36. Individuals. Legal capacity. Legal capacity The subjects of civil legal relations are individuals, legal entities, as well as the Russian Federation, constituent entities of the Russian Federation and its municipalities. The main properties of citizens as subjects of law are their

§ 40. Civil capacity and capacity. Civil rights of minors The grandmother gave her eleven-year-old grandson Feda a house in her home village. There were dishonest people who, secretly from Fedya’s parents, offered him to sell the house, from the point of view

Chapter VIII Legal capacity and legal capacity § 1. Basic elements The concepts of legal capacity and legal capacity lie in two completely different areas, arising from two deeply different grounds. The concept of legal capacity is adjacent to the doctrine of legal actions and means

They arise simultaneously, at the time of state registration (clause 3 of article 49, clause 2 of article 51 of the Civil Code). A legal entity is considered created from the date of making the corresponding entry in the unified state register of legal entities.

The legal capacity of legal entities must be universal (general), giving them the opportunity to participate in any civil legal relations, and special (limited), implying their participation only in a certain, limited range of such legal relations.

The principle of special legal capacity is expressed in the fact that the content and scope of the legal capacity of a legal entity depends on the goals and objectives provided for in the constituent documents. For example, a transaction is considered invalid if it is made by a legal entity in conflict with the goals of its activities (Article 173 of the Civil Code of the Russian Federation). An analysis of civil legislation suggests that the principle of special legal capacity applies only to directly specified legal entities (Article 49 of the Civil Code of the Russian Federation). In particular, these include non-profit organizations specified in the Civil Code of the Russian Federation, institutions, as well as some commercial organizations - state and municipal enterprises, state-owned enterprises and other non-profit organizations expressly specified in the law. Business partnerships and societies, as well as production cooperatives, related to commercial organizations and built on the basis of membership, may have civil rights and obligations necessary to carry out any types of activities not prohibited by law (clause 1, part 2, article 59 of the Civil Code of the Russian Federation), i.e. there is universal legal capacity. Civil legislation allows for other cases of restriction of legal capacity of legal entities, incl. those to which the principle of special legal capacity does not apply. This provision is due to the fact that in order to carry out certain types of business activities it is necessary to have issued competent authorities relevant permits (licenses).

The legal capacity of a legal entity is the ability, through its actions, to acquire and exercise civil rights and obligations and carry out transactions through its bodies. Legal entities make transactions through their bodies, which are specifically designed to develop and express the will of the organization as a subject of civil law, and therefore the head of the body makes transactions without a power of attorney. The body of a legal entity is not an independent subject of civil law and in civil circulation always acts on behalf of the legal entity and represents the interests as a whole. If a legal entity has several bodies, then each of them has the right to perform those actions that are aimed at acquiring, changing or terminating civil rights and obligations only within the limits of its competence specified in the constituent documents. To carry out production or socio-cultural activities, the efforts of all labor collective, and in this case, for the actions of its employees committed by them within the scope of their official (labor) duties, the legal entity bears civil liability. For example, if, when an employee carries out his labor functions he causes harm to someone, the obligation to compensate for losses rests with the organization. At the same time, if an employee of an organization causes harm to another person by committing actions that are not of an official nature, the losses are not subject to recovery from the legal entity, and the victim has the right to apply for compensation only to the citizen who caused them.

In accordance with paragraph 3 of Art. 49 of the Civil Code of the Russian Federation, civil legal capacity and civil capacity of a legal entity arise at the moment of its creation and terminate at the moment of making an entry about its exclusion from the unified state register legal entities. The scope of the civil legal capacity of a legal entity (the ability to have civil rights and bear responsibilities) is determined by its constituent documents (clause 1 of Article 49 of the Civil Code of the Russian Federation). Guev A.N. Article by article comment to part one of the Civil Code of the Russian Federation / A.N. Guev. - M.: INFRA-M, 2003. - P. 49.

We should agree with the point of view of N.V. Kozlova that legal entities and individuals have equal opportunities to participate in civil transactions. At the same time, in a number of specific legal relations, the participation of only legal entities is allowed. So, for example, only legal entities can be insurers (Article 938 of the Civil Code of the Russian Federation), have the right to carry out activities related to maintaining a register of owners of securities, and can be allocated property with the right of economic management or operational management (Article 120, paragraph 2 of Article 113, Art. 294, 296 of the Civil Code of the Russian Federation). Kozlova N.V. Legal personality of a legal entity. - M., 2005. - P. 42.

The legal capacity of legal entities can be general (universal) and special (limited).

General (universal) legal capacity gives legal entities the opportunity to carry out any types of activities not prohibited by law, if the constituent documents of such organizations do not contain an exhaustive (complete) list of types of activities that the relevant organization has the right to engage in.

Only those organizations for which such legal capacity is directly established by law or the organization’s constituent documents have special (limited) legal capacity. Resolutions of the Plenum Supreme Court Russian Federation and the Plenum of the Supreme Arbitration Court Russian Federation dated July 1, 1996 N 6/8 // reference system"Consultant Plus". At the same time, the establishment of special legal capacity is determined by the purposes of their creation, determined by the founders.

Commercial organizations have general legal capacity, with the exception of state and municipal ones. unitary enterprises(Article 113-115 of the Civil Code of the Russian Federation), banks (according to the Law “On Banks and Banking Activities”), stock exchanges(in accordance with the Federal Law “On the Securities Market”), insurance organizations (in accordance with the Law of the Russian Federation “On the organization of insurance business in the Russian Federation”). Sumskoy D.A. Status of legal entities: tutorial for universities. - M.: JSC "Yustitsinform", 2006. - P. 151.

In addition to the individual types indicated above, they have special legal capacity commercial organizations and non-profit organizations.

If a legal entity enters into transactions beyond the limits of its legal capacity (ultra vires), such transactions are recognized as invalid. At the same time, the legislator distinguishes between the invalidity of transactions made beyond the legal capacity of a legal entity, the special legal capacity of which is established by law or other regulatory legal act, and transactions made beyond the limits of civil legal capacity determined by the constituent documents of the organization. Right there. The first by virtue of Art. 168 of the Civil Code are void regardless of whether the counterparties of a given organization knew about such restrictions when concluding transactions with it or not. Second, according to Art. 173 of the Civil Code are contestable, since in order to recognize such transactions as invalid, it is necessary to prove the fact that the other party to the transaction knew or should have known about the existing restrictions on the civil legal capacity of the legal entity.

Sometimes the legislator establishes restrictions on legal capacity for legal entities of a certain organizational and legal form. So, for example, according to paragraph 1 of Art. 5 of the Federal Law “On the privatization of state and municipal property» state (municipal) enterprises and institutions are prohibited from acting as buyers in the privatization of state (municipal) property. In accordance with Art. 64 of the Federal Law “On Insolvency (Bankruptcy)” at the monitoring stage, the management bodies of the legal entity - the debtor do not have the right to make decisions, in particular, on reorganization and liquidation, on the creation of branches and representative offices.

The list of types of activities that legal entities can engage in on the basis of a special permit (license) is determined by legislative acts (paragraph 3, paragraph 1, article 49 of the Civil Code of the Russian Federation). Today this law is the federal law dated August 8, 2001 No. 128-FZ “On licensing of certain types of activities.” On licensing of certain types of activities: Federal Law of the Russian Federation of August 8, 2001 No. 128-FZ (in current edition) / Help system "Consultant Plus".

The license is special permission for implementation specific type activities during mandatory compliance licensing requirements and conditions issued by the licensing authority to a legal entity or individual entrepreneur.

TO licensed species activities include types of activities, the implementation of which may entail damage to the rights, legitimate interests, health of citizens, defense and security of the state, cultural heritage peoples of the Russian Federation and whose regulation cannot be carried out by methods other than licensing.

Licensing is carried out by authorities executive power, authorities of the constituent entities of the Russian Federation, authorities local government. At the same time, the legal relations arising during licensing are administrative and legal in nature, which develop in the order government regulation economy.

It should be borne in mind that the issuance of a license does not transform the general legal capacity of a legal entity into a special one. Strictly speaking, obtaining or losing (suspension, revocation) of a license does not affect their legal capacity or capacity at all, established by law(other legal acts And). True, for some legal entities with special legal capacity, the issuance of a license means the acquisition subjective law to carry out their main activities within the framework of special legal capacity. In this regard, the annulment (revocation) of the license of such a legal entity is tantamount to the deprivation of its special legal personality, and therefore inevitably entails its liquidation. First of all, this concerns credit institutions, insurers, non-state pension funds, investment funds having special legal capacity. Kozlova N.V. Decree op. - P. 28.

When studying the legal capacity of a legal entity, the question of the possibility of a legal entity to have personal non-property rights is of interest.

A legal entity may have rights to means of individualization of goods and services, including the right to trademark or service mark, appellation of origin of goods. A legal entity may also own rights to the results creative activity(copyright, patent and others).

The legal capacity of a person is understood as the ability to acquire and exercise civil rights, create civil responsibilities for oneself and fulfill them (Clause 1, Article 21 of the Civil Code of the Russian Federation).

According to fiction theory proponents, civil capacity the legal entity does not. Zakharov V.A. Creation of legal entities: Legal issues. - M., 2005. - P. 33-34. However, we cannot agree with such a conclusion, since in this case it becomes unclear how the organization acquires and exercises civil rights and creates civil responsibilities for itself.

The point of view of N.V. seems correct. Kozlova, according to whom, since a legal entity has its own independent will, different from the will of its founders (participants, members), it also has legal capacity. Kozlova N.V. Decree op. - P. 35.

The civil capacity of a legal entity arises simultaneously with its civil legal capacity from the moment of state registration of the organization and has special content. Ioffe O.S. Development of civil thought in the USSR (part one) // Selected works on civil law. 2nd edition, revised. - M., 2003. - P. 325-333.

Traditionally, in the legal literature, the following are distinguished as elements of civil capacity:

Transaction ability, i.e. the ability to acquire civil rights and create civic responsibilities through one’s actions;

The ability to independently exercise civil rights and perform civic duties;

Tort, i.e. ability to take responsibility for torts(Article 56 of the Civil Code of the Russian Federation). Kozlova N.V. Decree op. - P. 37.

According to Art. 53 of the Civil Code of the Russian Federation, a legal entity exercises legal capacity either through its bodies or through participants (in this case, the legislator means participants general partnership and partnerships of faith, which have the right, according to Art. 72 and 84 of the Civil Code of the Russian Federation, to act in civil transactions on behalf of this legal entity).

According to V.A. Plotnikov, a legal entity cannot be limited in legal capacity or declared incompetent. However, we cannot agree with such a conclusion. In accordance with paragraph 2 of Art. 49 of the Civil Code of the Russian Federation, the legal capacity of a legal entity may be limited in cases provided for by law. Semina A.N. Legal capacity and capacity legal debtor during bankruptcy proceedings: dissertation for the competition scientific degree candidate legal sciences. - M., 2003. - P. 10-14. So, for example, according to Art. 295-297 of the Civil Code of the Russian Federation restricts the right of state and municipal unitary enterprises to dispose of property that they have under the right of economic management. Plotnikov V.A. Carelessness as a form of guilt in civil law: a dissertation for the degree of candidate of legal sciences. - M., 1993. - P. 65.

Thus, in the first chapter of the presented study, we gave the concept of a legal entity and identified the main features of legal entities, talked about the legal capacity and capacity of these entities economic activity. Also in the first chapter of the presented study, we talked about various classifications legal entities by type. In accordance with Russian legislation One of the most common organizational and legal forms of legal entities is a company with limited liability, more detailed characteristics which will be given in the second chapter.

14. Legal capacity and capacity of a legal entity.

The legal capacity of a legal entity arises from the moment of its state registration, i.e. entering information about it into the Unified State Register of Legal Entities. A legal entity has two types of legal capacity:

General (universal) legal capacity. Allows the subject of law to have any civil rights or obligations to carry out any type of activity. Today they have universal legal capacity business companies, business partnerships and producer cooperatives.

Special (target) legal capacity. Allows a legal entity to have only those rights and obligations that correspond to the goals of its activities and are recorded in the constituent documents. Non-profit organizations have specific legal capacity; among commercial ones there are unitary enterprises.

Legal capacity and legal capacity of a legal entity arise simultaneously, therefore the Civil Code of the Russian Federation uses only the first category. A legal entity acquires rights and bears responsibilities through its bodies, which act in accordance with the law, other legal acts and constituent documents.

The right of a legal entity to carry out activities for which a license is required arises from the moment of receipt of such a license or within the period specified therein and terminates upon expiration of its validity, unless otherwise provided by law and other regulations.

A legal entity may be limited in rights only in cases and in the manner prescribed by law. The decision to restrict rights can be challenged by the legal entity in court.

The legal capacity of a legal entity is terminated at the moment an entry is made about its exclusion from the Unified State Register of Legal Entities.

16. Procedure and methods for creating legal entities.

Legal entities are created at the will of their founders, but the state controls the legality of their creation in the interests of participants in property circulation. From this follows the requirement for mandatory state registration of legal entities (clause 1 of Article 51 of the Civil Code). For detailed regulation of the procedure for state registration of legal entities, a special Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs” dated August 8, 2001 was adopted.

The founders of a legal entity can be their original participants (members) - in most organizations, the owner of their property or authorized body– when creating unitary enterprises or institutions, as well as other persons making property contributions (funds).

Known to legislation different orders registration of legal entities:

1. Appearance-normative. It eliminates the need to obtain prior authorization from authorities public authority to create a legal entity. The founders appear before the registration authority, which does not have the right to refuse to register the organization being created in the absence of any violations of legal norms on their part. Most legal entities are created in this order.

2. Permissive. This procedure is provided as an exception for legal entities intending to engage only in entrepreneurial activities. It is associated with the need to obtain prior permission from public authorities to create the appropriate legal entity, which serves the general interests of participants in the turnover. In this order, commercial banks are created, as well as legal entities that can occupy a dominant or monopoly position in the market certain goods. That. it is obvious that it is impossible to completely abandon permitting procedure even in a developed market economy.

A legal entity is considered created from the moment an entry is made in the Unified State Register of Legal Entities (clause 2 of Article 51), and its legal capacity arises from the same date. All changes in the status of a legal entity and its Charter are also subject to state registration. Registration is carried out by the Federal Tax Service or justice authorities in the manner prescribed by the Federal Law. The Federal Tax Service (justice authorities) also maintains the Register, which is located in free access, so that everyone can obtain information about a potential partner through an extract.

The state registration process begins with the moment of actual submission of documents to the registration authority. The list of documents is established in Art. 12 Federal Law:

an application signed by the applicant in the form established by the authorized Government of the Russian Federation federal body executive power;

decision to create a legal entity in protocol form, agreement or other document in accordance with the legislation of the Russian Federation;

constituent documents of a legal entity (originals or notarized copies);

an extract from the register of foreign legal entities of the corresponding country of origin or other equivalent legal force proof legal status foreign legal entity - founder;

payment document state duty.

At the second stage A mandatory check is carried out by the registration authority of the submitted documents. The check consists of two stages: external verification(completeness of presentation, order of preparation, availability of details) and internal verification of the contents of documents for compliance with the legislation of the Russian Federation.

After a comprehensive check The actual registration of the legal entity is carried out. The registration period is calculated from the date of actual submission of documents, and according to the Federal Law should not exceed five working days. State registration is carried out at the location of the permanent executive body indicated by the founder (founders) in the application for state registration, in case of its absence - at the location of another body or person having the right to act on behalf of the registered legal entity without a power of attorney. Special federal laws may establish the procedure for registering individual legal entities.

The registration authority, no later than one working day from the date of state registration, issues the applicant a document confirming the fact of making an entry in the state register. The form and content of the document are established by the federal executive body authorized by the Government of the Russian Federation.

When documents are received by the registration authority in the form of electronic documents using information and telecommunication networks common use a document confirming the fact of making an entry in the state register is sent in the form electronic document to the email address provided by the applicant. In this case, the registration authority is obliged to issue the document in in paper form at the request of the applicant. Registration authority on time no more than five working days from the date of state registration submits in the form of an electronic document the information contained in the unified state register of legal entities to state extra-budgetary funds for registration and deregistration of legal entities as insurers. Registration authority in period no more than five working days from the date of state registration submits registration information in the form of an electronic document to state bodies determined by the Government of the Russian Federation. The composition of information sent to the specified state bodies, the procedure and timing for their provision to the relevant legal entity of information about its credentials are established by the Government of the Russian Federation.

PROVISIONS OF THE CONCEPT.

1. It is necessary to establish a principle reliability of registry data(this refers to a comprehensive verification of data during state registration) and the need to verify the legality of corporate decisions and transactions with shares and shares.

2. The Civil Code requires establishing a principle public integrity of the registry, according to which any bona fide person who relied on the registry data is not affected by the discrepancy between the registry data and the actual circumstances.

3. The principle of reliability of data from the state register of legal entities can be considered implemented only with timely updating by legal entities of the specified data. It follows from this that the legal entity is obligated to compensate for losses incurred by counterparties who relied on the Register data.

4. Should be installed mandatory verification of the accuracy and compliance with current legislation of the contents of constituent documents, as well as changes made to them.

5. It is necessary to establish a proper system informing stakeholders about changes to constituent documents.

6. It is advisable to secure functions for registering all legal entities and maintaining a unified state register for the justice authorities, which currently already carry out state registration of non-profit organizations. This would make it possible to concentrate the state registration of all legal entities in one department and create a single electronic register.

Art. 51 Civil Code + Federal Law “On state registration of legal entities and individual entrepreneurs” Requirement for mandatory state registration of legal entities.

The founders of a legal entity can be their original participants (in business companies, partnerships, cooperatives, etc.) or the owner of their property or an authorized body, as well as other persons making property contributions to them, although not accepting then direct participation in their activities (institutions, foundations).

The legislation knows several ways (procedures) for creating legal entities:

Regulatory-appearance - constituent documents are drawn up and presented to the registration authority, which is obliged to register the created organization.

Permissive – the need to obtain prior permission from public authorities to create the appropriate legal entity (commercial banks, monopolies).

Notification.

Administrative - by order of a state agency (state corporation).

A legal entity is considered created from the moment of state registration (clause 2, article 51). Commercial - with the tax authorities, and non-commercial - with the justice authorities. From the same date there arises legal capacity of a legal entity– ability to engage in certain types of activities.

A legal entity has 2 types of legal capacity:

general (universal) limited (special)

any types of activities, for only those types of activities, cat.

excl. prohibited. by law. in the charter.

For commercial enterprises, except for state unitary enterprises, nekom. + state unitary enterprises, municipal unitary enterprises.

Legal capacity of a legal entity– the ability to exercise one’s rights and bear responsibilities through one’s actions.

Implementing body

collegial sole

advice direct. Director

Legal capacity and legal capacity arise simultaneously at the time of state registration.

State registration - acts of the authorized federal executive body, carried out by entering into state registers information on the creation, reorganization and liquidation of legal entities, acquisition by individuals of the status of individual entrepreneur, termination by individuals of activities as individual entrepreneurs, other information about legal entities and individual entrepreneurs.

For state registration, a state fee is paid in accordance with the legislation on taxes and fees.

State registration is carried out within no more than 5 working days from the date of submission of documents to the registration authority.

The following documents are required for registration:

statement of the founders;

decision to create a legal entity;

constituent documents:

Memorandum of association

Regulations on an organization of a certain type.

4) document confirming payment of state duty.