36. Individuals. Legal capacity. Capacity by Subjects 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

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 circulation. At the same time, in a number of specific legal relations, the participation of only legal entities is allowed. For example, only legal entities can be insurers (Article 938 of the Civil Code of the Russian Federation) and have the right to carry out activities related to maintaining a register of owners valuable papers, may be allocated property under the right of economic management or operational management (Article 120, paragraph 2 of Article 113, Articles 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 of the Russian Federation and the Plenum of the Supreme Arbitration Court of the 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 unitary enterprises (Articles 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 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.

They have special legal capacity in addition to those indicated above individual species 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, such a law is the Federal Law of 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, the receipt or loss (suspension, cancellation) of a license does not at all affect their legal capacity or capacity established by law (other legal acts). 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 with special legal capacity. Kozlova N.V. Decree op. - P. 28.

When studying the legal capacity of a legal entity, the question of the legal entity’s ability to have personal rights is of interest. property rights.

A legal entity may have rights to means of individualization of goods and services, including the right to a trademark or service mark, name of place 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 of 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 which, 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 state registration 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: 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.

In accordance with paragraph 3 of Art. 49 of the Civil Code, 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 of 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).

At the same time, the rights of a person and a citizen granted to him by law can extend to legal entities only to the extent that this right by its nature can be applied to them * (96).

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. For example, only legal entities can be insurers (Article 938 of the Civil Code), have the right to carry out activities related to maintaining a register of securities owners (Article 8 of the Federal Law “On the Securities Market”), and can be allocated property with the right of economic management or operational management (Article 120, paragraph 2 of Article 113, Articles 294, 296 of the Civil Code) * (97).

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.

Special (limited) legal capacity is possessed only by those organizations for which such legal capacity is directly established by law or the organization’s constituent documents (clause 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of July 1, 1996 N 6/8). 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 unitary enterprises (Articles 113-115 of the Civil Code), banks (in accordance with the Law “On Banks and Banking Activities”), stock exchanges (in accordance with the Federal Law “On the Securities Market”) , insurance organizations (according to the Law of the Russian Federation “On the organization of insurance business in the Russian Federation” as amended by the Federal Law of December 31, 1997 N 157-FZ * (98)).

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

In accordance with Art. 5 of the Law “On Banks and Banking Activities” banks are prohibited from engaging in production, trading and insurance activities. 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 limits of 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 (clause 18 of the Resolution of the Plenum of the Supreme Court Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8). 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, paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 1 July 1996 N 6/8). Today, such a law is the Federal Law of August 8, 2001 N 128-FZ “On licensing of certain types of activities” * (99).

In accordance with Art. 2 of the Federal Law "On Licensing of Certain Types of Activities" a license is a special permit to carry out a specific type of activity subject to mandatory compliance with licensing requirements and conditions, issued by a licensing authority to a legal entity or individual entrepreneur.

Licensed types of 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, the cultural heritage of the peoples of the Russian Federation and the regulation of which cannot be carried out by methods other than licensing.

Licensing is carried out by executive authorities, authorities of constituent entities of the Russian Federation, and local government bodies. At the same time, the legal relations arising during licensing are administrative and legal in nature, which develop in the manner of state regulation of the economy. Decree of the Government of the Russian Federation dated February 11, 2002 N 135 * (100) approved the List federal bodies executive authorities that carry out licensing, and a list of types of activities, the licensing of which is carried out by executive authorities of the constituent entities of the Russian Federation, and federal executive authorities that develop draft regulations on the licensing of these types of activities.

An exhaustive list of types of activities subject to licensing is established in paragraph 1 of Art. 17 of the Federal Law "On licensing of certain types of activities". In accordance with paragraph 3 of Art. 17, the introduction of licensing of other types of activities is possible only by introducing amendments and additions to the Federal Law “On Licensing of Certain Types of Activities”.

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, the receipt or loss (suspension, cancellation) of a license does not at all affect their legal capacity or capacity established by law (other legal acts) * (101). True, for some legal entities with special legal capacity, the issuance of a license means the acquisition of a subjective right 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 applies to credit organizations, insurers, non-state pension funds, investment funds with special legal capacity * (102).

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 a trademark or service mark, the name of the place of origin of goods (clause 3 of article 2, clause 3 of article 31 of the Law of the Russian Federation of September 23, 1992 N 3520-1 "O trademarks, service marks and appellations of origin of goods"*(103)).

A legal entity may also own rights to the results of creative activity (copyright, patent and others) * (104).

According to Art. 4 of the Law of the Russian Federation of July 9, 1992 N 5351-1 “On copyright And related rights"*(105) the author of the work is an individual, creative work which was created this work. The personal non-property rights of the author are inalienable. In addition to personal moral rights The author in relation to his work also has exclusive rights to use the work in any form and in any way (Article 16 of the Law “On Copyright and Related Rights”). These rights may be transferred to other persons (including legal entities) on the basis copyright agreement(Article 30 of the Law “On Copyright and Related Rights”).

Copyright transfer agreement exclusive rights authorizes the use of the work in a certain way and in established by the agreement limits only to the person to whom these rights are transferred, and gives said person the right to prohibit similar use of the work to other persons.

The right to prohibit the use of a work by other persons may be exercised by the author of the work if the person to whom the exclusive rights are transferred does not protect this right.

Copyright transfer agreement non-exclusive rights allows the user to use the work on an equal basis with the holder of exclusive rights who transferred such rights, and (or) other persons who received permission to use this work in the same way.

reproduce the work (right of reproduction);

distribute copies of the work in any way: sell, rent, etc. (right of distribution);

import copies of a work for distribution purposes, including copies made with the permission of the holder of exclusive copyright (import right);

publicly display the work (right of public display);

perform the work publicly (right of public performance);

communicate the work (including display, performance or broadcast) to the public by broadcast and/or subsequent broadcast (the right to broadcast);

communicate the work (including display, performance or broadcast) to the public by cable, wire or other similar means (right of communication to the public by cable);

translate a work (right to translate);

remake, arrange or otherwise rework the work (right of reworking);

communicate the work in such a way that anyone can access it interactively from any place and at any time of their choosing (right of communication to the public).

In accordance with paragraph 1 of Art. 7 Patent Law Russian Federation dated September 23, 1992 N 3517-1*(106) by the author of the invention, utility model, industrial design the natural person whose creative work created them is recognized. At the same time, legal entities can be patent holders, i.e. have exclusive property rights to use an invention, utility model or industrial design.

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 of Article 21 of the Civil Code).

According to supporters of the fiction theory, a legal entity does not have civil capacity * (107). 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 * (108).

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 * (109).

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;

tortiousness, i.e. ability to bear responsibility for civil offenses (Article 56 of the Civil Code) * (110).

According to Art. 53 of the Civil Code, a legal entity exercises legal capacity either through its bodies or through participants (in this case, the legislator means participants in a general partnership and limited partnership, who have the right, according to Articles 72 and 84 of the Civil Code, 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 * (111). However, we cannot agree with such a conclusion. In accordance with paragraph 2 of Art. 49 of the Civil Code, the legal capacity of a legal entity may be limited in cases provided for by law * (112). So, for example, according to Art. 295-297 of the Civil Code restricts the right of state and municipal unitary enterprises to dispose of property that they have under the right of economic management. Constitutional Court of the Russian Federation in its Resolution No. 4-P of March 12, 2001 “On the case of verifying the constitutionality of a number of provisions of the Federal Law “On Insolvency (Bankruptcy)”, relating to the possibility of appealing the rulings made by the arbitration court in bankruptcy cases, and its other provisions, Article 49 of the Federal Law “On the Insolvency (Bankruptcy) of Credit Institutions”, as well as Articles 106, 160, 179 and 191 of the Arbitration Law. procedural code Russian Federation in connection with the request Arbitration Court Chelyabinsk region, complaints from citizens and legal entities" called the introduction of a monitoring procedure against him a limitation on the debtor's legal capacity * (113).

Legal capacity and legal capacity of a legal entity

The legal capacity of a legal entity is understood as the ability established by its constituent documents to have civil rights and bear responsibilities. It arises from the moment of state registration of a legal entity and terminates from the moment of completion of its liquidation (exclusion from the unified state register of legal entities).

Legal capacity of a legal entity - the ability of a legal entity to acquire civil rights and assume civil responsibilities through its bodies acting in accordance with the law, other legal acts and constituent documents. The legal capacity of a legal entity arises, changes and terminates simultaneously with the emergence, change and termination of legal capacity.

The scope of legal capacity of a legal entity is determined by law and the constituent documents of the organization. In accordance with the law, they have universal legal capacity business partnerships and societies, production cooperatives. Other legal entities usually have special legal capacity, which is reflected in the charter.

Types of legal entities. The most important classification of legal entities is their division into commercial and non-profit organizations. Commercial organizations can be created for the sole purpose of making a profit. Non-profit organizations are created for other purposes (Appendix 4).

Commercial organizations. Commercial organizations play a leading role in economic activity. Commercial organizations include: business partnerships and societies, production cooperatives, state and municipal unitary enterprises.

Business partnerships and societies commercial organizations with authorized (share) capital divided into shares of founders (participants) are recognized.

General characteristics business partnerships and societies:

1) are created by decision of the founders (participants) by combining property. Contributions to property may be money, securities, other things or property rights;

2) the property belongs by right of ownership to a legal entity. The founders (participants) have in relation to the property rights of obligation;

3) the authorized (share) capital is divided into shares (contributions). Profit is usually distributed in accordance with the share (contribution);

4) upon leaving the partnership or company, the participant receives part of the property or its value.

At the same time, each organizational and legal form has its own characteristics. Partnerships can be created in the form of a general partnership and limited partnership. Source legal regulation the creation and activities of business partnerships is the Civil Code of the Russian Federation (part one).

A general partnership is recognized as a partnership whose participants (general partners), in accordance with the agreement concluded between them, engage in entrepreneurial activities on behalf of the partnership and are liable for its obligations with the property belonging to them. Thus, in a general partnership, not only the capital of the participants is united, but also their business activities. The management of the affairs of a general partnership is carried out by the general consent of all participants, with each general partner having one vote (unless otherwise provided by the agreement). Each participant in a general partnership has the right to act on behalf of the partnership. At joint management For each transaction, the consent of all participants is required. A general partner does not have the right to enter into similar transactions in his own personal interests. IN otherwise he must compensate the partnership for losses or transfer to it all benefits acquired through such transactions. A general partner not only has the right, but also the obligation to participate in the activities of the partnership. The profits and losses of a general partnership are distributed among its participants in proportion to the share in the share capital, unless otherwise provided by an agreement between the general partners. Participants in a general partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership (see Article 75 of the Civil Code of the Russian Federation). This means that creditors have the right to demand the entire debt from any of the general partners (if the partnership lacks property). A newly joined participant is liable for debts on an equal basis with other participants. Responsibility for the obligations of the partnership remains with its participant even after leaving the partnership (for two years). These rules cannot be changed.

In a limited partnership there are two categories of participants: general partners and investors (limited partners). Investors do not participate in the partnership's business activities. They bear the risk of losses associated with the activities of the partnership within the limits of the amounts of contributions made by them. The investor has the right: to receive part of the profit in proportion to his share in the share capital; get acquainted with annual reports and balances; at the end financial year leave the partnership and receive your contribution; transfer your share to another investor or third party. When a limited partnership is liquidated, investors have a priority right over general partners to receive contributions.

Business companies can be created in the form of a limited liability company, a company with additional responsibility and joint stock company (closed or open).

Legal basis limited liability companies are established not only by the Civil Code, but also by the Federal Law “On Limited Liability Companies” of February 8, 1998 (as amended and supplemented).

A limited liability company is a business company established by one or more persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents; The participants of the 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 shares.

LLC participants can be citizens and legal entities. The number of participants can range from one to fifty. A participant in an LLC can leave the company at any time, regardless of the consent of the other participants. Exit the only participant not allowed.

The authorized capital of an LLC must be at least 10 thousand rubles. The authorized capital determines minimum size property guaranteeing the interests of the company's creditors. The size of the participant's share in authorized capital expressed as a percentage or fraction.

A company participant can sell his share to other participants or, with their consent, to a third party. If the company's charter prohibits the assignment of a share to third parties, and other participants refuse to purchase it, the company is obliged to buy out this share. If this share has not been sold within a year, the company must reduce its authorized capital.

Part of the company's profit is distributed among its participants in proportion to their shares in the authorized capital. By unanimous decision of the participants, a different procedure for distribution of profits may be established.

IN economic society personal participation in the activities of the company is not required, therefore, in comparison with a partnership, the issue of managing the organization is resolved.

The highest management body in an LLC is the general meeting of participants, where votes are distributed in proportion to the participant’s share in the authorized capital. Its competence is determined by the charter. TO exclusive competence general meeting include: determination of the main directions of the company’s activities, participation in associations; change of charter or constituent agreement; formation of executive bodies and early termination their powers (or approval of the manager and the terms of the contract with him); election audit commission; approval of reports and annual balances; profit distribution; Adoption internal documents; making a decision on the placement of securities; appointment audit; reorganization and liquidation of the company. The meeting is held at least once a year.

Management current activities of the company is carried out by the sole executive body or the sole executive body and supervisory board(Board of Directors). The executive bodies are accountable to the general meeting.

A company with additional liability differs from an LLC in that its participants jointly and severally bear subsidiary liability for the obligations of the company with their property in the same multiple of the value of their contributions, determined by the constituent documents.

The creation and activities of joint stock companies are regulated, along with the Civil Code of the Russian Federation, by the Federal Law “On Joint Stock Companies”, which was adopted State Duma in 1995 and has since undergone a number of changes and additions.

A joint stock company is recognized commercial organization, the authorized capital of which is divided into certain number shares certifying the obligatory rights of company participants in relation to the company. Shareholders bear the risk of losses associated with the activities of the joint-stock company within the limits of the value of their shares. Shareholders have the right to alienate their shares without the consent of other shareholders and the company. If the insolvency of the company turns out to be caused by its shareholders, then they may be subject to subsidiary liability.

Joint stock companies can be open or closed. OJSC has the right to conduct an open subscription for shares and sell them open sale. The number of shareholders of an OJSC is not limited. Not installed in OJSC preemptive right company or its shareholders for the acquisition of alienated shares.

A closed joint stock company is one whose shares are distributed only among its founders or another predetermined circle of persons (for example, employees). A closed joint stock company does not have the right to conduct an open subscription for shares. The number of shareholders of a closed joint stock company should not exceed fifty. Shareholders of a closed joint stock company enjoy a preemptive right to acquire alienated shares in proportion to the number of shares owned by each of them. The charter may provide for the preemptive right of the company if this right is not used by the shareholders. If neither the shareholders nor the company exercised the preemptive right, the shares may be sold to a third party.

The founders of a JSC can be citizens and (or) legal entities. Constituent document is the charter. The charter must contain information about the type of company; quantity, par value, categories of shares; on the rights of shareholders; size authorized capital, the structure and competence of management bodies, the procedure for preparing and holding a general meeting, etc.

The authorized capital of the company is made up of the par value of shares acquired by shareholders. The company may place ordinary and preferred shares. Minimum capital JSC - no less than 1000 minimum wages, CJSC - no less than 100 minimum wages.

Ordinary shares are voting. Conversion of ordinary shares into preferred shares is not permitted. Owners of preferred shares do not have the right to vote at the general meeting (except for issues on reorganization and liquidation; on the introduction of provisions into the charter that limit their rights; as well as the case of non-payment of dividends or incomplete payment). The company's charter must determine the amount of dividend and liquidation value on preferred shares. It is possible to convert preferred shares into ordinary shares.

An unpaid share does not carry voting rights. The agreement on the establishment of a joint stock company may provide for a penalty for failure to fulfill the obligation to pay for shares. The company's charter may provide for the formation special fund corporatization of employees.

Dividends are paid from net profit, the decision is made once a year. The payment period must not exceed 60 days from the date of the decision.

The JSC must maintain a register of shareholders, the holder of which can be not only the company itself, but also a professional participant in the securities market - the registrar. Refusal to make an entry in the register is not permitted.

Supreme body A joint stock company is a general meeting of shareholders that meets annually. The competence of the general meeting of shareholders includes making decisions on the most important issues: on changing the charter; on the reorganization and liquidation of the company; on the election of the board of directors; on determining the number, par value, category of authorized shares; on increasing and decreasing the authorized capital; on the formation of the executive body; on the election of the audit commission; on the approval of the auditor; on approval of reports, payment of dividends; on splitting and consolidation of shares; about approval major transactions, transactions between the company and interested party; on participation in holdings, etc. Decisions at the general meeting are made by a majority vote. Votes are distributed in proportion to the number of shares owned by shareholders. To make a decision on issues of changing the charter, reorganization and liquidation of the company, the value of authorized shares, acquisition of shares by the company, it is necessary that a majority of ¾ votes votes in favor of the decision.

General leadership The activities of the joint stock company are carried out by the Board of Directors (supervisory board), which determines priority areas activities of the company, convenes a general meeting of shareholders, approves the agenda of the general meeting of shareholders, resolves issues on increasing the authorized capital (if provided for by the company's charter), placing bonds and other issue-grade securities, forming an executive body (if provided for by the company's charter), makes recommendations by dividend amount, use reserve fund etc.

The management of the current activities of the company is carried out solely by the director ( CEO) or director and executive collegial body– board (directorate). The executive bodies are accountable to the general meeting and the board of directors. By decision of the general meeting, the powers of the director may be transferred under an agreement to the manager ( management organization). Members of the board of directors and executive bodies are responsible for losses caused to society by their guilty actions. Both the company and an individual shareholder (owning at least 1% of ordinary shares) can file a lawsuit against a member of the board of directors or executive bodies.

Unitary enterprise- a commercial organization that is not vested with the right of ownership of the property assigned to it by the owner. The property of a unitary enterprise is indivisible and cannot be distributed among deposits. Only state and municipal enterprises can be created in the form of unitary enterprises. The property of a unitary enterprise may be assigned to it under the right of economic management or operational management.

In the Russian Federation, in accordance with the Federal Law “On State and Municipal Unitary Enterprises” dated November 14, 2002, unitary enterprises of several types are created.

Types of unitary enterprises

State or municipal unitary enterprise can be created if necessary: ​​carrying out activities to resolve social tasks or provision food security states; carrying out activities provided for by law exclusively for state-owned enterprises; implementation of scientific, scientific-technical and production activities to ensure state security; production of products withdrawn from circulation or limited circulation. A state-owned enterprise is created, in addition, in the following cases: if the predominant part of products, works, services is intended for state or municipal needs; the need to carry out certain subsidized activities and conduct unprofitable production; the need to conduct activities provided for by law exclusively for state-owned enterprises.

The constituent document of a unitary enterprise is the charter approved by the founder. The authorized capital of a unitary enterprise must be at least 5 thousand minimum wages for state enterprises and at least 1 thousand minimum wages for municipal enterprises. In a government enterprise authorized capital not formed. The authorized capital must be fully formed within 3 months from the date of state registration. The authorized capital can be increased or decreased by decision of the owner. In a state-owned enterprise, an authorized capital is not formed.

The owner of the property of a state or municipal enterprise has the right to receive a share of the profit, which is transferred to the relevant budget annually in the manner established by the Government. The income of a state-owned enterprise is distributed by the founder.

A unitary enterprise is responsible for the results of its activities with all its property. The Russian Federation, a subject of the Russian Federation, a municipal entity bear subsidiary liability for the debts of an enterprise only if the insolvency is caused by the actions of the property owner, and also if we're talking about about the debts of a state-owned enterprise. A state-owned enterprise is liable for obligations only in cash and cannot be declared bankrupt.

A state or municipal unitary enterprise disposes of property independently, but with the following restrictions: the enterprise does not have the right to sell without the consent of the owner real estate, rent it out, pledge it, make it as a contribution to business partnerships or companies; the enterprise disposes of property only to the extent that does not deprive it of the opportunity to carry out activities for statutory purposes; the enterprise does not have the right to enter into transactions related to the provision of loans, guarantees, receipt bank guarantees, enter into simple partnership agreements without the consent of the owner.

A state-owned enterprise has the right to alienate or otherwise dispose of property only with the consent of the founder. It must also carry out activities, the subject and purposes of which are determined by the charter. A state-owned enterprise independently sells products (work, services), unless otherwise provided by law.

In the field of public administration or municipal enterprise the law assigns it to the owner certain rights: make a decision to create an enterprise; determine the subject and goals of the activity, its types; determine the procedure for establishing indicators of activity plans (programs); approve the charter; make decisions on liquidation or reorganization of the enterprise; form an authorized capital; appoint a manager; coordinate the hiring of a chief accountant; approve enterprise reports; give consent to the disposal of property and transactions (see above); exercise control over the intended use and safety of property, etc. (Appendix 5).

Production cooperative, in accordance with the Federal Law “On Production Cooperatives”, adopted on April 10, 1998, is a voluntary association of citizens on the basis of membership for joint production or other economic activities based on their personal labor and other participation and the association of property shares by its members. A production cooperative can also employ wage-earners, but they should not be more than 30% of the number of members of the cooperative.

The number of members of the cooperative cannot be less than five people. The constituent document of this organization is the charter, which, in addition to general provisions, must contain provisions on the procedure for labor and other participation, liability for violation of personal obligations labor participation; about size and condition subsidiary liability members of the cooperative for the results of its activities; on the procedure for joining and leaving the cooperative, as well as the grounds and procedure for expulsion from members of the cooperative.

A member of a cooperative has the right: to participate in the activities of the cooperative, in the work of the general meeting (with the right of one vote); elect and be elected to the bodies of the cooperative; make proposals for improving activities; receive a share of profits and other payments; request information on any issues of the cooperative’s activities; leave the cooperative and receive payments; apply for judicial protection their rights.

The property of the cooperative is formed from share contributions, profits, loans, etc. By the time of state registration, a member of the cooperative must make at least 10% of the share contribution. The mutual fund is fully formed during the first year of operation of the cooperative.

A certain part of the cooperative’s property may constitute an indivisible fund used in accordance with the statutory purposes. This property is not included in the shares of cooperative members.

The profit of the cooperative is distributed among its members in accordance with their personal labor or other participation and the size of the share contribution. At least half of the profits must be distributed through labor (or other personal participation).

Supreme governing body production cooperative is the general meeting of its members. General meeting considers issues on the adoption and amendment of the charter, on the admission and exclusion of members of the cooperative, on the amount of the share contribution, on the election of executive bodies and the audit commission, approval of reports and distribution of profits; on reorganization, liquidation, participation in other organizations and associations.

In a cooperative with more than fifty cooperative members, a supervisory board is created to control the executive body. Executive body is the board headed by the chairman of the cooperative. The board manages the activities of the cooperative between general meetings.

Non-profit organizations cannot have as their goal making a profit. They are created to carry out public, social, cultural, charitable and other similar activities. Non-profit organizations include:

Consumer cooperatives – an association of persons on a membership basis in order to satisfy their own needs for goods and services, the initial property of which consists of share contributions.

Public and religious organizations – voluntary associations of citizens, in established by law order of those united on the basis of their common interests to satisfy spiritual or other non-material needs.

Funds – non-membership non-profit organization, established by citizens and (or) legal entities on the basis of voluntary property contributions, pursuing social, charitable, cultural, educational or other socially beneficial goals.

Establishment – a non-profit organization created by the owner to carry out managerial, socio-cultural or other functions of a non-commercial nature and financed by him in whole or in part. An institution can be created by a citizen or a legal entity (private institution) or, accordingly Russian Federation, a subject of the Russian Federation, municipal entity(state or municipal institution). A state or municipal institution can be an autonomous, budgetary or state institution.

Associations of legal entities (associations or unions) – non-profit organizations formed by several legal entities to conduct activities in their interests.

Non-profit partnerships - non-profit organizations, whose members retain rights to their property, created to assist their members in conducting generally beneficial activities.

Autonomous non-profit organizations – non-profit organizations established on the basis of voluntary property contributions, with the goal of providing services to all interested parties.

State Corporation – a non-profit organization that does not have membership, established by the Russian Federation on the basis of a property contribution and created to carry out social, managerial or other socially useful functions.

The article is devoted to the study procedural capacity and legal capacity. Their role for legal entities and individuals is considered. The procedure for declaring a citizen incompetent is shown. Excerpts from the main legislative documents are provided.

Legal capacity of an individual

The legal capacity and capacity of individuals in civil law are defined as certain abilities that do not arise simultaneously. Articles 17 and 21 (subsection 2, chapter 3) of the Civil Code of the Russian Federation are respectively devoted to these concepts.

The process of recognizing the legal capacity of a citizen begins from the moment of his birth and continues until death. An individual may be recognized as legally capable upon reaching the age of majority or upon marriage (for minors). These definitions are inextricably linked with the concepts of “civil subject” procedural law" and "participant civil proceedings" Remember that in case of recognition, even foreign citizen incapacitated, he remains legally capable.

Legal capacity of a legal entity

Recognition of an organization as capable coincides with the emergence of its legal capacity (subsection 2, Articles 49 and 51 of the Civil Code). A legal entity may be limited in the manner provided by law RF. In this case, there is a possibility of challenging judicial procedure. The legal capacity of an organization ceases from the moment information indicating the termination of activities is placed in the register of legal entities.

Procedure for determining incapacity

A citizen can be declared incompetent only in court. Chapter 31 of the Civil Procedure Code (Articles 281-286) is devoted to limiting legal capacity and declaring an individual incompetent. It should be remembered that incapacity can be of the following types:

• complete, in which an individual does not control his actions due to mental disorder;
• age-related, associated with the inability to control one’s actions in old age;
• partial, when a person is physically capable of performing conscious actions, but refuses to do them (the volitional aspect of fulfilling duties).

A certificate of incapacity may be issued after an independent medical examination. In this case, it is necessary to have confirmation of medical and legal criteria. Referral to it can be forced if facts of evasion by a citizen are established (Article 283 of the Code of Civil Procedure).

State duty for recognition of incapacity

For a claim to declare a citizen legally incompetent, a state fee must be paid. Its size is regulated by art. 333.19 Tax Code of the Russian Federation. In paragraph 8 regarding cases special production, the amount indicated is 300 rubles. It should be understood that payment state duty does not guarantee recognition of an individual as incompetent. The Civil Procedure Code implies a presumption of legal capacity until a corresponding court decision has been made.

Incapacity due to mental illness

To declare a citizen incompetent due to mental illness, you must submit judicial statement. The following have the right to submit it simultaneously:

• close relatives;
• medical organizations providing mental health care;
• guardianship institutions and trusteeship bodies.

Certificates confirming the presence of a mental disorder must be attached to the application. If a person did not pass medical examination see a psychiatrist, we recommend taking care of this. Considering applications district courts at the place of registration or location of the citizen. The case is considered in court with the participation of the applicant, citizen, prosecutor, guardianship/trustee organization. If a danger to the participants is proven, the meeting may be held in a social service institution.

Recognition of the incapacity of an elderly person

We advise you to know how to formalize the incapacity of an elderly person. After all, there are known cases of such citizens losing property and Money due to fraudulent activities outsiders. The same as in the case of incapacity due to mental illness relatives or authorized organization it is necessary to go to court to approve guardianship or trusteeship ( limited capacity). The list of documents required by the court is given below.

Documents - sample application for recognition of a person’s incapacity

To recognize a person as legally incompetent, the applicant must provide:

• statement;
• identity documents (read about the fine for losing your passport);
• medical evidence of mental disorders;
• other certificates confirming the citizen’s inability to care for himself and make decisions;
• receipt for payment of state duty.

You can find the application form and a sample of how to fill it out. If a person declared incompetent recovers after undergoing rehabilitation treatment, you can apply to the court to restore him as legally competent.