1. Legal entities may be organizations that pursue profit-making as the main goal of their activities (commercial organizations) or do not have profit-making as such a goal and do not distribute the profits between participants (non-profit organizations).
2. Legal entities that are commercial organizations can be created in the organizational and legal forms of business partnerships and societies, peasant (farm) enterprises, economic partnerships, production cooperatives, state and municipal unitary enterprises.
3. Legal entities that are non-profit organizations may be created in the following organizational and legal forms:
1) consumer cooperatives, which include, among other things, housing, housing-construction and garage cooperatives, mutual insurance societies, credit cooperatives, rental funds, agricultural consumer cooperatives;
2) public organizations, which include political parties and those created as legal entities trade unions (trade union organizations), public amateur bodies, territorial public self-governments;
2.1) social movements;
3) associations (unions), which include, among other things, non-profit partnerships, self-regulatory organizations, associations of employers, associations of trade unions, cooperatives and public organizations, chambers of commerce and industry;
3) associations (unions), which include, among other things, non-profit partnerships, self-regulatory organizations, associations of employers, associations of trade unions, cooperatives and public organizations, commercial and industrial, notary and bar chambers;
4) partnerships of real estate owners, which include, among other things, partnerships of homeowners, horticultural or gardening non-profit partnerships;
5) Cossack societies included in the state register of Cossack societies in Russian Federation;
6) communities of indigenous peoples of the Russian Federation;
7) funds, which include public and charities;
8) institutions to which they belong government agencies(including state academies of sciences), municipal institutions and private (including public) institutions;
9) autonomous non-profit organizations;
10) religious organizations;
11) public companies;
12) bar associations;
13) legal entities (which are legal entities);
14) state corporations;
15) notary chambers.
4. Non-profit organizations may carry out income-generating activities, if this is provided for by their charters, only insofar as this serves the purposes for which they were created, and if this is consistent with such purposes.
5. A non-profit organization, the charter of which provides for the implementation of income-generating activities, with the exception of government and private institutions, must have property sufficient to carry out the specified activities with a market value of not less than the minimum amount of authorized capital provided for companies with limited liability(clause 1 of article 66.2).
6. The rules of this Code do not apply to relations in the implementation of their main activities by non-profit organizations, as well as to other relations with their participation that are not related to the subject of civil legislation (), unless otherwise provided by law or the charter of a non-profit organization.
1. The commented article is devoted to commercial and non-profit organizations - the most important dichotomy of legal entities directly related to the phenomenon entrepreneurial activity, included in the subject of civil law regulation and referred to the jurisdiction of civil legislation (paragraph 3, paragraph 1, article 2 of the Civil Code). Based on the main purpose of their activities, all legal entities are divided into two groups: commercial organizations pursue, and non-profit organizations do not pursue profit-making as the main goal of their activities (clause 1 of Article 50). Since engaging in entrepreneurship is not the exclusive prerogative of commercial organizations (clause 1 of Article 50 speaks of the desire to make a profit only as the main goal of activity), non-profit organizations can also engage in entrepreneurship subject to the following number of conditions and restrictions: a) the desire of a non-profit organization making a profit should not turn into an end in itself (clause 1, article 50); b) received Not commercial organization profits should not be distributed among its participants, i.e. assigned by them (except for members of the consumer cooperative - clause 5 of Article 116 of the Civil Code); c) the implementation of entrepreneurial activities by a non-profit organization must correspond to the goals for which it was created, and also serve the achievement of these goals (paragraph 2, paragraph 3, article 50); d) finally, the possibility of a non-profit organization to conduct business activities should not be directly excluded by law.
2. In connection with the proposal in paragraph 1 of Art. 50 dichotomy of legal entities further in paragraph 2 and paragraph. 1 clause 3 lists the organizational and legal forms of commercial and non-profit organizations. In this case, it is no longer the classification method that is used, but the list method, and since the latter, not being based on a strict logical criterion (criteria), is more free and flexible, if necessary and as a result of changes in the law, the forms of legal entities can be subject to quantitative and qualitative dynamics. Thus, it is possible to reduce or increase the number of forms (by excluding some and adding others), as well as internal changes existing forms(the latter, in particular, happened in relation to unitary enterprises in connection with a change in the concept of state-owned enterprises and limited liability companies, which turned out to be more “remote” from business partnerships and closer to a joint-stock company).
The list of forms of commercial organizations is limited by the Civil Code (clause 2 of Article 50), therefore the emergence of new forms of commercial organizations is possible only if the Civil Code is amended accordingly. According to paragraph 2 of Art. 50 and taking into account paragraphs 2 and 3 of Art. 66 of the Civil Code, commercial organizations can be created only in the following forms: a) full and b) limited partnership(Articles 69 - 81, 82 - 86 Civil Code); c) limited and d) companies with additional liability (Articles 87 - 94, 95 of the Civil Code); e) joint stock company (Articles 96 - 104 of the Civil Code); e) production cooperative(Articles 107 - 112 of the Civil Code); g) a unitary enterprise (Articles 113 - 115 of the Civil Code). The features of each form are determined by the Civil Code and special laws (the only exceptions are business partnerships that do not have their own law). Since the imperative norm of paragraph 2 of Art. 50 clearly limits the principles of freedom of contract, autonomy of will and independence (clauses 1, 2, article 1, paragraph 1, clause 1, article 2, article 421 of the Civil Code), a commercial organization cannot be created in any other form (including by combining elements of different shapes).
That is why the existence of an individual (family) private enterprise known in the past is excluded, as well as a hypothetical joint-stock limited company (a joint-stock company with additional liability) - a symbiosis of a joint-stock company and a limited partnership (a company with additional liability). In turn, the form of a unitary enterprise cannot be used outside the state (municipal) form of ownership to ensure the interests of private business. Certain forms of commercial organizations are internally heterogeneous: joint stock companies can be open or closed (Article 97 of the Civil Code), and unitary enterprises can be based on the right of economic management and operational management (Articles 114, 115 of the Civil Code). For the purposes of legal regulation, some forms are grouped together due to the presence of common characteristics, for example, business companies (within the framework of which only the appearance of subsidiaries and dependent companies is possible - Articles 105, 106 of the Civil Code), business partnerships and companies (having a common part - Art. 66 - 68 Civil Code). It is precisely due to the similarity of individual forms and in order to avoid duplication of normative material that rules devoted to one form can sometimes, by virtue of a direct indication of the law, be applied to other forms (clause 2 of Article 82, clause 3 of Article 95 of the Civil Code).
3. The forms of non-profit organizations are not limited to the framework of the Civil Code (paragraph 1, paragraph 3, article 50) - they may also be provided for by other laws, different by industry. Non-profit organizations can be created in the form of consumer cooperatives, public or religious organizations (associations), funds, institutions, associations of legal entities (associations and unions) (see, respectively, Articles 116 - 118, 120, 121 of the Civil Code). There are also communities of indigenous peoples of the Russian Federation, state corporations, non-profit partnerships, autonomous non-profit organizations (according to Articles 6.1, 7.1, 8, 10 of the Law on Non-Profit Organizations).
Individual forms of non-profit organizations are internally heterogeneous; legal regulation varieties of the same form. Thus, an institution can be private or public (state or municipal); in turn, state and municipal institutions are budgetary or autonomous (clause 2 of article 120, clause 1 of article 298 of the Civil Code). However, the Law on Non-Profit Organizations does not apply to state and municipal institutions, unless otherwise established by federal law (Clause 5, Article 1), and therefore refers only to private institutions (Article 9). In turn, those state and municipal institutions that are autonomous are specifically regulated by the Law on Autonomous Institutions. Some forms of nonprofit organizations overlap. Thus, public associations (Article 117 of the Civil Code) can be created in the form public organization, social movement, public foundation, public institution, public initiative body, political party (Articles 7 - 12, 12.2 of the Law on public associations).
4. Commercial and (or) non-profit organizations can unite into associations and unions (clause 4 of article 50, article 121 of the Civil Code). The law regulates such associations, at least non-profit organizations, in different ways. Thus, an association of commercial organizations cannot conduct business independently and directly: to do this, it must transform into a business partnership (society) or participate in it (paragraph 2, paragraph 1, article 121 of the Civil Code). This rule does not apply to other associations - non-profit organizations (clause 2 of Article 121 of the Civil Code), as well as commercial organizations with non-profit organizations: such associations have the right to engage in business independently and directly (without transformation or participation in commercial structure). Commercial organizations can be founders (participants) of non-profit organizations (Article 15 of the Law on Non-Profit Organizations), with exceptions provided by law (for example, they cannot participate in public and religious organizations(associations) and state corporations, the founders of which can only be citizens and the Russian Federation, respectively). Non-profit organizations can be founders (participants) of commercial organizations, with exceptions provided by law (for example, they cannot be general partners in business partnerships, and institutions can be participants in business companies and investors in limited partnerships with the permission of the owner, unless otherwise established by law - clause 4 of article 66 of the Civil Code). It is possible to transform commercial organizations into non-profit ones, and vice versa (clause 2 of Article 104 of the Civil Code, Article 34 of the Law on Unitary Enterprises, clauses 1, 2, 4 of Article 17 of the Law on Non-Profit Organizations).
The Civil Code of the Russian Federation, along with the federal laws adopted in accordance with it, is the main source of civil legislation in the Russian Federation. Norms civil law contained in other normative legal acts cannot contradict the Civil Code. The Civil Code of the Russian Federation, work on which began at the end of 1992, and initially proceeded in parallel with work on the Russian Constitution of 1993, is a consolidated law consisting of four parts. Due to the huge volume of material that required inclusion in the Civil Code, it was decided to adopt it in parts.
The first part of the Civil Code of the Russian Federation, entered into force on January 1, 1995, (with the exception of certain provisions), includes three of the seven sections of the code (Section I “General Provisions”, Section II “Property Rights and Other Property Rights”, section III"General part of the law of obligations"). This part of the Civil Code of the Russian Federation contains the fundamental norms of civil law and its terminology (about the subject and general principles of civil law, the status of its subjects (individuals and legal entities)), objects of civil law (various types of property and property rights), transactions, representation , limitation of actions, property rights, as well as the general principles of the law of obligations.
The second part of the Civil Code of the Russian Federation, which is a continuation and addition of part one, came into force on March 1, 1996. It is entirely devoted to section IV of the code “ Selected species obligations." Based on the general principles of the new civil law of Russia, enshrined in the Constitution of 1993 and part one of the Civil Code, part two establishes a detailed system of rules on individual obligations and contracts, obligations resulting from causing harm (torts) and unjust enrichment. In terms of its content and significance, part two of the Civil Code of the Russian Federation is a major stage in the creation of new civil legislation of the Russian Federation.
The third part of the Civil Code of the Russian Federation includes section V “Inheritance Law” and section VI “Private International Law”. Compared to the legislation in force before the entry into force of Part Three of the Civil Code of the Russian Federation on March 1, 2002, the rules on inheritance have undergone major changes: new forms of wills have been added, the circle of heirs has been expanded, as well as the range of objects that can be transferred in the order of hereditary succession; Detailed rules have been introduced regarding the protection and management of inheritance. Section VI of the Civil Code, dedicated to the regulation of civil law relations complicated by a foreign element, is a codification of the norms of private international law. This section, in particular, contains rules on the qualification of legal concepts when determining the applicable law, on the application of the law of a country with a plurality of legal systems, on reciprocity, retroactive reference, and establishing the content of norms of foreign law.
The fourth part of the Civil Code (entered into force on January 1, 2008) consists entirely of Section VII “Rights to the results of intellectual activity and means of individualization.” Its structure includes general provisions- norms that apply to all types of results of intellectual activity and means of individualization or to a significant number of their types. The inclusion of norms on intellectual property rights in the Civil Code of the Russian Federation made it possible to better coordinate these norms with the general norms of civil law, as well as to unify the terminology used in the field of intellectual property. The adoption of the fourth part of the Civil Code of the Russian Federation completed the codification of domestic civil legislation.
The Civil Code of the Russian Federation has passed the test of time and extensive application practice, however, economic offenses, often committed under the guise of civil law, have revealed the lack of completeness in the law of a number of classical civil law institutions, such as the invalidity of transactions, the creation, reorganization and liquidation of legal entities, assignment claims and transfer of debt, pledge, etc., which necessitated the need to introduce a number of systemic changes to the Civil Code of the Russian Federation. As noted by one of the initiators of making such changes, President of the Russian Federation D.A. Medvedev, “The existing system does not need to be restructured, radically changed... but to be improved, to reveal its potential and to develop implementation mechanisms. The Civil Code has already become and must remain the basis for the formation and development of civilized states market relations, an effective mechanism for protecting all forms of property, as well as the rights and legitimate interests of citizens and legal entities. The Code does not require fundamental changes, but further improvement of civil legislation is necessary..."<1>.
On July 18, 2008, Decree of the President of the Russian Federation N 1108 “On improving the Civil Code of the Russian Federation” was issued, which set the task of developing a concept for the development of civil legislation of the Russian Federation. On October 7, 2009, the Concept was approved by the decision of the Council for the Codification and Improvement of Russian Legislation and signed by the President of the Russian Federation.
________
<1>See: Medvedev D.A. Civil Code of Russia - its role in development market economy and the creation of the rule of law // Bulletin of Civil Law. 2007. N 2. T.7.
1. Legal entities may be organizations that pursue profit-making as the main goal of their activities (commercial organizations) or do not have profit-making as such a goal and do not distribute the profits between participants (non-profit organizations).
2. Legal entities that are commercial organizations can be created in the organizational and legal forms of business partnerships and societies, peasant (farm) enterprises, economic partnerships, production cooperatives, state and municipal unitary enterprises.
3. Legal entities that are non-profit organizations may be created in the following organizational and legal forms:
1) consumer cooperatives, which include, inter alia, housing, housing construction and garage cooperatives, mutual insurance societies, credit cooperatives, rental funds, agricultural consumer cooperatives;
2) public organizations, which include, among other things, political parties and trade unions (trade union organizations) created as legal entities, public amateur bodies, territorial public self-governments;
2.1) social movements;
3) associations (unions), which include, among other things, non-profit partnerships, self-regulatory organizations, associations of employers, associations of trade unions, cooperatives and public organizations, chambers of commerce and industry;
4) partnerships of real estate owners, which include, among other things, partnerships of homeowners, horticultural or gardening non-profit partnerships;
5) Cossack societies included in the state register of Cossack societies in the Russian Federation;
6) communities of indigenous peoples of the Russian Federation;
7) funds, which include public and charitable foundations;
8) institutions, which include state institutions (including state academies of sciences), municipal institutions and private (including public) institutions;
9) autonomous non-profit organizations;
10) religious organizations;
11) public companies;
12) bar associations;
13) legal entities (which are legal entities);
14) state corporations;
15) notary chambers.
4. Non-profit organizations may carry out income-generating activities, if this is provided for by their charters, only insofar as this serves the purposes for which they were created, and if this is consistent with such purposes.
5. A non-profit organization, the charter of which provides for the implementation of income-generating activities, with the exception of state-owned and private institutions, must have property sufficient for the implementation of these activities with a market value of at least the minimum amount of authorized capital provided for limited liability companies (clause 1).
6. The rules of this Code do not apply to relations in the implementation of their main activities by non-profit organizations, as well as to other relations with their participation that are not related to the subject of civil legislation (), unless otherwise provided by law or the charter of a non-profit organization.
1. Legal entities may be organizations that pursue profit-making as the main goal of their activities (commercial organizations) or do not have profit-making as such a goal and do not distribute the profits between participants (non-profit organizations).
2. Legal entities that are commercial organizations can be created in the organizational and legal forms of business partnerships and societies, peasant (farm) enterprises, economic partnerships, production cooperatives, state and municipal unitary enterprises.
3. Legal entities that are non-profit organizations may be created in the following organizational and legal forms:
1) consumer cooperatives, which include, inter alia, housing, housing construction and garage cooperatives, mutual insurance societies, credit cooperatives, rental funds, agricultural consumer cooperatives;
2) public organizations, which include, among other things, political parties and trade unions (trade union organizations) created as legal entities, public amateur bodies, territorial public self-governments;
2.1) social movements;
3) associations (unions), which include, among other things, non-profit partnerships, self-regulatory organizations, associations of employers, associations of trade unions, cooperatives and public organizations, chambers of commerce and industry;
4) partnerships of real estate owners, which include, among other things, partnerships of homeowners, horticultural or gardening non-profit partnerships;
5) Cossack societies included in the state register of Cossack societies in the Russian Federation;
6) communities of indigenous peoples of the Russian Federation;
7) funds, which include public and charitable foundations;
8) institutions, which include state institutions (including state academies of sciences), municipal institutions and private (including public) institutions;
9) autonomous non-profit organizations;
10) religious organizations;
11) public companies;
12) bar associations;
13) legal entities (which are legal entities);
14) state corporations;
15) notary chambers.
4. Non-profit organizations may carry out income-generating activities, if this is provided for by their charters, only insofar as this serves the purposes for which they were created, and if this is consistent with such purposes.
5. A non-profit organization, the charter of which provides for the implementation of income-generating activities, with the exception of state-owned and private institutions, must have property sufficient for the implementation of these activities with a market value of at least the minimum amount of authorized capital provided for limited liability companies (clause 1 of Article 66.2).
1. Legal entities may be organizations that pursue profit-making as the main goal of their activities (commercial organizations) or do not have profit-making as such a goal and do not distribute the profits between participants (non-profit organizations).
2. Legal entities that are commercial organizations can be created in the organizational and legal forms of business partnerships and societies, peasant (farm) enterprises, economic partnerships, production cooperatives, state and municipal unitary enterprises.
3. Legal entities that are non-profit organizations may be created in the following organizational and legal forms:
1) consumer cooperatives, which include, inter alia, housing, housing construction and garage cooperatives, mutual insurance societies, credit cooperatives, rental funds, agricultural consumer cooperatives;
2) public organizations, which include, among other things, political parties and trade unions (trade union organizations) created as legal entities, public amateur bodies, territorial public self-governments;
2.1) social movements;
3) associations (unions), which include, among other things, non-profit partnerships, self-regulatory organizations, associations of employers, associations of trade unions, cooperatives and public organizations, chambers of commerce and industry;
4) partnerships of real estate owners, which include, among other things, partnerships of homeowners, horticultural or gardening non-profit partnerships;
5) Cossack societies included in the state register of Cossack societies in the Russian Federation;
6) communities of indigenous peoples of the Russian Federation;
7) funds, which include public and charitable foundations;
8) institutions, which include state institutions (including state academies of sciences), municipal institutions and private (including public) institutions;
9) autonomous non-profit organizations;
10) religious organizations;
11) public companies;
12) bar associations;
13) legal entities (which are legal entities);
14) state corporations;
15) notary chambers.
4. Non-profit organizations may carry out income-generating activities, if this is provided for by their charters, only insofar as this serves the purposes for which they were created, and if this is consistent with such purposes.
5. A non-profit organization, the charter of which provides for the implementation of income-generating activities, with the exception of state-owned and private institutions, must have property sufficient for the implementation of these activities with a market value of at least the minimum amount of authorized capital provided for limited liability companies (clause 1 of Article 66.2).
6. The rules of this Code do not apply to relations in the implementation of their main activities by non-profit organizations, as well as to other relations with their participation that are not related to the subject of civil legislation (Article 2), unless otherwise provided by law or the charter of a non-profit organization.
1. The commented article is devoted to commercial and non-profit organizations - the most important dichotomy of legal entities, directly related to the phenomenon of entrepreneurial activity, included in the subject of civil law regulation and referred to the jurisdiction of civil legislation (paragraph 3, paragraph 1, article 2 of the Civil Code). Based on the main purpose of their activities, all legal entities are divided into two groups: commercial organizations pursue, and non-profit organizations do not pursue profit-making as the main goal of their activities (clause 1 of Article 50). Since engaging in entrepreneurship is not the exclusive prerogative of commercial organizations (clause 1 of Article 50 speaks of the desire to make a profit only as the main goal of activity), non-profit organizations can also engage in entrepreneurship subject to the following number of conditions and restrictions: a) the desire of a non-profit organization making a profit should not turn into an end in itself (clause 1, article 50); b) the profit received by a non-profit organization should not be distributed among its participants, i.e. assigned by them (except for members of the consumer cooperative - clause 5 of Article 116 of the Civil Code); c) the implementation of entrepreneurial activities by a non-profit organization must correspond to the goals for which it was created, and also serve the achievement of these goals (paragraph 2, paragraph 3, article 50); d) finally, the possibility of a non-profit organization to conduct business activities should not be directly excluded by law.
2. In connection with the proposal in paragraph 1 of Art. 50 dichotomy of legal entities further in paragraph 2 and paragraph. 1 clause 3 lists the organizational and legal forms of commercial and non-profit organizations. In this case, it is no longer the classification method that is used, but the list method, and since the latter, not being based on a strict logical criterion (criteria), is more free and flexible, if necessary and as a result of changes in the law, the forms of legal entities can be subject to quantitative and qualitative dynamics. Thus, it is possible to reduce or increase the number of forms (by excluding some and adding others), as well as internal changes to existing forms (the latter, in particular, occurred in relation to unitary enterprises in connection with a change in the concept of state-owned enterprises and limited liability companies, which turned out to be more "remote" from business partnerships and close to the joint-stock company).
The list of forms of commercial organizations is limited by the Civil Code (clause 2 of Article 50), therefore the emergence of new forms of commercial organizations is possible only if the Civil Code is amended accordingly. According to paragraph 2 of Art. 50 and taking into account paragraphs 2 and 3 of Art. 66 of the Civil Code, commercial organizations can be created only in the forms of: a) full and b) limited partnership (Articles 69 - 81, 82 - 86 of the Civil Code); c) limited and d) companies with additional liability (Articles 87 - 94, 95 of the Civil Code); e) joint stock company (Articles 96 - 104 of the Civil Code); f) production cooperative (Articles 107 - 112 of the Civil Code); g) a unitary enterprise (Articles 113 - 115 of the Civil Code). The features of each form are determined by the Civil Code and special laws (the only exceptions are business partnerships that do not have their own law). Since the imperative norm of paragraph 2 of Art. 50 clearly limits the principles of freedom of contract, autonomy of will and independence (clauses 1, 2, article 1, paragraph 1, clause 1, article 2, article 421 of the Civil Code), a commercial organization cannot be created in any other form (including by combining elements of different shapes).
That is why the existence of an individual (family) private enterprise known in the past is excluded, as well as a hypothetical joint-stock limited company (a joint-stock company with additional liability) - a symbiosis of a joint-stock company and a limited partnership (a company with additional liability). In turn, the form of a unitary enterprise cannot be used outside the state (municipal) form of ownership to ensure the interests of private business. Certain forms of commercial organizations are internally heterogeneous: joint-stock companies can be open or closed (Article 97 of the Civil Code), and unitary enterprises can be based on the right of economic management and operational management (Articles 114, 115 of the Civil Code). For the purposes of legal regulation, some forms are grouped together due to the presence of common characteristics, for example, business companies (within the framework of which only the appearance of subsidiaries and dependent companies is possible - Articles 105, 106 of the Civil Code), business partnerships and companies (having a common part - Art. 66 - 68 Civil Code). It is precisely due to the similarity of individual forms and in order to avoid duplication of normative material that rules devoted to one form can sometimes, by virtue of a direct indication of the law, be applied to other forms (clause 2 of Article 82, clause 3 of Article 95 of the Civil Code).
3. The forms of non-profit organizations are not limited to the framework of the Civil Code (paragraph 1, paragraph 3, article 50) - they may also be provided for by other laws, different by industry. Non-profit organizations can be created in the form of consumer cooperatives, public or religious organizations (associations), funds, institutions, associations of legal entities (associations and unions) (see, respectively, Articles 116 - 118, 120, 121 of the Civil Code). There are also communities of indigenous peoples of the Russian Federation, state corporations, non-profit partnerships, autonomous non-profit organizations (according to Articles 6.1, 7.1, 8, 10 of the Law on Non-Profit Organizations).
Individual forms of non-profit organizations are internally heterogeneous, and the legal regulation of varieties of the same form can also be ambiguous. Thus, an institution can be private or public (state or municipal); in turn, state and municipal institutions are budgetary or autonomous (clause 2 of article 120, clause 1 of article 298 of the Civil Code). However, the Law on Non-Profit Organizations does not apply to state and municipal institutions, unless otherwise established by federal law (Clause 5, Article 1), and therefore refers only to private institutions (Article 9). In turn, those state and municipal institutions that are autonomous are specifically regulated by the Law on Autonomous Institutions. Some forms of nonprofit organizations overlap. Thus, public associations (Article 117 of the Civil Code) can be created in the form of a public organization, social movement, public foundation, public institution, public initiative body, political party (Articles 7 - 12, 12.2 of the Law on Public Associations).
4. Commercial and (or) non-profit organizations can unite into associations and unions (clause 4 of article 50, article 121 of the Civil Code). The law regulates such associations, at least non-profit organizations, in different ways. Thus, an association of commercial organizations cannot conduct business independently and directly: to do this, it must transform into a business partnership (society) or participate in it (paragraph 2, paragraph 1, article 121 of the Civil Code). This rule does not apply to other associations - non-profit organizations (clause 2 of Article 121 of the Civil Code), as well as commercial organizations with non-profits: such associations have the right to engage in business independently and directly (without transformation or participation in a commercial structure). Commercial organizations can be founders (participants) of non-profit organizations (Article 15 of the Law on Non-Profit Organizations), with exceptions provided by law (for example, they cannot participate in public and religious organizations (associations) and state corporations, the founders of which can only be citizens and Russian Federation respectively). Non-profit organizations can be founders (participants) of commercial organizations, with exceptions provided by law (for example, they cannot be general partners in business partnerships, and institutions can be participants in business companies and investors in limited partnerships with the permission of the owner, unless otherwise established by law - clause 4 of article 66 of the Civil Code). It is possible to transform commercial organizations into non-profit ones, and vice versa (clause 2 of Article 104 of the Civil Code, Article 34 of the Law on Unitary Enterprises, clauses 1, 2, 4 of Article 17 of the Law on Non-Profit Organizations).
Ruling of the Supreme Court of the Russian Federation dated March 16, 2017 N 306-ES17-690 in case N A55-18187/2015
Having re-examined, assessed the presented evidence according to the rules of Article 71 of the Arbitration Procedure Code of the Russian Federation, guided by Articles 22, 27, 28, 33, 150 of the said Code, Article of the Civil Code of the Russian Federation, Article 135 of the Housing Code of the Russian Federation and taking into account the explanations set out in paragraph 5 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 09.12.2002 N “On some issues related to the implementation of the Arbitration Procedural Code of the Russian Federation”, the appellate court, with the conclusions of which the district court agreed, overturned the decision of the first instance and terminated the proceedings on the claim, arriving at a lawful conclusion about the lack of jurisdiction of the dispute arbitration courts, because from the agenda general meeting, it follows that the issues were of an organizational nature, regulating the activities of the partnership, and were not related to the implementation of entrepreneurial or other economic activity.
When considering this dispute, the courts were guided by articles , , , , , of the Civil Code of the Russian Federation, the provisions of the Housing Code of the Russian Federation, Federal Law dated July 27, 2010 N 190-FZ "On Heat Supply", Federal Law dated December 7, 2011 N 416-FZ "On water supply and sanitation", Rules for determining and providing technical specifications connecting a capital construction project to engineering and technical support networks and the Rules for connecting a capital construction project to engineering and technical support networks, approved by Decree of the Government of the Russian Federation dated 02/13/2006 N, Rules for the maintenance of common property in apartment building, approved by Decree of the Government of the Russian Federation dated August 13, 2006 N, Rules for the provision of utilities owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation dated 05/06/2011 N, the requirements of SanPin 2.1.4.2496-09 "Hygienic requirements for ensuring the safety of hot water supply systems", approved by the Decree of the Chief State Sanitary Doctor of the Russian Federation dated 07.04 .2009 N 2.
2) in violation of paragraph 5 of Article of the Civil Code of the Russian Federation, the social movement does not have property sufficient to carry out production and business activities provided for in paragraph four of paragraph 6.4 of the charter;
3) in violation of paragraph one of paragraph 1 of article of the Civil Code of the Russian Federation and part 1 of article 28 Federal Law dated May 19, 1995 N 82-FZ “On Public Associations” the name of the social movement does not contain an indication of the nature of the activity;
7-FZ “On Non-Profit Organizations” (hereinafter referred to as Federal Law No. 7-FZ), a non-profit organization can carry out entrepreneurial and other income-generating activities only insofar as it serves to achieve the goals for which it was created and corresponds to these goals, provided that that such activities are specified in its constituent documents.
The conclusions of the courts correspond to paragraph 103 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N “On the application by courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation”, according to which, within the meaning of paragraph 1 of Article, paragraph 6 of Article and paragraph 2 of Article 181.1 of the Civil Code In the Russian Federation, decisions of meetings mean decisions of the civil law community, i.e. a certain group of persons empowered to make decisions at meetings, with which the law associates civil consequences that are binding on all persons who had the right to participate in such a meeting, as well as on other persons, if this is established by law or follows from the essence of the relationship. In particular, the decisions of meetings include decisions collegial bodies management of a legal entity (meetings of participants, boards of directors, etc.), decisions of meetings of creditors, as well as the committee of creditors in bankruptcy, decisions of shared owners, including decisions of owners of premises in an apartment building or non-residential building, decisions of participants in common shared ownership of land plot of agricultural land.
In accordance with paragraph four of paragraph 1 of Article of the Civil Code of the Russian Federation, restrictions on the reorganization of legal entities may be established by law. In development this provision paragraph 4 of Article 127-FZ "On Insolvency (Bankruptcy)", Article 45 of the Tax Code of the Russian Federation and proceeded from the fact that the actions of the Ocean company in question were committed for the sole purpose of obtaining control over the progress of procedures within the framework of the bankruptcy case of the debtor and represent constitutes an abuse of right. In addition, the claims in question have already been settled.
By virtue of articles of the Civil Code of the Russian Federation, YUKOLA-neft LLC is a commercial organization engaged in economic activity for profit making purposes.
The plaintiff, as a business entity, acts of his own free will and in his own interest, makes all necessary decisions on his own responsibility, including taking into account his financial capabilities, and also assesses all the risks of adverse consequences in the event of a violation of his obligations.
By virtue of the provisions of paragraph 4 of Article of the Civil Code of the Russian Federation and paragraph 2 of Article 24 of Federal Law No. 7-FZ of January 12, 1996 “On Non-Profit Organizations” (hereinafter referred to as Federal Law No. 7-FZ), a non-profit organization can carry out entrepreneurial and other beneficial activities income from an activity only insofar as it serves the purposes for which it was created and corresponds to the said purposes, provided that such activity is specified in its constituent documents.
Terminating the proceedings in the case, the court of first instance, guided by the provisions of Articles 27, 28, 150 of the Arbitration Procedural Code of the Russian Federation, articles of the Civil Code of the Russian Federation, Resolution of the Plenum of the Supreme Court of the Russian Federation No. 25 dated June 23, 2015 “On the application by courts of certain provisions of Section I of Part first Civil Code of the Russian Federation", taking into account the charter of the NP "Siesta", proceeded from the fact that the NP "Siesta", of which the plaintiffs are members and in connection with participation in which the demands are actually made, is a non-profit organization that unites in its composition individuals and does not have profit as the main goal of its activities.
When resolving the stated claims, the courts, guided by the provisions of articles , , , , , of the Civil Code of the Russian Federation, articles 7, 32, 33, 39, 46 of the Federal Law "On Limited Liability Companies", articles 13, 14 of the Federal Law "On Accounting" , having established that the amount of monetary obligations secured by surety agreements (as of the date of their conclusion) exceeded the amount of the company's assets by more than 2 times (or amounted to 216% of the assets of the guarantor), the courts came to the conclusion that the controversial transactions were large for the guarantor, concluded without appropriate approval, entail property losses for the company, a decrease in its assets, and the emergence of greater accounts payable, in connection with which the requirements were satisfied.
