Entrepreneurial activity is an interconnected system of legal and extra-legal instruments that enable citizens and legal entities to carry out activities at their own peril and risk, the main purpose of which is to make a profit, and the main content is the production, exchange or redistribution of basic resources.
Legal regulation entrepreneurial activity has its own specific features, the main of which is that there is an intersection of both private and public-state interests and funds. At the same time, it is worth emphasizing that in relation to private interests, the contract is most often used as the main instrument of regulation, and in relation to public and state interests, public law means.
It should be noted that the legal regulation of entrepreneurship and the civil law contract are inextricably linked with each other. From the point of view of private law, the contract is the main instrument of interaction between individuals. However, in parallel with this, the treaty is the most important institution through which the authorities state power carry out legal regulation of entrepreneurial activity. After all, almost every agreement, both between individuals and between organizations, is built in accordance with one or another "model agreement" approved by the federal, regional or local authorities. In this case, the state, as it were, authorizes certain business relations.
In addition to contracts, which are still more within the jurisdiction of private law, business relations in a number of areas imply the use of means related to the so-called. An example of this can be the fact that any can be concluded only if this is the consent of the general meeting of members of this society. In this case, the state assumes not only the responsibility to create standard contracts, but also the controlling functions of supervising the correctness of a particular procedure.
Thus, the legal regulation of entrepreneurship implies close interaction between the private and public spheres. On the one hand, it is, first of all, the basis for interaction between citizens, as well as between citizens and organizations and institutions regarding the production and exchange of material goods, and on the other hand, the main regulator of this sphere is the legal norms created or sanctioned by the state.
As for the content and structure of the legal regulation of entrepreneurial activity, it is worth highlighting three main components.
First, it concerns relations directly related to the legal registration of entrepreneurship. These relationships are entirely based on carrying out at your own risk and activity, taking on all the risks and responsibilities for its proper management and execution.
Secondly, the legal regulation of entrepreneurial activity covers relations directly related to entrepreneurship itself. Here, as already mentioned above, there is a synthesis of private and public state regulation. At the same time, the state not only controls the correctness and legality of the implementation of certain transactions, but also with the help of taxes, interest rates and other instruments, it itself has a direct impact on the development of business in the country.
Thirdly, an important component of any entrepreneurial activity is the consumer, therefore, legal regulation must necessarily cover this group of subjects. Here, one can also single out both the direct interaction between the entrepreneur and the consumer, as well as the intervention of the state as the most important regulatory body in the event of legal disputes.
In the system of Russian law, there is no branch specifically designed to regulate entrepreneurial activity and the social relations that develop in connection with its implementation. The function of such regulation is performed by the norms of various branches of law: constitutional, civil, administrative, labor, financial, etc. The totality of such norms related to the regulation of entrepreneurship is often combined under the general name "commercial law".
Thus, business law – this is a set of norms of various branches of Russian law that regulate social relations in the field of entrepreneurial activity.
Of particular importance in such regulation are the constitutional guarantees of entrepreneurship. According to Art. 34 of the Constitution of the Russian Federation, everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law.
The main role in the regulation of entrepreneurship belongs to the norms civil and administrative law.
Civil law determines the legal status of individual entrepreneurs and legal entities in property circulation, regulates property relations and contractual relations. These relationships are sometimes also called horizontal, i.e. relations based on the legal equality of the parties.
Rules of administrative law establish the order state registration business entities, the procedure for licensing certain types of business activities, etc. These relationships are vertical, i.e. here the dominant principle is the principle of power and subordination.
Civil law is the basis of private law regulation of entrepreneurial activity, and administrative law is the basis of public law.
Private legal regulation of entrepreneurial activity
The leading role in the mechanism of legal regulation of entrepreneurship belongs to the norms private law, and first of all civil. It is quite obvious that entrepreneurial activity by its nature does not tolerate imperative, administrative-command methods of influence. Managed by similar methods, production activity ceases to be free, enterprising, and the economy, losing the mechanism of self-regulation, turns into a planned one. Therefore, the dispositive method used by civil law, as well as possible, corresponds to the very nature of entrepreneurial activity.
The main areas of civil law regulation in this area are:
Definition of organizational and legal forms of entrepreneurial activity
Regulation of the procedure for the creation and termination of legal entities, the establishment of bankruptcy procedures
Regulation of internal relations in commercial organizations
Regulation and protection of property relations and relations derived from them (property law)
Regulation and protection of contractual relations entered into by entrepreneurs in the course of entrepreneurial activities (contract law)
Establishment of the grounds, forms and amount of property liability of entrepreneurs for civil offenses committed by them in the course of entrepreneurial activity.
The most important civil law norms governing entrepreneurial activity are concentrated in Civil Code of the Russian Federation- the basic law, which has priority over all other normative acts containing civil law norms. These acts include: federal laws, decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation and regulatory legal acts of executive authorities of the federal level (ministries and departments). Since civil legislation is under the exclusive jurisdiction of the Russian Federation, subjects of the Russian Federation and municipalities cannot adopt acts containing civil law norms.
Along with regulatory legal acts, sources of civil law are business practices, i.e. Rules of conduct that have developed and are widely used in any area of business activity and are not provided for by law, regardless of whether they are recorded in any document (Article 5 of the Civil Code of the Russian Federation). Basically, business customs are used in such areas of business as banking and insurance, as well as shipping.
Public law regulation of entrepreneurial activity.
The task of public law is to prevent possible harmful consequences that may occur in conditions of absolute economic freedom: abuse in the commodity market, in the provision of works and services, restriction of freedom of competition, periodic economic crises, etc.
The main areas of public law regulation in the field of entrepreneurship are:
Establishment of the procedure for state registration of business entities
Regulation of relations related to the licensing of certain types of activities
Antitrust regulation
Regulation of relations on standardization, ensuring the uniformity of measurements and certification
Establishment of sanctions for offenses in the field of entrepreneurial activity.
A) Licensing
Some types of activities, the list of which is determined by law, business entities can be engaged only on the basis of a license. License- this is a special permit to carry out a specific type of activity subject to mandatory compliance with licensing requirements and conditions, issued by a specially authorized body government controlled(licensing authority) to a legal entity or individual entrepreneur. Licensing is managerial activity and therefore governed by administrative law.
The main regulatory act in the field of licensing is the Federal Law "On Licensing Certain Types of Activities" dated 08.08.2001.
The meaning of the license lies in the fact that the licensing authorities get the opportunity to monitor compliance by licensees with the requirements and conditions established by law for the implementation of licensed activities. In case of detection of violations of license requirements and conditions, the licensing body has the right to suspend the license. At the same time, a period of up to six months is established for the licensee to eliminate the violations committed. If the violations are not eliminated within this period, the licensing authority is obliged to apply to the court with an application to cancel the license.
Formation business law allows resolving all issues of entrepreneurship from the point of view of giving priority to the status of entrepreneurship and assessing the state “infrastructure” of entrepreneurial activity as a whole from the standpoint of how it ensures the proper development of entrepreneurship. Consequently, the "dualism" of the market economy, expressed in the existence of public and private entrepreneurship, provided, as already noted, their integration into a single whole and, moreover, the need for state regulation in a single branch of law - business law. In the course of business law, materials are submitted that are truly “entrepreneurial” in nature both in terms of the wording of topics, in their content, and in the method of presentation: the legal status of an entrepreneur, state regulation of entrepreneurial activity, legal regulation of the commodity market, the securities market, competition and antimonopoly regulation , privatization, bankruptcy (insolvency), innovation activity, investment activity.
Thus, business law is a complex integrated branch of law, a set of legal norms related by subject unity, regulating relations in the sphere of organization, implementation of entrepreneurial activity and its management based on the use of the dialectical interaction of private law and public law principles.
Entrepreneurial activity, or, one and the same, entrepreneurship, is an independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law.
The concept of entrepreneurship and entrepreneurial activity
The origins of the science of economic and entrepreneurial law originate in the works of the most prominent Russian legal scholars of the 18th - early 19th centuries, who connected their lives and work with Moscow University.
The ideas of the science of business law were formed during this period on the basis of scientific views and ideas about commercial, commercial and industrial, economic law, with the recognition of the influence of Roman civil law, but with isolation from it.
Thus, economic activity is one of the types of economic activity, productive activity, which includes the organization, management and direct implementation of economic activity in accordance with the rules established by state authorities and management and the economic entities themselves. Economic activity includes the action of producing, manufacturing material assets, promoting them from producer to consumer, performing various types of work and providing services, creating necessary conditions for the functioning of the organization.
A prominent Russian scientist Alexander Sergeevich Posnikov made a significant contribution to the formation of the ideas of entrepreneurial law. After graduating from Moscow University, in 1871 he defended his master's thesis "The Beginnings of Land Credit", and in 1878 - his doctoral thesis on the topic "Communal land tenure". A.S. Posnikov believed that communal land tenure does not hinder, but, on the contrary, promotes the development of capitalist relations and entrepreneurship.
Entrepreneurial activity- type of economic, economic activity. It is associated with entrepreneurial risk, new approaches to management, innovation, the use of scientific achievements, dynamic uncertainty and is always aimed at systematic profit. Entrepreneurial activity is a narrower concept and means a variety of economic activity.
Entrepreneurship is a system of management in which the main subject is the entrepreneur as driving force and mediator. He rationally combines material and human resources, organizes the process of reproduction and manages it on the basis of entrepreneurial risk, economic responsibility for the final entrepreneurial result - making a profit.
It should be borne in mind that the problems of legal regulation of entrepreneurship in Russian Empire were studied by scientists in the areas of civil, commercial, financial, land legislation, which testified to the complex nature of science and the branch of business law.
Entrepreneurship as a socio-economic phenomenon has a multifunctional character and is interpreted ambiguously in various fields of knowledge. In jurisprudence, the functions of entrepreneurial activity include: 1) accepting and bearing risk; 2) new combinations production factors, including entrepreneurial ability, talent and innovation; 3) distribution of resources in promising areas; 4) management as a decision-making mechanism for the future; 5) their organization and implementation.
The signs of entrepreneurial activity include: 1) independence of entrepreneurial activity; 2) carrying it out at your own risk, i.e. risky nature; 3) focus on systematic profit. It should be emphasized, although this is not directly indicated in the given legal definition of entrepreneurship, but the very word “activity” indicates that it should be constant, systematic, in any case, not as a single act, but carried out more or less. a certain period of time.
Business law and its place in the Russian legal system
At present, the delimitation of branches of law, the justification of their independence occupies the minds of many scientists and this problem is more of an internal legal issue, important for legal scientists themselves. For society as a whole, the main ones are the completeness, comprehensiveness and effectiveness of the legal regulation of social relations.
Nevertheless, we still note that the branches of the legal system, distinguished by the subject and method of legal regulation, which constitute the main element of the Russian legal system, are divided into three main groups:
1) profiling, basic industries covering the main legal regimes; of these, it is necessary to single out and place above the entire system of branches the really basic branch of the entire system - constitutional law; then three material branches - civil, administrative, criminal law; the three procedural branches corresponding to them - civil procedural, administrative procedural, criminal procedural law;
2) special sectors where legal regimes are modified, adapted to special areas of society: labor law, land law, family law, penitentiary law;
3) complex branches, which are characterized by the combination of heterogeneous institutions of profiling and special branches: commercial law, the law of prosecutorial supervision, maritime law.
The complex integrated nature of business law involves the identification and analysis of the main components of the subject unity of this industry, namely business relations. Entrepreneurial relations have a complex content and structure.
The first group of such relations is the relations connected with the organization of entrepreneurial activity. They are based on the constitutional right of citizens to engage in entrepreneurial activities (Article 34 of the Constitution of the Russian Federation); its development in Art. 18 of the Civil Code of the Russian Federation, which defines the content of the legal capacity of citizens, including: the right to engage in entrepreneurial and any other activities not prohibited by law, create legal entities independently or jointly with other citizens and legal entities, make any transactions that do not contradict the law and participate in obligations; in Art. 23 of the Civil Code of the Russian Federation, which regulates the entrepreneurial activity of citizens and establishes the state registration of citizens as individual entrepreneurs; in Art. 51 of the Civil Code of the Russian Federation, which establishes the state registration of legal entities, regulates the licensing of certain types of business activities, as well as a whole range of organizational and property relations related to the creation of legal entities - business entities, etc. All these relations are closely interconnected by subject unity - they are entrepreneurial. But in terms of their legal regime, the method of legal regulation, if we proceed from traditional views in legal science, these are diversified relations.
Such realities of today economic life, as the registration of legal entities and individual entrepreneurs or obtaining a license to engage in many types of entrepreneurial activities, not to mention the taxation of it, which takes place mainly, if not exclusively in administrative and legal forms, convinces that relations in the organization of entrepreneurial activities have not gone away and should be regulated in a single complex by the ratios for its implementation in order to necessary dock, both those and others. Otherwise, the lawlessness that reigns now in the field of the economy will never end.
The second group includes relations related to the entrepreneurial activity itself, i.e. directly entrepreneurial activity, that activity where one of the main goals of entrepreneurship is achieved - making a profit. We are talking about the use of property, the sale of goods, the performance of work, the provision of services. Here the dominant position is occupied by private law, civil law regulation of business relations. The relationship between entrepreneurs as commodity producers, legally equal subjects of commodity-money relations cannot be regulated otherwise than by civil law (private law) methods in a market economy. Although here, too, one can observe a number of cases of state (public law) influence on private law relations - for example, state regulation of prices for products and services of natural monopolies and a number of others.
Let us pay attention to one more provision, which is contained in the current legislation, but migrated to it from the previous one. Unfortunately, this provision in the civilistic doctrine has passed almost unnoticed, although far-reaching conclusions can be drawn from it.
The point is that in cases provided by law, the application of civil law is also allowed to property relations based on the imperious subordination of one side to the other. This provision confirms the penetration of private law principles into public law relations.
The influence of administrative acts is noticeable in the second part of the Civil Code, including in the construction of obligations for the supply of goods for state needs, and public contracts, the number of which exceeds a dozen.
Civil law regulates only a part, albeit a significant one, of relations arising in connection with entrepreneurial activity. No less significant part of them is regulated by public law methods. These are relations on the state regulation of entrepreneurship. This third group of relations, which is also the subject of business law, is closely related to the first and second. But if in the first group, relatively speaking, the initiative side of the organization of entrepreneurial activity is mainly a citizen-entrepreneur, other business entities, then here the state, on behalf of society, establishes the rules of entrepreneurship and the consequences of their violation, protecting public (social, financial, budgetary, environmental, energy, etc.) and private interests.
It seems necessary to mention such an outstanding lawyer, psychologist and public figure of his time as Konstantin Dmitrievich Kavelin. The extraordinary creative power and independence of thinking is visible in the work of K.D. Kavelin, devoted to the central problem of the very concept and limits of civil law. The prevailing theories divided all law, depending on the protected public or private interest, into jus publicum and jus privatum. K.D. Kavelin criticized such a basis for the division of law. In his work “What is civil law and where are its limits? One of the modern legal issues”(St. Petersburg, 1884) he states: “After carefully reviewing all parts of civil law, one cannot find a single one that deals exclusively with one private, private; in each, there is bound to be a lot of things that, in terms of their significance, influence, role, are of public interest, more or less related to society, the state. There is no way to show where the private ends in them and the public begins. Precisely because the private, the private merges in this sense with the public, the public, it is impossible to base the difference between civil and public law on their difference. According to K.D. Kavelin, any other criterion should also be untenable, if we proceed from the traditional content and scope of civil law, devoid of any internal basis. Thus, K.D. Kavelin in Russia criticized the delimitation of the areas of law into private and public. On these initial principles, the works of K.D. Kavelin “Rights and obligations on property and obligations as applied to Russian legislation. The experience of a systematic review "(St. Petersburg, 1879) and" Essays on property relations arising from family and inheritance law "(St. Petersburg, 1884).
Ideas K.D. Kavelin require careful study and reflection. They are of particular interest for the legal regulation of entrepreneurial activity as a sphere of interaction between private law and public law means.
The fourth group of business relations is intra-economic, intra-corporate relations that arise in the process of entrepreneurial activity of large and complex business structures. Relationships between relatively separate structural units are regulated by local regulations, which make up a significant part of business legislation.
In connection with the establishment of a market structure in the Russian economy, the emergence of a significant number of corporate-type commercial organizations in the theory of law, the question of attributing corporate relations to the subject of legal regulation of civil or business law is debatable. In our opinion, corporate relations are the subject of business law, since they are characterized by a combination of private law and public law methods of regulation.
Legal regulation of entrepreneurial activity - the sphere of interaction between private law and public law means
For business law, the main question of principle is whether there are any features that determine the specifics of business law, the legal regulation of business activities in terms of dividing law into private and public.
In essence, it can be argued that many private legal means are being transformed into private public legal means and are widely used in the regulation of entrepreneurial activity.
Speaking about the prospects for the legal regulation of entrepreneurial activity in Russian Federation, Anatoly Grigorievich Bykov comes to the conclusion that everything, apparently, is moving towards the recognition that the ratio of civil and commercial law in modern Russian conditions can no longer be taken as a model for the formation of a dualistic system of private law with the separation of civil and commercial law in its composition. commercial law. It is characteristic of a dualistic system that both civil and commercial law are private law. And that's it .
Recommended reading
Bykov A.G. On the content of the course of entrepreneurial law and the principles of its construction // Entrepreneurial law in a market economy / Ed. E.P. Gubina, P.G. Lakhno. M., 2004.
abstract
Legal regulation of entrepreneurial activity
Introduction
1. Legal regulation of entrepreneurial activity in the Russian Federation
1.1 The concept and signs of entrepreneurial activity
1.2 Legal regulation of entrepreneurial activity
1.3 Concept, subject, method, system and sources of civil law
2. Business contracts. Main types and features
2.1 Principles and procedure for concluding business contracts
Conclusion
Bibliography
Introduction
Entrepreneurial activity and the social relations that develop in connection with its implementation.
The function of such regulation is performed by the norms of various branches of law: constitutional, international, civil, administrative, labor, financial, environmental, land, etc. The totality of such norms related to the regulation of entrepreneurship is often combined under the general name "business law" ).
Of particular importance in such regulation are the constitutional guarantees of entrepreneurship. According to the Constitution of the Russian Federation (Article 34), everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law. Thus, at the constitutional level, the necessary prerequisite for free enterprise is established - the universal entrepreneurial legal capacity of citizens. In addition, recognizing the right to private property, including land and other Natural resources, The Constitution of the Russian Federation establishes the most important economic guarantee for entrepreneurial activity (Articles 35, 36).
Nevertheless, the main role in the regulation of entrepreneurship belongs to the norms of civil and administrative law. Civil law determines the legal status of individual entrepreneurs and legal entities in property circulation, regulates property relations and contractual relations. The norms of administrative law establish the procedure for state registration of business entities, the procedure for licensing certain types of entrepreneurial activity, etc. At the same time, civil law is the basis of private law regulation of entrepreneurial activity, and administrative law is public law. The leading role in the mechanism of legal regulation of entrepreneurship belongs to the norms of private law, and especially civil law.
This is not surprising, if we recall the features characterizing entrepreneurial activity, organizational and economic independence, initiative, implementation at one's own risk, focus on making a profit.
Relevance of the topic - change economic relations in Russia, the emergence of diverse forms of ownership, the development of entrepreneurial activity. All this influenced the formation of legislation, including the system of state regulation in the field of production, work, services, and their quality. Currently, the process of reforming the system of legislation in the field of legal regulation is being actively carried out.
The purpose of the work is to determine the main directions for the development of the foundations of legal regulation in the field of production and sale of products and related processes.
In accordance with the goal, the following tasks were solved:
The concept and signs of entrepreneurial activity are considered;
The legal regulation of entrepreneurial activity in the Russian Federation is considered;
The concept of a business contract is considered;
The main types and features of business contracts are indicated.
The principles and procedure for concluding business contracts are considered.
1. Legal regulation of entrepreneurial activity in the Russian Federation
1.1 P concept and signs of entrepreneurial activity
In the conditions of the free market of goods, works and services being formed in Russia, the sphere of entrepreneurial activity is expanding. Entrepreneurial activity is understood as an independent activity carried out at one's own risk, aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services by citizens and legal entities registered as entrepreneurs in the prescribed manner.
This definition reflects six features of entrepreneurial activity:
Her independent character;
Implementation at your own risk, i.e. under the sole responsibility of entrepreneurs;
The purpose of the activity is to make a profit;
Sources of profit - use of property, sale of goods, performance of work or provision of services;
The systematic nature of making a profit;
The fact of state registration of business participants.
The absence of any of the first five signs means that the activity is not entrepreneurial. To qualify an activity as entrepreneurial, a sixth (formal) feature is also needed. However, in some cases, the activity can be recognized as entrepreneurial even in the absence of formal registration of the entrepreneur. Citizen engaged in entrepreneurial activity without registration as individual entrepreneur, shall not have the right to refer, in relation to the transactions concluded by him, to the fact that he is not an entrepreneur.
Knowledge of all legal, i.e., based on the formula of the law, signs of entrepreneurial activity is also necessary in the presence of state registration of an entrepreneur, since it can be carried out in violation of the law. In some cases, persons who are unable to independently carry out such activities (incompetent), bear independent property liability or do not have the goal of systematically making a profit are registered as entrepreneurs. In such cases, the registration may be declared invalid by the court, and if the violations of the law committed during the creation of a legal entity are irreparable, it may be liquidated.
1.2 Legal regulation of entrepreneurial activity
It is necessary to distinguish between entrepreneurial activity and the activity of entrepreneurs. Entrepreneurs not only conclude contracts, are responsible for their violation, but also attract employees pay taxes, customs duties, bear administrative and even criminal responsibility for the commission of unlawful acts. The activities of entrepreneurs cannot be either a privilege or a burden of any one branch of law, as well as some kind of complex “business code”. It is regulated and protected by the norms of all branches of law - both private (civil, labor, etc.) and public (administrative, financial, etc.).
Diversified norms on the activities of entrepreneurs provide, for example, federal laws of June 14, 1995 No. 88-F3 "On State Support for Small Business in the Russian Federation" and of December 29, 1995 No. 222-F3 "On a Simplified System of Taxation, Accounting and reporting for small businesses”, as well as Decree of the President of the Russian Federation of April 4, 1996 No. 491 “On priority measures of state support for small businesses in the Russian Federation”. In particular, they provide:
The procedure for issuing a patent for the right to apply a simplified system of taxation, accounting and reporting of individual entrepreneurs and legal entities - small businesses;
Benefits for granting loans to them;
However, this does not mean that all branches of law equally regulate the entrepreneurial activity itself. Since the content of entrepreneurial activity primarily and mainly consists of property relations of legally equal subjects, that is, what is regulated by civil law, we can talk about civil law regulation of entrepreneurial activity on the basis of the civil code and other civil legislation. This, of course, requires the assimilation of the basic provisions of civil law and taking into account, on this basis, the features of civil law regulation of business relations as a type of civil law relations.
Entrepreneurial law reflects the main aspects of civil law regulation of both entrepreneurial activity and the activities of entrepreneurs.
1.3 Concept, subject, method, system and sources of civil law
Civil law is a set of legal norms regulating property and related personal non-property relations based on equality, autonomy of will and property independence of their participants. Civil law as the leading branch of private law has its own subject, method, system and sources.
The subject of civil law is property and personal non-property relations. Property relations are property relations and other property relations, relations associated with exclusive rights to the results of mental labor (intellectual property), as well as relations arising within the framework of contractual and other obligations. Relations of a personal nature, such as, for example, relations of authorship to works of science, literature, art, inventions and other ideal results of intellectual activity, are recognized as related to property.
The complex of entrepreneurial property relations is an important element of the subject of civil law. The Civil Code, other laws and other legal acts containing civil law norms not only give a legal definition of entrepreneurial activity, but also regulate the features of the sources of its civil law regulation, its subjects and their participation in obligations. An important type of business activity regulated by civil law is investment activity, i.e. investment ( Money, target bank deposits, shares, securities, technologies, licenses, etc.) and a set of practical actions for their implementation.
Civil law does not regulate, but nevertheless protects the inalienable rights and freedoms of a person and other non-material benefits not directly related to property relations, such as, for example, life and health, personal dignity, personal integrity, honor and good name, business reputation, personal and family secrets. Not being purely entrepreneurial, these rights and freedoms play an important role in the life and activities of entrepreneurs.
Civil law is not the only branch of law that regulates property relations. Some of these relations are regulated by other branches of private or public law. Thus, property relations on the payment of wages are regulated by labor law, on the payment of taxes and duties - financial law, and on the payment of administrative fines - administrative law. As a result, in order to distinguish civil law as a regulator of entrepreneurial activity from other branches of law that also regulate individual property relations of entrepreneurs, it is necessary to take into account a set of special techniques and means, i.e., the specifics of the method of influence of civil law on the relations it regulates.
The civil law method is characterized by the legal equality of participants in regulated relations, autonomy, that is, the independence of the will of each of them, and their property independence. None of the participants in civil law relations is in a state of power and subordination, order and execution. As a result, by direct order of paragraph 3 of Art. 2 of the Civil Code, to property relations based on administrative or other power subordination of one party to the other, including tax and other financial and administrative relations, civil law, according to general rule, does not apply.
The method of civil law is sometimes called the method of coordination, entitlement, permission, horizontal connections. The properties of the civil law method of regulating property relations are most adequate to the conditions of a free market, a competitive environment and the needs of entrepreneurs. They are based on such basic principles of civil law as the inviolability of property, freedom of contract, the inadmissibility of arbitrary interference in private affairs, the unhindered exercise of civil rights, ensuring the restoration of violated rights and their judicial protection.
An important feature of the civil law method is the optionality of many civil law norms. Dispositive norms contain a certain general rule (general model) of the participants' behavior, allowing the possibility for them to form a different model if this follows from another law and (or) agreement of the parties themselves. For example, by virtue of paragraph 1 of Art. 223 of the Civil Code, the right of ownership of the acquirer of the thing under the contract arises from the moment of its transfer, unless otherwise provided by law or the contract. In the same way, the risk of accidental loss or accidental damage to property, according to the general rule of dispositive art. 211 of the Civil Code, is borne by its owner, unless otherwise provided by law or contract.
Using these articles of the Civil Code, an entrepreneur - the seller of a thing, wanting to get rid of the risk of its accidental destruction as soon as possible and knowing that the buyer is very interested in acquiring it, can persuade the latter to provide in the contract that the ownership will pass to him not from the moment the thing is transferred, but, say, from the moment of signing the treaty or its entry into force. The civil law method allows entrepreneurs - market participants to freely compete with each other, to achieve the optimal balance of mutual interests, to the greatest extent satisfying the needs of consumers in the necessary goods, works and services.
The system of civil law is formed by civil law norms and their blocks, including civil law institutions and superinstitutions, the external expression of which can be the structural elements of the most important act of civil legislation, consisting of civil law prescriptions, combined into articles and collections of articles: paragraphs, chapters, subsections, sections and parts.
The sources of civil law are the Constitution of the Russian Federation, civil legislation and other acts containing civil law norms; business practices; generally recognized principles and norms of international law and international treaties of the Russian Federation. The Constitution of the Russian Federation, which has the highest legal force, direct effect and applied throughout the territory of the Russian Federation, is the foundation of civil legislation. Moreover, since the courts of the Russian Federation, when considering civil cases, increasingly refer to specific articles of the Constitution, the Plenum Supreme Court On October 31, 1995, the Russian Federation adopted Decree No. 8 “On Certain Issues of the Application by the Courts of the Constitution of the Russian Federation in the Administration of Justice”, which clarifies the procedure for using articles of the Constitution of the Russian Federation in judicial practice.
According to Art. 71 p. "o" of the Constitution of the Russian Federation, civil legislation is under the jurisdiction of the Russian Federation and consists of the Civil Code and other federal laws adopted in accordance with it, whose norms must comply with the Civil Code. Other sources of civil law are by-laws: decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation, acts of federal executive bodies (orders, instructions, rules, etc.). The norms of civil law contained in laws other than the Civil Code must comply with the Civil Code. In turn, similar norms of by-laws should not contradict both the Civil Code and other laws, and acts of higher executive authorities.
Along with national (internal) laws and other legal acts, the sources of civil law are generally recognized principles and norms of international law, such as, for example, freedom of trade, navigation, etc., as well as international treaties of the Russian Federation, which are integral part Russian legal system. International treaties apply directly to relations regulated by civil law, except when their application requires the issuance of an internal Russian act. If an international treaty of the Russian Federation establishes rules other than those stipulated by civil legislation, the rules of the international treaty shall apply.
The considered two types of sources regulate any civil legal relations. As for the third type - business customs - it is used only in the field of entrepreneurial activity. The custom of business turnover is a rule of conduct that has developed and is widely used in any area of business activity, not provided for by law, regardless of whether it is recorded in any document. Examples of such customs are the norms of time for loading and unloading ships, which are often used in seaports, taking into account the subtleties associated with tonnage, type of cargo and vessel, weather, etc., conditions of maritime transportation. Only those business practices that are inconsistent with the provisions of the law or the contract that are binding on entrepreneurs are not subject to application.
2. Business contracts. Main types and features
The contract is universal legal form organization and regulation of economic relations. It allows you to most fully determine the mutual rights, obligations and responsibilities of participants in economic legal relations. The contract is the main way to implement such principles of economic turnover as compensation and equivalence.
In general, the functions of the contract in the economic sphere (commercial contract) are as follows: the contract acts as a means of expressing the common will of the producer and consumer, which determines the correct pace of supply and demand and serves as a guarantee of product sales. The contract is the most convenient legal means that represents the relations that develop in the process of economic activity based on the principle of mutual interest of the parties to these relations, the contract gives these relations the form of obligations, determines the procedure and methods for their implementation. The agreement provides for ways to protect the subjective rights, legitimate interests of the participants in these relations in case of non-fulfillment or improper fulfillment of obligations.
The contract in the field of economic activity by right nature is a kind of civil law contract, general concept which is enshrined in Art. 390 GK. In accordance with it, the agreement of two or more persons on the establishment, change or termination of civil rights and obligations is recognized as an agreement. Economic activity as a sphere of application of a civil law contract determines its features. One of them is the subject composition of the economic contract. The parties or one of them are commercial organizations in various organizational and legal forms, non-profit organizations engaged in entrepreneurial activities within the rights granted to them by law and founding documents, individual entrepreneurs.
Based on the foregoing, we can conclude that the same contract can be commercial (if both parties to the contract are entrepreneurs), civil law (if both parties to the contract are not entrepreneurs), entrepreneurial, for one party - an entrepreneur, and civil law (domestic) for the other party who is not an entrepreneur. In the latter case, the rules of economic legislation apply to the entrepreneur, and the rules of civil law apply to the non-entrepreneur.
Thus, based on the subject composition, commercial contracts are contracts, both parties to which are entrepreneurs (supply contract, contracting contract, contract for the supply of goods for state needs), as well as contracts, one of the parties to which, by virtue of a direct indication of an act of legislation, can only be an entrepreneur ( a retail sale and purchase agreement, an energy supply agreement, a rental agreement, a household contract, an agreement on trust management of property, a loan agreement, etc.).
The second sign of a commercial contract is the purpose for which it is concluded. Since the purpose of economic activity is the systematic receipt of profit, the contract in this area is concluded with the same purpose. The indicated sign of commercial contracts implies the reimbursable nature of the relations mediated by them for the transfer of material and intangible benefits. Any contract in accordance with the Civil Code is supposed to be paid.
If an entrepreneur acts as a party to a donation agreement, which by its legal nature is only gratuitous, such an agreement is not entrepreneurial, since, acting within the framework of the obligation mediated by it, the entrepreneur does not seek to make a profit. Based on the listed features and taking into account the definition of a civil contract, an entrepreneurial contract can be defined as an agreement between parties that are entrepreneurs, or with their participation, on the establishment, change or termination of rights and obligations in the field of entrepreneurial activity. An entrepreneurial contract, therefore, is the same civil law contract, but it has obvious features, due to the sphere of social relations, of which it acts as a regulator. It should be noted that the term "contract" has several meanings in civil law. They also designate a civil obligation relationship that arose on the basis of an agreement, a legal fact as the basis for the emergence of a legal relationship, and a document that sets out the content of an agreement concluded in writing.
The system of commercial contracts is constantly evolving. This dynamics is determined by the development of entrepreneurial relations themselves. New types of households are fixed in the legislation (a contract for the sale of an enterprise, a contract for the assignment of a claim (a factoring contract)), and previously fixed contracts (a contract for the provision of paid services) become independent types. To identify and use in entrepreneurial activity one or another type of business contract, its most optimal conditions, is carried out on the basis of various criteria, depending on the goals pursued, the classification of business contracts.
Based on the subject of commercial contracts, they can be divided into three groups:
Contracts aimed at the transfer of property;
Contracts aimed at the performance of work;
Contracts for the provision of services.
Within the framework of these groups, separate types of contracts are distinguished, corresponding to the names of the chapters of the Civil Code. So, within the framework of contracts aimed at the transfer of property, the following types are distinguished:
Contract of sale;
Lease contract;
Barter agreement, etc.
Within the framework of contracts aimed at the performance of work, the following types are distinguished:
Work agreement;
Contract for the implementation of research, experimental - and design and technological work.
And, finally, the group of contracts aimed at the performance of services is represented by such types as:
Contract for the provision of services;
contract of carriage;
Transport expedition agreement;
storage agreement;
contract of assignment;
Commission agreement, etc.
Types of contracts, in turn, are divided into types. For example, the types of sale and purchase agreement are:
Retail - purchase and sale;
Supply contract;
Contract for the supply of goods for - state needs,
Energy supply contract;
Sale agreement - real estate, etc.
Since commercial contracts are a kind of civil law contracts, and those, in turn, are a kind of transactions, they are subject to the classification of transactions. Thus, the division of transactions into unilateral and bilateral (multilateral), consensual and real, perpetual and urgent, etc. may equally apply to business contracts.
It should be borne in mind that in relation to contracts, the division into unilateral and bilateral (mutual) is carried out not by the number of participants (since their number cannot be less than two in the contract), but by the nature of the distribution of rights and obligations between the participants. A unilateral contract generates only rights for one side, and only obligations for the other. In mutual agreements, each of the parties acquires rights and at the same time bears obligations in relation to the other party.
Thus, based on the foregoing, it can be argued that the system of business contracts is not permanent, because this is due to the constant development of entrepreneurial relations. At the same time, a business contract is always aimed at making a profit.
2.1 Principles and procedure for concluding business contracts
The conclusion of contracts in the field of economic activity should be carried out taking into account the principles that underlie the conclusion of civil law contracts.
The fundamental principle of concluding a contract, enshrined in the Civil Code as a principle of civil law in general, is freedom of contract. Freedom of contract means that entrepreneurs are free to conclude a contract. This means that entrepreneurs are free to resolve issues with anyone, about something, to what extent to enter into contractual relations. Any coercion to conclude a contract is not allowed, except in cases where the obligation to conclude a contract is provided for by law or a voluntarily assumed obligation.
There are exceptions to this principle, due to the fact that for one of the parties the conclusion of the contract may be mandatory.
The first such exception is a public contract under Art. 396 GK. The analysis of this article allows us to identify a number of signs indicating that the contract is not free, i.e. public, namely:
One of the parties to the contractual relationship must be a commercial organization;
The sole or one of the activities carried out by this organization must be the sale of goods, the performance of works or the provision of services;
Activity commercial organization should be public, i.e. carried out in relation to everyone who applies to the organization ( retail, transportation by public transport, energy supply, communication services, medical, hotel services, etc.);
The subject of the contract must be the property sold by the commercial organization, the work performed or the service provided.
The price of goods, works, services, as well as other terms of the contract are established the same for all, except as otherwise provided by law. In the event of unreasonable evasion from concluding an agreement that meets all of the listed criteria, the consumer has the right to judicially force the commercial organization to conclude an agreement with him, as well as to demand compensation for the losses caused.
The second exception is the conclusion of the main contract provided for the preliminary requirements, which must comply with the preliminary contract established by Art. 399 GK. If the party that concluded the preliminary agreement evades the conclusion of the main agreement, then the other party has the right to demand coercion to conclude the main agreement, on the terms determined by the preliminary agreement, and compensation for losses. Preliminary agreements must be distinguished from agreements encountered in practice (protocols of intent). The latter only reinforce the desire of the parties to enter into contractual relations in the future. Failure to comply with agreements (protocols of intent) does not entail any legal consequences.
The third exception is the conclusion of an agreement with the person who won the auction. If one of the parties evades the conclusion of such an agreement, the other party has the right to apply to the court with a demand for compulsion to conclude an agreement, as well as for compensation for losses caused by evading its conclusion.
The fourth exception is a state contract for the supply of goods for state needs, the conclusion of which is mandatory for enterprises that are monopolists in the sale or production of certain types of goods (works, services).
The second principle of the conclusion of the contract, enshrined in the Civil Code, is the principle of the legality of the contract. Since the contract as a whole is a kind of transaction, then, like any general civil transaction, it is valid if it meets the requirements of the law. The conditions for the validity of general civil transactions include: the disputability of the persons who made it; unity of will and will; observance of the form of the transaction; compliance of the content of the transaction with the requirements of the law. The business contract must also comply with listed requirements. The procedure for concluding commercial contracts, the sequence of stages established by law, performed through certain actions aimed at reaching an agreement between the parties and called methods of concluding a contract, cover the provisions of Chapter 28 of the Civil Code. The following stages of concluding an agreement in the field of commercial activity can be distinguished: the general procedure for concluding an agreement; conclusion of an agreement without fail; conclusion of an agreement by assignment; conclusion of an auction agreement.
The conclusion of a contract is usually preceded by so-called non-contractual contracts. They are established in order to clarify the true intentions of counterparties, their financial capabilities, determine the price of a future contract, taking into account costs, various design, technical, estimate and other documentation, agreed and other aspects necessary for the conclusion and execution of the contract.
As a general rule, a contract is considered concluded when an agreement has been reached between the parties on all essential terms of the contract. The process of reaching agreement goes through two obligatory parties: sending an offer by one party and receiving an acceptance by the other party that sent the offer.
The values of concluding a contract in the field of economic activity are explained by the fact that in the field of activity under consideration, the stage (the direction of the offer) is sometimes preceded by advertising, and a public offer is often used. Advertising and other offers addressed to an indefinite circle of persons are considered as an offer to make offers. A public offer is a complete essential conditions contract, an offer from which the will of the person making the offer is seen to conclude a contract on the conditions specified in the offer by anyone who responds.
In accordance with Art. 408 of the Civil Code, the commission by the person who received the offer (including those who responded to the public offer), actions or the fulfillment of the terms of the contract specified in the offer (shipment of goods, performance of work, provision of services, etc.) is recognized as acceptance, unless otherwise provided legislation or not specified in the offer. At the same time, it is sufficient that the actions are directed towards the partial fulfillment of these conditions, but necessarily within the time period set by the offeror for acceptance.
The rules established by Art. 415 of the Civil Code, are applied when concluding an agreement without fail, that is, when the conclusion of an agreement is mandatory for one of the parties by virtue of the law. The obligated party may either act as the recipient of the offer to conclude the contract, or itself send the other party an offer to conclude it. The party with which the conclusion of the contract is mandatory must, within thirty days from the date of receipt of the offer, consider and send to the other party a notice of acceptance, from the moment of reading which the other party considers the contract concluded, or of acceptance of the offer on other conditions (minutes of disagreement on the draft contract ), or notice of refusal of acceptance.
A party that has received a notice of acceptance of an offer on other terms has the right to either notify the other party of acceptance of the contract, or to refer the disagreements arising from the conclusion of the contract to the court for consideration within thirty days from the date of receipt of such notice, or the expiration of the period for its acceptance receipt, notice of refusal to accept, and also in case of receiving a response to the offer within the prescribed period, the offeror may apply to the court with a demand to compel the conclusion of the contract.
In situations where the obligated party itself sends a draft contract, the other party has the right to send it a notice of acceptance within thirty days, from the moment it is received by the obligated party, the contract will be considered concluded, or a notice of acceptance of the offer on other conditions (minutes of disagreement to the draft contract). If a notice of refusal of acceptance is received, or if a response to the offer is not received within the prescribed period, the contract is considered not concluded, since its conclusion is not binding on the party that received the offer. In case of receipt of the protocol of disagreements to the contract, the obligated party must, within thirty days from the date of its receipt, notify the other party of the acceptance of the agreement in its version, or of the rejection of the protocol of disagreements. In case of rejection of the protocol of disagreements or failure to receive notification of the results of its consideration within the specified period, the party that sent the protocol of disagreements has the right to submit the disagreements that arose during the conclusion of the contract for consideration by the court, which determines the conditions over which the parties have disagreements. If the party that sent the protocol of disagreements does not go to court, the contract is considered not concluded. The above rules on deadlines apply unless other deadlines are established by law or agreed by the parties.
If the obligated party unreasonably evades the conclusion of the contract, it must compensate the other party for the losses caused.
The second features compared to general order the conclusion of a commercial contract has the conclusion of an accession agreement. The accession agreement is an agreement, the terms of which are determined by one of the parties in forms or other standard forms and can be accepted by the other party and only by joining the proposed agreement. The party developing its forms or standard forms is a person carrying out commercial activities in areas related to mass consumption or the performance of similar services. The conclusion of an agreement by joining the offer, or to the agreement as a whole, may be conditioned by the legislative regulation of the relevant agreements, the terms of which are determined by mandatory legal norms and fixed in forms or standard forms (insurance agreement), or by relations with mass consumption (communication services, energy saving, services transport, etc.). The accession agreement may be terminated or amended at the request of the acceding party on special grounds, which boil down to the fact that this party has the right to demand termination or amendment of the agreement if the accession agreement, although not contrary to law, deprives this party of the rights usually granted under the agreement of this type, excludes or limits the liability of the other party for breach of obligations, or contains other conditions that are clearly not applicable to the acceding party, which it, based on its reasonably understood interests, would not accept if it had the opportunity to participate in determining the terms of the contract.
These rules do not apply to entrepreneurs, i.e., the requirement to terminate or amend the contract in the presence of those listed in paragraph 2 of Art. 398 of the Civil Code of the grounds presented by the party joining the contract in connection with the implementation of its economic activities, is not subject to satisfaction if the acceding party (entrepreneur) knew, or should have known, on what conditions the contract is concluded. Thus, the accession agreement, on the one hand, increases the risk of the joining party, which is an entrepreneur, and on the other hand, it simplifies the procedure for concluding business contracts.
A special procedure is the conclusion of contracts through bidding. This method is used, in particular, when selling property in the process of privatization of state property, when fulfilling orders for the supply of goods, performance of work or provision of services for state needs, and in other cases provided for by law. Any contract may be concluded at the auction, unless otherwise follows from its essence. Through the auction, any property, both movable and immovable, as well as property rights, can be sold.
The essence of the contract under consideration is that the contract is concluded with the person who won the auction. The organizer of the auction is the owner of the property, the owner of the property right or a specialized organization acting on the basis of an agreement with the owner of the property (owner of the property right) on their behalf or on their own behalf. Bidding is carried out in the form of an auction or competition. The winner of the tender is the person who offered the best conditions, and at the auction the person who offered the highest price. Auctions and tenders can be closed and open. Any person can participate in an open auction or competition, but only persons specially invited for this purpose can participate in a closed auction. Bidders make a deposit in the amount, terms and procedure specified in the notice of the auction.
If the auction does not take place, the deposit is refundable. It is also returned to persons who participated in the auction, but did not win it. The organizer of the auction must notify all prospective participants of the auction at least thirty days before the start of the auction. The notice must contain information about the time, place and form of the auction, the subject and procedure for holding it, including the registration of participants in the auction, the determination of the person who won the auction, as well as information about the initial price.
The person who won the auction and the organizer of the auction sign on the day of the auction or competition the protocol on the results of the auction, which has the force of the contract. If the person who won the auction evades signing the protocol, he loses the deposit made by him. If the organizer of the auction evades signing the protocol, then he is obliged to return the deposit in double size and compensate the owner who won the auction for the losses caused by participation in the auction, in the part exceeding the amount of the deposit. If the subject of the auction was only the right to conclude an agreement, such an agreement must be signed by the parties no later than twenty days or another period specified in the notice, after the completion of the auction and the execution of the protocol. If one of the parties evades the conclusion of the contract, the other party has the right to apply to the court with a demand to compel the conclusion of the contract, as well as to compensate for losses caused by evasion from its conclusion.
Since the contract is concluded on the basis of an auction, its validity depends on the validity of the auction. If the auctions were held in violation of the rules established by law, they may be declared invalid at the claim of the interested party, which is the basis for invalidating the contract concluded with the person who won the auction. Not only bidders, but also persons who were denied participation in the auction can act as an interested person. The consequences of the invalidity of the contract are determined in accordance with the rules established by Art. 168 of the Civil Code and other articles of the Civil Code, depending on the violations committed.
Art. 417 - 419 of the Civil Code provide for general rules for conducting auctions. They cannot be contradicted by special rules that regulate in detail the procedure for concluding certain contracts on the basis of bidding. Such rules are established, for example, by the Regulations on auctions for the sale of state-owned shares of OAS approved by the Order of the Ministry of State Property of June 10, 1998 No. 8 (the new version of the Regulations was approved by the Resolution of the Ministry of State Property of June 27, 2000 No. 141).
As a general rule, the contract is considered concluded at the moment the person who sent the offer receives its acceptance (consensual agreement). However, if, in accordance with the legislation for concluding a contract, the transfer of property is also necessary, the contract is considered concluded from the moment the relevant property is transferred (real contract).
If the contract is subject to state registration, then it is considered concluded from the moment of such registration, and if notarization and registration is necessary - from the moment of registration, unless otherwise provided by legislative acts.
In the process of concluding a contract between the parties, disagreements (pre-contractual disputes) may arise. The transfer of such disagreements for resolution by the court is possible in cases where, firstly, the conclusion of an agreement is obligatory for one of the parties and, secondly, the parties have reached an agreement on this. There are two categories of pre-contractual disputes. These are disputes about coercion to conclude an agreement and disputes over the terms of the agreement. The former are associated with the refusal or evasion of one of the parties from concluding an agreement and, as a rule, take place when concluding agreements without fail. The court decision on compulsion to conclude an agreement shall indicate the conditions under which the parties must conclude an agreement. If the dispute concerns the terms of the contract, then the resolution of the dispute sets out the wording of each disputed term.
Conclusion
Recently, due to the increasing growth of entrepreneurial activity, the need for regulation of entrepreneurship and entrepreneurial activity has become more and more urgent. But this regulation should proceed from the requirements and needs of the entrepreneur, and not from the “capacities” of the state. On this stage development of entrepreneurship, the state has a huge number of ways and methods of influencing entrepreneurial activity. And the interaction of power and business structures is becoming increasingly important both in the economic and political context. Entrepreneurship sees in the stability of power, in the stability of society, the main guarantee of its development. And the state acquires in their person economic support and effective assistance to the state in achieving its social goals. But the economic problems of both entrepreneurs and the state should be solved not by setting rash and irrational "rules of the game" by one side for the other, but by finding compromises.
Already now the state, represented by government agencies, begins to realize the importance of solving various problems by harmonizing interests, (consultation and round tables good proof of that).
The functions of the state are not limited only to regulation, the state must also support entrepreneurship (especially small business) in order to form a middle class. Assistance to business entities can be very diverse in its forms. It is carried out both at the state level and in the regions by recognizing state support as one of the most important areas of economic reform. For support, both complex programs and tax incentives, the allocation of credit resources on preferential terms are used. Organized information and advisory services.
Now it is necessary to change the attitude of the authorities towards the entrepreneur, it is necessary to support entrepreneurship by all means, because the entrepreneur is the basis for advancing society to a more highly developed, industrial state, which is the basis of the well-being of every citizen of the country.
In this work, it was determined that the contract in the field of economic activity by right nature is a kind of civil law contract, on the basis of which it can be concluded that the conclusion of contracts in the field of economic activity should be carried out taking into account the principles that underlie the conclusion civil law contracts, namely: the principle of the legality of the contract, the principle of freedom of contract.
Bibliography
Regulations
1. Decree of the Government of the Russian Federation of January 26, 2006 No. 45 “On the organization of licensing certain types of activities” // SZ RF. 2006. No. 6.
disbursement procedure in 2005 federal budget provided for on state support small business, including peasant (farm) enterprises” // SZ RF. 2005. No. 18, as amended and supplemented by Decree of the Government of the Russian Federation of December 9, 2005 No. 755 // СЗ RF.
3. Regulations on the Federal Registration Service, approved by Decree of the President of the Russian Federation of October 13, 2004 No. 1315// SZ RF. 2004. No. 42.
Literature
4. Andreeva L.V. Commercial Law of Russia. Problems of legal regulation. M., 2004.
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its construction // Entrepreneurial Law. 2004. No. 1.
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7. Civil law: Textbook. At 2 p.m. Part 1 / Under the general. ed. prof. V.F. Chigira. - Mn., 2000.
8. Civil law. Volume 1. Textbook. Fourth edition, revised and enlarged. / Edited by A.P. Sergeev, Yu.K. Tolstoy. - M., 2000.
9. Zinchenko S.A., Shapsugov D.Yu., KorkhS.E. Entrepreneurship and the status of its subjects in modern Russian law. Rostov n / a, 1999.
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P. 1, Art. 2 of the Civil Code of the Russian Federation
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COURSE WORK
Topic: "Legal regulation of entrepreneurial activity in Russia"
Kaliningrad 2007
INTRODUCTION
1. BUSINESS LAW IN THE SYSTEM OF LAW
1.1 The concept of business law and its sources
1.2 The concept of property. Property funds
1.3 Enterprise as a business entity and property complex
2. LEGAL ASPECTS OF REGULATION OF BUSINESS ACTIVITIES
2.1 Legal regulation of insolvency (bankruptcy)
2.2 Business agreement: concept, types and scope
2.3 Performance of a business contract
3. LEGAL REGULATION OF BUSINESS ACTIVITIES BY THE SUBJECTS OF THE RUSSIAN FEDERATION
(on the example of the Kaliningrad region
3.1 Brief history of BT Yantar LLC
3.2 External market factors
3.3 The relationship of the enterprise with the budget
3.4 Improve manageability
CONCLUSION
Bibliography
Application
INTRODUCTION
Introduction
Entrepreneurial activity and the social relations that develop in connection with its implementation.
The function of such regulation is performed by the norms of various branches of law: constitutional, international, civil, administrative, labor, financial, environmental, land, etc. The totality of such norms related to the regulation of entrepreneurship is often combined under the general name "business law".
Of particular importance in such regulation are the constitutional guarantees of entrepreneurship. According to the Constitution of the Russian Federation (Article 34), everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law. Thus, at the constitutional level, the necessary prerequisite for free enterprise is established - the universal entrepreneurial legal capacity of citizens. In addition, recognizing the right to private property, including land and other natural resources, the Constitution of the Russian Federation enshrines the most important economic guarantee of entrepreneurial activity (Articles 35, 36).
Nevertheless, the main role in the regulation of entrepreneurship belongs to the norms of civil and administrative law. Civil law determines the legal status of individual entrepreneurs and legal entities in property circulation, regulates property relations and contractual relations. The norms of administrative law establish the procedure for state registration of business entities, the procedure for licensing certain types of entrepreneurial activity, etc. At the same time, civil law is the basis of private law regulation of entrepreneurial activity, and administrative law is public law. The leading role in the mechanism of legal regulation of entrepreneurship belongs to the norms of private law, and especially civil law.
This is not surprising, if we recall the features that characterize entrepreneurial activity - organizational and economic independence, initiative, implementation at one's own risk, focus on making a profit. It is quite obvious that this activity, by its very nature, does not tolerate imperative, administrative-command methods of influence: they are absolutely incompatible with its independence and other inherent qualities. Managed by such methods, production activity ceases to be free, initiative, and the economy, losing the mechanism of self-regulation, turns into a planned one. The practice of such an approach to the regulation of production relations, when the state prescribed to enterprises what they needed to produce, to whom and at what prices to sell, was already known to our economy and did not bring anything good. On the contrary, the dispositive method used by civil law, as well as possible, corresponds to the very nature of entrepreneurial activity.
The thesis on the topic: “Legal regulation of business activities in Russia” was carried out based on the materials of BT Yantar LLC, one of the distributors of the large Russian company Business - Tobacco, tobacco products and FMCG products - the main strategic partner which is Japan Tobacco International (JTI) - one of the world market leaders in the production of tobacco products.
Relevance of the topic - changes in economic relations in Russia, the emergence of diverse forms of ownership, the development of entrepreneurial activity. All this influenced the formation of legislation, including the system of state regulation in the field of production, work, services, and their quality. Currently, the process of reforming the system of legislation in the field of legal regulation is being actively carried out. In terms of the scale of expected changes, this reform is quite comparable with such transformations in the first half of the 1990s as price liberalization and privatization. In this regard, there are not only great hopes, but also very great risks associated with the reform of legal regulation.
The purpose of the study is to determine the main directions for the development of the foundations of legal regulation in the field of production and sale of products and related processes.
In accordance with the goal, the following tasks were solved:
Obligatory relations and activities of governing bodies in the field of regulating the quality of goods, works, services and related processes are considered;
The problems associated with the process of reforming the system of legislation in the field of legal regulation are considered.
The analysis of the existing regulatory and legal framework was carried out, respectively, various conclusions and proposals were made on the legal regulation of organizational and legal problems.
Object of study are the obligations and activities of the governing bodies in the field of legal regulation of the production and sale of goods and related processes.
Subject of study became a system of legal regulation in the production of products, works, services and related processes.
Methodological basis thesis is the scientific theory of knowledge and its dialectical method of studying the phenomena and processes of reality, a systematic approach, as well as methods: analysis, synthesis, comparison. Theoretical basis studies constitute separate provisions general theory management, economic theory, civil law.
The analysis of the concepts of legal means, the mechanism of technical regulation of production, and their classification is given. The importance of legal facts in the mechanism of technical regulation, the need for an in-depth study of this topic for the comprehensive and effective implementation of the rule of law and the establishment of a rule of law state in Russian society are substantiated.
Provisions for defense :
The essence of the legal regulation of the production of products and services in order to improve the quality and safety and its organization in Russia.
Identification of problems in the field of reforming the legal system of technical regulation.
Proposals for improving the legal regulation of legal liability for violation of the requirements of technical regulation.
1. BUSINESS LAW IN THE SYSTEM OF LAW
1.1 The concept of business law and the types of its sources
With the transition of the Russian economy to market relations, there have been significant changes in the field of legal regulation. The command-administrative system, the basis of which was the nationalization of the economy and the restriction of the independence of participants in property relations, is currently losing its positions to market regulators. In this regard, the role of private law regulation of public relations is noticeably increasing.
The ideas of private law were enshrined in the new Civil Code, which some scholars call both the "civilized market code", and the "market constitution", and "first among equals". However, the point is not only in the laudatory words expressed in the address of this unique product of civilistic thought.
Indeed, the adoption of the new Civil Code is an event of exceptional significance in the process of reforming our society and the Russian legal system. Part one of the Civil Code of the Russian Federation, put into effect on January 1, 1995 (Chapter 4 - from the moment of official publication, i.e. from December 8, 1994), is a fundamentally new legislative act, designed to have a significant impact on the development of market relations in Russia and the formation of private law. The first part of the Civil Code of the Russian Federation is the main one, the second and third parts are subordinate to its ideas and principles. Without the first part of the Civil Code of the Russian Federation, the institutions and rules of its other parts cannot be understood. Yakushev V.S. The Civil Code of Russia (part two) - the continuation of the formation of market legislation (general legal characteristics) // Russian legal journal. 1996. No. 2. S. 13.
That is why the main provisions (rules) formulated in the Code are, in our opinion, the initial basis for clarifying and rethinking modern theories of legal regulation of the economy, including the concept of business law.
At one time prof. O.A. Krasavchikov, summing up the problems of legal regulation of economic life, identified five basic concepts of economic law, each of which was distinguished by the originality of the views of scientists and corresponded to reality at a certain stage in the development of the Soviet state. ed. V.P. Gribanov, O.A. Handsome. M.: Yurid. lit., 1977. S. 16-23.
In the first years of Soviet power, when the tsarist state machine was demolished and the old law was overthrown, there was a negative attitude towards any law. Indeed, why do we need a law (law) if we have a dictatorship of the proletariat. The concept of "denying the legal regulation of economic activity" opens up a kind of pyramid of theoretical views. It precedes the concept of "two-sector law".
The founder of the theory of "two-sector law" is a prominent statesman and public figure P.I. (Peteris Janovich)
The pre-war (unified) theory of economic law was born thanks to the efforts of two prominent scientists of the Soviet period - E. B. Pashukanis and L. Ya. Gunzburg. In an effort to overcome the shortcomings and eliminate the contradictions of the concept of "two-sector law", the representatives of the theory under consideration fell, according to O.A. Krasavchikov, to the other extreme. They united, within the framework of economic law, relations not only between socialist organizations, but also between citizens. Hence the citizen (private person) was reduced to the level of a consumer.
The Ministry of Science and Technology of the Russian Federation (order dated January 25, 2000 No. 17/4) approved a new nomenclature of specialties scientists, in which there was no place for the specialty 12.00.04 - business law; arbitration process. She (specialty) smoothly "migrated" to the specialty 12.00.03 - civil law; business law; family law; international private law. In other words, theoretical disputes about the presence or absence of entrepreneurial law are resolved by administrative means. The scientific specialty "Business Law" received (thanks to the lobbying of a group of Moscow civil scientists) a "legal registration" in the family of private law. If so, what to argue and discuss. Some consolation for representatives of the theory of business law can be the fact that the named specialty retained its relative independence and did not dissolve into the specialty "Civil Law", although such a prospect was in the course of discussion and coordination of the nomenclature of specialties with leaders and members of working groups.
Other administrative decisions followed. So, under the guise of "enlargement", dissertation councils in the specialties 12.00.04 and 12.00.12 were abolished.
Summing up a brief review of the theories of legal regulation of relations in the sphere of management, we can draw the following conclusions. First, we note that the keen interest of scientists of various views and beliefs in the theoretical problems of economic law was primarily due to objective reasons connected with the real needs of the socialist economy. In search of scientific truth, the concepts of economic law were formulated with the active participation of civil scientists. Secondly, modern theories entrepreneurial (commercial, trade) law is largely predetermined by the scientific concepts of past years and can, under certain circumstances, be considered as a continuation and interpretation of the latter, taking into account the latest achievements legal thought. We already wrote above that the theory of legal nihilism turned out to be extremely tenacious. In reality, one can find enough examples that clearly testify to the facts of gross violation of laws and lawlessness. The famous call "Get rich!" party favorite N. I. Bukharin turned out to be extremely prophetic. Modern Russia, which survived the total privatization of state and municipal property, a series of scandalous bankruptcy procedures, has gained a bad reputation as a country where bureaucratic arbitrariness and lawlessness rule the ball.
We now turn to the study of the issue of business law. First of all, it is necessary to understand the conceptual apparatus. The fact is that in the legal literature, the concepts of “business law”, “commercial law” and “commercial law” are often considered as synonyms. Practically puts an equal sign between the indicated concepts of VF Popondopulo, from the point of view of which entrepreneurial (trade, commercial) law is an integral part of civil law.
A similar position is held by VV Rovny, who, based on the identity of entrepreneurial and commercial activities, comes to the conclusion about the terminological unity of entrepreneurial and commercial law.
The issue of the legal nature of business law is also controversial. The prevailing opinion is that business law is a component; part of civil law. It does not have the subject and method of legal regulation in their traditional sense, as well as special principles in the field of entrepreneurial activity. In practice, this is a matter of commercial law.
There are many views on the definition of the concept of the source of law and their classification in foreign literature. In particular, the term "source of law" can mean: a) a specific document, referring to which one can find one or another rule of law (for example, a statute of parliament); b) a formal source of law is an authority that makes a legal decision; c) the historical source of law (for example, common law and the law of equity).
A normative legal act is the main source of Russian law in general and business law in particular. Officially, the doctrine does not recognize individual acts that are designed for a specific case and are addressed to individuals, as a source of law.
This approach is based on a common understanding of law as a set of legal norms. From the point of view of normative theories of law, a huge area of non-normative legal activity is outside the law. Thus, individual legal acts and other non-normative legal means remain outside of it. Of course, it is necessary to distinguish between normative acts and non-normative (individual) legal means, since such a distinction has a large practical value. The confusion of the Bath Acts leads to an unreasonable expansion of the competence of those bodies that, by law, are entrusted only with the functions of applying the law. This confusion takes place in legal activity, which has already been noted in the literature. It seems that the following should be noted here.
An agreement (primarily a civil law agreement) is a legal means of individual regulation of social relations 3 . Through the contract, its participants come to an agreement on the details of a specific legal relationship, in particular, they determine the subject, its quantitative and qualitative characteristics, the terms for exercising rights and obligations. So, in relation to the price of goods (works, services), a civil law contract performs a number of functions, namely: a) names the size (level) of the price or the method of its determination; b) regulates the procedure for changing prices; c) carries out the "translation" of the relevant prescriptions of regulatory legal acts, in which the state determines the size (levels) of prices, into the plane of specific property relations; d) determine the procedure and term for the sale of the price (payment of money, transfer of property, other consideration); e) designates the currency of the price and the currency of payment; f) ensures the fulfillment of the price condition. Here the contract does not establish new rules of law, but regulates specific legal relations.
Recognizing the contract as an individual legal act, it should also be noted that the contract in this capacity does not have such properties of law as normativity and universal validity. For this reason, it is impossible to fully agree with the opinion widespread in the literature that the source of law is a normative contract. In most cases, the contract plays the role of an individual regulator of social relations. It is based on the principles of equality, autonomy (independence) of the parties and their free will, property! liability for breach of obligation.
Moreover, the above applies equally to public contracts in the field of civil law. By virtue of Art. 426 of the Civil Code of the Russian Federation, a public contract is a contract concluded by a commercial organization and establishing its obligation to sell goods, perform work or provide services, which such an organization, by the nature of its activities, must carry out in relation to everyone who applies to it. As a general rule, the price of goods (works, services), as well as other conditions of a public contract, are the same for all consumers.
Thus, a public contract belongs to a variety of a civil law contract, although it contains elements of public law. Therefore, it is hardly possible to recognize the statement of Prof. V. S. Nersesyants that the so-called public contract has a legal significance (in the sense of a source of law). According to an authoritative scientist, the provisions of a public contract apply to an indefinite number of persons and are binding on the parties to all specific contracts that can be concluded on the basis of the general rules (norms) of the relevant public contract.
In this case, in our opinion, there was a mixture of different concepts - a public contract and a public offer. It is the provisions (essential conditions) of the latter that apply to an indefinite number of persons, i.e., to those who respond (clause 2, article 437 of the Civil Code of the Russian Federation).
A public contract is a specific civil law contract concluded between a commercial organization and a consumer (for example, a bank deposit agreement). From a public contract, the legal construction of which is outlined in Art. 426 of the Civil Code of the Russian Federation, it is necessary to distinguish between a public law contract used in the constitutional (state), administrative, financial, budgetary, tax and other branches of public law.
Summing up the judicial practice, we can summarize the following conclusions. First, although formally judicial practice is not a source of law, at the same time, along with the law-specifying function, it plays the role of a factor that has a significant impact on the improvement and development of business legislation. Judicial practice serves as a kind of "barometer" of those changes and additions that need to be made to the current legislation. Thus, the appearance in the Civil Code of the Russian Federation of such institutions of contract law as financial leasing, financing against the assignment of a monetary claim (factoring), storage in a warehouse is closely related to legal practice in general and judicial practice in particular. Secondly, there is currently an active process of convergence between the Anglo-Saxon and continental: legal systems. At the same time, it should be emphasized that we are not talking about the merging of the two systems, but only about their convergence. In common law countries, in connection with the issuance of laws and acts of delegation of legislation, the scope of application of judicial precedent is narrowed. And, on the contrary, in states with a continental legal system, the importance of judicial practice in regulating social relations is noticeably increasing.
1.2 The concept of property. Property funds
The Civil Code of the Russian Federation (Article 48) calls its property isolation as one of the mandatory features of a legal entity. “A legal entity is an organization that owns, manages or manages separate property ...” Property isolation as a sign of a legal entity allows you to delimit the property of this organization from the property of all other subjects of civil law (public entities, individuals and legal entities). The specified separation receives its legal consolidation in the relevant accounting documents. In paragraph 1 of Art. 48 of the Civil Code explicitly states that legal entities must have an independent balance sheet or estimate. The presence of an independent balance sheet of a legal entity is an external indicator of the economic isolation of commercial organizations; independent estimate - the ghost of property isolation non-profit organizations. True, such a distinction is not always clearly enshrined in legislation and in practice. Gak, in the Federal Law of July 10, 1992 No. 3266-1 “On Education” (as amended by the Federal Law of July 20, 2004 No. 68-FZ) it is established (Article 43) that educational institution(including state) independently carries out financial and economic activities, has an independent balance sheet and current account.
Subjects of entrepreneurial activity, being commercial in their orientation, as a rule, have property on the right of ownership. These include business partnerships and companies, production cooperatives. When they are created in the form unitary enterprise the necessary property is fixed on the right of economic management or the right of operational management.
The property segregation of different entities is not * the same character. There is a different degree of property isolation of a commercial organization, depending on the form of ownership of the property (ownership right, economic management right, operational management right). In our opinion, the sign of property isolation is typical not only for a legal entity, but also for “non-legal entities” (FIGs, holdings), as well as structural divisions. Let's consider these questions in more detail.
In accordance with paragraph 4 of the Procedure for maintaining consolidated (consolidated) accounting, reporting and balance sheet of a financial and industrial group, approved by Decree of the Government of the Russian Federation of January 9, 1997 No. 24, consolidated (consolidated) accounting and statistical reporting reflect the property and financial position of FIGs, as well as the results of its investment activities. Subject to the accounting policy adopted by the participants of the financial and industrial group, maintaining a consolidated (consolidated) financial statements carried out on the basis of the following principles:
The indicators of assets and liabilities of the balance sheets of participants in the financial and industrial group are added up;
The said reporting reflects the investment activity of FIGs as a whole. Investments directed by group members to the central company, and funds contributed by them to its authorized capital, are not reflected in the financial statements;
Balance sheet indicators and financial results, reflecting the volume of sales of goods (works, services), obligations and settlements between the central company and participants in the financial and industrial group are not included in the reporting;
Profits and losses of each participant of the financial and industrial group are shown in the statements in expanded form;
Indicators of financial statements of financial-industrial groups are included in the statements from the date of registration of the financial and industrial group;
Indicators of the financial and economic activities of banks and other credit and insurance organizations, as well as investment institutions (except for the central company) are not included in the reporting. If there are two or more banking or insurance organizations or investment institutions in the FIG, a separate summary (consolidated) report is prepared on the types of activities of these organizations (clause 5 of the named Procedure).
As can be seen, there is a property isolation of FIGs, but not to the degree (level) of isolation of a legal entity.
Detached structural units of a legal entity also possess the property necessary for the implementation of the production and economic tasks assigned to them (Article 55 of the Civil Code of the Russian Federation). In the literature, they distinguish (along with territorial, organizational) and property isolation.
Big objections arise regarding the use of the construction “obligations for trust management of property”. Here it is generally difficult to imagine how it is possible to conclude a trust management agreement between a legal entity and its separate subdivision. Such a situation was permissible in Soviet times, when representatives of the concept of economic law considered intra-economic relations to be the subject of legal regulation and sometimes extended civil law norms on them (relationships). certain types obligations. It would be wrong to repeat the lesson learned in a market economy. More reserved stance on status separate subdivisions expressed by I. V. Bessonova, who notes the failure of the term “property isolation of a branch and a representative office”. Since the presence of separate property is a characteristic feature of a legal entity, then in relation to a branch (representative office), in the opinion of the named author, it is appropriate to talk about the property remoteness of a separate subdivision.
It is important to emphasize that modern researchers began to pay attention to non-standard situations associated with the status of certain entities. The scientific search for their solutions continues.
The term "property" is also interpreted differently by different scholars. There is no common understanding of this term in the legislation.
In comparative terms, let's take two codes: the Civil Code of the Russian Federation and the Tax Code of the Russian Federation. From the point of view of the Tax Code of the Russian Federation (clause 2, article 38), property in this Code refers to the types of objects of civil rights related to property in accordance with the Civil Code of the Russian Federation. Article 128 of the Civil Code of the Russian Federation refers to objects of civil rights things, including money and securities, other property, including property rights.
Thus, in addition to things (in their natural form), the content of the concept of “property” may also include property rights. So, in paragraph 3 of Art. 63 of the Civil Code of the Russian Federation, the property of a liquidated legal entity sold at public auction is understood to mean both things and property rights. The term “property” has a similar meaning when it comes to the liability of a legal entity or an individual entrepreneur for its obligations with all their property. Property rights as a type of property arise when concluding a bank account agreement and making cashless payments. Property rights include property rights, other rights in rem, rights to the results of intellectual activity and equivalent means of individualization of a legal entity (products, works, services), mandatory rights of claim against a debtor, etc. In other words, the term "property" covers various objects and phenomena, and therefore has no clear boundaries.
In the science of civil law, things are most often understood as the values of the material world: physically tangible and having economic form goods. The latter (objects of the material world) are opposed to intangible objects. Although this point of view is not indisputable, what attention has been drawn to in the literature. The composition of the property of business entities is a set of fixed and current assets, intangible assets, as well as capital, funds and reserves. The science of business law, in contrast to the theory of civil law, uses special concepts, such as "fund", "resource", "reserve". It would be incorrect to speak of the property basis of a commercial organization as a set of things. Equally, provide in the charter of a legal entity the rule that the things of a joint-stock company are fixed assets, working capital, securities (shares), etc. The word “thing” has a civilistic coloring and does not fit into the legal regulation of public relations in the field of entrepreneurship .
The same applies to the classification of things. So, by virtue of Art. 134 of the Civil Code of the Russian Federation is a complex thing - a single whole of heterogeneous things, involving their use for a general purpose. However, if we translate the civil law concept of “a complex thing” into the mainstream of economic and legal topics, then, of course, this concept does not work. With regard to the sale and purchase of goods, the category "complex things" is manifested through a set of goods (Article 479 of the Civil Code of the Russian Federation) and completeness of goods (Article 478). Therefore, it is customary to talk not about the delivery of a complex thing, but about the delivery of, say, complete products.
Fixed assets are material assets used as means of labor in the production of products, performance of work or provision of services, or for the management of an organization, and which have been involved in manufacturing process and gradually, as physical and moral wear and tear, transfer their value to the cost of finished products (works and services). From an economic point of view, fixed assets are related to the means of labor.
In addition, the legislation on accounting and reporting for the qualification of fixed assets of business entities also uses a legal criterion 1 . First, they are used for a period exceeding 12 months. And secondly; these are items with a value at the date of purchase of more than 100 times the minimum monthly wage per unit established by law (based on their value stipulated in the contract), regardless of their useful life, with the exception of agricultural machinery and implements, construction mechanized tools, weapons , as well as working and productive livestock, which are fixed assets.
The use of a legal criterion does not give, in our opinion, the right to consider fixed assets (as well as current assets, etc.) as a legal concept. The thesis is hardly appropriate here: since fixed and current assets are involved in the sphere of legal regulation, they (the funds) are categories of law. If we go in this direction, then we can consider all objects of the surrounding world as legally significant. In 1980, the author of this study defended his Ph.D. thesis on the topic "Legal assurance of the quality of supplied machines and equipment." The concept of machines (equipment), being the subject of study of technical sciences, also had a formal (legal) definition. In particular, the corresponding definition of the concept of a machine was given in the note to clause 6.3 of GOST 23004-78 “Mechanization and automation of technological processes in mechanical engineering and instrument making. Basic terms, definitions and designations”. But the presence of a normative definition of the concept of "machine" does not mean that the technical term turns into a legal one.
Fixed assets include buildings, structures, working and power machines and equipment, measuring and control instruments and devices, Computer Engineering, vehicles, tools, production and household inventory and accessories and other fixed assets. The list of fixed assets is contained in All-Russian classifier fixed assets (OK 013-94).
It is symptomatic that the named Classifier distinguishes two groups of fixed assets: tangible and intangible (production secrets, trademarks, patents, etc.). In essence, the Classifier included intangible assets in the composition of intangible funds.
This is confirmed by a direct indication in the introduction of the Classifier: intangible fixed assets (intangible assets) include computer software, databases, original works of the entertainment genre, literature or art, high-tech industrial technologies, other intangible fixed assets that are objects intellectual property, the use of which is limited by the rights of ownership established on them.
We believe that the proximity in the legal regime of fixed assets and intangible assets, however, does not allow us to put an equal sign between them, which will be discussed below. From the point of view of the Civil Code of the Russian Federation (Article 138), the exclusive right (intellectual property) of a citizen or legal entity to the results of intellectual activity and equated means of individualization of a legal entity, products (works and services) is recognized. It turns out that the company name, trademark, service mark, etc. are fixed assets (intangible fixed assets).
So, in the legislation and in practice (along with the concept of "fixed assets") the term "fixed assets" is used. For several years now, the debate about the existence of these two concepts has not faded on the pages of legal literature. It is widely believed that fixed assets are fixed assets in monetary terms. According to another point of view, these concepts are synonymous.
The case under consideration is not the only one. Exactly the same variant is present in the use of the terms "insolvency" and "bankruptcy". The bankruptcy law uses them as synonyms, although in the literature a number of researchers point out the need to distinguish between the terms "insolvency" and "bankruptcy".
In our opinion, here we again return to the problem of using different terms to refer to the same phenomenon. We believe that fixed assets are material values, and fixed assets are a collective concept that includes fixed assets and funds held by the organization to form funds (including the monetary value of fixed assets). Also included in fixed assets are capital investments for radical land improvement (drainage, irrigation and other land reclamation works), for leased fixed assets.
The matter remains for the legislator: either to abandon the struggle for the purity of the terminology used in order to maintain the existing stability in the use of terms, or, on the contrary, to bring it (the struggle) to its logical conclusion. Judging by the current trend, the legislator preferred the first option, which is hardly correct.
The legal regime of fixed assets is especially manifested in the rules for accounting for property, repayment of its value, write-off and revaluation. So, fixed assets are accepted for accounting at historical cost, but in balance sheet they are reflected at their residual value, i.e. at the actual costs of their acquisition, construction and manufacture (except for value added tax and other reimbursable taxes). The organization has the right not more than once a year (at the beginning of the reporting year) to revaluate fixed assets at replacement cost by indexation or direct recalculation at documented market prices. Revaluation of an item of fixed assets is carried out by recalculating its initial or current (replacement) cost, if the item was revalued earlier, and the amount of depreciation accrued for the entire period of use of the item.
The cost of fixed assets of the organization is repaid by depreciation. Depreciation is a process of gradual transfer of the value of the means of labor as they wear out and wear out onto the product being produced. The carry-forward value in cash is the depreciation charge, which is reflected in accounting by accumulating the corresponding amounts in a separate account. The Russian Federation applies uniform depreciation rates for the full restoration of fixed assets. Objects of fixed assets are not subject to depreciation, the consumer properties of which do not change over time (for example, land plots and nature management objects).
Unlike fixed assets, which are involved in production for a long time, circulating assets transfer their value to finished products(works, services), as a rule, in one production cycle. Moreover, revolving funds often lose their physical, chemical and other properties. Therefore, it is no coincidence that, from an economic point of view, the means in circulation are objects of labor.
When characterizing working capital, one must also take into account the legal criterion: useful life and cost per unit of product. The composition of funds in circulation includes: inventories (raw materials, basic and auxiliary materials, fuel, spare parts and other material resources), receivables, financial investments, cash.
Thus, we are once again faced with the use of different terms "revolving funds", "funds in circulation" to refer to a specific phenomenon (object). In our opinion, working capital (funds in circulation) are working capital in their physical form!] and working capital (circulation funds) as a monetary value of certain property of the organization.
The legal regime of working capital is determined by the Regulation on accounting and financial reporting, the Regulation on accounting “Accounting for inventories” PBU 5/01, approved by order of the Ministry of Finance of the Russian Federation of June 9, 2001 No. 44N, other legal acts. Thus, inventories are accepted for accounting at actual cost. In turn, when inventory is released (except for goods accounted for at sale value) into production and otherwise disposed of, their assessment is carried out in one of the following ways: at the cost of each unit; average cost 1; the cost of the first in time acquisition of inventories (FIFO method); the cost of the latest acquisition of inventories (LIFO method). Inventories are reflected in the financial statements in accordance with their classification, based on the method of use in the production of products, performance of work, provision of services or for the management needs of the organization.
Intangible assets - a type of property of the organization. There is no definition of the concept in the legislation, but you can find a list of features that characterize intangible assets.
The accounting regulation “Accounting for intangible assets” PBU 14/2000, approved by order of the Ministry of Finance of the Russian Federation of October 16, 2000 No. 91N 1, establishes (clause 3) the following conditions (for the purposes of this Regulation when accepting assets for accounting) intangible assets: a) the absence of a tangible (physical) structure; b) the possibility of identification (separation, separation) by the organization from other property; c) use in the production of products, in the performance of work or the provision of services, or for the management needs of the organization; d) use for a long time, i.e. a useful life of more than 12 months or a normal operating cycle if it exceeds 12 months; e) the organization does not intend the subsequent resale of this property; f) the ability to bring economic benefits (income) to the organization in the future; g) the availability of properly executed documents confirming the existence of the asset itself and the organization's exclusive right to the results of intellectual activity (patents, certificates, other titles of protection, an agreement on the assignment (acquisition) of a patent, trademark, etc.). Moreover, it is important that all these conditions exist at the same time.
The following objects can be classified as intangible assets:
The exclusive right of the patent owner to an invention, industrial design, utility model;
The exclusive right of the owner to the trademark and service mark, appellation of origin of goods;
The exclusive right of the patent holder to selection achievements (clause 4 of the Regulation PBU 14/2000).
The composition of intangible assets also includes the business reputation of the organization and organizational expenses (expenses associated with the formation of a legal entity, recognized in accordance with the constituent documents as part of the contribution of participants (founders) to the authorized (share) capital of the organization). The intellectual and business qualities of the organization's personnel, their qualifications and ability to work are not included, since they are inseparable from their carriers and cannot be used without them. This is the logic of the departmental act in the field of accounting of intangible assets.
The same list of intangible assets is contained in paragraph 3 of Art. 257 of the Tax Code of the Russian Federation. But it can also contain such an object of intangible assets as the possession of know-how, a secret formula or process, information regarding industrial, commercial or scientific experience. And although the definition of intangible assets is formulated for tax purposes, nevertheless, this addition is of great importance. From the point of view of the Code, intangible assets include the rights to know-how, commercial ideas and other information.
The category of "intangible assets" causes significant difficulties in practice. This is dictated primarily by its collective nature; the composition of intangible assets includes property rights to objects of intellectual property, and expenses (expenses) of the organization, and business reputation. In addition, under certain conditions, commercial information, a commercial idea, and even a business plan can act as intangible assets. However, the legal regime of some objects is not defined in the legislation.
Thus, the Patent Law of the Russian Federation of September 23, 1992 No. 3517-1 (as amended on December 24, 2002) contains definitions of such concepts as “invention”, “utility model”, “industrial design”. But in the said Law there is no legal definition of know-how, commercial idea, etc. As a result, there are difficulties in law enforcement and judicial practice.
Controversial in theoretical and practical terms is the question of the possibility of the founders (participants, shareholders) making intangible assets on account of their contributions to the authorized (reserve) capital of the organization. On this occasion, an explanation is provided by the highest judicial authorities (paragraph 17 of the decision of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 No. 6/8). It should be taken into account that as a contribution to the property of a business partnership or company, property rights or other rights having a monetary value can be made. In this regard, such a contribution cannot be an object of intellectual property (a patent, an object of copyright, including a computer program, etc.) or know-how. However, the right to use such an object, transferred to a company or partnership in accordance with a license agreement, which must be registered in the manner prescribed by law, may be recognized as a contribution.
The cost of intangible assets is repaid by accruing depreciation over the established period of their useful life. In turn, the depreciation of intangible assets is charged regardless of the results of the organization's activities in the reporting period (section 3 of the Regulation PBU 14/2000).
The determination of the useful life of an intangible asset is based on the validity of a patent, certificate and (or) other restrictions on the terms of use of intellectual property in accordance with the legislation or applicable legislation of a foreign state, as well as taking into account the useful life of intangible assets due to the relevant agreements . For intangible assets, for which it is not possible to determine the useful life of an object of intangible assets, depreciation rates are set for ten years (but not more than the period of the taxpayer's activity). This rule was enshrined in paragraph 2 of Art. 258 NKRF.
So, intangible assets are the property of the organization, and therefore, in accordance with the tax legislation, operations related to the presence and movement of an asset are subject to the Tax Code of the Russian Federation and other tax legal acts. Equally, the profit received by an organization (enterprise) from the sale of intangible assets is subject to taxation according to the rules of Ch. 25 of the Tax Code of the Russian Federation. In addition, the organization pays value added tax (VAT) on acquired intangible assets.
Depreciation deductions for intangible assets can significantly affect the amount of the taxable base when calculating profit (income) tax. By reducing the depreciation period (for example, accelerated depreciation for small businesses), the organization can transfer depreciation charges to the cost of products (works, services) as quickly as possible and thereby reduce the tax base. Therefore, in the real sector of the economy, intangible assets serve not only as an object of intellectual property, but also as a means of optimizing taxation.
Along with fixed assets and working capital the property of a commercial organization consists of special funds (reserves). The legal regime of the latter has its own specifics, which is predetermined by the type and nature of the property. First of all, we note that special funds are heterogeneous and, taking into account the intended use, can be divided into various types (for example, a material incentive fund, a production development fund, a fund social development, reserve fund, corporatization fund of employees of the company, etc.). However, regardless of the type of affiliation, these funds are funds intended for spending on specific purposes.
The formation of funds of a particular fund occurs at the discretion of the organization (enterprise). Each organization independently determines the type of fund, its size, as well as other parameters for the formation and expenditure of funds. Exceptions to the general rule are cases expressly provided for by law. So, in accordance with paragraph 1 of Art. 35 of the Law on joint-stock companies the company creates a reserve fund to the amount provided for by the charter of the company, but not less than 5% of one hundred authorized capital. The reserve fund of the company is formed by mandatory annual deductions until it reaches the amount established by the charter of the company. The amount of annual deductions is provided for by the charter of the company, but cannot be less than 5% of net profit until the amount established by the charter of the company is reached. The reserve fund of the company is intended to cover its losses, as well as to redeem the company's bonds and buy back the company's shares in the absence of other funds.
Thus, the formation of a reserve fund of a joint-stock company is not a right, but an obligation of the company. The right to choose appears in relation to the size of the fund, but only within certain limits.
Compared to the old version of Art. 35 of the Law on joint-stock companies, a new imperative norm on minimum size of the reserve fund was changed: the size was reduced from 15% to 5%. It can be assumed that such a decrease is caused by the legislator's desire to somewhat reduce the burden of property (monetary) losses of the joint-stock company. After all, the funds of the reserve fund cannot be used for other purposes. Therefore, a joint-stock company has the right, at its discretion, to increase the size of the reserve fund in the charter.
1.3 Enterprise as a business entity and property complex
The modern civil legislation of Russia (Article 132 I of the RF) defines the concept of "enterprise" as a property complex used for entrepreneurial activities. At the same time, the named article considers the enterprise as an object of civil rights. Such a legislative position significantly changed the legal status of the enterprise, which was generally approved (even admired) by representatives of civil science. Sometimes the question of an enterprise as a property complex is not even commented on the principle: why discuss anything, if everything is clear anyway. An enterprise is an object of civil rights, and that says a lot.
Indeed, the term "enterprise" had a different meaning for a long time. In the Soviet period, the legislator under the word "enterprise" saw the figure of a subject of law, including civil law. In the early 90s, the definition of an enterprise was (formulated in the Law of the RSFSR "On Enterprises and Entrepreneurial Activities". According to paragraph 1 of Article 4, an enterprise is an independent economic entity created in the manner prescribed by this Law for the production of products, performance of work and providing services in order to meet public needs and make a profit.At the same time, the concept of "enterprise" and the problems associated with it continue to cause scientific disputes among legal scholars (and not only). do it now.According to some researchers, the era of the enterprise has come, which affects all areas of the current legal system.The appearance of the enterprise in legal regulation is compared with the arrival of the third estate in political power at the end of the 18th century.
Moreover, the modern legislation of industrialized countries most often uses the term "enterprise" to refer to the collective entity, and not the concept " entity". Both supporters of economic (business) law and their scientific opponents point to this circumstance. Thus, in France there is Law No. 85-98 on the restoration of enterprises and the liquidation of their property in court, Law No. 85-99 on bankruptcy trustees, liquidators and experts in determining the state of enterprises. The Law on Enterprise Mortgages was passed in Sweden. The law on joint-stock companies of Germany in 1965 dedicated a special book to the regulation of relations between related enterprises. The term "enterprise" began to appear in the texts of international agreements and conventions.
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