The legal entity is obliged to undergo the established procedure for state registration under the current legislation in the authorized municipal body in the manner that was established by the law on state registration of organizations.
State registration data is included in the unified state register of organizations, which is open to the public.
In the framework of this article, we will consider the main ways of the emergence and suspension of the activities of a legal entity in modern conditions.
The essence of the concept of legal entities
The emergence of legal entities and the concept of a legal entity are prescribed in accordance with the Civil Code of the Russian Federation.
The Civil Code of Russia (Civil Code of the Russian Federation), speaking of persons, highlights:
- individual;
- legal entity;
- regions of the Russian Federation, municipalities dealing with property and other civil issues.
This article will discuss the concept, origin and types of legal entities.
The provisions of the Civil Code of the Russian Federation on legal entities are considered in Art. 48. In accordance with paragraph 1 of this article, legal entities are organizations that:
- own certain property;
- enter into a relationshipwith obligations, responding to them with their property;
- receive rights and obligations;
- may be litigants.
Thus, a legal entity should be understood as a legal entity that has economic rights and obligations, its own balance sheet, seal, current account and some similar details. The legal entity operates on the basis of the Charter or a special provision.
In judicial practice, property isolation, autonomy of organizations and wide opportunities for making managerial decisions are called essential elements of the structure of a legal entity.
In accordance with paragraph 2 of Art. 48 of the Civil Code of the Russian Federation, a legal entity is subject to state registration. Simultaneously with the process of formation and registration of a legal entity, a certain type of legal form must be chosen.
In accordance with art. 50 of the Civil Code of the Russian Federation, the main OPF of legal entities include:
- partnerships and societies;
- business partnership;
- consumer cooperatives, including housing, garage, etc.;
- lawyers and notaries;
- public organizations, including parties and trade unions, etc.
The indicated publication of the Civil Code of the Russian Federation is connected with the systematization of legal entities depending on whether they are aimed at generating income.
The list of forms is also indicated in OK 028-2012 "The All-Russian Classifier of Legal Forms". This classifier, taking into account the changes made to it, is used when maintaining the Unified State Register of Legal Entities.
It should be noted that the changelegal entity of its OPF does not entail the need to re-register the rights to property.
Historical aspects
Let's consider the main aspects of the history of the emergence of legal entities. The essence of the concept of a legal entity appeared in ancient Rome. At that time, it was understood as the state itself, and a little later they began to mean a group of united individuals with a common goal, efforts based on partnership.
In the Middle Ages, trading guilds appeared as associations of groups of people (merchants) that looked like legal entities.
The first teaching in the theory of the emergence of legal entities was the work of F. C. Savigny. He became the founder of the theory of "fictions". According to his theory, a legal entity was considered as a unit of law that was artificially created.
Further, the theory of "personified goal" (A. Brinz) developed. According to this theory, the emergence and creation of a legal entity was associated with the management of certain property. This understanding is already closer to modern interpretations.
Further, Salley, the founder of the theory of social reality, began to understand the legal entity as a subject of legal relations before the state.
Studying the Soviet works of scientists in the theory of development of legal entities, we highlight the main provisions:
- during the emergence and creation of a legal entity, it was considered as a subject, behind which the state always stands;
- in addition it was stated that in addition to the state behind the legal entity is also its head;
- a legal entity was considered a full-fledged subject of legal relations.
Interesting theory of N. V. Kozlov, in which the question was raisedartificial personality. That is, a legal entity is artificially created as a subject of socio-economic relations. Its emergence is connected with the will of its founders.
Grounds for the legal capacity of a legal entity
The current procedure is regulated at the legislative level. The process of emergence includes the very formation and state registration of a legal entity according to established procedures. There are four reasons for the emergence of legal entities.
The first refers to the administrative order. In this situation, the legal entity appears on the basis of the decision of the owners in the form of an order of the authorized body. The main stages of this process:
- creation of an act by the initiator (owner);
- work on the organizational part: search for personnel, search for premises, etc.;
- procedure for approving constituent documents;
The second reason is permissive. This basis is characterized by the following points:
- an act of initiators (founders) is drawn up;
- process of approval of the act;
- organizational work.
The third ground is of a clear-normative nature. With it, there are no orders and permissions for the occurrence. With this method, there is only the initiative of the founders and their turnout. The procedure for the emergence and formation of a legal entity is subject to compliance with the requirements of the law. The goals set must be consistent with the nature of the activity. On this basis, there arethe following documents:
- the act of the originators;
- organizational work;
- work of the supervisory authority.
The fourth ground is in the nature of a contractual legal order. In this situation, a civil law agreement is concluded between the founders.
Thus, the grounds for the emergence of legal entities can be as follows:
- will of own or authorized body;
- will of future members;
- the will of the founders, who are formed by property and capital.
Guidelines
The leading feature of the process of the emergence of a legal entity is the principle of formal certainty, in which the procedure for creating and registering is clearly expressed within the existing norms of the law.
Russian legislation establishes other equally important principles for the emergence of legal entities:
- legality states that all procedures are strictly regulated within the law;
- reliability indicates that the information generated in the process must be reliable;
- initiativity implies the will of the organizers and their initiative to create;
- control implies revision and audit by the competent authorities over all processes of the emergence of a legal entity;
- uniformity of procedures and methods for the emergence and termination of a legal entity;
- Steps and sequence of all state registration operations.
Commercial and non-commercial legal entities
One of the most important classifications of organizations is theirdivision into commercial and non-commercial.
The origin and types of legal entities are determined on the basis of whether they are aimed at generating income or not. Taking into account the forms of organizations, legal entities are systematized as follows (Article 50 of the Civil Code of the Russian Federation).
Commercial entities include:
- partnerships;
- society;
- farms;
- production cooperatives;
- business partnership;
- municipal and city unitary companies.
NPO forms are as follows:
- consumer cooperatives;
- public institutions;
- other non-profit organizations.
The status of a non-profit organization does not mean that this person cannot take part in income-generating work, but such activity is not the main one for him and has the following restrictions:
- should be specified in the statute of the organization;
- should be aimed at achieving the main goal of the organization, but not at counteracting this goal.
How are they created?
The emergence of a legal entity is its creation and state registration. All these procedures are carried out in accordance with the established requirements of the law. There are the following methods for the emergence of legal entities.
- Permissive method. The procedure for the emergence of legal entities according to this method was used back in the USSR. To form a legal entity, permission from the competent municipal authority and the followingstate registration. Currently, in the Russian Federation, it is used as an exception to the generally accepted rule for the formation of certain types of legal entities - credit and insurance companies, unions and associations, etc.
- Normative - private way of the emergence of a legal entity. It is understood that there are special rules that govern the emergence and activities of certain types of legal entities. The implementation of the conditions that were provided for in such acts gives the right to recognize the company as a legal entity, which is confirmed by the fact of its state registration. At present, the Russian Federation applies a regulatory procedure.
- The secret method of the emergence of legal entities (contractual). Organizations are created as a result of the expressed desire of the participants to act as a legal entity in the absence of the fact of its state registration. Currently, this procedure is not applied in the Russian Federation, but only abroad (associations in France, non-profit organizations in Switzerland, de facto commercial companies in the USA, etc.).
All of these ways of the emergence of legal entities have their own legislative grounds. The application of each of the methods within a particular legal entity is an individual process and will be determined by the founders (owners).
What are the rules?
The process of creating a legal entity is a set of rules and procedures regulated at the level of legislation.
Let's consider the main points of the order of occurrence of legal entities.
The founders of a legal entity can be:
- their original members and members;
- property owners or their authorized body (when developing unitary companies and institutions);
- other persons making a material contribution to them, who then do not take a specific role in the work of the legal entity (they are founders).
Any legal entity (unlike an individual) appears as a result of the implementation of a number of legal instruments, consisting of the following steps.
Stages of formation of a legal entity:
- Deciding to create an organization.
- State registration of an organization (Art. 51, 52 of the Civil Code of the Russian Federation).
Legal entities act as follows:
- the basis for the emergence of a legal entity is the Charter;
- on the basis of the memorandum of association;
- based on federal law (state company).
How to register?
Legal entities are created at the request of their owners, but the state, in the interests of all parties involved, controls the legality of their creation.
Hence arises the need for mandatory state registration of organizations (clause 1 of article 51 of the Civil Code).
State registration of legal entities is a set of acts of an authorized national executive body, which are carried out by entering information into the state register on the creation, transformation or elimination of these organizations.
A legal entity is considered created from the moment of its state registration (clause 8, article 51 of the Civil Code of the Russian Federation). This procedure is carried out by the tax authorities in the manner prescribed by the Federal Law of August 8, 2001 N 129-FZ "On State Registration of Legal Entities and Individual Entrepreneurs".
State registration of a legal entity is carried out at the location:
- its permanent executive body;
- in the absence of a permanent executive body - another body or person authorized to act on behalf of the organization by virtue of law.
All changes in the status of a legal entity are also subject to state registration:
- composition of owners or participants;
- composition of organs;
- changing the subject of his work and activities, location, size of the Criminal Code, etc.
Documents that are submitted for registration are fully listed in the law on state registration of legal entities.
Registration must be completed within 5 business days of submission.
Denial of state registration of a legal entity is likely only on the basis of failure to submit the documents required for registration, or their submission to the wrong registration authority. There is no other reason.
The decision to refuse state registration can be challenged in court.
Required documents
The answer to this question is presented in Art. 12 FZ No. 129.
List includes:
- application for state registration of a legal entity. Her form is officially approved;
- Minutes of the meeting of founders or other document containing the decisionabout creating an organization;
- one copy of the founding agreement of the organization. An exception is cases when an organization is created with a regular charter;
- receiving payment of state duty. You can pay through Internet resources.
Foreign organizations - founders will need to provide proof of their status: an extract from the relevant register of the country of origin or another similar document.
If the documents are collected correctly, after 3 days the applicant will receive a charter and a document that confirms registration in the Unified State Register of Legal Entities in electronic form.
To register a legal entity, you must personally submit a designated package of documents to the territorial tax authority or through the MFC. This can also be done remotely by sending a registered letter by mail or through the State Services portal.
Property and property
Property of legal entities is private property. It must be emphasized that the presence of certain property is one of the important signs of the existence of a legal entity as a subject of law. However, the property is not permanently owned by the legal entity. It is possible to have property in the management or operational management of the organization (Article 48 of the Civil Code of the Russian Federation). Most of the legal entities are characterized by their participation in the relationship as the owner of the property.
The emergence of the property of a legal entity refers to the mandatory conditions for the formation of its role in civil circulation.
Founders (participants) of legal entities retain in respect ofproperty of the organization the possibility of claiming rights to it or do not have such rights at all.
The property of legal entities is governed by the general provisions of the law, which form the content of the right of ownership. The emergence of the property right of legal entities is provided with grounds for its emergence and termination.
The procedure for direct management of the property of a legal entity is determined by its constituent documents.
Restricted property may only be owned by an organization with appropriate permission. A certain impact on objects that may belong to legal entities is manifested in the presence of special legal capacity in some of them.
Usually, the amount and value of the property of a legal entity is not limited in size.
The property of a business company or partnership consists of a management company and property formed by its founders (participants), which arises for other reasons (transactions, etc.).
Withdrawal of a shareholder from a JSC is possible only by alienating shares to another owner or a third party.
As a result, the value of the company's property is not underestimated. The property that remains after the satisfaction of the conditions of creditors is distributed among the participants in accordance with their shares.
Closing Procedures
The procedures for the emergence and termination of legal entities are absolutely opposite to each other.
Depending on the legal consequences of the termination of the activities of a legal entity, there is a difference betweentransformation or reorganization (the rights and obligations of a legal entity are transferred to another person) and liquidation (termination of a legal entity without transferring its rights and obligations to someone else).
Reorganization of a legal entity
Reorganization of a legal entity (merger, affiliation, division, separation, transformation) can be carried out by decision of its owners (participants) or an authorized management body of the organization.
In situations that have been established by law, the reorganization of a legal entity in the form of its division or the separation of one or more organizations from its composition is carried out by decision of authorized state bodies or by a court order.
A legal entity is considered reorganized, except for cases of transformation in the form of a merger, from the moment a legal entity arises, created through state registration of newly emerging organizations.
In the event of a merger of organizations, the rights and obligations of all are transferred to the newly formed organization in accordance with the act of transfer.
When a legal entity joins another organization, the rights and obligations of the affiliated company are transferred to the combined company in accordance with the act of transfer.
When a legal entity is divided, its rights and obligations are transferred to newly emerged organizations in accordance with the separation balance sheet.
When a legal entity of one type is converted into a legal entity of another type, the rights of the reorganized company are transferred to the newly created company in accordance with the deed of transfer.
Deeds of transfer and separation balance sheet are approved by the founders of the organization orthe body that made the decision to transform the legal entity, and are submitted together with the constituent documents for state registration of newly created legal entities. Or changes are made to the constituent documents of existing organizations.
Failure to submit an act of transfer or separation balance sheet, as well as the absence of provisions on succession in relation to the obligations of the reorganized organization, entails the refusal of the state to register changes.
Liquidation of a legal entity
Represents the end of the operation of a legal entity without the transfer of rights and obligations to other persons.
Legal entity can be liquidated:
- by decision of the owners (participants) or the authorized body;
- in connection with the end of the term of operation for which the legal entity was established;
- by court order in case of gross violations of the law that were committed at the time of its creation, if these violations are irremediable or if the activity is carried out without an appropriate permit (license);
- in case of violation of the Constitution of the Russian Federation;
- in case of repeated gross violations of the law.
The requirement to liquidate an organization on the grounds indicated above can be filed with the court by a state or local municipal authority, which is granted the right to make such a requirement by law.
Municipal company or state company can be eliminated by declaring it bankrupt.
The Fund cannotbe declared bankrupt, if so provided by law, which provides for the establishment and operation of this fund.
If the value of the property of this legal entity is insufficient to meet the conditions of creditors, then it can be eliminated only in the manner prescribed by Art. 65 GK.
The founders (participants) of an organization or body that made a decision to liquidate an organization must immediately notify the authorized municipal body that the legal entity is in the process of liquidation.
The founders of the organization or body that made the decision to liquidate the legal entity appoint a liquidation commission and establish the procedure and terms of the procedure in accordance with the Civil Code of the Russian Federation and other laws.
Since the appointment of the liquidation commission, the possibilities for managing the affairs of the legal entity are transferred to this commission. This commission acts in court on behalf of the liquidated organization.
The elimination of the organization is carried out in the manner that was established by law.
The liquidation commission places in the press, which publishes information about the state registration of the organization, the publication of information on the elimination, as well as the procedure and deadline for filing claims by its creditors. This period cannot be more than two months from the date of publication of the liquidation data.
The liquidation commission takes constructive measures to identify creditors and collect receivables, and also informs creditors in writing about the procedure for liquidating a legal entity.
Ifthe funds that are withheld during the liquidation of a legal entity (except for institutions) are insufficient to satisfy the conditions of creditors, the commission sells the property of the organization at public auction in the manner that was established for the execution of court decisions.
Payment of amounts to creditors of a liquidated legal entity is done by the liquidation commission in the order of priority, which was established by Art. 64 of the Civil Code of the Russian Federation.
After all settlements with creditors, the commission draws up a liquidation balance sheet, approved by the founders (participants) of the legal entity. In cases that have been established by law, this balance is approved by agreement with the authorized municipal body.
The liquidation of an organization is considered completed after an entry is made in the Unified State Register of Legal Entities.
Conclusion
The procedures for the emergence and termination of legal entities are established by law in relation to different types of legal entities.
