An entrepreneur can conduct two types of activities - commercial and non-commercial. Conducting commercial activities pursues the main goal - generating income. Non-profit activities have many purposes, the profit from which does not fall under the category of income.
Registration of commercial enterprises involves, first of all, interaction with tax authorities and social services, payments to which are made precisely from income.
There are several organizational legal forms(OPF) commercial enterprises, the registration of which will allow the entrepreneur to conduct a completely legal business and be protected at the legislative level.
This is an individual entrepreneurship (IP), a company with limited liability, (LLC), joint-stock companies of open and closed type (JSC, CJSC).
Individual entrepreneur
An individual entrepreneur is the most common and simplest OPF, which can be registered by any capable adult citizen of the Russian Federation. In exceptional cases, stipulated by law, a teenager who has reached the age of sixteen can also register an individual entrepreneur. Registration of IP occurs without the formation of a legal entity.
The advantages of IP are simplified management accounting, no need legal address. To register an individual entrepreneur, the Charter and the presence of authorized capital are not required.
The disadvantage of an individual entrepreneur is his liability to creditors with all his physical property.
Limited Liability Company
One can register an LLC individual and a founding group. To register an LLC, it is necessary to draw up a Charter, an authorized capital, which cannot be less than 10,000 rubles, and a legal address, which cannot coincide with the address of registration, but may not coincide with the address of the location of the actual production.
Members of an LLC are liable within their own share of the charter capital, which terminates with the liquidation of the enterprise.
Joint stock companies
For the registration of joint-stock companies, there are regulations on the amount of the authorized capital, which is between the participants of the joint-stock company through shares. The regulation also exists for the number of shareholders. In a CJSC, the number of participants cannot exceed 50 people. Otherwise, it becomes necessary to change the type of closed to an open joint-stock company or to transform into an LLC. Registration is similar to an LLC, only the registration of a JSC is supplemented by a clause on the issuance of a primary block of shares.
Both LLC and JSC are registered with the formation of a legal entity and can be liquidated or reorganized in accordance with the law. With regard to individual entrepreneurs, only termination of registration is possible; payments of individual entrepreneurs on debts are mandatory until they are fully repaid.
There is a question that sometimes confuses company owners. This is the organizational and legal form of the company. Although, in a good way, there is nothing complicated in the OPF.
What is OPF
The organizational and legal form (OPF), or as it is sometimes called, “the form of doing business”, is a way of owning and using property (for some, disposal) fixed by the legislation of the country, and, based on this, the purpose of creating and conducting activities.
Since legal entities can be divided into commercial and non-commercial, the purposes here may differ in:
- Making a profit - for commercial;
- Public interests, education, enlightenment, etc. - for non-commercial.
Commercial legal entities, in turn, are divided into:
- Business partnerships and companies - with the right to own, use and dispose of property;
- Unitary enterprises - with the right of economic management or operational management property. They cannot manage it.
Let's take an example. The most common case of commercial legal. persons - LLC, or a limited liability company:
- Society - a type of commercial organization, namely a business entity.
- Limited liability - means that the company is liable for its obligations within the limits of its property and authorized capital. True, no one has canceled the subsidiary liability of its controlling persons.
Types of organizational and legal forms
Here it is easier to summarize everything in a table:
| Commercial organizations | |
| Partnerships | General partnerships |
| Faith partnerships | |
| Business companies | Limited liability companies |
| Non-public joint-stock companies | |
| Public Joint Stock Companies | |
| Unitary enterprises | Unitary enterprises based on the right of economic management |
| Unitary enterprises based on the right of operational management | |
| Other | Production cooperatives |
| Peasant (farm) households (since January 1, 2010) | |
| Business partnerships | |
| Non-Profit Organizations | |
| Consumer cooperatives | |
| Public associations | Public organizations |
| social movements | |
| Bodies of public initiative | |
| Political parties | |
| Funds | Charitable foundations |
| Public funds | |
| Institutions | Federal government agency |
| Federal State Autonomous Institution | |
| Federal state budgetary institution | |
| State corporations | |
| Non-Profit Partnerships | |
| Autonomous non-profit organizations | |
| Communities of Indigenous Peoples | |
| Cossack societies | |
| Associations of legal entities (associations and unions) | |
| Associations of peasant (farm) households | |
| Territorial public self-governments | |
| Associations of property owners | |
| Horticultural, horticultural or dacha non-profit partnerships | |
| Religious organizations | |
| Lawyer formations | Law Office |
| law office | |
| Law office | |
| law firm | |
| Law Firm | |
| Notary offices | State notary offices |
| Private notary offices | |
| Without formation of a legal entity | |
| Mutual funds | |
| Ordinary partnerships | |
| Individual entrepreneurs | |
At any economic system not only there are a huge number of firms, as mentioned above, but there are various types of them. This is primarily due to the diversityways of saving (minimizing) transaction costs.
The firm as a production unit and an instrument of entrepreneurial activity always has one or another organizational and legal form. From a legal point of view, a firm (enterprise) means an independent economic entity with the rights of a legal entity that combines under its management the factors of production - capital, land and labor - in order to produce goods and services.
Legal form- is a set of legal norms that determine the relationship of the participants of the enterprise with the whole world around. AT world In practice, various organizational and legal forms of enterprises are used, which are determined by the national legislation of individual countries. The laws give these enterprises the status of a legal entity that owns its own property and is liable for its obligations with this property, has an independent balance sheet, acts in civil circulation, in court, arbitration and arbitration courts on its own behalf.
Under current law in Russia There are the following organizational and legal forms of enterprises:
Rice. 1. Organizational and legal forms of enterprises
Concepts such as MP (small enterprise), JV (Joint Venture), cooperative, are now considered obsolete. They reflected not the legal status of the enterprise, but some of its economic features. So, MP is a characteristic of an enterprise in terms of the number of employees. For example, by Russian legislation in the sphere of services and trade, such is an enterprise with a staff of 15 to 25 people, in the field of science - up to 100 people, in industry and construction - up to 200. Why was such a category as MP singled out? All over the world, including ours, there are programs to support small businesses.
The concept of a joint venture is also purely economic, showing who created it. In our country, this form was used due to the fact that initially there was no complete clarity regarding the legal status of the joint venture. World experience suggests that about 90% of joint ventures are limited liability companies. Now in Russia and other CIS countries joint ventures are also included mainly in this category. The law also allows the creation of a joint venture in the form of other companies.
Let us dwell on the characteristics of the main organizational and legal forms of entrepreneurial activity, the most common in the modern world economy. These include:
· sole proprietorship (private entrepreneurial) firm;
· partnership (partnership);
· corporation (joint stock company).
1. Private (sole) company is the oldest form of business organization. As the name implies, such a firm is owned by an entrepreneur who buys the factors of production he needs on the market. In other words, a privately held company is owned one person, which owns all its assets and is personally liable for all its obligations (is the subject of unlimited liability).
The owner of a classical private enterprise firm is central figure, with which the owners of all other factors of production (resources) enter into contracts. He usually owns the most important (interspecific) resource. This resource can be either physical or human capital(special intellectual, entrepreneurial and other abilities).
The purpose of a privately held company is owner's profit maximization- income remaining after all payments to the owners of factors. A privately held company should be distinguished fromcapitalist firm,owned by the owners of capital and aiming to maximize the return on invested capital. In addition, the functions of an entrepreneur in such a company are usually performed by a hired manager - manager.
Self-employed firms have a number of important advantages due to which they have become widespread in the business world, but at the same time they have significant disadvantages.
Among the obvious benefits should include:
1) ease of organization. Thanks to its simplicity commercial enterprise, based on sole proprietorship, is created without much difficulty;
2) freedom of action of the owner of the company. He does not need to coordinate the decisions made with anyone (he is independent in the conduct of all his affairs);
3) strong economic motivation(receipt of all profits, more precisely, the remaining income by one person - the owner of the company).
Flaws sole proprietorship:
1. limited financial and material resources . This is due not only to the lack equity but also difficulties in attracting credit resources. Lenders are very reluctant to provide loans to sole proprietors, believing that it is risky. Therefore, the main source of financing for private entrepreneurial activity is the owner's savings and funds borrowed from relatives, close friends, etc. Over time, capital can be increased by investing the profits in the business, but even in this case, the growth of the company will be slow. Therefore, in terms of size, individual enterprises, as a rule, are small;
2. lack of a developed system of internal specialization production and managerial functions(especially in small and medium enterprises);
3. certain tax issues. They arise because additional payments made by a private business firm, for example, for health and life insurance, are not considered by the tax authorities of some countries as its expenses and therefore cannot be excluded from profit when calculating the tax base (corporations, by contrast, enjoy tax benefits for such payments). The sole proprietor must pay such expenses from the profit remaining at his disposal after the payment of taxes;
4. difficulties in transferring ownership. No property of a sole proprietorship, unlike the property of corporations, can be transferred to family members during the life of the owner. This limits the flexibility of the sole form of business organization, creates additional problems in the accumulation of capital;
5. unlimited liability of the owner for all obligations assumed by his enterprise. If claims are brought against the company, including in judicial order, its owner bears full personal responsibility before the court. This means that for
claims may be confiscated not only company property, but also personal property. A similar outcome happens
and in case of bankruptcy for other reasons. All this puts the sole proprietor in a risky position.
For these reasons, individual enterprises are short-lived, most of them are start-up firms, as well as such specific establishments as shops and farms, which remain efficient due to the small scale of production. According to some data, on average, out of 10 emerging firms, 7 cease their activities within 5 years.
Unlimited liability is the main disadvantage of sole proprietorship.Therefore, the owners of private firms in the XVII - XVIII centuries. "Let's go to the trick" - they introduced the so-called limited liability (Ltd - limited). The firm becomes an organization that includes a certain number of people. What does limited liability mean? This means that if a company is indebted to someone and cannot pay its debts, then in this case it is possible to sue only the company, but not its members. What will you have to pay in this case? Only what the company owns. Specific forms of such enterprises (limited liability partnerships) are discussed below.
2. Partnership (partnership) . This firm is like a sole proprietorship in every respect, except that it has more than one owner. AT full partnership all partners have unlimited liability. They are jointly liable for the obligations of the partnership. Persons who have joined an already existing partnership are liable, along with the old members, for all debts, including those that arose earlier, prior to their entry into this partnership.
In most cases, general partnerships are formed legal entities(large enterprises). agreement on their joint activities in any field can already be considered as the formation of such a partnership. In such cases, neither the charter nor even the registration of the partnership is required.
Overcoming in a certain sense the financial and material limitations of sole proprietorship, partnerships create some new inconveniences and difficulties. First of all, this refers to the selection of partners. Since one of the partners may bind the partnership with certain obligations, partners should be carefully selected. In most cases there is a formal agreement, or partnership agreement; it defines the powers of each partner, the distribution of profits, the total amount of capital invested by partners, the procedure for attracting new partners and the procedure for re-registration of the partnership in the event of the death of any of the partners or his withdrawal from the partnership. Legally, a partnership ceases to exist if one of the partners dies or withdraws from it. In such cases, it is rather difficult to resolve all issues and restore partnership.
For the reasons mentioned, many consider partnership is an unattractive form of business organization.
In partnerships, the decision-making process is also difficult, since the most important of them must be taken by a majority vote. To simplify the decision-making process, partnerships establish a certain hierarchy, dividing partners into two or more categories according to the degree of importance of the decision that each partner can make. It also defines the cases in which he must transfer decision-making power to the firm.
A modified form of a general partnership is a mixed (limited) partnership. Its main feature is that along with one or more participants who are liable to the creditors of the partnership with all their property, there is one or more participants whose liability is limited to their contribution to the capital of the company. Those participants who are responsible for the risk with all their property are internal members of the society and are called full partners, or complementaries. The rest, who risk only within the limits of their contribution, are external participants (contributors) and are called limited partners.
As a rule, complementaries are in charge of affairs in a limited partnership. They lead society and represent it. Contributing partners do not participate in commercial transactions. They are, strictly speaking, the partnership's investors. In terms of internal relationships, the functions of managing a firm are usually carried out with the consent of the limited partners.
Many people are well aware of the names “Johnson, Johnson and Co.”, “Ivanov, sons and Co.”, etc. from history, scientific and fiction literature. These are limited partnerships. AT modern conditions a form of limited partnership is often used to finance businesses involved in real estate transactions.
Limited partnerships in some cases may issue shares in the amount of contributions from external participants. Such participants are called joint-stock limited partners, and the company is called joint-stock limited partner.
For reasons of payment of taxes, a limited liability company may be accepted as the sole complementary partner in a limited partnership. Such education is called limited liability partnership. Its advantage is that from a tax point of view it is a partnership, and from a civil law point of view it makes it possible to transfer unlimited liability to a limited liability company, which becomes the sole bearer of unlimited liability and, as a rule, has only a small capital.
In our country, the form of a mixed limited partnership has not yet become widespread, but it may be useful in some cases.For example,if a private person (persons) who has an idea and a solid enterprise that has decided to take this idea into service do not have money for its implementation, a mixed partnership is created: a private person enters it with limited liability, an enterprise with a full one. In this case, the enterprise acts as a guarantor for a bank loan, which, under the control of the enterprise, is managed by a private person.
A limited partnership (limited liability company) is an association that is formed on the basis of predetermined contributions of shareholders. Its members (individuals and legal entities) are not responsible for fulfilling the obligations of the society, but risk only within the limits of their contributions. This is the meaning of the concept "limited liability". In the names of foreign companies, and now some of ours, you can often see the word "limited" (abbreviated as Ltd), which means "limited liability".
In limited liability companies, in most cases there are close relationships between partners. For this reason, they are very suitable for organizing family businesses. If all the property of a society is concentrated in one hand, then it becomes a "society of one person."
In order to establish a limited liability company, it is necessary to conclude memorandum of association , which determines the name of the company, location and direction of the enterprise, as well as the size of the authorized capital and share members of society in it.
Minimum authorized capital in different countries it is different: in Austria it is 500 thousand shillings, in Germany 50 thousand marks, in Hungary - 1 million forints,in Russia - 10 thousand rubles , in Ukraine - 869 hryvnia. In addition to cash, it is also possible to establish a company with deposits in the form of material assets(cars, land plots, licenses).
The rights of society members are exercised on meetings of members of the society held at least once or twice a year. The meeting has the right to make the most important decisions, in particular, approve the annual balance sheet, determine the distribution of profits, draw up an estimate of expenses, elect and re-elect the director of the company, give him instructions on a wide variety of issues. Control over the activities of the company is carried out audit committee(in Western countries - the supervisory board), whose members are appointed by the general meeting.
3. Corporation (according to Russian law - a joint-stock company) is an impersonal enterprise with the right of a legal entity, created in a permissive manner and having authorized capital, divided into a certain number of equal shares - shares.
Main distinguishing feature This form of business organization lies in the fact that the joint-stock company operates independently of its owners. The liability of the members of the company, who are called shareholders, is limited to the nominal value of the shares acquired by them.
Limited Liability - Important advantage over sole proprietorship or partnership. A joint stock company may raise funds in its own name without imposing unlimited liability on its members. Consequently, in the event of claims against a joint-stock company, the law prohibits the confiscation of the personal property of its owners.
Shareholders are entitled to a share of the corporation's earnings. The portion of the profit paid to the shareholder is called dividend. The part that is not paid out as dividends is called retained earnings.
Dividends are traditionally calculated as a percentage of the nominal value of a share, and in recent years in some countries - in absolute amounts per share (which is more reasonable). Dividends in the form of shares (“bonus” issues) do not provide for cash payments. In terms of raising new equity capital, dividend income is the main component of the value of such capital.
Another important advantage of the corporation is the right of shareholders to transfer their shares to others(if these are not registered shares). In addition, the corporation continues its activities in the event of the death of individual shareholders, and when one of the shareholders wishes to sell their block of shares.
Joint stock companies are of two types − open and closed.
Stockopen societies distributed in free sale on the terms established by laws and other legal acts. Joint-stock companies of an open type are created in order to collect large capital. The shares of such a company may be listed on the stock exchange. This implies the complete openness of the society and careful control over its activities. An open joint stock company is obliged to annually publish for general information the annual report, balance sheet, profit and loss account.
A joint-stock company, the shares of which are distributed only among its founders or other predetermined circle of persons, is recognized closed. Such a company, under Russian law, is not entitled to conduct an open subscription for shares issued by it. Number of participants in the closed joint-stock company should not exceed the number established by the law on joint-stock companies; otherwise, it is subject to transformation into an open joint-stock company within a year, and after the expiration of this period, to liquidation by judicial procedure, if the number of shareholders is not reduced to the limit established by law.
For these reasons, a closed joint stock company is the most suitable legal form for enterprises such as medium-sized industrial and commercial organizations that do not require large funds to operate; risky (venture) firms. The latter are created to work out some new commercial idea by a group of people who are ready to finance the enterprise until it becomes clear that it is necessary to raise additional capital through the securities market and become an open joint-stock company. In business practice, closed-type joint-stock companies are much more numerous than open-type companies, although the average size of capital is noticeably larger for the latter.
Currently, joint-stock companies are the most common form of entrepreneurship, forming a kind of "armature" of the world economy. This is partly due to the fact that their activities are well established in practice.
The first predecessors of joint-stock companies appeared in the 15th-16th centuries, whenbanks of St. George in Genoa and St. Ambrose in Milan. In the 17th century large trading companies arose: the Dutch East India Company (1600), the French "Company des End Oxidantal" (1628). The appearance of the concept of “share” so well-known today, which was first encountered in the charter of the Dutch East India Company whose members were called shareholders.
The joint-stock form received the greatest development with the transition to capitalism.In pre-revolutionary Russia it was also well known: the number of joint-stock companies in 1916 numbered in the thousands.
An important reason for the wide distribution of joint-stock companies is the ability to concentrate gigantic capital within their framework, which makes it possible to solve the most complex economic problems. A significant advantage of joint-stock companies in comparison with other types of partnerships is also the presence of a market where you can freely buy or sell securities. All this predetermined the wide distribution of joint-stock companies in industry, trade, banking and insurance, and in other areas of the economy. The only exception is agriculture, where joint-stock companies, due to the specifics of the industry, have not been widely developed. In the US alone, there are now over 3 million corporations that produce most of the country's gross national product.
One of the disadvantages of a joint-stock company can be considered a procedure for paying taxes, providing for double taxation: taxes on profits, which reduce the amount of income due to shareholders, and taxes on dividends received by shareholders.
Less important disadvantages are time spent on registering a joint-stock company and bureaucratic procedures that must be passed in the process of creating a society.
By its economic nature, method of organization and activity, a joint-stock company is a form of collective entrepreneurship. However, the division of the authorized capital into a certain number of equal shares (shares), which can be acquired by different persons, gives joint stock form the nature of private enterprise.
cooperative - this is a society whose activities are aimed, in principle, not at generating income, but at providing assistance and assistance to members of the society.
The founders of modern cooperatives are considered 28 workers from the city of Rochdale (England). In 1844, saving a few pence a week, they raised an initial capital of 28 pounds, with which they rented a shop and began small trade flour, oatmeal, sugar, butter and candles. The profit from this enterprise was divided among the members in proportion to the number of their purchases.
Such societies are called consumer cooperative societies. Along with them, there are production cooperative societies created by producers. In Russia, cooperatives have become widespread primarily in production activities, in the service sector and trade-intermediary area. The cooperative form of entrepreneurship is characterized by the establishment close connection of the members of the cooperative with the cooperative itself. The cooperative is a legal entity, and therefore a subject of law.
In modern business practice, turnover cooperatives occupy a relatively small share, although they are common in many countries. This is explained by a number of circumstances, and above all by the fact that cooperative enterprises tend to "decapitalization" of income, which reduces production efficiency innovation process, complicates structural transformations.
On the other hand, this form has clear advantages, among which one of the most important is high motivation due to the unity of property and labor. But it works only if instead of the impersonal "collective property", which, in essence, means the property of the collective, there is the property of the members of this collective. In the United States, for example, the term "employee property" is used to characterize such enterprises. It is much more accurate, since the worker's property is a kind of private property, which differs from classical private ownership in that the owner must simultaneously work in the enterprise, of which he is a co-owner, and there is a certain mechanism that ensures his participation in the management of the enterprise.
It should be noted that in the United States, not state, but private property is transformed into the property of workers. Moreover, this process is encouraged in every possible way, since, according to available data, labor productivity in enterprises with employee ownership is on average 10% higher than in other types of enterprises. In recent years, the US Congress has passed more than 20 federal laws, in one form or another, primarily through tax incentives that stimulate the development of worker ownership. Now there are more than 11 thousand enterprises in the country that are fully or partially owned by workers. They employ about 12 million people. Several centers have emerged dealing with the problems of workers' property, both in theoretical and purely applied terms.
At the heart of the emergence and development of this kind of collective-private entrepreneurship lies scientific and technological revolution. It caused the development of knowledge-intensive industries, increased the role and proportion of knowledge workers. They cannot be set a rhythm of work with the help of a conveyor, and even the most common control over their work is ineffective. Such workers work with return only when they have the appropriate motivation. The position of the owner best contributes to the emergence of such motivation. As a result, first dozens, and then hundreds and thousands of firms began to appear, sometimes employing only a few people. But this fragmentation is compensated by the fact that all more people participate in social production not just as employees, but as owners with completely different incentives to work.
On the large industries, which for technological reasons cannot be divided into small private enterprises, a similar problem is solved by transforming traditional private property into the property of workers. Moreover, the supporters of such a transformation are often the entrepreneurs themselves, who understand that by ceding part of their property to their employees, they increase the efficiency of their work and more than compensate for that part of the profit that they will have to give in the form of dividends to the co-owners who have appeared.
In Russia and other CIS countries, enterprises based on the property of workers are just being created. The attitude towards them in society is ambiguous. Among scientists, for example, there are many critics "people's enterprises", often referring to the Yugoslav experience of "workers' self-government", which, as you know, has not stood the test of time. However, this misses the point: in the Yugoslav experiment, workers' property was neither created nor used. An impersonal collective property dominated there, which did not really belong to either the workers or the state.
Attitude labor collectives In our country, “people's enterprises” are very friendly, which means that in the course of further privatization they will become widespread. But in order for such enterprises not to become a kind of Soviet collective farms, a comprehensive study of the Western experience of their organization is necessary. And today this experience is not limited to the American one. At one time, the EU Council adopted recommendations on the implementation of programs for the transition to "workers' ownership" (ESOP program) in all Western European countries. As a method of privatization, the ESOP program has also begun to be widely used in Poland, Hungary, the Czech Republic, and Slovakia.
At the same time, it would be a mistake to extend workers' ownership to the entire economy. That is why Western countries have achieved success in the socio-economic and scientific and technological development that created conditions for the development of various forms of ownership and entrepreneurship. In the same USA, out of 19 million enterprises of various kinds, 70% are enterprises of individual ownership, 10% are partnerships (owned by two or more persons), 20% are corporations or joint-stock companies.
State enterprise . In many countries of the modern world, the active entrepreneur is the state, which owns from 5-10 to 35-40% of the fixed capital. In the former socialist countries, the state owned the vast majority production assets, which made it, in essence, the only economic entity in the economy.
In the mid-1980s, the share of public sector enterprises in value added was: in Czechoslovakia - 97%, in the GDR - 97,in the USSR - 96, in Yugoslavia - 87, in Hungary - 86, in Poland - 82, in France - 17, in Italy - 14, in Germany - 11, in England - 11, in Denmark - 6, in the USA - 1%.
From the above data it is clear that in the so-called socialist countries the "state economy" dominated, while in the Western world the state was given a relatively limited field of activity. However, by the standards of a market economy, the scale of activity turned out to be too large, which prompted the governments of Western countries to take the path of privatization. This privatization is not as grandiose as in the Eastern European countries and the CIS, but is important trend towards expansion of the non-state economy.
At the same time, even under these conditions, many state-owned enterprises play a significant role in the national economy, and sometimes are leaders among industrial firms.
For example, in Italylist of the largest industrial enterprises lead state organizations - IRI(acts in ferrous metallurgy, shipbuilding and mechanical engineering, aviation, automotive, electronic, electrical and other industries, sea and air transport, telephone and telegraph communications, radio and television broadcasting), ENI(oil and gas production, trade in petroleum products);in France - "Elf-Akiten"(extraction and refining of oil, production of petroleum products, chemical industry, healthcare, perfumery and cosmetics), Renault(produces cars and trucks, sports cars) ; in Finland - "Neste" (oil refining and retail oil products).
Thus, the existence of a more or less large public sector in a market economy requires clarification and clarification of some problems of its economic content, emergence and organizational design.
signs state enterprise. A state enterprise is a production unit characterized by two main traits.
First lies in the fact that the property of such an enterprise and its management are fully or partially in the hands of the state and its bodies (associations, ministries, departments); they either own the capital of the enterprise and have undivided authority to dispose of it and make decisions, or they unite with private entrepreneurs, but influence and control them.
Second concerns the motives for the operation of a state enterprise. In its activities, it is guided not only by the search highest profit, but also by the desire to satisfy social needs, which can reduce economic efficiency or even lead in some cases to losses, which, however, are justified.
In the civil law understanding, organizations are treated as legal entities. Article 48 of the Civil Code provides the main features of this legal structure. The decisive one is property isolation. It is precisely this that is expressed by what is contained in Art. 48 an indication that the legal entity "owns, manages or manages separate property." At the same time, “separate property” means property in its broad sense, including things, rights to things and obligations regarding things. This rule assumes that the property of a legal entity is separated from the property of its founders, and if we are talking about an organization built on the basis of membership, that is, a corporation, from the property of its members. Property isolation finds its concrete expression in the fact that a legal entity, depending on its type, must have either an independent balance sheet (commercial organization) or an independent estimate (non-profit organization).
The second essential feature of a legal entity is its independent property liability. A legal entity is liable for its obligations with its property. Unless otherwise provided by law or constituent documents, neither the founders nor the participants of a legal entity are liable for its debts, and in the same way a legal entity is not liable for the debts of founders (participants).
The third sign of a legal entity is an independent act in civil circulation on its own behalf. It means that a legal entity can, on its own behalf, acquire and exercise property and personal non-property rights, bear obligations, be a plaintiff and a defendant in court. organization management legal form
Finally, the fourth feature is organizational unity. It follows from this that the legal entity has an appropriate stable structure. The performance of a legal entity as a whole is ensured by the fact that at the head of the relevant entity are bodies endowed with a very specific competence, which carry out internal management legal entity and act on its behalf outside. Those who are inside the legal entity - managers, employees, should know what the relevant entity is, what it will do, who manages it and how, what constitutes its property, etc. This is also important for those who enter or only intends to enter into legal relations with this entity.
According to Article 50 of the CG, there are two types of organizations:
- 1. Commercial organizations. Their form of existence:
- - business partnerships and companies;
- - production cooperatives;
- - state and municipal unitary enterprises.
- 2. Non-profit organizations. Their form of existence:
- - consumer cooperatives;
- - public or religious organizations;
- - charitable and other foundations;
- - institutions.
Based on the ratio of the rights of the founders (participants) and the legal entity itself, three models of legal entities can be distinguished.
The essence of the first model is that the founders (participants) with the transfer of the relevant property to the legal entity completely lose their property rights to it. They do not have such rights in relation to the acquired property. Accordingly, the property transferred by the founders (participants) and acquired by the legal entity itself is recognized as belonging to it on the basis of ownership rights. Losing rights in rem, the founder (participant) in return acquires the rights of obligation - the right to claim against a legal entity. It implies, in particular, the rights belonging to a member of the organization: to participate in its management, receive dividends, etc.
This model is used to build business partnerships and business companies, as well as production and consumer cooperatives, that is, legal entities - corporations.
The second model differs in that the founder, transferring the relevant property to the legal entity for possession, use and disposal, continues to be its owner. The founder is recognized as the owner of everything that the legal entity acquires in the future in the course of its activities. Thus, the founder-owner and the legal entity itself, to which the property belongs on the basis of the right of economic management or operational management derived from ownership, have the rights to the same property. This applies to state and municipal unitary enterprises, as well as institutions funded by the owners, in particular, in cases where the Russian Federation, a constituent entity of the Federation or a municipality acts as the owner (meaning ministries, departments, schools, institutes, hospitals, etc.). P.).
The third model assumes that a legal entity becomes the owner of all property belonging to it. At the same time, unlike the first and second models, in this case, the founders (participants) do not have any property rights in relation to the legal entity - neither liability nor property rights. Such legal entities include public and religious organizations (associations), charitable and other foundations, associations of legal entities (associations and unions).
The difference between these three models is clearly manifested, in particular, at the time of liquidation of a legal entity. Participants in a legal entity built according to the first model have the right to claim a part of the remaining property, which corresponds to their share (half, quarter, etc.). The founder of a legal entity built according to the second model receives everything that is left after settlements with creditors. Under the third model, the founders (participants) do not acquire any rights to the remaining property at all.
Business partnerships and companies are the most common form of collective entrepreneurial activity, within which production, trade, intermediary, credit and financial, insurance and other organizations can operate. The Civil Code defines the possibility of the existence of the following types of partnerships and companies:
- - full partnership;
- - partnership on faith;
- - limited liability company;
- - open and closed joint-stock company;
- - subsidiary and dependent company.
Partnerships and societies have many common features. All of them are commercial organizations that set the main task of making a profit and distributing it among the participants. Companies and partnerships are formed under the agreement of their founders (first participants), that is, on a voluntary basis. The participants in these organizations themselves determine the structure of the legal entities they create and control their activities in accordance with the procedure established by law.
The differences between companies and partnerships lie in the fact that partnerships are considered as an association of persons, and companies - as an association of capital. The association of persons, in addition to property contributions, involves their personal participation in the affairs of the partnership. And since we are talking about participation in entrepreneurial activity, its participant must have the status of either a commercial organization or an individual entrepreneur. Consequently, an entrepreneur can be a member of only one partnership, and the partnership itself can only consist of entrepreneurs (that is, it cannot include non-profit organizations or citizens who are not engaged in entrepreneurial activities).
In contrast to this, companies, as associations of capital, do not imply (although they do not exclude) the personal participation of the founders (participants) in their affairs, and therefore allow:
- - simultaneous participation in several companies, including those of a homogeneous nature (which reduces the risk of property losses);
- - participation in them of any persons, and not just professional entrepreneurs.
In addition, participants in partnerships bear unlimited liability for their debts with all their property (with the exception of investors in a limited partnership), while in companies, participants are not liable for their debts at all, but only bear the risk of losses (loss of contributions made), except for participants in companies. with additional responsibility. Since it is impossible to guarantee the same property twice for the debts of several independent organizations, such liability also testifies in favor of the impossibility of the simultaneous participation of an entrepreneur in more than one partnership.
A general partnership is a commercial organization, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities and bear full responsibility for all their property. The activities of general partnerships are characterized by two features:
- - the entrepreneurial activity of its participants is considered to be the activity of the partnership itself;
- - when concluding a transaction on behalf of the partnership by one participant, property liability (in the event of a lack of partnership property) may be borne by the other participant with his personal property.
A limited partnership, or limited partnership, is distinguished by the fact that it consists of two groups of participants. Some of them carry out entrepreneurial activity on behalf of the partnership and at the same time bear additional unlimited liability with their personal property for its debts, that is, in fact they are full partners and, as it were, constitute a full partnership within a limited partnership. Other participants (contributors, limited partners) make contributions to the property of the partnership, but do not answer with their personal property for its obligations. Since their contributions become the property of the partnership, they only bear the risk of losing them and therefore do not take as much risk as full liability partners. Therefore, limited partners are suspended from doing business as limited partners. Retaining primarily the right to receive income from their contributions, as well as to information about the activities of the partnership, they are forced to fully trust the participants with full responsibility in regard to the use of property. Hence the traditional Russian name "kommandity" - a partnership on faith.
A limited liability company (LLC) is a type of capital association that does not require the personal participation of its members in the affairs of the company. Characteristic features This commercial organization is the division of its authorized capital into shares of participants and the absence of liability of the latter for the debts of the company. The property of the company, including the authorized capital, belongs to it by the right of ownership as a legal entity and does not form an object of shared ownership of the participants. Participants are not liable for the company's debts, but only bear the risk of losses (loss of deposits). Society can be created by one person. The total number of participants in an LLC must not exceed 50.
An additional liability company (ALC) is a type of LLC. A distinctive feature of the ALC is that if the property of such a company is insufficient to satisfy the claims of its creditors, the participants in the company with additional liability can be held liable for the debts of the company with their personal property, and in joint and several order. However, the amount of this liability is limited: it does not concern all of their personal property, as in a general partnership, but only part of it - the same multiple for all of the amount of contributions made (for example, three times, five times, etc.). Thus, this company occupies, as it were, an intermediate position between partnerships with their unlimited liability of participants and companies that generally exclude such liability.
A joint stock company (JSC) is a commercial organization, the authorized capital of which is divided into a certain number of shares, each of which is represented by a security-share. Owners of shares - shareholders - are not liable for the obligations of the company, but only bear the risk of losses - the loss of the value of their shares.
Registration of shareholder rights by shares ( securities) means that the transfer of these rights to other persons is possible only through the transfer of shares. Therefore, when leaving a joint-stock company, its participant cannot demand from the company itself any payments or extraditions due to its share. After all, this exit can be carried out in only one way - by selling, assigning or otherwise transferring your shares (or a share) to another person. Consequently, a joint-stock company, unlike a limited liability company, is guaranteed against a decrease in its property when its participants leave it. Other differences between these companies are associated with a more complex management structure in a joint-stock company. These differences are caused by attempts to prevent abuses, for which this organizational and legal form of entrepreneurship provides great opportunities. The fact is that the leaders of such a company, in the presence of a huge number of small shareholders, who, as a rule, are incompetent in entrepreneurial activity and are only interested in receiving dividends, acquire, in fact, uncontrolled possibilities for using the capital of the company. This explains the emergence of rules on the public conduct of affairs of a joint-stock company, on the need to form a permanent control body of shareholders in it - supervisory board and etc.
It must be borne in mind that a joint-stock company as a form of capital pooling is designed for large businesses and is usually not used by small companies. Therefore, a joint-stock company is not limited by the number of participants.
Joint-stock companies are divided into open (JSC) and closed (CJSC). An open joint-stock company distributes its shares among an indefinite circle of persons, and therefore only it has the right to conduct an open subscription for its shares and their free sale. Its shareholders freely alienate their shares, which makes the membership of such a company variable. OJSCs are obliged to conduct business in public, that is, to publish annually for general information the annual report, balance sheet, profit and loss account.
In contrast, a closed joint-stock company distributes its shares only among the founders or other predetermined circle of persons, that is, it is characterized by a constant composition of participants. Therefore, it is deprived of the right to conduct an open subscription for its shares or offer them for purchase to other persons in any other way. The participants in such a company enjoy the right of pre-emption to purchase shares sold by other shareholders, which is designed to preserve their pre-limited composition. Therefore, the number of participants in a closed joint stock company should not exceed the limit, which is established by the law on joint stock companies.
The supreme body of a joint-stock company is the general meeting of its shareholders. It has exclusive competence, which cannot be transferred to other bodies of the company even by decision of the general meeting. It includes: changing the charter of the company, including changing the size of its authorized capital, electing the supervisory board (board of directors), the audit commission (auditor) and executive bodies company (unless the latter issue is within the exclusive competence of the supervisory board), as well as approval annual reports and balance sheets of the company, the distribution of its profits and losses and the solution of the issue of reorganization or liquidation of the company. In large joint-stock companies with more than 50 shareholders, a supervisory board must be created, which is a permanent collective body that expresses the interests of shareholders and controls the activities of the executive bodies of the company. In cases of its creation, the exclusive competence of this body is determined, which also under no circumstances can be transferred to the executive bodies. In particular, it may include consent to the commission by the company big deals equivalent to a significant part of the value of the authorized capital of the company, as well as the appointment and recall of the executive bodies of the company.
The audit commission of the company, which in small companies can be replaced by an auditor, is created only from among the shareholders, but is not a management body of the company. Its powers to control the financial documentation of the company and the procedure for their implementation are determined by the law on joint-stock companies and the charters of specific companies.
The executive body of the company (directorate, board) has "residual" competence, that is, it decides all issues of the company's activities that are not within the competence of the general meeting or the supervisory board. The Civil Code allows the transfer of powers of the executive body not to elected shareholders, but to a management company or a manager ( individual entrepreneur). Another economic company or partnership or production cooperative may act as a management company. Such a situation is possible by decision of the general meeting, in accordance with which management company(or individual manager) concludes a special agreement providing for mutual rights and obligations, as well as responsibility for their non-compliance
The method of control over the activities of the executive bodies of the company is also an independent auditing. Such an audit may be carried out at any time at the request of shareholders whose aggregate share in the authorized capital of the company is at least 10%. An external audit is also obligatory for open joint-stock companies that are obliged to conduct business publicly, because here it serves as an additional confirmation of the correctness of the company's published documents.
A subsidiary economic company does not constitute a special organizational and legal form. In this capacity, any economic company can act - joint-stock, with limited or additional liability. The peculiarities of the position of subsidiaries are related to their relationship with "parent" (controlling) companies or partnerships and the possible emergence of liability of controlling companies for the debts of subsidiaries.
A company may be recognized as a subsidiary if at least one of the following three conditions is met:
- - prevailing in comparison with other participants of participation in its authorized capital of another company or partnership;
- - an agreement between the company and another company or partnership on managing the affairs of the first;
- - another opportunity for one company or partnership to determine decisions made by another company. Thus, the presence of the status of a subsidiary does not depend on strictly formal criteria and can be proved, for example, in court in order to use the appropriate legal consequences.
The main consequences of recognizing a company as a subsidiary are related to the emergence of liability to its creditors on the part of the controlling ("parent") company, which is responsible, however, not for all transactions made by the subsidiary, but only in two cases:
- - when concluding a transaction at the direction of the controlling company;
- - in case of bankruptcy of a subsidiary and it is proved that this bankruptcy was caused by the execution of the instructions of the controlling company.
The subsidiary company itself is not liable for the debts of the main (controlling) company or partnership.
The main ("parent") and subsidiary (or subsidiaries) companies constitute a system of interconnected companies, which received the name "holding" in American law, and "concern" in German law. However, neither the holding nor the concern itself is a legal entity.
Dependent companies are also not a special organizational and legal form commercial organizations. Various business companies act in this capacity. We are talking about the ability of one society to significantly influence the decision-making of another society, and that, in turn, to exert a similar (non-determining) influence on the decision-making of the first society. Such a possibility is based on their mutual participation in each other's capital, which, however, does not reach the degree of a "controlling stake", that is, it does not allow one to speak of such relationships as relations between subsidiaries and "parent" companies.
In accordance with paragraph 1 of Art. 106 of the Civil Code, a company is recognized as dependent, in the authorized capital of which another company has more than 20% participation (voting shares or shares in the capital of a limited liability company). Dependent companies often mutually participate in each other's capital. At the same time, the shares of their participation can be the same, which excludes the possibility of unilateral influence of one company on the affairs of another.
A production cooperative is an association of citizens who are not entrepreneurs, which was created by them for joint economic activity on the basis of a personal labor participation and association of some property contributions (shares). Members of the cooperative bear additional responsibility for its debts with their personal property within the limits established by law and the charter of the cooperative.
A non-owner commercial organization is recognized as a unitary enterprise. Such a special organizational and legal form is reserved only for state and municipal property. Since December 8, 1994, the right to create non-owner commercial organizations (that is, "enterprises") has been reserved only for state and municipal entities. Organizations of this kind are declared "unitary" by law, which implies the indivisibility of their property into any contributions, shares or shares, including its employees, since it is wholly owned by the owner-founder. Unitary enterprises can act in two forms - based on the right of economic management and the right of operational management, or state-owned. A unitary enterprise is not liable for the obligations of its founder-owner. The latter is not liable with his property for debts unitary enterprise based on the right of economic management, but may be held additionally liable for the debts of an enterprise based on the right of operational management ("state").
Institutions are the only type of non-profit organization that is not the owner of its property. Institutions include a wide variety of non-profit organizations: bodies of state and municipal government, institutions of education and enlightenment, culture and sports, social protection etc.
Being a non-owner, the institution has a very limited right of operational management of the property transferred to it by the owner. It does not imply the participation of such an organization in business relations, with the exception of certain cases provided for by its founding documents. But if the institution lacks funds for settlements with creditors, the latter have the right to make claims against the founder-owner, who in this case is fully liable for the debts of his institution. In view of this circumstance, the law does not provide for the possibility of bankruptcy of institutions.
The main source of property of the institution is the funds received by it according to the estimate from the owner. The owner can finance his institution and partially, giving him the opportunity to receive additional income from the entrepreneurial activity permitted by the owner.
Introduction
2. Types of enterprises depending on organizational and legal forms
3.2 Other legal forms
4. Organizational and legal forms of non-profit enterprises
4.1 Consumer cooperative
4.2 Public and religious associations
4.3 Associations of legal entities
Conclusion
Bibliography
Applications
INTRODUCTION
The central link of the market economy are business entities (organizations, enterprises, households).
An enterprise is a separate economic production unit (subject) that disposes and produces goods and services.
In a market economy, an entrepreneur is free to choose options for solving problems, alternatives for development and defining his goals.
Organizational and legal forms of entrepreneurial activity are extremely diverse.
When deciding on the choice of organizational and legal form, the entrepreneur determines:
1. required level;
2. the scope of possible rights and obligations, which depends on the profile and content of future activities;
3. possible circle of partners;
4. legislation existing in the country.
The legal form of an enterprise is a complex of legal and economic norms. Which determine the nature, conditions and methods of formation of legal and economic relations between employees and the owner of the enterprise. These legal norms regulate internal and external relations, the procedure for the organization and activities of enterprises.
The presence of organizational and legal forms of management, as world practice has shown, is the most important prerequisite for the effective functioning of a market economy in any state, including Russia.
1. The concept of the organizational and legal form of the enterprise
The organizational and legal system in the country since January 1, 1995. is formed in accordance with the Civil Code of the Russian Federation.
The organizational and legal form of an enterprise is simply a form legal registration enterprise, which creates a certain legal status for this enterprise.
When characterizing enterprises, it must be borne in mind that the concept of “organizational-legal form” and the concept of “enterprise” are not identical. Within the framework of one enterprise, different forms can be combined as its participants, and several independent enterprises can be combined in separate organizational and legal forms. Each of the legal forms of enterprises has a different degree of separation of their owners, proprietors. To do this, it is enough to compare the rights of the owners of an open joint-stock company (they have the right to only a part of the property of the enterprise and are limited in the performance of managerial functions) and business partnerships (in which there is a close convergence of the owner and property and the opportunity is given to directly perform the functions of managing the enterprise). All enterprises in accordance with the Civil Code of the Russian Federation, depending on the main goal, are divided into non-profit and commercial. Non-commercial enterprises differ from commercial enterprises in that the profit from the former is not the main goal and they do not distribute it among the participants.
2. Types of enterprises depending on organizational and legal forms
According to the Civil Code of the Russian Federation, the following forms of enterprises can be considered (see Appendix 1):
1. Business partnerships and companies
1.1. General partnership
1.2. Faith partnership
1.3. Limited Liability Company
1.4. Additional Liability Company
1.5. Joint-stock company
1.6. Subsidiaries and affiliates
2. Production cooperatives
3. State and municipal unitary enterprises
4. Non-profit organizations
Let us consider in more detail the organizational and legal forms.
3. Organizational and legal forms of commercial enterprises
3.1 Business partnerships and companies
These forms can be divided into:
A general partnership is 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 their property.
Management of entrepreneurial activities of a general partnership is carried out by common consent of all its participants. Each participant in a general partnership, as a rule, has one vote when resolving any issues on general meeting. Participants in a full partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership. That is, in fact, this statement means the unlimited liability of comrades.
General partnerships are most common in agriculture and the service sector; usually they are small enterprises and their activities are quite easy to control.
A limited partnership (limited partnership) is a partnership in which, along with the participants who carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with their property (general partners), there are one or more contributors (limited partners) who bear the risk of losses, associated with the activities of the partnership, within the limits of the amounts of contributions made by them and do not take part in the implementation of entrepreneurial activities by the partnership.
This organizational and legal form of the enterprise is typical for more large enterprises due to the possibility of attracting significant financial resources through a virtually unlimited number of limited partners.
Limited Liability Company (LLC) - a company established by one or more persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; participants in a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company within the value of their contributions.
The authorized capital of a limited liability company is made up of the value of the contributions of its participants. This organizational and legal form is common among small and medium-sized enterprises.
Additional Liability Company (ALC) - a company founded by one or more persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; the participants in such a company jointly and severally bear subsidiary liability for its obligations with their property in the same multiple for all to the value of their contributions, determined by the constituent documents of the company. In case of bankruptcy of one of the participants, his liability for the obligations of the company is distributed among the other participants in proportion to their contributions, unless a different procedure for the distribution of responsibility is provided for by the constituent documents of the company. That is, in fact, an additional liability company is a hybrid of a general partnership and a limited liability company.
The benefits of partnerships are:
1. partnerships are easy to organize, i.e. it is almost simple to conclude an agreement between the participants and there are no special bureaucratic procedures;
2. economic, in particular, material, labor, financial capabilities of the enterprise are significantly increased;
3. there is an opportunity for a higher specialization of the participants in the partnership in management due to the large number of participants;
4. in Russian Federation this advantage cannot be used: in some Western countries, an exception is made in taxation for some small businesses - they are legal entities, but taxes are paid not by the company, but by its owners through individual income tax.
The disadvantages of such organizational and legal forms, which are not always visible at the first stages of creating a company, are manifested in the following points:
1. the participants of the partnership do not always clearly understand the goals of the enterprise and the means to achieve these goals, i.e. the participants may show inconsistency in interests and, when it will be necessary to act with all determination, the participants will either remain inactive, or their policies will be so inconsistent that this inconsistency can lead to losses, and even to the bankruptcy of the company, and the most dangerous thing is the inconsistency on the main questions;
2. financial resources limited in the development of the enterprise, and this limitation does not allow to fully reveal the potential of the company, because a developing business requires new investments;
3. there are difficulties in determining the measure of each in the income or loss of the company, it is difficult to divide, figuratively speaking, “property acquired together”;
4. there is some unpredictability of the company's further activities after one of the members of this partnership leaves it due to some points of the existing legislation: “A participant who has withdrawn from a general partnership is paid the value of a part of the partnership’s property corresponding to the share of this participant in the share capital ...” (Article 78, paragraph 1, Civil Code of the Russian Federation), “A member of a limited liability company has the right to withdraw from the company at any time ... At the same time, he must be paid the cost of a part of the property corresponding to his share in the authorized capital of the company ...” (Article 94, Civil Code of the Russian Federation) : as a rule, most of these firms simply fall apart in a similar situation;
5. This disadvantage is typical only for partnerships: the existing unlimited liability, almost every participant is responsible not only for some of his management decisions, but also for the decisions of the entire partnership or another participant.
