The process of creating commercial organizations breaks down into 2 stages:

Establishment

State registration

Establishment of commercial organizations:

In addition to the main goal - systematic profit-making, - the creation of commercial organizations pursues such goals as: - isolation of the founder’s property, - limitation of the participant’s property risk with separate property, - organization of management of the relevant property, - performance of a commercial organization in circulation on its own behalf.

*separation of property the founder occurs through the formation of the authorized (share) capital of a commercial organization.

Then, in the course of the activities of a commercial organization, its property is also formed from other income, mainly profit.

All property of a commercial organization is taken into account on its cost balance, which is where the external formal manifestation, the property isolation of the commercial organization, is found.

Other things

Property rights or other rights that have a monetary value

*Values ​​of minimum authorized capital

(determined by the decree of the President of the Russian Federation “On streamlining the state registration of enterprises and entrepreneurs on the territory of the Russian Federation”)

Amount of authorized capital:

Open joint stock companies

Enterprises of any organizational and legal forms with foreign investment

State and municipal unitary enterprises

Cannot be less than an amount equal to a thousand times the minimum wage per month on the date of state registration of a commercial organization.

Amount of authorized capital of other commercial organizations:

Business partnerships

Closed joint stock companies

Production cooperatives

There should not be less than an amount equal to one hundred times the minimum wage per month on the date of state registration.

* Limiting the property risk of the founder exempts the founder from liability for the obligations of a commercial organization. Commercial organizations for their obligations with property belonging to them (Article 56 of the Civil Code of the Russian Federation) Exceptions to this rule may be provided for in the Civil Code or in the constituent documents of a commercial organization.

* An organization managed by the separate property of the founder when he creates a commercial organization is carried out through the management bodies of the commercial organization:

Sole proprietors

Collegiate

Structural divisions (branches and representative offices)

A commercial organization acquires rights and assumes responsibilities through its bodies acting in accordance with the law, other legal acts, and constituent documents. In certain cases, a commercial organization can acquire rights and assume responsibilities through other persons: commercial entities (Article 184), participants (Clause 2, Article 53 of the Civil Code of the Russian Federation)

The procedure for appointing or electing management bodies of a commercial organization is determined by law and constituent documents.

Commercial organization has its own brand name, containing an indication of its organizational and legal form, and in cases provided for by law, also the nature of the activities of commercial organizations.

The corporate name of a commercial organization is indicated in its constituent documents and is subject to state registration simultaneously with the state registration of the commercial organization itself.

In addition to the company name, the individualization of a commercial organization is carried out in a way that determines its location, and also individualization her product.

Location a commercial organization is determined by the place of its state registration (Article 54 of the Civil Code of the Russian Federation)

The specific address of a commercial organization is indicated in its constituent documents and is tied to the location of its permanent body.

Personalization goods of a commercial organization are produced by using a production mark, trademark or appellation of origin of the goods.

Production mark - this is a verbal description of the product placed on the product or its packaging and includes the brand name of the manufacturer, its address, name of the product, a link to standards, a list of product properties, and a number of other data (Russian Federation Law “On the Protection of Consumer Rights”) Manufacturing mark is not subject to property registration.

Trademark (service mark) - this is a verbal, pictorial, volumetric or other symbol of a product used to distinguish it from similar products from other manufacturers. A trademark is subject to state registration in the patent office.

The procedure for establishing commercial organizations is determined by the relevant articles of the Civil Code or special laws.

General procedure for establishment:

A commercial organization is established by decision of the owner (owners) of the property or the body authorized by him. Thus, state municipal and unitary enterprises are established by the governments of the Russian Federation or constituent entities of the Russian Federation, the relevant committees for property management of the Russian Federation or constituent entities of the Russian Federation.

Constituent documents:

a) articles of association

b) memorandum of association and articles of association

c) only the charter (clause 1 of article 52 of the Civil Code of the Russian Federation)

They determine the legal status of a commercial organization and other interests in connection with the creation of a commercial organization.

In the memorandum of association, the founders fix their share in the creation of a commercial organization;

Determine the procedure for joint activities to create it;

Conditions for transferring your property to her;

Participation in its activities;

The conditions and procedure for distributing profits and losses between participants are determined;

Management of the activities of a commercial organization;

Exit of participants from its composition.

The charter of a commercial organization determines the individual entrepreneurial status of a commercial organization. The charter may reflect everything that does not contradict current legislation, as well as information provided for in paragraph 2 of Art. 52 of the Civil Code and other information provided by law for commercial organizations of the corresponding type.

For example, the charter of a joint stock company, in addition to the information specified in paragraph 2 of Art. 52 of the Civil Code of the Russian Federation must contain conditions on the categories of shares issued by the company; their nominal value and quantity; the size of the company's authorized capital, the rights of shareholders; on the composition and competence of the company’s management bodies and the procedure for making decisions, including on issues on which decisions are made unanimously or by a qualified majority of votes (clause 3 of Article 98 of the Civil Code of the Russian Federation).

State registration of commercial organizations:

A commercial organization is considered created and acquires the status of a legal entity from the date of its state registration (clause 2 of article 57 of the Civil Code of the Russian Federation).

The Civil Code provides for a unified system of state registration of legal entities. All legal entities, including commercial organizations, are subject to state registration with the justice authorities, in the manner determined by the law on registration of legal entities.

State registration of commercial organizations is carried out in different bodies, usually in the registration chambers of administrations of constituent entities of the Russian Federation, but, in particular, credit organizations - in the Central Bank of the Russian Federation, enterprises with foreign investments, starting from a certain level of authorized capital - in the Ministry of Economy of the Russian Federation.

Documents for state registration:

Application for registration;

The decision to establish a commercial organization (in particular, the constituent agreement);

Approved charter;

Certificate of payment of state duty;

Documents confirming payment of at least 50% of the authorized capital of a commercial organization specified in the decision on the establishment of a commercial organization.

Special laws may provide for additional documents, for example for a credit institution:

· Copies of certificates of state registration of founders - legal entities;

· Auditor's report on the reliability of financial statements;

· Declaration of income of founders - individuals;

· Questionnaires of candidates for positions of managers of a credit organization.

State registration authorities do not have the right to require documents other than those specified in the law, otherwise their actions may be appealed in court.

If the issue is resolved positively, the basic data, including its business name, is included in the unified state register of legal entities, open to the public.

If the procedure established by law for the formation of a commercial organization is violated or its constituent documents do not comply with the law, the registration authority refuses state registration. Refusal of registration for other reasons is not permitted.

Refusal to state registration, as well as evasion of such registration, can be appealed in court. In this case, losses caused by the registration authority to the founders as a result of illegal refusal of registration are subject to compensation (Article 16 of the Civil Code).

Introduction

economic trade Russian entrepreneurial

The most important place in the socio-economic development of society is occupied by entrepreneurial activity.

The subject of entrepreneurial activity is, first of all, the enterprise. An enterprise is the main organizational and economic link of any market economy.

The set of firms determines the effectiveness of the national, regional and global economy as a whole.

The health of the economy and the industrial power of the state depend on how efficiently a company operates and how stable its financial condition is.

Entrepreneurial activity has a significant impact on the well-being of society as a whole by increasing the level of GDP, mitigating unemployment, developing scientific and technical potential, increasing tax revenues to the budget, and forming a large-scale middle class as an economically independent social entity.

The procedure for creating and terminating the activities of enterprises, as well as the problems that arise in this case, are very relevant for modern Russian reality.

The procedure for creating a commercial organization

The creation of commercial organizations includes two stages:

• 1. institution
• 2. state registration

In addition to the main goal of systematically making a profit, the creation of commercial organizations pursues the same goals as the creation of other legal entities:

• 1) segregation of part of the founder’s property in the form of a contribution to the authorized (share) capital (fund) of a commercial organization and its subordination to a special legal regime;
• 2) limiting the property risk of a participant in a commercial organization with separate property;
• 3) organization of property management of the established commercial organization;
• 4) ensuring the participation of a commercial organization in economic turnover on its own behalf.

The allocation by the founder of part of his property and assigning it to the commercial organization being created means the personification of this property in a new legal entity for the purpose of its exploitation and profit-making.

From an economic point of view, in this case, the function of productive use of the founder’s capital is separated from the ownership of capital, which is typical for a market economy.

Initially, the separation of the founder’s property occurs through the formation of the authorized (share) capital (fund) of a commercial organization.

Then, in the course of the activities of a commercial organization, its property is also formed from other income, mainly profit.

All property of a commercial organization is accounted for on its independent balance sheet, which is where the property isolation of a commercial organization finds its external formal manifestation.

The authorized (share) capital (fund), which all commercial organizations (with the exception of state-owned enterprises) must have, is the amount of the contribution (contributions) of the founder (founders), made in rubles and recorded in the constituent documents of the commercial organization.

The authorized capital of a commercial organization determines the minimum amount of property of a commercial organization that guarantees the interests of its creditors.

A contribution to the authorized (share) capital of a commercial organization can be money, securities, other things or property rights or other rights that have a monetary value.

The monetary valuation of the contribution is made by agreement between the founders of the commercial organization and, in cases provided for by law, is subject to independent expert verification (clause 6 of Article 66 of the Civil Code).

The size of the minimum authorized capital of commercial organizations depends on their organizational and legal forms and is established by law.

The size of the authorized capital of commercial organizations should not be less than an amount equal to 100 times the minimum wage as of the date of their state registration. Exceptions are established for state enterprises (at least 5 thousand minimum wages), municipal enterprises (at least 1 thousand minimum wages) and OJSC (at least 1 thousand minimum wages).

For a number of commercial organizations, for example commercial banks, special legislation establishes a significantly larger minimum amount of authorized capital, as well as other requirements (for example, on the ratio of equity and borrowed capital) that ensure the property interests of their creditors.

Limiting the founder’s property risk to property set aside for the purpose of creating a commercial organization is of particular importance in the field of entrepreneurship, as it relieves the founder from liability for the obligations of the commercial organization.

Participants in a commercial organization bear only the risk of losses associated with the activities of the commercial organization, within the value of the contributions they made (for example, clause 1 of Article 87 of the Civil Code of the Russian Federation).

Commercial organizations are liable for their obligations with all the property they own (Article 56 of the Civil Code of the Russian Federation). Exceptions to this rule may be provided for by the Civil Code of the Russian Federation or the constituent documents of a commercial organization.

Such exceptions do not contradict the principle of independent property liability of a commercial organization, since the liability of other persons for the debts of a commercial organization is only additional (subsidiary) to the liability of the commercial organization itself.

The organization of management of the separate property of the founder is carried out by him through the creation of management bodies of the commercial organization, its structural divisions, including branches and representative offices. A commercial organization acquires rights and assumes responsibilities through its bodies, acting in accordance with the law, other regulatory legal acts and constituent documents.

The procedure for appointing or electing management bodies of a commercial organization is determined by law and constituent documents.

The simplest management organization is typical for state and municipal unitary enterprises. Here the management body is the sole manager, who is appointed by the owner or a body authorized by him and is accountable to him (clause 4 of article 113 of the Civil Code of the Russian Federation).

The most complex management organization is typical for joint-stock companies (Article 103 of the Civil Code of the Russian Federation). Here, a multi-tier system of management bodies (general meeting of shareholders, board of directors, executive body) and control (audit commission) is created, between which competence is very strictly distributed, which ultimately not only ensures the effective operation of property (the enterprise as a property complex), but also guarantees the rights of shareholders and creditors of the JSC.

The organizational structure of commercial organizations consists of branches, representative offices and other divisions that are not legal entities. They act on the basis of regulations approved by the commercial organization.

Their managers are appointed by a commercial organization and act on the basis of a power of attorney from the commercial organization.

Representative offices and branches must be indicated in the constituent documents of the commercial organization that created them (Article 55 of the Civil Code of the Russian Federation).

Property that is allocated to divisions of a commercial organization can be accounted for on a separate (within the independent balance sheet of a commercial organization) balance sheet.

Commercial organizations act in civil circulation on their own behalf, regardless of the founders.

Possessing separate property and management bodies, commercial organizations, on their own behalf, acquire and exercise rights and bear responsibilities, and act as plaintiffs and defendants in court.

Bodies of a commercial organization, its branches and representative offices, and other representatives act on behalf of the commercial organization.

In the event of abuse by representatives, they are obliged, at the request of participants in a commercial organization, to compensate for the losses caused to it. Bodies of a legal entity cannot be considered as independent subjects of civil legal relations and are part of the legal entity.

In cases of excess of authority by a body of a legal entity when concluding a transaction, the rule on concluding a transaction by an unauthorized person (Clause 1 of Article 183 of the Civil Code of the Russian Federation) cannot be applied.

The performance of a commercial organization in civil circulation on its own behalf is also ensured by the individualization of the commercial organization itself (through a company name - Article 54, 1474 of the Civil Code of the Russian Federation, indication of its location - Article 54 of the Civil Code of the Russian Federation), as well as its enterprise (commercial designation - - Art. 1538 of the Civil Code of the Russian Federation) and goods (trademark or service mark, name of place of origin of goods - Art. 1477, 1516 of the Civil Code of the Russian Federation).

The procedure for establishing commercial organizations is determined in relation to one or another organizational and legal form of commercial organizations of the Civil Code of the Russian Federation or special laws, for example the Law on Banks.

A commercial organization is established by decision of the owner (owners) of the property or the body authorized by him. State and municipal unitary enterprises are established

The Government of the Russian Federation, the governments (administrations) of the constituent entities of the Russian Federation, their authorized bodies, and local government bodies. The constituent documents of a commercial organization, depending on its organizational and legal form, are the constituent agreement and charter or only the charter (clause 1 of article 52 of the Civil Code of the Russian Federation).

These documents, taking into account the requirements of the law, determine the legal status of a commercial organization and other interests of the founders in connection with the creation of a commercial organization.

General partnerships and limited partnerships operate on the basis of the constituent agreement; LLCs and additional liability companies operate on the basis of the constituent agreement and charter. An exception is made for business companies created by one founder.

In this case, the constituent agreement is not concluded, the founder only approves the charter.

Other commercial organizations (joint-stock companies, production cooperatives, state and municipal unitary enterprises) operate only on the basis of the charter.

The constituent documents of a commercial organization determine the trade name of the commercial organization, its location, the procedure for managing the activities of the commercial organization, and also contain other information provided for by the Civil Code of the Russian Federation or special laws for commercial organizations of the corresponding type.

The constituent agreement defines the procedure for joint activities of the founders to create a commercial organization, the conditions for transferring part of their property to it and participation in its activities.

It also defines the conditions and procedure for distributing profits and losses between participants, managing the activities of a commercial organization, and the withdrawal of participants from its membership. The charter determines the individual legal status of a commercial organization.

It, in accordance with the generally permitted principle of legal regulation, can reflect everything that does not contradict the law, but in accordance with the mandatory principle of legal regulation, the charter must define the information provided for in paragraph 2 of Art. 52 of the Civil Code of the Russian Federation, as well as other information provided by law for commercial organizations of the corresponding type.

In particular, the charter of the joint-stock company, in addition to the information specified in paragraph 2 of Art. 52 of the Civil Code of the Russian Federation, must contain conditions on the categories of shares issued by the company, their par value and quantity; on the size of the authorized capital of the company; shareholders' rights; the composition and competence of the company’s management bodies and the procedure for making decisions by them, including on issues on which decisions are made unanimously or by a qualified majority of votes (clause 3 of Article 98 of the Civil Code of the Russian Federation).

A commercial organization is considered created and acquires the status of a legal entity from the date of its state registration (Clause 2 of Article 51 of the Civil Code of the Russian Federation). From this moment, the legal capacity of a commercial organization arises, i.e., the ability to have civil rights and bear responsibilities.

Commercial organizations, with the exception of state and municipal unitary enterprises and other types of organizations provided for by law (for example, credit organizations, insurance organizations and some others), may have civil rights and bear civil responsibilities necessary to carry out any types of activities not prohibited by law ( Art. 49 of the Civil Code of the Russian Federation).

This means that, as a general rule, commercial organizations have general legal capacity, which fully corresponds to the generally permissible principle of legal regulation of entrepreneurship.

The absence of the need to list in the charter of a commercial organization the types of activities that it can engage in promotes the development of business activity of commercial organizations, facilitates its response to changes in market conditions and the flow of capital into the most promising sectors of the economy, and contributes to the stability of trade turnover.

Transactions of a commercial organization with general legal capacity cannot be declared invalid on the grounds of contradiction to its goals. A commercial organization may have its rights limited only in cases and in the manner prescribed by law.

The decision to restrict rights can be appealed by a commercial organization in court. Of course, the legal capacity of a commercial organization can be limited not only by law, but also by the will of the founders, who define the goals of its activities in the constituent documents (Clause 1 of Article 49 of the Civil Code of the Russian Federation)

Methods and procedures for creating commercial organizations.

The procedure for state registration and termination of activities

Individual entrepreneurs

Reorganization of business entities, liquidation of commercial organizations

1. In the science of civil law, traditionally there are three ways formation of commercial and non-profit organizations:

1) The administrative method means that a legal entity is formed by order (decision) of the owner of the property or the body authorized by him. In this order, state legal entities and unitary enterprises arise. Bodies of state power and administration, within the limits of their competence, issue orders or instructions on the formation of legal entities.

(For example, the Government of the Republic of Belarus decides to create a state-owned enterprise. In this sense, the procedure for creation will be called administrative).

2) The permitting method means that legal entities are formed on the initiative of citizens or any organizations, after receiving the consent of the competent authority of the state or public association. The relevant body not only checks compliance with the rules for drawing up documents on the creation of a legal entity, but also decides whether the creation of such an entity should be allowed. The permitting method is used, in particular, when creating commercial organizations with foreign investment, as well as when creating legal entities in free economic zones.

3) Vividly - normative The method does not require permission to form a legal entity; citizens or organizations have the right to freely form a legal entity at their own discretion, since the formation of this type of legal entity is permitted by the legislation of the Republic of Belarus. The legality of the creation of such legal entities is verified during their state registration. Private unitary enterprises, business partnerships and societies, production cooperatives, associations of legal entities (associations and unions) are formed by the normative method.

In accordance with the law, a business entity can be created by decision of the owner (owners) of the property or a body, enterprise, or organization authorized by him (them) in the cases and in the manner provided for by the current legislation.

The procedure for creating commercial organizations

Creation of commercial organizations- consistent performance of actions that have legal significance and are aimed at acquiring the status of a business entity.

Stages of creating a commercial organization:

initiative of the participants (founders). A legal entity is an inanimate object; it can only arise as a result of the will of a person;

choice of organizational and legal form of a legal entity;

approval of the name of the commercial organization;

determining the location of a commercial organization;

preparation of the charter and (or) constituent agreement The need to have one of these documents or two at the same time is determined by the Civil Code and depends on the organizational and legal form of the legal entity;

formation of the authorized capital. Opening a temporary bank account - when making a monetary contribution to the authorized capital, assessing the value of a non-monetary contribution - when making a non-monetary contribution to the authorized fund. Commercial organizations independently determine the size of their authorized capital, with the exception of CJSC and OJSC, as well as some other commercial organizations for which the relevant legislation establishes the minimum size of authorized capital;

state registration. State registration pursues the following goals:

Exercising state control over business activities;

Carrying out taxation;

Obtaining state statistical information for the implementation of economic regulation measures;

Providing information about business entities to all participants in business activities, state authorities and local governments.

State registration business entities is carried out on the basis declarative principle on the day of submitting the documents necessary for its implementation, in accordance with the Regulations on state registration of business entities, approved by Decree of the President of the Republic of Belarus dated January 16, 2009 No. 1. State registration of a legal entity is carried out at the registration authority at its location. For state registration, a state fee is charged in the amount established by legislative acts.

State registration is carried out by the following registration authorities:

National Bank - banks and non-banking financial institutions, including those with foreign investments and in free economic zones;

Ministry of Finance - insurance organizations, insurance brokers, associations of insurers, including those with foreign investment and in free economic zones;

Ministry of Justice-Chambers of Commerce and Industry;

Administrations of free economic zones - commercial and non-profit organizations, including commercial organizations with foreign investments, individual entrepreneurs in free economic zones;

Regional executive committees and the Minsk City Executive Committee - commercial organizations with foreign investments;

Regional executive committees, Brest, Vitebsk, Gomel, Grodno, Minsk, Mogilev city executive committees - business entities not listed above. Regional executive committees have the right to delegate part of their powers regarding state registration of business entities to other local executive and administrative bodies, and the above-mentioned city executive committees to the corresponding district administrations in cities.

For state registration commercial organizations, including commercial organizations with foreign investments, The following are submitted to the registration authority:

- application for state registration;

Charter (constituent agreement - for a commercial organization operating only on the basis of a constituent agreement) in two copies without notarization, its electronic copy (in doc or rtf format);

Legalized extract from the trade register of the country of establishment or other equivalent evidence of the legal status of the organization in accordance with the legislation of the country of its establishment (the extract must be dated no later than one year before filing the application for state registration) with a translation into Belarusian or Russian (the translator’s signature is notarized) - for founders who are foreign organizations;

A copy of an identity document with a translation into Belarusian or Russian (the translator’s signature is notarized) - for founders who are foreign individuals;

Original or copy of a payment document confirming payment of the state duty.

When submitting an application for state registration, citizens present identification documents, as well as documents confirming their authority if they represent the interests of a legal entity or individual.

Registration authorities accept documents submitted for state registration, consider their composition and the content of the application for state registration, and, if necessary, explain to persons submitting such documents the rules for their submission and execution provided for by law.

On the day of submission of documents, submitted for state registration, an authorized employee of the registration authority:

Places on the charter (constituent agreement - for a commercial organization operating only on the basis of the constituent agreement), amendments and (or) additions made to the charter (constituent agreement) of a legal entity, a stamp indicating state registration, issues one copy of the charter (constituent agreement) agreement) to the person who represented it, and makes a record in the Unified State Register of Legal Entities and Individual Entrepreneurs about the state registration of a business entity, changes and (or) additions made to the charter (constituent agreement) of the legal entity;

Submits to the Ministry of Justice the necessary information about business entities for their inclusion in the Unified State Register of Legal Entities and Individual Entrepreneurs.

A legal entity is considered registered from the date of affixing a stamp on its charter (founding agreement - for a commercial organization operating only on the basis of a constituent agreement) and making an entry on the state registration of the legal entity in the Unified State Register of Legal Entities and Individual Entrepreneurs.

The certificate of state registration is issued no later than the working day following the day of submission of documents for state registration. At the request of a legal entity, a certificate of state registration can be issued simultaneously with other documents. The presence of a legal entity's charter (constituent agreement - for a commercial organization operating only on the basis of a constituent agreement) with a stamp indicating state registration is the basis for applying for the production of seals (stamps), as well as for performing other legally significant actions. Obtaining special permits for the manufacture of seals (stamps) is not required.

State registration not implemented in case:

Failure to submit to the registration authority all documents necessary for state registration;

The creation of any commercial organization includes two stages: the first stage is the establishment of the organization, and the second stage is its state registration. It is from the date of making the corresponding entry in the unified state register of legal entities that a commercial organization is considered created.

Persons wishing to create a commercial organization and participating in the formation of its authorized (share, share) capital are founders.

Founders are, as a rule, the owners of the property that is made as a contribution. Founders can also be persons who have property under another proprietary right (for example, the right of economic management or operational management). Then their participation in the creation of a commercial organization is determined by law (Article 295 of the Civil Code of the Russian Federation, paragraph 4 of Article 66 of the Civil Code of the Russian Federation).

The main obligation of the founders to create a commercial organization is the obligation to make a contribution to the authorized (share, share) capital (fund) of the established organization in the manner determined by law for various forms of commercial organizations.

As a contribution to the property of a commercial organization, money, securities, other things or property rights or other rights with a monetary value can be made.

Deposits can vary both in value and in the nature of the contribution. From the latter point of view, contributions can have different purposes: the contributed property can be transferred either for ownership or for use. The question of the purpose of the contribution is important in order to determine who bears the risk of accidental loss or damage to the contributed property, as well as in order to decide whether the contributed item should be returned upon liquidation to the participant or only its value is paid to him.

Drawing attention to the importance of this issue when resolving disputes regarding property arising between business partnerships and companies and founders (participants), the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court dated July 1, 1996 No. 6/8 explained that property in kind, contributed by the founder to the authorized (share) capital of a business partnership and company belongs to the latter by right of ownership. If the constituent documents contain provisions indicating that the founder did not transfer property in kind to the authorized capital, but only the rights of ownership and (or) use of the relevant property, the transfer of such property for use must be formalized by the corresponding transfer act and lease agreement. 9

The monetary value of the contribution of the founder of a commercial organization is made by agreement between the founders. In cases provided for by law, the monetary value of the deposit is subject to independent expert verification.

At the stage of establishing a commercial organization, its constituent documents are created. The current civil legislation has a differentiated approach to the composition of constituent documents and provides for three options (sets) of these documents.

The first option is that the constituent document of a commercial organization is only the constituent agreement. The contractual forms of commercial organizations are general partnership and limited partnership.

The second option is that both the charter of a commercial organization and the constituent agreement are considered constituent documents. Commercial organizations operating on the basis of these constituent documents include a joint-stock company, a limited company and an additional liability company. At the same time, these societies can be founded by one person (one citizen or one legal entity). In this case, only the charter will be the founding document of the Company. But with an increase in the number of participants in such a Society, it is necessary to draw up an agreement.

The third option is that the constituent document of a commercial organization is only the charter. Commercial organizations operating only on the basis of a charter include joint-stock companies, production cooperatives and state and municipal unitary enterprises.

As a general rule, the constituent agreement is signed by all founders, and the charter is approved by the founders at their general meeting, the decision of which is documented in the form of minutes of the general meeting of founders. The minutes of the general meeting of founders reflect the following issues:

• on the creation of a commercial organization of a certain organizational form;
• on approval of the charter of this organization;
• on approval of the monetary value of non-monetary contributions made by the founders;
• on the election (appointment) of the executive bodies of this organization.

Some commercial organizations may have one founder (either one individual or one legal entity). In this case, the constituent document is the charter and the founder’s decision to create a commercial organization.

By its nature, the constituent agreement is an agreement between the founders to create a commercial organization and provides for the obligation of the founders to create this organization. The content of the constituent agreement is determined by Art. 52 of the Civil Code of the Russian Federation.

The charter of a commercial organization must define its corporate name and location, and in cases established by law, the postal address at which communication with the organization is carried out.

In accordance with Art. 54 of the Civil Code of the Russian Federation, the location of a legal entity is determined by the place of its state registration. State registration of a legal entity is carried out at the location of its permanent executive body, and in the absence of a permanent executive body - another body or person entitled to act on behalf of the legal entity without a power of attorney

The purpose of any commercial organization is to make a profit, which directly follows from the content of Art. 50 Civil Code of the Russian Federation. Based on the fact that, as a general rule, commercial organizations have general legal capacity, with the exceptions mentioned above, such organizations can engage in any activity not prohibited by law. In this case, the list of activities in the charter of a commercial organization is not mandatory.

In addition to the company name and location, the charter defines:

• the procedure for forming the property of a commercial organization;
• profit distribution procedure;
• the procedure for managing the organization’s activities and the competence of management bodies;
• procedure for reorganization and liquidation;
• other information that is determined by law for commercial organizations of various organizational and legal forms.

The procedure for state registration of commercial organizations defined by the Federal Law of August 8, 2001 “On State Registration of Legal Entities and Individual Entrepreneurs”.

State registration of legal entities and individual entrepreneurs - acts of the authorized federal executive body, carried out by entering into state registers information on the creation, reorganization and liquidation of legal entities, acquisition by individuals of the status of individual entrepreneur, termination by individuals of activities as individual entrepreneurs, other information about legal entities and individual entrepreneurs in accordance with the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs”.

A commercial organization is considered created from the date of making an entry in the unified state register of legal entities. The body carrying out state registration is the Federal Tax Service.

Procedure and methods of reorganization of commercial organizations. Reorganization is a method of terminating a legal entity, in which its rights and obligations are transferred to other legal entities in the manner of universal succession. At the same time, the activities of the legal entity that has undergone reorganization are continued by other persons. In other words, during reorganization, a liquidated legal entity has a legal successor - a new legal entity.

Reorganization of a commercial organization can be carried out in the following forms: merger, accession, division, separation and transformation

The decision to reorganize a legal entity is made by its founders (participants) at a general meeting, or by a body of the legal entity authorized to do so by the constituent documents.

The specifics of the reorganization of certain types of commercial organizations are determined by special federal laws.

In cases established by law, the reorganization of a commercial organization in the form of its division or separation is carried out by decision of an authorized state body or by a court decision. So, in accordance with Art. 38 of the Law “On Protection of Competition” 10 “in the case of systematic implementation of monopolistic activities by a commercial organization occupying a dominant position, the court, at the claim of the antimonopoly authority (in relation to the credit organization at the claim of the antimonopoly authority in agreement with the Central Bank of the Russian Federation), has the right to decide on the forced division of such organizations or a decision to separate one or more organizations from their composition. Organizations created as a result of forced division cannot be part of the same group of persons.

A court decision on the forced division of a commercial organization or the separation of one or more commercial organizations from a commercial organization is made for the purpose of developing competition if the following conditions are met in aggregate:

1. there is a possibility of separating the structural divisions of a commercial organization;
2. there is no technologically determined relationship between the structural divisions of a commercial organization (in particular, thirty or less percent of the total volume of products produced by a structural division, work performed, services provided is consumed by other structural divisions of this commercial organization);
3. there is the possibility of independent activity in the relevant product market for legal entities created as a result of the reorganization.

A court decision on the forced division of a commercial organization or the separation of one or more commercial organizations from a commercial organization is subject to execution by the owner or an authorized body, taking into account the requirements provided for by the said decision, and within the period determined by the said decision and cannot be less than six months . 11

The transfer deed and separation balance sheet drawn up during the reorganization must contain provisions on the succession of all obligations of the reorganized legal entity in relation to all its creditors and debtors, including obligations disputed by the parties.

The transfer act and separation balance sheet are approved by the founders (participants) of the organization or the body that made the decision on the reorganization, and are submitted together with the constituent documents for state registration of newly emerged organizations or amendments to the constituent documents of existing commercial organizations.

A legal entity is considered reorganized, with the exception of cases of reorganization in the form of merger, from the moment of state registration of newly emerged legal entities.

When a legal entity is reorganized in the form of the merger of another legal entity with it, the first of them is considered reorganized from the moment an entry on the termination of the activities of the merged legal entity is made in the unified state register of legal entities.

When reorganizing a commercial organization, the interests of its creditors are affected. Therefore, the founders (participants) of a commercial organization or the body that made the decision on reorganization are obliged to notify in writing the creditors of the reorganized legal entity.

If the separation balance sheet does not make it possible to determine the legal successor of the reorganized legal entity, the newly emerged legal entities bear joint liability for the obligations of the reorganized legal entity to its creditors.

Commercial organizations can be created by incorporation (re-creation) or by reorganization from existing legal entities.

State registration can be carried out in different ways.

Regulatory attendance procedure for registration. Current legislation does not allow refusal to register a legal entity on the grounds of the inexpediency of its creation (clause 1 of Article 51 of the Civil Code). This procedure applies in most registration cases. This means that the registration of a legal entity does not require the consent of third parties (including government agencies). During registration, the constituent documents of a legal entity are only checked for compliance with the requirements of the current legislation of the Russian Federation. Other registration procedures are exceptions to this basic rule.

2. The administrative registration procedure is applied only to the creation of unitary enterprises in connection with the need to allocate them with state or municipal property.

3. The permit registration procedure is applied when creating credit organizations, which is possible after the decision of the Central Bank of the Russian Federation on the possibility of issuing a license to carry out banking operations. In a number of cases, the creation of commercial organizations (if the book value of the founders’ assets and annual revenue is significant) is permitted with the permission of the Federal Antimonopoly Service * (11).

4. The notification procedure for registration applies only to individual registration procedures:

entering into the charter of a business company information about the opening of branches and representative offices * (12);

notification of the beginning of the liquidation procedure, the formation of a liquidation commission and the preparation of an interim liquidation balance sheet * (13).

State registration of commercial organizations (as well as other legal entities) is carried out by inspectors of the Federal Tax Service within five working days.

To register a legal entity, the following documents are submitted:

1) an application for state registration signed by the applicant, which confirms that the submitted constituent documents comply with the requirements established by the legislation of the Russian Federation; reliable; the procedure for creating a legal entity of this organizational and legal form has been followed (the required approvals have been received, the authorized capital has been paid, etc.). Applications are drawn up according to standardized forms approved by Decree of the Government of the Russian Federation of June 19, 2002 N 439;

2) a decision on the creation of a legal entity in the form of a protocol, agreement or other document;

3) constituent documents of a legal entity;

4) an extract from the register of foreign legal entities of the relevant country of origin or other proof of equal legal force of the legal status of the foreign legal entity - founder;

5) document confirming payment of state duty. According to Art. 333.33 of the Tax Code of the Russian Federation, a state fee of 2,000 rubles is charged for registration actions.

When submitting documents for state registration, the applicant can only be an individual (founder, general director of the founding legal entity), whose signature is certified by a notary. The applicant is responsible for the accuracy of the information contained in the documents submitted for registration.

More on the topic § 5. The procedure for the creation and state registration of commercial organizations:

1. State registration authorities and registration procedure
2. § 2. Creation, reorganization and liquidation of commercial organizations
3. Chapter III. PROCEDURE FOR STATE REGISTRATION OF RIGHTS TO REAL PROPERTY AND TRANSACTIONS WITH IT
4. CHAPTER 1 The procedure for registering media in the Department of Registration and Licensing Work