1. A legal entity may have civil rights corresponding to the goals of its activities provided for in its constituent document (Article 52), and bear responsibilities associated with these activities.
Commercial organizations, with the exception of unitary enterprises and other types of organizations provided for by law, may have civil rights and bear civil responsibilities necessary to carry out any types of activities not prohibited by law.
In cases provided for by law, a legal entity may engage in certain types of activities only on the basis of a special permit (license), membership in a self-regulatory organization or a certificate of admission to a certain type of work issued by a self-regulatory organization.
2. 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 a legal entity in court.
3. The legal capacity of a legal entity arises from the moment information about its creation is entered into the unified state register of legal entities and terminates when information about its termination is entered into the said register.
The right of a legal entity to carry out activities that require obtaining a special permit (license), membership in a self-regulatory organization or obtaining a certificate from a self-regulatory organization for admission to a certain type of work arises from the moment of receipt of such a permit (license) or within the period specified therein, or from the moment a legal entity joins a self-regulatory organization or a certificate of admission to a certain type of work is issued by a self-regulatory organization and terminates upon termination of the permit (license), membership in a self-regulatory organization or a certificate of admission to a certain type of work issued by a self-regulatory organization.
4. The civil legal status of legal entities and the procedure for their participation in civil circulation (Article 2) are regulated by this Code. Features of the civil legal status of legal entities of certain organizational and legal forms, types and types, as well as legal entities created to carry out activities in certain areas, are determined by this Code, other laws and other legal acts.
5. To legal entities created by the Russian Federation on the basis of special federal laws, the provisions of this Code on legal entities apply to the extent that otherwise is not provided for by the special federal law on the relevant legal entity.
- Article 48. Concept of a legal entity
- Article 50. Commercial and non-profit organizations
Legal personality of a legal entity
1.
The “birth” of a legal entity means that it has legal capacity and legal capacity (and if we distinguish transaction capacity, delictual capacity and transcapacity, then this means these properties). It cannot be otherwise. Therefore, the law speaks about the legal capacity of a legal entity, and in the legal literature, in appropriate cases, most often - about the legal personality of a legal entity.
The most general provisions on the legal personality of legal entities are formulated in Art. 49 Civil Code. Understanding the content of the relevant rules also requires reference to a number of other regulations.
2.
As a general rule, a legal entity has
special
legal personality - it can have civil rights corresponding to the goals of the activity provided for in its constituent document, and bear the responsibilities associated with this activity (paragraph 1, paragraph 1, article 49 of the Civil Code).
3.
has been made from the general rule on the special legal personality of legal entities
for commercial organizations
(paragraph 2, paragraph 1, article 49 of the Civil Code).
They have a common
(universal) legal personality. Commercial organizations can engage in any activity they want, unless it is prohibited by law (the principle “everything that is not prohibited is possible” triumphs). It is important to emphasize here that prohibitions can be introduced by federal laws, but not by other regulations (clause 2 of article 3 of the Civil Code). Therefore, the constituent documents of commercial organizations are not required to indicate the subject and specific goals of activity, although such instructions are acceptable.
4.
Some legal entities belonging to commercial organizations still have special legal capacity (an exception to the exception), these are, in particular:
— state and municipal unitary enterprises;
- other organizations, if provided by law. These legal entities can only engage in activities specified in the constituent documents and relevant laws. These “other organizations” include, in particular, banks, insurance organizations, commodity exchanges, etc.;
- commercial organizations whose constituent documents provide for special legal capacity. For example, the founders of a joint stock company provided that it would engage in certain activities specified in the charter (clause 4 of article 52 of the Civil Code).
5.
A legal entity can engage in certain types of activities only on the basis of
a special permit (license), membership in a self-regulatory organization or a certificate of admission to a certain type of work issued by a self-regulatory organization
.
The list of types of activities that a legal entity can engage in only on the basis of a special permit (license) is contained in the Law on Licensing of Certain Types of Activities. In particular, this list indicates such activities as the development, production, sale and acquisition for the purpose of sale of special technical equipment intended for secretly obtaining information, development, testing and repair of aircraft equipment, etc.
The provisions of this Law do not apply to relations related to the licensing of such types of activities as the use of atomic energy, the production of ethyl alcohol, alcoholic and alcohol-containing products; activities related to the protection of state secrets; activities of credit institutions; activities for conducting organized auctions, etc. Licensing of these (and some other) types of activities is carried out in the manner established by federal laws regulating relations in the relevant areas of activity (for example, the Federal Laws “On Banks and Banking Activities”, “On the Securities Market”, etc.).
In addition, the specifics of licensing are established by federal laws regulating the implementation of such types of activities as the provision of communication services, television broadcasting and (or) radio broadcasting, private detective (detective) and private security activities, as well as educational activities.
Licensing
carried out within the framework of
administrative-legal relations
.
However, it has a civil effect
. Upon receipt of a license, a legal entity has the opportunity to engage in the activities specified in the special permit (license). Until this moment, the legal capacity of a legal entity does not include the ability to engage in relevant activities.
6.
A legal entity can engage in certain types of activities only on the basis of membership in a self-regulatory organization or a certificate of admission to a certain type of work issued by such an organization (see the Law on Self-Regulatory Organizations, the Law on Bankruptcy, the Law on Valuation Activities, the Law on Auditing Activities, the Civil Code, etc. .d.).
7.
The legal capacity of a legal entity arises from the moment information about its creation is entered into the Unified State Register of Legal Entities and terminates when information about its termination is entered into the said register.
8.
In case of violation of the requirements established by law regarding the admissibility of engaging in certain types of activities only on the basis of a license, membership in a self-regulatory organization, or a certificate of admission to a certain type of work issued by a self-regulatory organization, liability is provided for by law. In addition, a legal entity in such cases can be liquidated by a court decision (see subparagraph 2, paragraph 3, article 61 of the Civil Code).
The concept of organizational capacity
According to paragraph 1, art. 21 of the Civil Code of the Russian Federation, legal capacity is the ability to acquire civil rights, create duties and fulfill them, and bear responsibility for offenses (Article 56). The legal capacity of a legal entity is exercised through its bodies. The rules by which these bodies are elected are prescribed by law or the constituent documents of the enterprise.
The legal capacity of a legal entity is also realized through participants or members of partnerships who can take part in transactions on behalf of the organization. (Articles 72, 84) It can be complete or limited if this is provided for by law (clause 2, Article 49).
Note! State and municipal unitary organizations are not able to dispose of property that is under their economic control (Articles 295-297).
Other rights of legal entities
An important issue is the ability of legal entities to be owners of personal non-property rights.
Organizations, according to the Civil Code of the Russian Federation, have the rights to the following:
- individualization of goods and services (the so-called “brand”): their trademarks or service marks, names of places of production of goods. (clause 3 of article 2, clause 3 of article 31 of the Federal Law of September 23, 1992 N 3520-1);
- the result of creativity (copyright, patent, others).
Business management system and the principle of legal capacity
Legal capacity is directly dependent on the system that manages the economic process within the organization. If there is a centralized system and restrictions, this is a special type.
Important! The type of economy that is recognized by most countries in the world is not suitable for highly specialized enterprises. The market demands innovation, and a purely specialized enterprise is limited in its ability to invent something new or acquire foreign goods.
Therefore, most commercial enterprises prefer a universal type of legal capacity. This will not contradict the statutory goals and legislation (subject to compliance with the standards of the civil and criminal codes of the Russian Federation).
Licensing of organizations' activities
The law allows legal entities to operate under a license. This document is a permit to carry out a specific activity. (08.08.2001 N 128-FZ “On licensing of certain types of activities”). Its peculiarity: mandatory compliance with the requirements and rules specified in the regulations for this activity. The license is issued by a special body. It is received by organizations and individual entrepreneurs.
All activities that may lead to damage to the rights, legitimate interests and health of citizens, the cultural heritage of the peoples of the Russian Federation, defense, and security of the country are regulated exclusively through licensing.
Important ! In any case, the legal capacity of organizations is determined by the purposeful nature, and the list of purposes in the statutory documents can be different: from production to scientific research.
Procedure for obtaining a license
The license request is submitted to the authorized bodies in person or by email. The applicant is checked for the presence of the following mandatory conditions:
- buildings, premises, equipment;
- employees with the necessary qualifications for this activity;
- production process control system;
- constituent documents.
Then a state-issued document is issued, with which you need to contact the tax authority. The process is not as easy as it may seem, as the organization must undergo a thorough audit.
The emergence of legal capacity and legal capacity of the organization
The legal capacity of a legal entity appears simultaneously with legal capacity. They arise when an organization registers with the state as a legal entity. The organization registers its charter with the relevant authorities, thereby acquiring legal rights.
This feature distinguishes an enterprise from an individual who acquires rights only after reaching adulthood, taking into account his state of health.
In scientific publications, the term “legal capacity of an enterprise” is often used, which makes it clear that these concepts arise simultaneously. (Clause 3.Article 49, Clause 2.Article 51 of the Civil Code of the Russian Federation).
General legal capacity
General legal capacity is characterized by the fact that a legal entity can carry out any type of business activity, of course, with the exception of those that are not prohibited by law.
Most commercial organizations have general legal capacity. At the same time, for these organizations it is not mandatory to list all types of activities that the organization can carry out - it is enough to list the main ones and leave the specified list open.
Most often, in this case, the following phrase is written in the charter: “The organization has the right, in addition to the listed types of activities, to carry out other types of activities not prohibited by law.”
You may be interested in the “Liquidation of a Limited Liability Company (LLC)” mind map, which describes this procedure in detail.
Or see HERE how compensation works in different situations.
Special legal capacity
If the charter of a legal entity contains an exhaustive list of activities (closed), then such a legal entity will have special legal capacity. In addition, special legal capacity may be established by law.
For example, Federal Law No. 395-1 dated December 2, 1990 “On Banks and Banking Activities” establishes a ban for a credit organization to engage in production, trade and insurance activities.
Federal Law of November 29, 2001 N 156-FZ “On Investment Funds” establishes an exclusive type of activity for the Joint-Stock Investment Fund - investing property in securities and other objects provided for by law. This organization has no right to carry out other types of business activities.
Law of the Russian Federation dated November 27, 1992 N 4015-1 “On the organization of insurance business in the Russian Federation” prohibits insurance organizations from carrying out other types of activities besides insurance.
In addition to the above, unitary enterprises and non-profit organizations have special legal capacity.
Legal entities with special legal capacity do not have the right to enter into transactions that go beyond the scope of their legal capacity.
The Plenum of the Supreme Court of the Russian Federation in Resolution No. 6, as well as the Plenum of the Supreme Arbitration Court of the Russian Federation in Resolution No. 8 of 01.07.1996 “On some issues related to the application of part one of the Civil Code of the Russian Federation” clarified that transactions made by a legal entity to which, in accordance with limited legal capacity is established by law and are considered void.
And transactions that contradict the goals of the legal entity specified in its charter may be declared invalid by the court, i.e. are contestable.
Exceptions
Partnerships, business-type societies, cooperatives and other non-commercial enterprises can carry out a wide range of activities, since all the work specified in the charter is understood as generalized.
In addition, property owners or authorized persons may permit various types of economic work to be carried out in their own establishment, which is characterized as non-profit.
On the other hand, the legislation restricts the work of a number of enterprises in business; for example, a political party cannot engage in entrepreneurship.
