role of authorized capital and is at least 100 times the minimum monthly wage. Secondly, the share capital of a general partnership forms its property base, without which the entrepreneurial activity of the partnership is impossible or will be difficult. Thirdly, the share capital acts as a guarantee for creditors, that is, those persons who enter into various property relations with the general partnership by concluding agreements with it. Therefore, in case of failure to fulfill its obligations, collection of debts will be directed primarily to property in the form of share capital, which is assigned to the general partnership as a legal entity. Fourthly, the presence of share capital is necessary so that participants have clear guidelines for the distribution of profits and losses, since they are divided in proportion to the share of each participant in the share capital.

Both individuals and legal entities can form a general partnership. However, a citizen can be a participant in a general partnership only if certain conditions established by law are met. The point is that a citizen, before he exercises his right to become a participant in a general partnership, must obtain the status of an individual entrepreneur by registering in the appropriate manner. As for legal entities, only commercial organizations can be general partners, while non-profit organizations do not have such a right.

In addition to the already indicated distinctive features of a general partnership, it should be emphasized that the members of such an association are obliged to participate in its activities with their personal labor. Therefore, at its core, a general partnership is, first of all, an association of persons, and then of property.

Internal relations in a partnership

Internal relations in a general partnership are determined by the constituent agreement. They are based on mutual trust due to the peculiarity of the legal status of a general partnership. The management of the partnership's activities is carried out by common consent of all its participants.

The constituent agreement may define individual cases when decisions on specific issues can be made by majority vote. Each of the participants in the general partnership has one vote, regardless of his share in the share capital. However, current legislation gives the right to members of the partnership to change this general rule and reflect in the constituent agreement a different procedure for establishing the number of votes.

A general partnership has the status of a legal entity, therefore it is considered by law as a single subject of entrepreneurial and other legal relations. Legal entities acquire civil rights and assume civic responsibilities through their bodies. As for the general partnership, these functions are performed by its participants, since special management bodies are not formed in the partnership. Each of the participants individually can act on behalf of the general partnership when concluding transactions, if the constituent documents do not establish that its participants conduct business jointly, or the conduct of business is entrusted to one or more participants. Depending on the established procedure for conducting affairs, various legal consequences arise.

Firstly, when business is conducted jointly, then each transaction requires the consent of all participants in the partnership.

Secondly, if affairs are entrusted to one or some of the participants, then the rest can make transactions only on the basis of a power of attorney from those persons entrusted with the conduct of affairs.

Power of attorney – written authority issued by one person to another for representation before third parties.

A participant in a general partnership is given the right to withdraw, and he cannot be deprived of it. When leaving the partnership, the remaining participants must be notified six months before the actual withdrawal. In addition, a participant can be expelled from the partnership, but only by a court decision and based on the demands of the other partners. However, there must be serious reasons for this: gross violation of one’s duties and a unanimous decision to expel. Upon leaving the partnership, a person has the right to payment to him of the value of part of the partnership's property in proportion to his share in the share capital. Instead of payment, he may be given property in kind. But this requires an agreement between the one leaving the partnership and the remaining participants.

Termination of partnership

The termination of a partnership can be due to various reasons. It ceases to operate upon expiration of the period if it was created for a specific period. Also, the partnership is terminated if the purpose for which it was created is achieved. The partnership will cease to operate due to the inexpediency of further business activities. This requires the general consent of all participants. A general partnership can be transformed into a limited partnership, or into a business company, or into a production cooperative. From the moment of transformation it ceases to operate.

A general partnership is liquidated if one of the partners withdraws from the membership, or dies, or is declared incompetent (Clause 21, Article 76 of the Civil Code of the Russian Federation). However, even if these circumstances occur, the partnership can continue its work if the constituent agreement expressly stipulates such a possibility. A general partnership is subject to liquidation when the only participant left in it, as well as on general grounds: by a court decision in the case of carrying out activities without the appropriate permit (license), when it is required, as a result of declaring the partnership bankrupt, and others.

General partners are liable for obligations with their property, and limited partners risk only their contributions. The right to conduct business on behalf of the partnership belongs only to the general partners.

Partnership of Faith is a contractual association. The main document that regulates relations in a partnership is the memorandum of association. The law states that the memorandum of association is signed only by general partners, which is why they manage the affairs of the partnership. Investors do not have the right to influence the management of affairs in any way or challenge the correctness of management decisions made in court. The main responsibility of the investor is to make a timely contribution to the share capital. The fact of making a contribution is confirmed by a special document - a certificate of participation. This document confirms not only that the contribution has been made, but also that the person is a participant in the limited partnership as a limited partner.

Investors not only have responsibilities, but also have rights. Since a limited partnership is a commercial organization, they have the right to receive a portion of the profits due to their share in the share capital. They also have the right to monitor economic activities by reviewing the annual reports and balance sheets of the partnership. In addition, they have the right to withdraw from the partnership upon termination financial year and receive your contribution. It follows that upon leaving they do not have the right to receive a share in the property, unlike general partners.

Termination of a limited partnership has a number of features. Firstly, the partnership is liquidated if there is not a single investor left in its composition. Secondly, when a partnership is liquidated, limited partners have a priority right to receive contributions from the remaining property. The legislation also provides for other features of the liquidation of a limited partnership (Article 86 of the Civil Code of the Russian Federation).

The individualization of the partnership is its corporate name. According to the law, it must contain either the names of all general partners and the words “limited partnership” or “limited partnership”, or the name of one general partner with the addition of the words “and company”, as well as an indication of the type of partnership. If the name of the investor is indicated in the company name of the partnership, he becomes a general partner with all the legal and organizational consequences arising from this provision.

Limited and additional liability companies

A limited liability company (LLC) is a commercial organization whose authorized capital is divided into shares in the amounts determined by the constituent documents.

The participants of the LLC are not liable for its obligations and bear the risk of losses within the value of the contributions they made. A limited liability company (hereinafter referred to as the Company) may be established by one or more persons. The legislation stipulates the maximum number of founders, exceeding which entails the obligation to transform it into a joint-stock company, or liquidation if the issue of transformation is not resolved within a year.

Modern legislation more strictly regulates relations arising regarding the establishment and activities of commercial organizations of this type. As practice has shown, on the one hand, such societies are most widespread in entrepreneurial activity, and on the other, it is in such societies that various financial abuses quite often occur.

This should also include one more limitation in the legislation: an LLC cannot be established by a business company consisting of one person.

The company must have a corporate name consisting of the name and the words “limited liability”. For example: “Limited liability company Stroitel”.

Such a society primarily involves the pooling of capital for the purpose of engaging in entrepreneurial activity, and therefore the personal participation of the founders in its work is not necessary. But, as practice shows, the relationships between company participants are much closer and more trusting than in a joint-stock company.

When registering an LLC, the relevant documents must be submitted: the memorandum of association and the Articles of Association. If the founder is one person, then he must provide only the charter approved by him. In other cases, the constituent documents are approved and signed by the founders. It follows from this that the law classifies LLCs as statutory companies.

Constituent documents must contain the necessary information that characterizes the company as a commercial organization with the status of a legal entity: location, purpose of activity, etc., as well as information reflecting the specifics of the company. In particular, they must indicate: the size of the authorized capital and the size of shares of each of the participants, the procedure for making contributions.

The authorized capital of an LLC must not be less than the amount of 100 minimum wages established by the legislation of the Russian Federation on the date of submission of constituent documents for registration. The law requires that at the time of registration of an LLC, at least 50% of the authorized capital must be paid up. The rest is paid by participants during the first year of work. Failure to pay in the authorized capital on time entails various negative legal consequences both for the LLC as a whole and for its individual participants.

Participants who have not fully contributed to the authorized capital are jointly and severally liable for the obligations of the company. It was not by chance that the legislator established such rules. After all, the authorized capital is not only a necessary material basis for the activities of an LLC, but must also guarantee the interests of its creditors, without misleading them regarding the financial and other material capabilities of a particular company with which they (the creditors) enter into various legal relations that arise from the concluded contracts. In general legal regime The authorized capital of an LLC is determined by the Civil Code of the Russian Federation and special legislation on limited liability companies.

According to current regulations, after its registration, a company is obliged to notify its creditors of each case of a decrease in the authorized capital and register its decrease in the prescribed manner. Creditors have the right to demand early fulfillment of obligations and compensation for losses. In addition, the company is allowed to increase its authorized capital, but under one very important condition: after all participants have made their contributions in full (Article 90 of the Civil Code of the Russian Federation).

Members of the company do not have ownership rights to the property of the LLC. Their rights extend only to the share in the authorized capital. Due to this, a company participant can sell or otherwise assign (donate) his share in the authorized capital to other company participants. This right of a participant cannot be limited by anyone; it is unconditional, since it concerns the internal relationships of participants in the society. The possibility of alienation of a share in the authorized capital by a third party, that is, one who is not one of the participants, is regulated differently. In principle, the legislation does not prohibit the participant(s) from carrying out such transactions. However, this issue is finally regulated only by the company’s charter. Consequently, the charter may contain a rule prohibiting the alienation of a share by a third party, or a rule that allows the sale of a share in the authorized capital to outsiders. Depending on what norm is prescribed in the charter, these are the legal consequences.

A limited liability company is a legal entity. The management of the affairs of the company is carried out through bodies of a legal entity specially formed for this purpose. The basic principles of the organization and activities of LLC management bodies are established by the Civil Code of the Russian Federation. The issues of organizing management should be regulated in more detail by a special law.

In accordance with the Civil Code of the Russian Federation, the following governing bodies must be formed in the company: general meeting participants; executive body (director, president and others); audit commission.

The general meeting of the company's participants is the supreme management body, which has its own exclusive competence. This means that on issues falling within the exclusive competence of the general meeting, no governing body can make any decisions. If such decisions are made, they will not have legal force. Moreover, such issues not only cannot be considered by other governing bodies on their own initiative, but cannot even be transferred or delegated by the general meeting to the executive body, for example, a director or directorate.

Legislation includes the following issues within the exclusive competence of the general meeting: changing the charter of the company, as well as the size of the authorized capital; formation of other management bodies of the company; resolving issues of reorganization and liquidation of the company and others.

Issues within the competence of the general meeting are determined by legislative acts. When drawing up the charter, the company's participants must follow the requirements of the law.

The management bodies of a company can be either collegial or individual. The General Meeting is a collegial body. Quantitative composition executive bodies determined by the company's charter. From Art. 91 of the Civil Code of the Russian Federation it follows that the sole management body can be elected both from the members of the company and from third parties. The legal status of the sole executive body is determined along with civil legislation and also by labor legislation: an employment agreement (contract) must be concluded with the director (president, etc.). The employment agreement defines the rights and obligations of the director, the duration of the contract, measures of incentives and liability for misconduct committed in the performance of labor duties, and additional grounds for his dismissal. Conclusion procedure employment contract and its termination is regulated by Art. 15 – 40, 254 of the Labor Code of the Russian Federation (LC RF). In addition, civil law determines the conditions of activity and responsibility of the person acting on behalf of the organization, and such a person in many cases is the manager. He must act in the interests of the company he represents in good faith and reasonably, and is obliged, at the request of the founders, to compensate losses to the company, unless otherwise provided by law or contract.

Termination of activities of a limited liability company

Termination of the company's activities is possible due to its reorganization or liquidation.

Reorganization of a limited liability company can be carried out either by decision of its founders or by force. The legislation defines the following forms of company reorganization: merger, accession, division, spin-off, transformation. During the transformation, succession arises, that is, the transfer of part of the rights to the newly formed legal entities in accordance with the separation balance sheet and deed of transfer. Reorganization in the form of transformation means a change in the legal form. Thus, an LLC can be transformed into a joint-stock company or a production cooperative (Article 92 of the Civil Code of the Russian Federation).

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

When a company is reorganized in the form of annexation of another legal entity, the company is considered reorganized from the moment an entry is made in the unified state register of legal entities about the termination of the activities of the affiliating legal entity.

The liquidation of the LLC is carried out in accordance with Art. 61-65 Civil Code of the Russian Federation. These rules are common to all legal entities.

To carry out the liquidation of a legal entity, a liquidation commission is created, which carries out all the necessary activities. The liquidation of a legal entity is considered completed, and the legal entity is considered to have ceased to exist, after making an entry about this in the unified state register of legal entities (Article 63 of the Civil Code of the Russian Federation). Issues related to insolvency (bankruptcy) are regulated in detail by the special Law of the Russian Federation “On the insolvency (bankruptcy) of enterprises.”

Additional liability company (ALC) – a commercial organization, the participants of which, unlike an LLC, are jointly and severally liable for its obligations in the amount of a multiple of the value of their contributions to the authorized capital.

A company with additional liability has a number of common features and features, in comparison with LLC. What these societies have in common is:

A company with additional liability may be founded by one or more persons;

The authorized capital of an ALC is also divided into shares, the size of which is determined by the constituent documents.

Otherwise, the law applicable to LLCs applies to a company with additional liability, with a number of exceptions that are determined by the specific features of this organization. Firstly, unlike an LLC, participants in a company with additional liability jointly and severally bear subsidiary liability with their property in the same multiple of the value of the contributions determined by the constituent documents of the company. Secondly, in the event that one of the participants becomes insolvent (bankrupt), his responsibility for the obligations of the company is distributed among the remaining participants in proportion to their contributions. The constituent documents may also provide for a different procedure for the distribution of responsibility.

Joint stock companies

The concept of a joint stock company is disclosed in paragraph 1 of Art. 96 of the Civil Code of the Russian Federation and clause 1 of Art. 2 of the Federal Law of the Russian Federation “On Joint Stock Companies”.

Joint Stock Company – a commercial organization with an authorized capital distributed into a certain number of equal shares, the rights to which are fixed in securities– promotions.

Promotion– a security certifying the obligatory rights of a shareholder to a share in the authorized capital of a joint-stock company .

As a rule, the authorized capital of a joint-stock company is divided into a large number of shares and the right to each such share is recorded in a security - shares.

The term “shareholder” means a citizen or legal entity who is the owner of shares and registered in the register of shareholders of the company. One share reflects the right to one share in the authorized capital. Purchasing a share from a joint-stock company (purchase) means the buyer contributes the cost of the share to the authorized capital of the joint-stock company. The value of a share, equal to the amount of money contributed to the authorized capital, is called par value of the share, it is indicated on the paper itself.

After purchasing a share, the acquirer contacts the joint-stock company with a request to make changes in the register (list) of shareholders of this company so that the register indicates new owner shares instead of the previous one and, as soon as such changes are made, the acquirer becomes a full shareholder.

A share, like a security, can be sold by the shareholder himself. In this case, the price of the stock being sold may be different from its nominal price. If a joint stock company is doing well, the price of its shares rises, and they are then sold at a price much higher than their nominal value. Well, if things are going badly, the joint-stock company is on the verge of insolvency (bankruptcy), then the shares can be sold at a price below their nominal value. In such cases, shareholders are trying to get rid of the securities and save at least some amount of their money. The difference between the par value of shares and the price at which they are sold by the shareholders themselves is called exchange rate difference.

As a general rule, anyone can purchase as many shares as is possible based on their purchasing power. At the same time, the charter of a joint stock company may establish restrictions on the number of shares owned by one shareholder. Thus, the law does not establish restrictions, but the shareholders themselves have the right to establish such a rule for their company. It allows, for example, to preserve elements of democracy in the decision-making process. If there are no such limits and one shareholder or several shareholders has a large number of shares - a controlling stake, then all management threads pass to him or them.

This is due to the fact that when voting, it is not the number of shareholders themselves that is taken into account, but the number of shares, and the principle applies - one share - one vote. Therefore, it is likely that the decision will be made in favor of a narrow circle of shareholders who own a majority of shares, while shareholders who own a small number of shares, despite their numerical superiority, will not be able to influence the decision.

A joint stock company is a legal entity and owns separate property, which is accounted for on its own balance sheet; it can, in its own name, acquire and exercise property and personal non-property rights, bear responsibilities, and be a plaintiff and defendant in court.

The company is independently responsible for its obligations. Shareholders bear the risk of losses associated with the company's activities within the limits of the (nominal) value of the shares they own.

Dividends – part of the company's net profit paid to the shareholder according to the number of shares owned by him.

A joint stock company has the right to engage in any type of activity not prohibited by federal law. Certain types activities, the list of which is also established by federal law, the company can engage in only on the basis of a special permit (license).

The constituent document of a joint stock company is the charter, the requirements of which are binding on all shareholders. When developing the charter, shareholders include in it only such rules that do not contradict current legislation. The charter of a joint stock company must contain, in particular, the following information: name of the company, location, size of the authorized capital and the procedure for its formation, rights and obligations of shareholders, and others.

Types of joint stock companies

The legislation defines two types of joint-stock companies: open joint-stock company (OJSC) and closed joint-stock company (CJSC).

In an open joint stock company, shareholders have the right to alienate their shares without the consent of other shareholders. Such a company has the right to conduct an open subscription for the shares it issues and their free sale. Thus, in an open joint-stock company, a smooth change of shareholders is possible.

In a closed joint stock company, shares are distributed in advance only among its founders or other predetermined circle of persons. Such a company does not have the right to conduct an open subscription for the shares it issues, or otherwise offer them for purchase to an indefinite number of persons. Shareholders of a closed joint stock company have the right to sell their shares, but all other shareholders have a preemptive right to purchase them, at the price of offering them to another person. The procedure and period for exercising the preemptive right are determined by the charter. At the same time, the period for exercising the preemptive right cannot be less than 30 or more than 60 days from the moment the shares are offered for sale. If none of the shareholders agrees to purchase them at the appropriate price, the shares may be sold to other persons.

The number of shareholders of closed joint stock companies should not exceed fifty. This number includes both individuals and legal entities. If this number is exceeded, a closed joint stock company must be converted into an open joint stock company within a year. If the number of shareholders is not reduced to fifty, the company is subject to judicial liquidation.

Procedure for creating a joint stock company

A joint stock company can be created by re-establishing and by reorganizing an existing legal entity. For example, as a result of the transformation of a production cooperative or limited liability company into a joint stock company.

The creation of a joint stock company by incorporation is usually carried out in two stages. The content of the first is that the founders enter into an agreement among themselves on the creation of a joint-stock company. This agreement determines the procedure for their activities to establish the company, the size of the authorized capital, the types of shares to be placed among the founders, the amount and procedure for their payment, etc. This agreement is not the constituent document of the company, since it plays an auxiliary role. With this agreement, the founders put into contractual form the entire preparatory work to create a society.

After all the preparatory work has been carried out and the company's charter has been developed, the second stage of creating a joint-stock company begins. The founders at the general meeting decide to establish a joint stock company and approve its charter. Moreover, on issues such as the establishment of a company, approval of the charter and some others, decisions are made by the founders unanimously.

However, just deciding to create a society is not enough. A joint stock company is considered created as a legal entity from the moment of its state registration. It is from this moment that society acquires the right to carry out entrepreneurial activities.

The founders of the company can be citizens and (or) legal entities.

State bodies and local government bodies cannot act as founders of a joint stock company, unless otherwise established by federal law. This is explained by the fact that with the participation of these bodies in the activities of the company, conditions will be created for unfair competition, since a company with the participation of state bodies and local governments will naturally have greater business opportunities than a society where there are no such participants.

Production cooperative

Production cooperative(artel) is a voluntary association of citizens on the basis of membership for joint production activities or other economic activities based on personal labor participation and the association of property shares by its members (participants) (Article 107 of the Civil Code of the Russian Federation).

A production cooperative can engage in various economic activities: production of industrial and agricultural products, trade, consumer services. Each participant in a production cooperative is obliged to participate through personal labor in the work of the cooperative, which is one of its important features. Therefore, it is no coincidence that a production cooperative is also officially referred to as an artel.

The main document on the basis of which a production cooperative operates is the charter. It is approved by the general meeting of members of the cooperative, the establishment of which requires at least five people.

The charter of a production cooperative must indicate the following information: location, management procedure, amount of share contributions, procedure for the participation of cooperative members in its work, and much more. The property of a production cooperative is its property and is divided into shares. Management bodies are created in a production cooperative. The supreme body is the general meeting of its members. The current management of the affairs of the cooperative can be carried out by the board and the chairman. A supervisory board may be created in a production cooperative if the number of members of the cooperative is more than fifty. The competence of the management bodies of a production cooperative is determined by law and the charter

Competence – a set of rights and obligations that the governing body of a legal entity has to solve the problems facing it.

According to paragraph 3 of Art. 110 of the Civil Code of the Russian Federation, the exclusive competence of the general meeting includes:

changing the charter of the cooperative;

formation of other governing bodies;

admission and exclusion from members of the cooperative and others.

Exclusive competence is a competence that can only be exercised by the highest management body of a legal entity.

Termination of membership in a production cooperative can occur either at the request of a member of the cooperative or in the event of his expulsion, as well as for other reasons (for example, in the event of death).

State and municipal unitary enterprises

Unitary enterprise– a commercial organization that does not have ownership rights to the property assigned to it. The property of this enterprise is indivisible, which means it is impossible and inadmissible to distribute it among shares, shares, including among employees. State and municipal enterprises can be created in this form, and therefore their property is state and municipal property. An enterprise has the right of economic management or operational management in relation to the property assigned to it.

The concepts of “right of economic management” and “right of operational management” require more detailed consideration.

Right of economic management– the right of an enterprise (state or municipal) to own, use and dispose of property, but within certain limits established by the Civil Code of the Russian Federation.

An enterprise does not have the right to dispose of real estate without the consent of the owner: sell, lease, or pledge it. Real estate means: land plots and everything that is closely connected with the earth: buildings, structures. The enterprise has the right to dispose of the remaining property independently, at its own discretion.

Right of operational management – the right to dispose of property, both real and movable, only with the consent of the owner.

Property under the right of operational management is assigned to the created unitary enterprises, which are called “state-owned”. They can be established by decision of the Government of the Russian Federation on the basis of property that is in federal ownership (federal state enterprise). Such an enterprise can be liquidated and reorganized only by decision of the Government of the Russian Federation. The constituent documents of the enterprise must necessarily indicate that it is state-owned.

Non-profit organizations – legal entities whose purpose is to satisfy the social, cultural and other non-material needs of citizens.

The legal status of non-profit organizations is determined by the Civil Code of the Russian Federation and special legislation on various types non-profit organizations.

In more specific terms, a non-profit organization is an organization that does not have profit-making as the main goal of its activities and does not distribute the profit received among participants (clause 1 of article 50 of the Civil Code of the Russian Federation and clause 1 of article 2 of the Law of the Russian Federation “On Non-Profit Organizations” ").

Legal entities related to non-profit organizations are formed in the form of consumer cooperatives, public or religious organizations, charitable and other foundations.

Consumer cooperative

Consumer cooperative– a voluntary association of citizens and legal entities on the basis of membership in order to satisfy the material and other needs of the participants, which is carried out by combining property contributions by its members. Consumer cooperatives are very diverse in the nature of their activities: housing construction, garages, gardening and others. Members of a consumer cooperative, like a production cooperative, can be minors who have reached the age of 16 years.

Currently, the Law of the Russian Federation “On Agricultural Cooperatives” has been adopted and is in force, which contains articles that determine the status and operating procedure of consumer cooperatives in rural areas. Consumer cooperatives, like other non-profit organizations, have the right to engage in entrepreneurial activities, but the income received, unlike other non-profit organizations, is distributed among the members of the cooperative. Consumer cooperative- an association of persons on a membership basis in order to satisfy their own needs for goods and services, the initial property of which consists of share contributions. Shareholders of a consumer cooperative can be citizens over 16 years of age and legal entities. Participants in consumer cooperatives can be both citizens and legal entities, and the presence of at least one citizen is mandatory, otherwise the cooperative will turn into an association of legal entities.

Consumer cooperatives include: housing-construction, dacha-construction, garage-construction, housing, dacha, garage, gardening cooperatives, as well as homeowners' associations and some other cooperatives

Consumer cooperatives have a number of distinctive features:

A consumer cooperative is created and operates to satisfy the material and other needs of its members;

A cooperative may carry out certain types of entrepreneurial activities, the income from which may be distributed among members of the cooperative or used for other needs determined by its general meeting.

The consumer cooperative is created and operates on the basis of the following principles:

Voluntary entry into and exit from the consumer society;

Mandatory payment of entrance and share fees;

Democratic management of the consumer society (one shareholder - one vote, mandatory accountability to the general meeting of the consumer society of other management bodies, control bodies, free participation of the shareholder in the elected bodies of the consumer society);

Mutual assistance and provision of economic benefits to shareholders participating in the economic or other activities of the consumer cooperative;

Limitations on the size of cooperative payments (cooperative payments are part of the income of a consumer cooperative, distributed among shareholders in proportion to their participation in the economic activities of the consumer cooperative or their share contributions, unless otherwise provided by the charter of the consumer cooperative);

Availability of information about the activities of the consumer society for all shareholders;

Increasingly wide involvement of women to participate in management and control bodies;

Concerns about increasing the cultural level of shareholders.

The only constituent document of a consumer cooperative is its charter, which is approved by the highest body - the general meeting of members of the cooperative. The name of a consumer cooperative must contain an indication of the main purpose of the cooperative, as well as the word “cooperative” or the words “consumer society” or “consumer union”.

The property of a consumer cooperative belongs to it by right of ownership, and shareholders retain only obligatory rights to this property. A consumer cooperative is liable for its obligations with its property; it is not liable for the obligations of its shareholders. The cooperative's losses are covered by additional contributions.

Funds

Funds are created by citizens or citizens and legal entities jointly, or only legal entities. As a non-profit organization, the foundation aims to meet non-material needs. For example, consumer protection funds may be created. The Foundation may use the property assigned to it only to achieve the goals specified in the charter. The property belongs to him by right of ownership. This includes not only the property that the foundation acquires as a result of its activities, but also the property transferred to it by the founders. Foundations, like other non-profit organizations, can engage in entrepreneurial activities. In this case, the fund is subject to the general rules defining the procedure for the entrepreneurial activities of non-profit legal entities. To carry out entrepreneurial activities, funds create business companies or take part in them (for example, act as shareholders of open or closed companies, establish limited liability companies, etc.). However, charitable foundations have the right to participate in business companies only as their sole members (Article 12 of the Law on Charitable Activities).

One of the features of the legal status of the foundation is that the foundation is obliged to publish annually reports on the use of its property. Internal control over the work of the fund is carried out by the board of trustees, which acts on a voluntary basis. It is created on the basis of the charter approved by the founders of the fund.

It is also necessary to note the features of the fund liquidation process. It can be liquidated only on the basis of a court decision. To make such a decision, a statement from interested parties is required. This is, firstly, and, secondly, there must be grounds that are directly provided for in the law: if the fund’s property is not enough to achieve its goals and the likelihood of receiving such property is illusory; if the fund deviates in its activities from those goals specified in the charter, and others (Article 119 of the Civil Code of the Russian Federation). Other grounds for liquidation of the fund must be expressly specified in the law. In accordance with Art. 65 of the Civil Code of the Russian Federation, a fund may be declared insolvent (bankrupt) by a court decision on a general basis.

Institutions

This is recognized as a legal entity that is created by the owner for the purpose of performing non-commercial functions. It is fully or partially financed by the owner. Institutions include government bodies, law enforcement agencies (police, tax police), educational institutions (schools, academies, universities) and others. In other words, with the help of institutions, management functions are implemented and general educational services are provided.

The institution's rights to property are quite limited. It (the property) is assigned to the institution with the right of operational management. You already know what the essence of operational management rights is. For its obligations, the institution is liable only in cash, but in no case with property. If the institution does not have sufficient cash in order to pay off debts, then the owner must come to his aid as an additional (subsidiary defendant).

The founding document of an institution is the charter, which is approved by the owner of the property. The name of the institution indicates the owner of the property and the nature of the institution’s activities.

According to the law, non-profit organizations can be created in other organizational and legal forms. These can be non-profit partnerships, autonomous non-profit organizations. Religious organizations are also classified as non-profit organizations by law. The procedure for the creation and activities of religious organizations is established by special legal acts of the Russian Federation.

In conclusion, we note that a thorough knowledge of the legislation on commercial and non-profit organizations creates conditions not only for the qualified activities of entrepreneurs, but is also an integral component of any citizen’s activity.

Organizational and legal forms of non-profit organizations.