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:
| Commercial organizations | Non-profit organizations |
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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.
LLC, JSC, PJSC
The most common forms of commercial organizations are a limited liability company (LLC) and a joint stock company (JSC). They differ in the features of their creation, the nature of corporate rights, the procedure for the alienation of shares/shares, information disclosure requirements, etc.
General provisions concerning both types of companies as legal entities are contained in Chapter 4 of the Civil Code of the Russian Federation. Detailed rules for the creation and functioning of LLCs and JSCs are provided for by separate federal laws: “On Limited Liability Companies” dated 02/08/1998 No. 14-FZ and “On Joint-Stock Companies” dated 12/26/1995 No. 208-FZ.
Even a cursory comparison of these laws suggests that a joint-stock company is a more complex legal form to administer compared to an LLC. A maximum of formalities and procedures are provided for public joint-stock companies (PJSC), a comparative minimum for LLCs. Non-public joint-stock companies occupy a middle position: being full-fledged joint-stock companies, they have the right to use some options characteristic of LLCs. Hence, registering an LLC is usually recommended for small or medium-sized companies, and a JSC for medium or large ones.
Invalidate the reorganization
This possibility was enshrined in law in September 2014. This act can be carried out through the court on the initiative of the founder who did not vote at the general meeting or who cast his vote against the reorganization. The court will rule that the reorganization has not taken place if it is proven that:
- the decision to start the process was not made according to the established procedure or the required number of “for” votes was not enough for a positive decision;
- documents for registration of new legal entities that arose through reorganization contain deliberately false information.
Members/shareholders
The principle of creating LLC and JSC is similar - they are created by one or more founders, who, acquiring the status of participants in the company, form its highest management body (general meeting). This is the corporate character of both types of societies.
The number of participants in an LLC cannot exceed 50. The maximum number of participants in a JSC is not limited. In both types of companies there may be a single participant (however, such a participant cannot be another LLC or JSC consisting of one person).
Participants (in an LLC) and shareholders (in a JSC) are not liable for the obligations of the company and bear the risk of losses associated with its activities to the extent of the value of their shares in the authorized capital (for an LLC) or shares (for a JSC).
LLC participants have the right to participate in the distribution of company profits. Likewise, JSC shareholders have the right to receive dividends .
Both LLC participants and JSC shareholders can enter into corporate agreements (agreements on the exercise of the rights of LLC participants or shareholder agreements).
There are three ways to create legal entities: - Administrative, in this order state and municipal unitary enterprises and their subsidiaries are created. — Permissive, this method of creating legal entities exists for banks and insurance organizations. They are created with the permission of the Central Bank of the Russian Federation or RosStrakhNadzor. — Appearance-normative order,
implies that consent to the creation of such legal entities has already been given in regulations. After creating the constituent documents, it is enough to register the enterprise with the authorized government body. Regardless of the method of creating a legal entity, it must undergo state registration of the enterprise. The legal capacity of a legal entity begins from the moment of its registration. A legal entity has civil rights and obligations related to the type of activity carried out by the organization. The law defines certain types of activities that legal entities can engage in only with special permission from authorized bodies (certification, licensing). The civil capacity of legal entities arises simultaneously with civil legal capacity. Legal entities are full-fledged subjects of legal relations, acquire civil rights and obligations through their bodies, acting in accordance with the law and constituent documents. Reorganization of legal entities means the termination of the activities of a legal entity with the transfer of rights and obligations to another legal entity. In accordance with Art. Art. 57-60 of the Civil Code of the Russian Federation, reorganization of a legal entity can only be carried out by decision of: - Founders and participants; — A body of a legal entity that is authorized to do so by the constituent documents; — By decision of an authorized body or court on division or allocation. Russian legislation defines the following forms of reorganization: - Merger of several legal entities into one new one. — Merger of a legal entity with another. — Division of a legal entity into several new ones. — Separation of other legal entities from the composition of a legal entity. — Change of organizational and legal form of a legal entity. A legal entity is reorganized from the moment of state registration of newly established legal entities, except in the case of merger. The founders and participants, as well as the body of the legal entity that decided to reorganize, must notify their creditors, who in turn have the right to demand termination or early fulfillment of obligations and compensation for losses. In any form of reorganization, the rights and obligations of a legal entity are transferred to the newly created legal entity through a transfer deed or separation balance sheet. In case of transformation and merger, rights and obligations are transferred only by transfer deed. If the reorganization takes place in the form of merger, the rights and obligations are transferred to the acquiring legal entity under a transfer deed. If the reorganization is carried out in the form of division or in the form of separation, then the rights and obligations are transferred to the newly emerged persons on the basis of the separation balance sheet. Article 59 of the Civil Code establishes a new rule that if, during the reorganization of a legal entity, its debts cannot be accurately distributed among its legal successors, then the newly created legal entities bear joint liability to the creditors of the legal entity. In order to guarantee the rights of creditors, a reorganization rule is specifically provided for in relation to partnerships; if the partnership is transformed into a business company or production cooperative, each full partner who has become a member for two years bears subsidiary liability with all his property for the obligations transferred to the LLC or cooperative from the partnership. Even the alienation by a former friend of his share in the company does not relieve him of subsidiary liability. Liquidation of a legal entity is the termination of the activities of a legal entity without legal succession. From the moment of liquidation, the rights and obligations of a legal entity are not transferred to other entities. Liquidation of legal entities is regulated by the Civil Code, Art. 61-64. The grounds for declaring a legal entity bankrupt by a court, or declaring its bankruptcy, as well as the procedure for liquidating such a legal entity are established by the Law “On Insolvency (Bankruptcy)” dated January 8, 1998.
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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Reorganization – transfer of rights and obligations
A legal entity goes into oblivion, but does not disappear, but “transforms” into one or more new organizations - successors to the “parent” legal entity. Such transformations, which are quite common in business, are called reorganization . In essence, this is the transfer of all powers - rights and obligations - from the original to the created legal entities. This process allows you to help avoid bankruptcy and complete liquidation of the company, only by reformatting its activities.
The decision to begin reorganization can be:
- owner of the company's property;
- founders or shareholders;
- the body to which such powers are given by the statutory documents;
- the court that gave the decision.
REFERENCE! The will of the founders for reorganization has the right to be expressed exclusively at the request of the board of directors (unless otherwise declared by the Charter). At the general meeting, at least 75% of the participants must vote to initiate this process.
Legal capacity and capacity
An important point is that the legal capacity and capacity of a legal entity appear simultaneously. The legislator does not introduce the second category, since, unlike citizens, the factor of personal maturation does not apply to organizations and they can independently exercise rights and bear responsibilities in full from the moment of creation.
The subject of the dispute is the limitation of the rights of legal entities in certain areas provided for by law. A number of experts believe that it concerns legal capacity. Their opponents believe that the restriction concerns only legal capacity.
Table of contents
- Part 1 of Article 50 of the Civil Code of the Russian Federation
- Part 2 of Article 50 of the Civil Code of the Russian Federation
- Part 3 of Article 50 of the Civil Code of the Russian Federation
- paragraph 1
- point 2
- clause 2.1
- point 3
- point 4
- point 5
- paragraph 6
- paragraph 7
- paragraph 8
- paragraph 9
- paragraph 10
- paragraph 11
- paragraph 12
- paragraph 13
- paragraph 14
- paragraph 15
Concept and main features of non-profit organizations
The above articles of the Civil Code contain characteristics of commercial and non-profit organizations. This classification makes it possible to distinguish the latter according to a number of characteristics.
- The main distinguishing feature is the purpose of establishing non-profit organizations. Such a structure performs functions other than those of a commercial legal entity and they are not related to making a profit. The goals can be humanitarian, social, political and other aspirations.
- Non-profit organizations have limited legal capacity. It is determined by the purposes of creation. At the same time, entrepreneurial functions that meet this requirement are also possible.
- Another sign is the inability to distribute profits among the founders. If available, it serves as an additional financial basis for achieving the goals for which such an organization was created.
- Special organizational and legal forms. As in the case of commercial legal entities, there is a closed list that defines the types of these organizations.
- To start activities, state registration is required. In some cases, it is much more complex and involves a greater number of necessary actions. An example is the registration of political parties carried out by the Ministry of Justice.
Non-profit organization concept
The provisions of the law characterizing these legal entities allow us to derive the most complete concept.
Non-profit organizations should be understood as duly registered legal entities of certain organizational and legal forms, the goals of which are to achieve results in the social, humanitarian, political and other spheres not related to profit-making, capable of performing functions within the specified framework and not distributing received financial resources between the founders.
Licensing of a legal entity and participation in SRO
The legislation provides for restrictions on the conduct of certain types of activities. The need for preliminary verification for compliance with a set of certain criteria is associated with the desire to allow only qualified participants into the market for certain services. This applies to areas that involve safety and risk, where serious consequences may arise.
Obtaining a license involves the issuance by an authorized state body of permission to carry out certain types of activities. Their circle is limited.
The need to obtain such a document is established in the Federal Law “On Licensing of Certain Types of Activities”. Its content changes regularly, so it is worth making sure that you are studying the current edition.
The procedure and grounds for obtaining a work permit in certain areas are established by the Government and detailed by departmental acts.
In recent years, the state has eliminated licensing in certain areas. However, in a number of them there remains the need to obtain permission to operate. This applies to participation in self-regulatory organizations (SROs).
Such requirements apply to designers of buildings and structures and participants in many other activities. Without such a foundation it is impossible to conduct it.
Termination of activities of a legal entity
The emergence and termination of legal entities is associated with the making of appropriate entries in the Unified State Register of Legal Entities. Therefore, the legal capacity of the counterparty can be easily verified using information from the extract.
Before starting cooperation, you should pay attention not only to information about the creation of the organization, but also to information about the termination of activities.
All actions leading to the end of the legal capacity of a legal entity consist of several stages reflected in the register.
Emergence of legal capacity of legal entities
According to Art. 49 of the Civil Code, the grounds for concluding transactions appear at the time of entering information about the registration of the organization in the Unified State Register of Legal Entities, i.e. on the creation date.
Established business rules require verification of partners. To ensure that the counterparty has civil legal capacity, it is customary to ask him for copies of constituent documents and certificates of state registration.
The established procedure also requires the provision of a current extract from the Unified State Register of Legal Entities, which contains all the necessary information. This applies to all types of companies.
The consequences of failure to comply with such rules can be severe. First of all, they are related to possible claims from tax authorities.
Often, reorganization in a way leading to the emergence of new companies is indicated as the basis for the emergence of the civil legal capacity of a legal entity. All its types, except for accession, require registration of new legal entities.
Many people make the mistake of believing that the legal capacity of the previous ones is transferred to new companies. The current procedure does not imply its transfer or transfer.
After registration, the resulting company becomes only a successor in all or some of the obligations of pre-existing legal entities.
Registration deadlines and registration procedure when creating a new legal entity
Now you can completely complete the process in 3-5 days. But in some cases, this event drags on for months and even years if the owner constantly violates the requirements or makes mistakes. He will be constantly sent for re-registration until he gets everything right.
One more nuance. In accordance with the official portal nalog.ru, founders can handle documents both in person and electronically. When submitting remotely, you should use a secure service or send a letter with the declared value and a description of the attachment. The regular postal option takes longer and has a higher risk of loss.
Limitation of rights of a legal entity
Art. 49 only concerns the possibility of limiting the rights of a legal entity. This provision is specified in other norms.
Art. 295 of the Civil Code implies a restriction consisting in obtaining the consent of the owner by municipal unitary enterprises and state unitary enterprises that own real estate under the right of economic management during its implementation.
Other types of restrictions include the forced appointment of external administration of a legal entity. This happens in situations related to bankruptcy, in which the procedure for appointing insolvency practitioners is determined.
Legislation in the field of banking activities provides grounds for the forced replacement of the management structure in the event of violation of a number of standards by financial structures. In these cases, the right of organizations to independently form governing bodies is limited.
Types of legal capacity of a legal entity
Art. 49 of the Civil Code establishes the types of legal capacity of organizations. It depends on the purpose of the activities of legal entities. Commercial companies are subject to general legal capacity. They can engage in any activity not prohibited by law.
Exceptions are municipal or state unitary enterprises. In relation to them and other organizations, the limits of legal capacity are limited by the goals for which they were created.
If a foundation is created to support any area of public life, then its actions are limited to work in this area. In these cases, organizations have special legal capacity, the limits of which are limited by the purposes of creation.
When classifying this institution, licensing is often referred to, classifying it as a special type. In fact, it refers to general legal capacity and is only related to the preliminary verification of the company's compliance with certain requirements.
