Article 48 of the Civil Code of the Russian Federation. The concept of a legal entity (current version)

27.03.2019

The legislation of the Russian Federation provides for a wide variety of types and forms of legal entities.

The choice of organizational and legal form of a legal entity depends primarily on the purpose of its creation. If this is profit-making, then one of the forms of commercial organizations is used. If there is no such goal (or it is not the main one), a non-profit organization is registered (which can also generate income, but only to achieve its main goals and in accordance with them).

The Civil Code of the Russian Federation (Civil Code of the Russian Federation) lists the following forms of commercial and non-profit organizations:

In this material we will outline the similarities and differences, as well as the advantages and disadvantages of the most common types of legal entities for doing business - limited liability companies and joint stock companies.

The concept of a legal entity

The rules allowing to establish the concept and essence of a legal entity are contained in Art. 48 Civil Code. However, a more detailed description can be selected among the numerous options offered by civil law theory, since not all the main features are listed in this norm.

This entity is understood as an organization to which property belonging to it is transferred under a certain right (economic, management, operational management or property), capable of acquiring and exercising rights, fulfilling obligations, and being a party in legal proceedings in its own name, which has undergone state registration in the established law order.

There are other definitions of this institution, but most of their authors agree on the characteristics.

Subsidiary liability of managers and owners in case of bankruptcy of an organization

The Bankruptcy Law establishes the possibility of bringing managers and owners of a company to subsidiary (additional) liability in the event of bankruptcy of this organization. Such liability does not always apply, but only when certain circumstances occur (the fault of managers and owners). For these purposes, the Bankruptcy Law introduced the concept:

A person controlling the debtor is a person who has or had, for less than three years before the arbitration court accepted the application for declaring the debtor bankrupt, the right to give instructions that are binding on the debtor or the opportunity, due to being in a relationship with the debtor of kinship or property, official position, or to otherwise determine actions of the debtor...

The persons controlling the debtor may include some managers (management staff) and owners of the company.

Vicarious liability may extend to persons who are recognized as persons controlling the debtor.

Signs of a legal entity

The concept and essence of a legal entity is revealed through its characteristics.

Thanks to the large number of scientific works on the study of this civil law institution, the following set of main features can be established:

• Organizational unity. This refers to the pooling of resources of participants, founders or shareholders to achieve certain goals. In addition, a standard structure of the organs of this formation is established, provided for one or another of its forms.
• Availability of separate property. According to the law, it is transferred to the organization with the right of operational management, economic management, or ownership.
• Legal capacity and capacity. Unlike citizens, these educations receive them simultaneously. They can fully possess rights and exercise them independently from the moment of creation.
• Procedural status. As participants in judicial or arbitration proceedings, legal entities have the same set of rights as citizens.
• State registration in accordance with the procedure established by law. To obtain legal capacity, organizations must be included in the Unified State Register of Legal Entities. Only from this moment do they become civil legal entities.

Basics of civil law

Invalidity of transactions with vices of will

Transactions with vices of will are divided into:

· Made without the internal will to complete a transaction - transactions are made under the influence of violence, threat, malicious agreement of a representative of one party on the other side, as well as by a citizen unable to understand the meaning of his actions or manage them and transactions made under the influence of delusion;

· Transactions in which the internal will was formed incorrectly.

To recognize a transaction as invalid due to the inability to understand the meaning of one’s actions or to manage them, the legal significance is the moment when the transaction is considered completed. A transaction made by a citizen who was subsequently declared incompetent by a court may be declared invalid by the court if it is proven that at the time of the transaction the citizen was not able to understand the meaning of his actions or direct them.

Art. 178 of the Civil Code provides for the invalidity of transactions made under the influence of misconceptions. Misconception is the basis, recognition of the invalidity of transactions made by both citizens and legal entities. The legal concept has a significant misconception, which is understood as a misconception regarding the nature of the transaction, or such qualities of it, the qualities of its subject, which significantly reduce the possibility of its use for its intended purpose.

A material misconception must concern the main elements of the transaction, and may also concern the nature of the transaction, for example, when the mistaken person assumes that he is entering into a purchase and sale agreement, but in reality a rental agreement has been concluded. At the same time, minor errors and insignificant discrepancies may represent the real and real consequences of the transaction, but cannot serve as a basis for invalidity.

Art. 179 of the Civil Code provides for the contestability of transactions made under the influence of deception, violence, threats, malicious agreement between a representative of one party and the other, or difficult circumstances that apply to citizens and legal entities. Deception, threats, and violence can come not only from the party to the transaction, but also from other persons acting in its interests. Deception can be expressed both in the form of action and in the form of inaction.

Violence is a direct influence on the will by causing physical or mental suffering to a participant in a transaction or persons close to him in order to force him to complete a transaction. Violence is expressed in illegal actions, although not necessarily criminal, however, the participant in the transaction must be aware of the violence used.

Threat is a mental influence on the will of a person, through statements about causing him or his loved ones physical or moral harm if he does not make a deal. The threat affects the psyche of the subject, while it is real, feasible and significant.

A threat differs from violence in the following ways:

1. A threat is an unrealized intention to cause harm;

2. A threat can be expressed both in the possibility of committing lawful actions (reporting a person’s criminal activity) and in the possibility of committing illegal actions (causing harm to life, property, etc.)

Functions of a legal entity

Citizens often ask questions about the significance of this institution, pointing out that commercial activities can be carried out by registering an individual entrepreneur, and public interests can be defended by any capable individual.

The need to create organizations is determined by their following functions:

• Representation of collective interests. In commercial activities, this allows you to combine the efforts of business, and in the sphere of public goals, it allows you to create systems that help you achieve them more effectively.
• Pooling of financial resources. First of all, this is necessary in the business sphere. Large projects require significant capital raising. The same applies to a number of public organizations. Many charitable foundations accumulate considerable funds. Independent legal capacity allows you to effectively resolve emerging contradictions between participants.
• Reducing the risks accompanying the activities of entrepreneurs. Such systems provide for the liability of a participant, founder or shareholder only within the limits of the funds contributed. There are no legal consequences regarding his own property. In relations with third parties, these entities act independently.
• Capital Management. Without the institution of a legal entity, the full existence of financial markets is impossible. It is the companies that issue all the major securities that are in free circulation, which makes it easier to attract investments.

Bankruptcy procedures

When considering a bankruptcy case of a debtor - a legal entity, the following procedures are applied:

• Supervision is a procedure applied to a debtor in a bankruptcy case in order to ensure the safety of his property, conduct an analysis of the debtor’s financial condition, compile a register of creditors’ claims and hold the first meeting of creditors.
• Financial recovery is a procedure applied to a debtor in a bankruptcy case in order to restore his solvency and repay the debt in accordance with the debt repayment schedule.
• External administration is a procedure applied to a debtor in a bankruptcy case in order to restore his solvency.
• Bankruptcy proceedings are a procedure applied in a bankruptcy case to a debtor declared bankrupt in order to proportionately satisfy the claims of creditors. After the debtor is declared bankrupt, bankruptcy proceedings are introduced.
• When considering a bankruptcy case of a citizen, including an individual entrepreneur, the following are applied:
• Restructuring of a citizen's debts;
• Sale of a citizen's property;
• Settlement agreement.

Forms and features of legal entities

The current law provides for a wide range of types of legal entities. The main basis for classification is entrepreneurial activity. Art. 50 of the Civil Code divides them into commercial and non-profit organizations.

The first ones pursue profit as the main purpose of their creation, while the second ones are established to perform various socially useful tasks and their profits are not distributed among the participants.

The types of non-profit organizations are indicated in Part 3 of Art. 50 GK. They include the following forms:

• consumer cooperatives;
• public organizations, including political parties;
• social movements;
• unions and associations, including non-profit partnerships;
• real estate owners' associations;
• Cossack structures;
• community associations of small peoples;
• funds;
• municipal, state and private institutions;
• autonomous non-profit organizations;
• religious organizations;
• public companies;
• bar associations and legal entities.

Part 2 of this article provides for such forms of commercial organizations as business societies and partnerships, state and municipal unitary enterprises, economic partnerships, production cooperatives, as well as peasant (farm) farms.

The law also provides for another classification (Article 65.1 of the Civil Code). It attaches primary importance to the order of participation of founders in the management of the organization.

In unitary legal entities (municipal unitary enterprises, state unitary enterprises, autonomous non-profit and religious organizations, public law companies, funds and institutions), the founders do not participate in the management bodies.

In corporate legal entities (other forms) such participation occurs.

The general characteristics of all forms of legal entities are given in the relevant norms of the Civil Code, but in more detail the issues of their organization and activities are regulated by special laws.

Insolvency (bankruptcy)

In accordance with Article 2 of the Bankruptcy Law, insolvency (bankruptcy) (hereinafter also referred to as bankruptcy) is the inability of the debtor recognized by the arbitration court to fully satisfy the claims of creditors for monetary obligations, for the payment of severance pay and (or) for the remuneration of persons working or working under an employment contract, and (or) fulfill the obligation to make mandatory payments.

The bankruptcy process begins with the filing of an application to the arbitration court to declare the debtor bankrupt. The application can be submitted by the debtor, bankruptcy creditor, authorized bodies, as well as an employee or former employee of the debtor who has claims for payment of severance pay and (or) wages.

Features of the main types of commercial organizations

Among commercial organizations, partnerships are the least common. This is explained by the complicated procedure for interaction between its participants. Production cooperatives that involve the labor participation of members are also rare.

The current law is not without qualification of business entities. A legal entity can be created in the form of a joint stock company or in the form of a limited liability company. The differences lie in how the authorized capital is divided. If in a joint-stock company it is divided into shares, then the participants of the LLC have shares.

A separate classification is provided for joint stock companies. If the number of participants does not exceed 50 and the shares are distributed among a closed circle of persons, then the organization can be registered in the form of a non-public joint stock company (CJSC). If the company does not meet one of the criteria, it is registered in the form of a PJSC (Article 97 of the Civil Code). This is explained by the fact that such systems must provide for special regulation of legal relations between shareholders.

Authorized capital

The authorized capital of an LLC is divided into shares , expressed as a percentage or as a fraction. Such shares are property rights .

The authorized capital of a joint-stock company is divided into a certain number of shares , which certify the rights of shareholders in relation to the company. Shares are uncertificated securities . The rights to them are certified by entries on personal accounts with the registry holder (a separate organization that has a license to carry out activities related to maintaining the registry). Shares may differ in their type and conditions of issue and, accordingly, form different groups of shareholders endowed with different amounts of rights in relation to the company.

The minimum authorized capital for LLCs and non-public joint-stock companies is 10,000 rubles, for PJSC – 100,000 rubles.

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Features of registration of legal entities

According to Art. 51 of the Civil Code, a legal entity is considered created from the moment the relevant information is entered in the state registration process. It is considered completed from the moment the information is entered into the Unified State Register of Legal Entities. The provisions of this norm are specified in the Federal Law “On State Registration of Legal Entities”. It involves the submission of a certain set of documents.

Features of registration of certain types of legal entities are related to what form was chosen by the founders, as well as their number.

If there are several of them, then the decision to create is documented in the minutes of the meeting, and if there is only one participant, a corresponding written decision will be sufficient.

The entire package of documents (charter, decision (protocol) and document on payment of state duty) is submitted to the tax office, which carries out the functions of state registration of legal entities, at the location of the organization, along with an application in the established form, the signatures on which are certified by a notary.

There are cases when an employee of the registration authority requires a lease agreement for premises at the location of the organization. Such a requirement is absurd and illegal, since at the time of filing the documents she lacks legal capacity and state registration. An organization cannot enter into transactions before its creation.

Peculiarities of registration of certain types of legal entities (political parties, etc.) require an application to the Ministry of Justice. The list of documents for such organizations is much wider.

Author of the article

Malicious agreement

It assumes that the basis for declaring a transaction invalid under this circumstance is a deliberate agreement with the aim of causing adverse consequences or obtaining some benefit.

Invalidity of transactions with defects in the basis of the content.

Transactions with defects in content are recognized as invalid due to discrepancies in the terms of the transaction, the requirements of the law and other legal acts. Among such transactions, there are transactions made for the purpose of knowingly contrary to law and order and morality, as well as imaginary and suitable transactions.

The Civil Code does not contain the concept of the basis of law and order and morality. In theory, the foundations of the rule of law are the fundamental norms established by the state about the structure of society, aimed at observing and respecting such a structure and protecting the rights and freedoms of citizens. Moral principles include the ideas that have developed in society about good and evil, about what is fair and what is right. Such transactions are considered void.

Art. 170 of the Civil Code establishes that an imaginary transaction is one made only for show without the intention of creating corresponding legal consequences.

Imaginary transactions most often pursue some illegal purpose, however, this is not necessary. For example, a transaction for the purchase and sale of a residential building will be imaginary if this house remains in the possession of the seller, and from the circumstances of the case it is clear that the parties pursued the goal of preventing the creditors-debtors from returning the survey to the house.

A sham transaction is a transaction that is made to cover up another transaction. It is done only for show, with the goal of creating among others a misconception about the actual relationship between the parties to the transaction. When making a sham transaction, the parties intend by their actions to cause a legal effect not that which, according to the law, is the result of this expression of will, but another effect about which they actually agreed.

The consequences of invalidity of transactions are two-sided and unilateral restitution, as well as additional property consequences.

Reasons for the procedure

In accordance with the provisions of the above federal normative act, the grounds for declaring a legal entity bankrupt should be considered:

• the presence of debt to pay creditors' claims for a period of more than three months;
• the total claims against the debtor exceed three hundred thousand rubles;
• presence of delays in obligations to employees in the form of payment of wages and severance pay, as well as in obligations arising as a result of causing harm to the life and health of individuals. The period of such delay required to initiate a bankruptcy case of a legal entity is determined by the arbitration court during the consideration of the submitted application from persons authorized to take such action;
• the presence of delays in the execution of court decisions if a writ of execution was issued based on such a decision.

All these debts can be considered as debts to various groups of creditors, which may also include government agencies and funds.

VAT in bankruptcy

Transactions involving the sale of property and (or) property rights of debtors recognized as insolvent (bankrupt) in accordance with the legislation of the Russian Federation (clause 15, clause 2, article 146 of the Tax Code of the Russian Federation) are not recognized as subject to VAT.

This rule was introduced on January 1, 2015 by Federal Law dated November 24, 2014 N 366-FZ.

VAT is not paid only if the debtor is declared bankrupt. This decision is made before the bankruptcy stage of bankruptcy proceedings. At all other stages of bankruptcy, VAT is paid by the debtor.

The regulatory authorities believe that work and services performed by a bankrupt are subject to VAT, since in paragraphs. 15 paragraph 2 art. 146 of the Tax Code of the Russian Federation does not provide for their exemption from taxation (Letters of the Ministry of Finance of Russia dated October 30, 2015 N 03-07-14/62525, dated May 6, 2015 N 03-07-11/26074, Federal Tax Service of Russia dated August 17, 2016 N SD-4- 3/ [email protected] ).

VAT until 01/01/2015

Until 01/01/2015, the sale of bankrupt property was subject to VAT, but this VAT was withheld and paid by the tax agent (clause 4.1. Article 161 of the Tax Code of the Russian Federation - repealed from 01/01/2015).

Who cannot be declared an insolvent bankrupt?

In the current economic conditions, no company is immune from the crisis. Even the norms of civil law stipulate that business is conducted at your own peril and risk. Of course, bankruptcy is sometimes the most effective way out to legally cope with problems. And who cannot be declared insolvent according to legal requirements?

Non-profit religious or political organizations, government agencies, and social movements cannot declare themselves bankrupt under any circumstances. For all other entities, recognition of insolvency is allowed only if the listed grounds for bankruptcy are met - the amount of liabilities is from 300,000 rubles. and the repayment period is from 3 months. For citizens, the minimum amount of debt is 500,000 rubles. Individuals are not limited in their ability to initiate the procedure on their own: as in the case of legal entities, this will require submitting an application and attaching all supporting documents. The difference is that bankruptcy of physicists is dealt with not by arbitration courts, but by courts of general jurisdiction at the place of residence.

Conclusion - in this material we examined the main points of recognizing bankruptcy, including signs of insolvency and conditions for declaring a debtor insolvent. The ultimate goal of complex measures, if it is impossible to fully pay off debts, is the liquidation of the enterprise and exclusion from the Unified State Register of Legal Entities/Unified State Register of Individual Entrepreneurs.

Criteria for bankruptcy of an enterprise

Official recognition as bankrupt is not possible in all cases, but only if the conditions specified by Law No. 127-FZ are met. In addition to the mandatory reasons, there are indirect signs by which an experienced manager can already understand that the organization is in crisis. This is, first of all, a lack of available funds; low level of liquid assets; refusal of credit lines by financial institutions; accumulation of debts on wages, taxes, settlements with contractors; low business profitability; tough competition in the market, etc.

But all of the listed basic criteria are still not enough - those debtors who meet the requirements of Law No. 127-FZ can be declared insolvent. These special conditions for the amount and time of debt are listed in Stat. 3, 6 and 33 of the Insolvency Law. What are they?

Start of legal proceedings

From the moment the application is submitted, a temporary manager begins his work, who is determined by the court or the party that initiated the consideration of the case. Payment for the services of such a specialist lies entirely on the applicant’s side and amounts to 25 thousand rubles for one stage.

In order to separate the fact of technical, false and deliberate bankruptcy from the real one, the Federal Law, represented by the Arbitration Court, provides the temporary manager with 7 months. During this period, the duty of the temporary manager is to analyze the financial condition of the entity and identify.

1. Is it possible to repay the debt in full by selling part of the company's assets.
2. Is there a chance to restore the economic activity of this enterprise by introducing third-party anti-crisis management or applying a set of measures for financial recovery.
3. Probability of paying wages to company employees.
4. Availability of funds sufficient to cover legal costs.

Based on his work, the arbitration manager draws up a report, which he presents at the meeting of creditors. Also, the anti-crisis manager must provide the parties to the process with a plan for returning the enterprise to solvency, taking into account the following points:

• measures aimed at improving the activities of a legal entity;
• expenses incurred by the debtor;
• the approximate time required to implement the plan.