Types of legal relations in the field of entrepreneurial activity. Control questions

The manual is written in accordance with the current legislation. It covers such important issues as: the concept of entrepreneurial activity and entrepreneurial law, the legal status of business entities, their responsibility, forms and methods of state regulation of entrepreneurial activity, ways to protect the rights of entrepreneurs and entrepreneurship in general, etc. The textbook is intended for students, undergraduates and teachers of higher educational institutions of a legal and economic profile; can also be used by entrepreneurs, managers and specialists of business structures.

A series: Education (Yusticinform)

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by the LitRes company.

Topic 1. Business law as a branch of law. Business legal relations

1.1. The concept of entrepreneurial activity

The study of business law begins with the definition of the concept of "entrepreneurial activity". Entrepreneurial activity is an integral part of a broader concept - economic activity.

Economic activity- this is a type of economic activity, the procedure for organizing, managing and directly carrying out economic activities in accordance with the rules established by state authorities and administration.

In paragraph 1 of Art. 2 of the Civil Code of the Russian Federation contains a legal definition of entrepreneurial activity.

Under 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 persons registered in this capacity in the manner prescribed by law.

Thus, entrepreneurial activity is a kind of economic activity, which is characterized by the following features.

1. Independence. As I. V. Ershova rightly notes, “it is conditionally possible to single out the property and organizational independence of the entrepreneur.” Property independence entrepreneur is the presence of separate property on the right of ownership, economic management or operational management, which is the property basis for his entrepreneurial activity. It is with this property that the entrepreneur participates in entrepreneurial and other economic activities. Organizational autonomy implies the possibility of making independent decisions in the process of carrying out entrepreneurial activities, as well as the possibility of choosing in the process of creating a subject carrying out such activities (for example, choosing the organizational and legal form of doing business).

2. Risky nature of entrepreneurial activity. The entrepreneur carries out his activities at his own risk, i.e., assumes, bears all the unfavorable consequences from the possible result of his lawful, or objectively random, or objectively unacceptable actions or events.

3. Focus on systematic profit. This means that not one-time actions, transactions in this area should be qualified as entrepreneurial, but only those that are of a permanent, sustainable nature. Moreover, entrepreneurship takes place even when profit is not actually received, but purposeful activity for its receipt is fixed. The concept of profit is contained in the Tax Code of the Russian Federation (Article 247).

4. State registration as an entrepreneur. State registration as a business entity is the basis for the legalization of entrepreneurial activity. The absence of registration, provided that a person carries out activities corresponding to the three signs listed above, does not mean that this person is not an entrepreneur. However, in this case, such activity is recognized as illegal.

In a market economy, entrepreneurial activity becomes the most widely used type of economic activity in practice. At the same time, there is a sufficient number of entities that are created for non-commercial purposes (for example, charitable foundations, political parties, etc.) or, in addition to entrepreneurial activities, perform various social and public tasks (for example, state-owned enterprises). Therefore, the identification of entrepreneurial and economic activity seems unreasonable.

One of the components of entrepreneurial activity is commercial activity.

commercial activity is a type of business activity related to trade. Commercium (lat.) is trade.

B. I. Puginsky rightly notes that “entrepreneurship is much broader than commerce, since profit can be obtained from the performance of work, the provision of services, from income from property, and not just from the sale of goods.”

It should be noted that a different point of view is also expressed in the literature. Commerce is considered in a broader sense, as an activity for the sale of not only goods, but also works and services.

So, the ratio of the concepts of "economic activity", "entrepreneurial activity", "commercial activity", given above, seems to be the most appropriate to present in the form of the following scheme.

Correlation between the concepts of "economic activity", "entrepreneurial activity", "commercial activity".

Scheme 1.

1.2. Entrepreneurial law as a branch of law and its place in the Russian legal system

The question of the place and role of business law in the legal system of Russia, its content and structure is not solved unambiguously in legal science.

There are several positions on this issue.

1. Entrepreneurial law is recognized as an independent branch of law, which has only its inherent subject of legal regulation - public relations associated with entrepreneurial activity, as well as special methods of legal regulation. Such a position is held, for example, by V. V. Laptev, V. K. Mamutov, V. S. Martemyanov, S. A. Zinchenko. So, V.V. Laptev notes that the subject of business law is social relations associated with the implementation of entrepreneurial activity, which are united in essence, but within this unity are divided into relations that develop in the implementation of entrepreneurial activity, relations that develop in the regulation of entrepreneurial activity. activities, and on-farm. To regulate these relations, according to V. V. Laptev, the method of autonomous decisions, the method of mandatory prescriptions and the method of recommendations are used.

2. Business law is not recognized as a branch of law. Supporters of this position (for example, E. A. Sukhanov), relations proceed from the fact that private law relations arising in the process of entrepreneurial activity are regulated by a single civil law, relations in organizing and managing entrepreneurial activities are primarily administrative and closely related industries law (financial, tax, etc.). At the same time, they allow the separation of the relevant legislative array or also the allocation of an academic discipline devoted to the study of the legal regulation of entrepreneurial activity. So, E. A. Sukhanov writes: “The legal regulation of entrepreneurial activity needs both private law (predominantly) and public law influence. If the first in Russian conditions is within the framework of civil law, then the second is of a diversified nature and is carried out with the help of the norms of administrative, financial, land, civil procedure and other branches of public law. The proposal to combine all the relevant rules into a single legal branch is not only artificial and far-fetched, but also harmful, since its implementation inevitably leads to the suppression of private law principles.

3. Business law is an independent branch of law of the second level, combining the features and methods of a number of basic branches, primarily civil and administrative. This position is held, for example, by O. M. Oleinik, E. P. Gubin, P. G. Lakhno. In particular, E. P. Gubin and P. G. Lakhno note: “The most reasonable and adequately reflecting the realities of the current stage of development of the Russian law system is the point of view according to which business law is an independent complex integrated branch of Russian law, which tends to develop into the main industry."

The last of the above positions regarding the place of business law in the legal system of the Russian Federation, from our point of view, is the most correct based on the following.

Firstly, business law has a single subject of legal regulation - relations arising in the process of entrepreneurial activity. In the process of implementing such subjects of business law enter into both private law and public law relations. The interest of subjects entering into any private relations in connection with their entrepreneurial activities is primarily aimed at making a profit. However, making a profit by an entrepreneur is not only his private interest. The state and society are interested in making entrepreneurial activity profitable. The payment of taxes, the creation of jobs, the production of goods - all this is no longer only private, but also public interest. “By virtue of the rationality of economic activity, the profitability of the enterprise turns out to be a prerequisite for the common good.” Therefore, here we can already talk about the coincidence of interests of both society and entrepreneurs. At the same time, the receipt by an entrepreneur of profit should not violate the rights and legitimate interests of other persons, society, and the state. In this regard, entrepreneurial activity is inevitably subject to state regulation. S. A. Zinchenko rightly notes that “in the course of such regulation of entrepreneurial activity, the state approves the public principle, the public interest, while at the same time coordinating it with the private interest of entrepreneurs.” Thus, there is a unity of public and private relations in the process of entrepreneurship, and, consequently, the unity of the subject of legal regulation of business law.

Secondly, the range of social relations included in the subject of business law is regulated by the legal norms of various branches of law, both private law and public law, primarily civil and administrative. At the same time, a set of methods of legal regulation characteristic of these industries is used. Consequently, business law is a complex legal branch of the second level.

So, business law is an independent complex branch of law, that is, a set of legal norms that regulate social relations in the field of entrepreneurial activity.

When characterizing the system of law and its individual branches, branches of legislation, scientific and educational disciplines are also distinguished.

If the branch of law is a set of legal norms regulating homogeneous legal relations, then the branch of legislation is a set of normative acts that can be formed for various reasons, the main of which is the substantive unity of the social relations they regulate. It should be noted that business law does not have its own backbone legal act, which makes it difficult to form this branch of law as a system of legal norms for entrepreneurial activity.

Business law as a scientific discipline, science is a system of reliable knowledge, a system of ideas of scientists about business law as a legal branch.

Entrepreneurial law as an academic discipline- this is a presentation taking into account certain methodological requirements of the system of knowledge about this industry.

1.3. Subject and method of business law

The circle of public relations, regulated by the norms of business law, is the subject of the industry under consideration.

As already noted, the subject of legal regulation of business law is public relations in the field of entrepreneurial activity. The totality of these social relations can be divided into the following groups.

first group constitute relations arising in the course of entrepreneurial activity. In the literature, this group of relations is often referred to as entrepreneurial relations. The social relations under consideration are formed in the course of activities aimed at systematically extracting profit from the use of property, the sale of goods, the performance of work, the provision of services between legally equal subjects of commodity-money relations.

second group constitute other, non-commercial relations closely related to business. This group of relations is characterized by the fact that the relations included in it are not directly aimed at making a profit, but are necessary, create the basis, prerequisites for its implementation. In particular, these include organizational and property relations that arise in the process of creating and terminating business entities, obtaining licenses and other permits, etc. It creates conditions for entrepreneurship and the activities of a number of non-profit organizations, in particular commodity and stock exchanges, associations ( unions) legal entities, etc.

To the third group includes relations on state regulation of entrepreneurial activity. Relations included in this group arise between authorized state bodies, local governments and entrepreneurs in the process of state regulation of entrepreneurship in order to ensure state and public interests. These relations are regulated by public law methods.

Fourth group- on-farm (intra-corporate, intra-company) relations. They arise in the process of creating and managing the activities of entrepreneurial formations with a complex structure. On-farm relations are characterized by "the local sphere of manifestation and the rigidity of the regulatory principle as the predominant feature."

Since the subject of business law is both private and public law relations, they can also be divided into “horizontal” (when the subjects of relations are in an equal position) and “vertical” (the subjects are in relations of power and subordination).

Under the method of legal regulation, applied in a particular branch of law, is understood as a set of methods and techniques for regulating relations between subjects, emerging as a result of the special properties of the subject of legal regulation.

It is believed that each branch of law has its own, special method of regulation. However, since business law is a complex industry based on an organic combination of private law and public law principles, several methods are used to regulate social relations included in its subject. In the legal literature, the following are usually distinguished.

1) Autonomous decision method (coordination method). It is typical for the regulation of horizontal relations included in the subject of business law, i.e., relations between equal subjects. It is expressed in providing business entities with the freedom to choose a model of their behavior, including by coordinating their actions with other business entities. For example, an LLC has the right to independently choose and carry out any types of activities that do not contradict the law, and for the sale of goods, works, services, it may enter into contractual, agreed relations with other entities.

2. Mandatory prescription method. It is used to regulate vertical relations based on the subordination of one subject to another. Imperative norms of law establish the rights and obligations of subjects of entrepreneurial relations. One party to legal relations is empowered to give the other party mandatory instructions, which it is obliged to comply with. For example, business entities are required to comply with antimonopoly legislation, and antimonopoly authorities are required to monitor compliance with it, and in cases of violation, they have the right to issue mandatory instructions to entrepreneurs to eliminate these violations.

3. Recommendation method consists in the fact that one side of the legal relationship offers the other side a certain variant of behavior in certain situations, the establishment, on the basis of recommendations, of their mutual rights and obligations. For example, in 2003, the FCSM developed a Code of Corporate Conduct, which is not mandatory, but is recommended for adoption as a local act of a joint-stock company. The Company has the right to develop its own code of corporate conduct in accordance with the recommendations of the FCSM Code or to include some of its provisions in its internal documents, which it deems acceptable. At the same time, the goal of applying corporate behavior standards is to protect the interests of all shareholders, regardless of the size of the block of shares they own. According to the developers of the code, this should have a positive effect on the inflow of investments into Russian joint-stock companies, which will have a positive impact on the Russian economy as a whole.

It should be noted that the point of view is expressed in the literature, according to which the above methods are applied in combination and form a single method of business law. In particular, I. V. Ershova and S. A. Zinchenko point to the existence of such a method, called the method of coordination, the main characteristics of which are the relationship of freedom in the implementation of private interests with state power influence where this is dictated by public interests, as well as taking into account recommendations competent authorities.

1.4. Principles of business law

Business law, like any other branch of Russian law, is based on certain principles, i.e. fundamental principles.

What are the principles?

First, it is the constitutional principle of economic freedom. Art. 8 and 34 of the Constitution of the Russian Federation states: "Everyone has the right to free use of his abilities and property for entrepreneurial and other economic activities not prohibited by law." All business relations are based on this basic principle.

Secondly, the principle of recognition diversity and legal equality of private, state, municipal and other forms of ownership and their equal protection. Private property may belong to citizens and legal entities. State - the Russian Federation as a whole and its individual subjects (republics, territories, regions, autonomous regions, etc.). Municipal property belongs to cities (with the exception of federal cities) and rural settlements.

Third, the principle single economic space. In accordance with the Constitution of the Russian Federation (Article 8), the free movement of goods, services and financial resources is enshrined.

In accordance with this principle, on the territory of the Russian Federation, neither legislatively nor administratively, no one has the right to establish customs borders, impose duties or create other obstacles that violate the economic space of the Russian Federation.

Fourth principle is the principle of balancing the private interests of entrepreneurs and the public interests of the state and society as a whole. In one way or another, state regulation of the economy is carried out in any country in the world, but at the same time there are more liberal regulatory systems, as, for example, in England and with the priority of administrative measures of influence (for example, North Korea). Russia's transition to market economic priorities requires the replacement of administrative measures with economic ones in order to achieve this principle, but it is difficult to overcome the human factor.

Fifth principle – principle of systematic profit as a business goal. The introduction of this principle is a necessary attribute of a market economy.

The motto "get rich" proclaimed in the West in the mid-50s has exactly this meaning.

Sixth principle- principle maintaining competition and prevention of economic activities aimed at monopolization and unfair competition. This principle has been developed in a number of legislative acts on the protection of competition in the commodity and financial markets, and on natural monopolies. Violators of the antimonopoly law can be not only entrepreneurs, but also state bodies (for example, if they establish bans on the import and export of consumer goods).

This principle is enshrined in the Constitution of the Russian Federation (clause 1, article 8).

And finally seventh principle- the principle of legality. This principle underlies the construction of the rule of law and civil society in Russia. The principle of legality is obligatory both for entrepreneurs and for state bodies regulating their activities. Rule of law ensures the stability of the economy and its financial system. In pursuance of this principle, the rules for registering departmental normative acts with the Ministry of Justice of the Russian Federation before their official publication and entry into force are in force. Registration should take place only if the normative act complies with the law. Art. 13 of the Civil Code of the Russian Federation determines the conditions and procedure for invalidating an act of a state body and a local self-government body.

1.5. constitutional foundations of entrepreneurship

The Constitution of the Russian Federation of 1993 (Article 15) has the highest legal force on the territory of the Russian Federation.

The constitutional foundations of entrepreneurial activity are the fundamental constitutional norms that:

– form the necessary prerequisites for entrepreneurial activity;

- predetermine the content, conditions and procedure for its implementation;

– provide the right to entrepreneurial activity with appropriate guarantees.

These norms:

1) express certain concepts of legal regulation;

2) fix the constitutional principles;

3) determine the legal status of the entrepreneur, including his rights, duties, responsibilities, freedoms and interests, and establish their guarantees.

The basic principles of entrepreneurship are enshrined in the norms of the Constitution of the Russian Federation on fundamental economic rights and freedoms - on the right to use one's abilities and property for entrepreneurial and other economic activities not prohibited by law (Article 34), on the right to freely choose the type of activity and profession (Article 34). 37), on the right to private property (Articles 35, 36), on the right to protect one’s good name (Article 23), which in the economic sphere means the right to protect business reputation, on the right to state compensation for damage caused by illegal actions ( or inaction) of public authorities or their officials (Article 53), and other rights, as well as constitutional guarantees of entrepreneurship (part 2 of article 34, part 1 of article 74, part 2 of article 75).

However, the core of the system of constitutional norms are the basic human and civil rights inherent in a democratic society with a market economy:

1) the right to choose the type of activity or profession (i.e. occupation) - the freedom to be either a landlord-entrepreneur or an employee (Article 37 of the Constitution of the Russian Federation);

2) the right to move freely, choose the place of stay and residence - freedom of the labor market (Article 27);

3) the right to association for joint economic activity - the freedom to choose the organizational and legal forms of entrepreneurial activity and the formation of various business structures in a notification procedure (part 1 of article 34);

4) the right to own property, own, use and dispose of it both individually and jointly with other persons, freedom to own, use and dispose of land and other natural resources - freedom to own real estate (Articles 34 and 35) and freedom of the land market (part 2 of article 36);

5) the right to freedom of contract - the freedom to conclude civil law and other transactions (part 2 of article 35);

6) the right to protection from unfair competition (part 2 of article 34);

7) freedom to engage in any entrepreneurial and other economic activities not prohibited by law in accordance with the principle “everything that is not prohibited by law is allowed” (part 1 of article 34).

The Constitution of the Russian Federation serves as the basis for the development of legislation on entrepreneurial activity.

1.6. business law sources

The source of law is understood as a form of expression of legal norms, which has a generally binding character.

The sources of business law are:

1) regulatory legal acts of the Russian Federation.

2) international treaties of the Russian Federation.

3) customs.

1. Regulatory legal acts are the main source of law in our country:

a) the constitution of the Russian Federation has the highest legal force and is the basis of current legislation;

b) federal constitutional laws;

c) federal laws (a special place among them is occupied by codes);

d) subordinate federal acts:

- Decrees of the President of the Russian Federation issued in addition to or development of laws issued in addition to or development of laws, if there are gaps in them and if it is necessary to promptly establish legal norms;

- resolutions, orders of the Government of the Russian Federation, issued within its competence in the development and implementation of laws;

- normative acts of federal ministries and other federal executive bodies aimed at the implementation of laws, decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation;

e) acts of regional authorities and administrations issued within their competence in accordance with the division of powers between the Russian Federation and the constituent entities of the Russian Federation;

f) acts of local authorities and administrations that have an economic and legal content.

The principle of consistency operates in the legal system: legal acts of lower-level authorities and administrations should not contradict the corresponding legal acts of higher-level authorities. Otherwise, the legal act of the higher level authorities shall apply.

2. International treaties of the Russian Federation according to part 4 of article 15 of the Constitution of the Russian Federation, they are an integral part of the Russian legal system and therefore are taken into account as sources of its law.

According to paragraph 2 of Art. 7 of the Civil Code of the Russian Federation, international treaties of the Russian Federation have priority over its civil legislation. At the same time, international treaties apply directly to civil legal relations, unless the necessity of issuing an internal act for its application follows from the treaty itself. For example, the 1980 UN Convention on Contracts for the International Sale of Goods is directly applicable as Russian law, and the 1983 Paris Convention for the Protection of Industrial Property established that the conditions for filing and registering trademarks are determined by the national legislation of the participating country. In accordance with this, part four of the Civil Code of the Russian Federation operates in Russia, containing the relevant rules on the registration of trademarks (paragraph 2 of Chapter 76 of the Civil Code of the Russian Federation).

3. Customs. According to Art. 5 of the Civil Code of the Russian Federation, a custom is a rule of conduct that has developed and is widely used in any area of business or other activities, not provided for by law, regardless of whether it is recorded in any document.

Customs that are contrary to the provisions of the law or the contract binding on the participants in the relevant relationship shall not be applied.

For example, the International Chamber of Commerce has developed the International Rules for the Interpretation of INCOTERMS Trade Terms. They apply only if there is a reference to them in the agreement between the parties, but the ICAC (International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation) recognizes INCOTREMS as business customs.

1.7. The place of business law in the legal system of the Russian Federation

In the legal system of the Russian Federation, entrepreneurial law is formed from the norms of various branches of law: constitutional (state) civil, labor, financial, administrative, criminal, tax, etc. The norms of entrepreneurial law establish the rules for the economic activity of a business entity.

Consider how business law and the main branches of law in the field of entrepreneurship relate to each other.

1. The basic branch of law is constitutional law, because other branches of law, including business law, are formed on its basis.

The basis of legal regulation is the Constitution of the Russian Federation, adopted by popular vote on December 12, 1993 - the basic law of the state, which is the legal basis for all current legislation. The Constitution of the Russian Federation guarantees the unity of the country's economic space, the free movement of goods, services and financial resources, support for competition, and freedom of economic activity. Private, state and municipal forms of ownership are recognized and protected in the same way. The Constitution of the Russian Federation has the highest legal force, direct effect and is applied throughout the territory of the Russian Federation.

The Constitution establishes the freedom of economic activity, the mechanism of market relations is fixed. The creation and functioning of a single all-Russian market, the free movement of goods, services and financial resources throughout Russia, the support and development of fair competition, and the prevention of economic activity aimed at creating a monopoly and restricting competition are guaranteed.

The only monetary unit circulating in the territory of the Russian Federation is the ruble. The state, represented by the Bank of Russia, is obliged to protect the Russian currency and ensure its stability. For the first time, Russia was proclaimed a social state whose policy, including in the field of economy and entrepreneurship, serves to create conditions for the free development of a person, personal and society as a whole.

2. The next most important branch of law interacting with business law is civil law, which is a system of legal norms governing property and related non-property relations, based on the autonomy and property independence of the participants in such relations, by the method of legal equality of the parties. Property relations, which are the subject of civil law, can express: ownership of property by certain persons (real relations); property management of organizations (corporate relations); transfer of property from one person to another (obligatory legal relationship). Non-property relations related to property relations represent the category of exclusive rights (copyright, patent, etc.).

Entrepreneurial property relations are 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, their participation in obligations.

The peculiarity of civil law lies in the fact that it streamlines relations between equal and independent subjects entering into relations with each other of their own free will.

Civil law is the regulator of market relations. Together with other branches of law, it is able to fully influence the business sector of the economy. The norms governing entrepreneurship, that is, activities for the systematic receipt of profit, are organically merged with civil law.

Along with the above branches of law, entrepreneurial activity is regulated by the norms of financial, tax, labor, land, criminal legislation, the norms of which are covered by the concept of public law.

But the largest regulator of relations in the field of entrepreneurship is still administrative law.

Administrative law regulates social relations that develop in the field of public administration: the procedure for the creation, reorganization and liquidation of executive bodies at all levels, their list, goals and objectives, competence, structure, procedure for functioning. It also has a certain regulatory effect on non-governmental organizations, for example, mandatory state registration.

The norms of administrative law determine the legal status of public associations, local governments and other non-state formations in the field of administrative legal relations.

Administrative law is characterized by the presence of the relationship "power - subordination" and regulates the relations of unequal subjects.

1.8. Business legal relations

Legal relations are understood as social relations regulated by the norms of law.

Regulated by the norms of business law, relations arising in the course of entrepreneurial activity, as well as due to state influence on market participants that are bound by mutual rights and obligations, are business legal relations.

There are three elements to a relationship:

1. Subjects of a legal relationship - a set of persons participating in it.

3. The object of the legal relationship is something about which the activities of the subjects of the legal relationship arise and are carried out.

As subjects of business legal relations may be business entities, the state and municipalities.

One of the debatable issues is the question of who can be attributed to the subjects of entrepreneurial activity. There is no consensus on this in the legal literature.

So, D. I. Dedov writes: “Entrepreneurial law regulates the activities of various entities involved in the field of entrepreneurial activity, and not all of them are subject to state registration or licensing. The subject of entrepreneurial activity is any person whose activities are directly or indirectly aimed at obtaining entrepreneurial income and whose legal status is governed by entrepreneurial law. Thus, the circle of such persons is extremely wide.

One should not agree with this point of view, since one of the main conditions for the implementation of entrepreneurial activity is its legitimacy, i.e., state confirmation of the legality of the entry of subjects into economic circulation. In the legal literature, to refer to such a procedure, the concept of legitimation is used (mainly in connection with the state registration of enterprises and individual entrepreneurs, as well as the licensing of certain types of activities).

So, according to paragraph 1 of Art. 23 of the Civil Code of the Russian Federation, an individual acquires the status of an individual entrepreneur from the moment of his state registration. Thus, state registration as a business entity is a necessary initial stage in organizing a business.

Therefore, the subjects of entrepreneurial activity, from our point of view, should include persons registered as entrepreneurs in the manner prescribed by law.

Based on the analysis of the norms of the current legislation, the following business entities can be distinguished:

– citizens-entrepreneurs carrying out activities without forming a legal entity (individual entrepreneurs);

- peasant (farm) enterprises engaged in entrepreneurial activities without forming a legal entity;

- legal entities - commercial organizations;

- legal entities - non-profit organizations that, on the basis of the law and constituent documents, carry out entrepreneurial activities;

– other business entities.

Entrepreneurial activity without the formation of a legal entity can be carried out by citizens - individual entrepreneurs and peasant (farm) enterprises.

Entrepreneurial activity of a citizen without forming a legal entity, both in terms of implementation methods and organization of activities, is one of the simplest and most common forms of entrepreneurship.

Peasant farming is “a special historically established way in which the family provides its income and well-being by growing. Selling and processing agricultural products. In accordance with the law, the peasant economy is an equal link in the economic system.”

A peasant (farm) economy is an association of citizens related by kinship and (or) property, having property in common ownership and jointly carrying out production and other economic activities (production, processing, storage, transportation and sale of agricultural products), based on their personal participation (Article 1 of the Law "On the Peasant (Farmer's) Economy").

Legal entities are recognized as organizations that have separate property in ownership, economic management or operational management, can acquire property and non-property rights and are liable with their property for the obligations arising in relation to them (Article 48 of the Civil Code of the Russian Federation).

Legal entities are differentiated, firstly, according to the purpose of their activities into commercial and non-profit organizations (see the diagram: "Organizational and legal forms of legal entities"), and secondly, depending on the nature of the founders' powers - in relation to the property of a legal entity. One group consists of business partnerships and companies, production and consumer cooperatives, which are legal entities in respect of which their participants have mandatory rights, i.e., defined by law and the constituent agreement. Another group of legal entities, on whose property the participants have the right of ownership, is represented by unitary enterprises and financed by the owner of the institution. Finally, the third group is public and religious organizations, charitable foundations, unions and associations of legal entities in respect of which the participants do not have property rights and obligations.

A commercial organization is a legal entity that pursues profit as the main goal of its activities. These include: economic partnerships and companies, peasant (farm) enterprises, economic partnerships, unitary enterprises and production cooperatives. Commercial organizations can be created only in the legal forms provided for by the Civil Code of the Russian Federation, and in no other.

Business partnerships and companies are the most common form of commercial organizations. They can be established by citizens, legal entities. Legislation prohibits only state and municipal bodies from being participants in business partnerships and companies. The main feature of these forms is equity participation in the capital and the fact that all property, both created at the expense of the contributions of the founders and acquired in the course of activity, belongs to the participants on the right of ownership. The highest body of their management is the meeting of all participants, which has exclusive competence. The distinguishing feature for these forms are the differences in the form of association of contributors.

Organizational and legal forms of legal entities

Scheme 2

Partnerships are entities built on the basis of the association of persons, while societies are based on the association of capital. This is not a formal distinction, since it determines, on the one hand, the degree of economic responsibility of the founders, and, on the other hand, the nature of their relationship with the established business structure. The general partners of a partnership jointly and severally bear subsidiary liability for its obligations, while the economic risk of the company's participants is limited by their contribution (with the exception of companies with additional liability, in which the participants bear subsidiary liability for the obligations of the company with their property, but this amount is limited by constituent documents). The partnership involves the direct personal participation of the founders in the activities and management of it. The relationship between the society and its founders is built on the basis of the law and constituent documents.

Economic partnerships can be created in the form of a general partnership and limited partnership.

A general partnership is a business partnership, the participants of which jointly and severally bear subsidiary liability for its obligations with all their property.

A limited partnership (limited partnership) is a partnership that includes, along with the participants who bear full property liability for the obligations of the partnership, fellow contributors (limited partners), whose liability is limited to the size of the contribution made.

Business companies may be created in the form of a limited liability company, an additional liability company and a joint stock company.

A limited liability company is a business company established by one or more persons, the authorized capital of which is divided into shares; the participants of the company are not liable for its obligations and bear the risk of losses associated with the activities of the company, to the extent of the value of their shares in the authorized capital of the company.

An additional liability company is a company whose charter capital is divided into shares; the participants in such a company jointly and severally bear subsidiary liability for its obligations with their property in the same for all multiples of the value of their shares, determined by the charter of the company. In the event of bankruptcy of one of the participants, its liability for the obligations of the company is distributed among the other participants in proportion to their contributions, unless a different procedure for the distribution of responsibility is provided for by the constituent documents of the company (Article 95 of the Civil Code of the Russian Federation).

A joint-stock company is a commercial organization, the authorized capital of which is divided into a certain number of shares, certifying the obligations of the company's participants (shareholders) in relation to the company. Shareholders are not liable for the obligations of the company and bear the risk of losses associated with its activities, within the value of their shares.

Joint stock companies can be open (OJSC) and closed (CJSC). An open joint-stock company has the right to conduct an open subscription for shares issued by it and to carry out their free sale, taking into account the requirements of the current legislation. A company whose shares are distributed only among its founders or other predetermined circle of persons is recognized as a CJSC. Such a company is not entitled to conduct an open subscription for shares issued by it or otherwise offer them for purchase to an unlimited number of persons. A special type of CJSC is a people's enterprise - a joint-stock company of employees.

The Civil Code of the Russian Federation now includes peasant (farm) enterprises established as legal entities as commercial legal entities.

Article 86.1 of the Civil Code of the Russian Federation establishes that "citizens conducting joint activities in the field of agriculture without forming a legal entity on the basis of an agreement on the establishment of a peasant (farm) economy (Article 23) have the right to create a legal entity - a peasant (farm) economy."

The possibility of the existence of legal entities - peasant (farm) farms was provided for by the earlier acting Law of the RSFSR of November 22, 1990 No. 348-1 "On a peasant (farm) economy." But the Federal Law of June 11, 2003, adopted instead of it, “On the Peasant (Farm) Economy” indicated the possibility of the existence of peasant (farmer) farms only without the formation of a legal entity. At present, since the introduction of the Federal Law of December 30, 2012 No. 302-FZ of the Civil Code of the Russian Federation, such a type of legal entity as a farm is again introduced into business circulation.

An economic partnership is a commercial organization created by two or more persons, in the management of which the participants of the partnership, as well as other persons take part, to the extent and to the extent provided for by the agreement on the management of the partnership.

A production cooperative (artel) is a voluntary association of citizens on the basis of membership and property shares, formed for the joint conduct of economic activities through their personal labor participation.

A unitary enterprise is a commercial organization acting as a legal entity, the property rights of which are assigned to its founder.

The law provides for the existence of two types of unitary enterprise: based on the right of economic management and on the right of operational management. The differences between them come down to differences in the content and scope of the powers that they receive from the owner to dispose of the property assigned to them. The right of economic management, providing for the enterprise to independently dispose of the property assigned to it within the limits determined by the owner, is broader than the right of operational management, which allows only the use of property in accordance with the instructions of the owner, and its disposal only with the consent of the latter.

Unitary enterprises based on the right of economic management can be of the following types - state (federal state enterprise and state enterprise of a constituent entity of the Russian Federation) and municipal.

Unitary enterprises on the right of operational management (state enterprises) can also be of several types: a federal state enterprise, a state enterprise of a subject of the Russian Federation, a municipal state enterprise.

The state enterprise is under the strictest control of the state. It can dispose of movable, sometimes even products, and immovable property only with the consent of the owner. On the contrary, the owner, at his own discretion, can withdraw part of the property from the enterprise and transfer it to third parties. On the other hand, the state also bears responsibility for the property and other obligations of a state-owned enterprise, covering the resulting losses from budgetary funds.

A non-profit organization is a legal entity that does not have profit making as the goal of its activities and does not distribute the profit received among its participants. It can be represented by public and religious organizations, institutions, consumer cooperatives and charitable foundations, various unions and associations of legal entities and other organizational and legal forms.

The status of a non-profit organization does not mean that it cannot be engaged in entrepreneurial activities and make a profit. The specificity lies only in the fact that a number of special requirements are imposed on non-profit organizations. First, the charter of the organization should clearly state its tasks, as well as the fact that it does not set profit making as its main goal. Secondly, their entrepreneurial activity is carried out only in order to ensure the statutory activities. Thirdly, the income received is not subject to distribution among the participants. Fourthly, their property and funds can only be used to achieve statutory goals.

Business entities can form associations, such as holdings, simple partnerships and other associations of entrepreneurs without forming a legal entity, as well as in the form of non-profit organizations (associations and unions of legal entities, non-profit partnerships, etc.).

Business associations ensure the concentration of capital and its use in the same interests, consolidated on a horizontal basis by concluding a civil law contract (typical for simple partnerships) or on a vertical basis due to the predominant participation of one person in the capital of other persons (such associations include holdings, relations between the participants of which are built on the principle of the main - subsidiary company). In the latter case, this leads to the emergence of relations of economic control, subordination and subordination between apparently independent legal entities.

As objects business relations can be:

1) things and other property;

2) works and services;

3) actions of obligated subjects;

4) own activity of the subject of law;

5) non-property benefits used in the implementation of entrepreneurial activities (company name, trade secret, etc.).

A subjective right is a legally fixed measure of the possible behavior of a participant in a legal relationship, and a subjective obligation is a measure of his should behavior.

The grounds for the emergence, change and termination of business legal relations are legal facts or their combinations (legal compositions).

Legal facts can be classified into law-generating, law-changing and law-terminating. Also, legal facts are traditionally classified into actions (legitimate and illegal) and events (absolute and relative).

It should be noted that since the norms of business law regulate primarily activities, the actions of participants in business legal relations are the law-generating facts here. Events act most often as law-changing and law-terminating legal facts.

Quite often, for the emergence, change or termination of business legal relations, not one, but a set of legal facts, which is called the legal composition, is required. The legal structure can include both events and actions.

Compositions are divided into simple and complex.

Simple composition - generates legal consequences in the presence of a combination of all legal facts included in it, regardless of the sequence in which they arose.

A complex composition - gives rise to legal consequences, provided that its constituent elements appear in a strictly defined order and that they are all taken together at the right time.

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The following excerpt from the book Entrepreneurial Law. Textbook (M. B. Smolensky, 2014) provided by our book partner -

Entrepreneurial legal relations according to their design, objects and content can be classified as follows:

Absolute real legal relations;

Absolute-relative real legal relations;

Absolute legal relations for the conduct of their own economic activities;

Non-property business legal relations;

business obligations.

1. Absolute real legal relations include the right of ownership, which gives its subject the opportunity to own, use and dispose of property at his own discretion in accordance with the law. It is used to carry out economic activities on the basis of their own property by the state, municipalities, and private property entities.

2. Absolute-relative real legal relations include the right of economic management, the right of operational management. They are absolutely relative, because the subject of such a right owns, uses and disposes of property "absolutely", not conforming his capabilities with anyone other than the owner, with whom he is in a relative legal relationship. Legal relations of this kind are formed when state and municipal property is provided to unitary enterprises.

3. Absolute legal relations for the conduct of one's own economic activity are formed regarding the conduct of one's own activity, which acts as the object of the legal relationship. An entity conducting business in accordance with the rules established by law does not have specific obligated persons. All other entities are obliged to take into account the possibility of conducting entrepreneurial activities and not interfere with its implementation. If the normal course of entrepreneurship is interrupted under the influence of third parties or as a result of a violation of the established procedure for conducting such activities by the subject of law itself, the absolute legal relationship turns into a relative one. For example, if an organization carries out its activities in compliance with the rules for accounting, presentation of accounting and statistical reporting, formation of the cost of manufactured products in accordance with established rules, the resulting legal relationship has an absolute construction. If the subject violates the established norms, the competent state authorities may demand the suppression of the committed violations and compensation for losses that have occurred to the state. In this case, the legal relationship is transformed into a relative one.

4. Non-property business legal relations are formed with regard to non-property benefits used by business entities in their activities, such as a company name, trademark, service mark, appellation of origin, trade secret, etc. In the course of the normal exercise of non-property rights, the emerging legal relationship is absolute. If such rights are violated, a specific obligation arises to protect them from violation and from a non-property legal relationship is transformed into a property one. The victim, protecting his non-property rights, may demand damages from the violator.

5. Economic obligations consist in the fact that a participant has the right to demand that another perform appropriate actions. The obligated subject is obliged to fulfill them, i.e. transfer property, perform work, provide services. Business obligations are divided into four main types:

1) economic and administrative, which arise as a result of the issuance of acts by state bodies;

2) on-farm, which are formed between divisions of economic entities;

3) territorial and economic relations - the relations of public entities among themselves and with organizations;

4) operational and economic, which are formed between non-subordinate entities by virtue of business contracts.

Entrepreneurial legal relations are understood as social relations regulated by the norms of entrepreneurial law that arise in the process of carrying out entrepreneurial activity, closely related activities of an organizational and property nature, as well as relations on state regulation of entrepreneurial activity. Entrepreneurial legal relations differ from civil ones, first of all, in terms of subject composition. Relations that are regulated by the Civil Code of the Russian Federation include individuals (citizens), legal entities, municipalities, constituent entities of the Russian Federation, the Russian Federation by subject composition. Entrepreneurial activities can be carried out by citizens-entrepreneurs without forming a legal entity, as well as legal entities (Article 23 of the Civil Code of the Russian Federation). According to the subject composition, family legal relations are also distinguished from civil ones. The structure of business relations Like any other public relations regulated by the rules of law, business relations have a certain structure and include the object of the legal relationship, the subjects of the legal relationship and the content of the legal relationship. The object of a legal relationship is that about which a legal relationship arises. In business relations, the object can be a product, work, service, etc. The subjects of a legal relationship are its specific participants, endowed with mutual rights and obligations. The content of the legal relationship includes subjective rights and legal obligations. Rights are always subjective, because are dispositive in nature, and their use depends on the will of the subject. Responsibilities are usually fixed either in a regulatory legal act or in a contract. Rights and obligations in a particular legal relationship are always interconnected. If one entity has any right, then its counterparty has a corresponding obligation.

Types of business legal relations Entrepreneurial legal relations according to their design, objects and content can be classified as follows: - absolute proprietary legal relations; - absolutely-relative real legal relations; - absolute legal relations for the conduct of their own economic activities; - non-property business relations; - economic obligations. 1. Absolute real legal relations include the right of ownership, which gives its subject the opportunity to own, use and dispose of property at his own discretion in accordance with the law. It is used to carry out economic activities on the basis of their own property by the state, municipalities, and private property entities. 2. Absolute-relative real legal relations include the right of economic management, the right of operational management. They are absolutely relative, because the subject of such a right owns, uses and disposes of property "absolutely", not conforming his capabilities with anyone other than the owner, with whom he is in a relative legal relationship. Legal relations of this kind are formed when state and municipal property is provided to unitary enterprises. 3. Absolute legal relations for the conduct of one's own economic activity are formed regarding the conduct of one's own activity, which acts as the object of the legal relationship. An entity conducting business in accordance with the rules established by law does not have specific obligated persons. All other entities are obliged to take into account the possibility of conducting entrepreneurial activities and not interfere with its implementation. If the normal course of entrepreneurship is interrupted under the influence of third parties or as a result of a violation of the established procedure for conducting such activities by the subject of law itself, the absolute legal relationship turns into a relative one. For example, if an organization carries out its activities in compliance with the rules for accounting, presentation of accounting and statistical reporting, formation of the cost of manufactured products in accordance with established rules, the resulting legal relationship has an absolute construction. If the subject violates the established norms, the competent state authorities may demand the suppression of the committed violations and compensation for losses that have occurred to the state. In this case, the legal relationship is transformed into a relative one. 4. Non-property business legal relations are formed with respect to non-property benefits used by business entities in their activities, such as a company name, trademark, service mark, appellation of origin, trade secret, etc. During the normal implementation of non-property rights, the emerging legal relationship is absolute. If such rights are violated, a specific obligation arises to protect them from violation and from a non-property legal relationship is transformed into a property one. The victim, protecting his non-property rights, may demand damages from the violator. 5. Economic obligations consist in the fact that a participant has the right to demand that another perform appropriate actions. The obligated subject is obliged to fulfill them, i.e. transfer property, perform work, provide services. Economic obligations are divided into four main types: 1) economic and managerial, which arise as a result of the issuance of acts by state bodies; 2) on-farm, which are formed between divisions of economic entities; 3) territorial and economic relations - the relations of public entities among themselves and with organizations; 4) operational and economic, which are formed between non-subordinate entities by virtue of business contracts.

6. The right to carry out entrepreneurial activities and ways to do itimplementation. Legal status (lat. status - state, position) - the position of its subjects established by the rules of law, the totality of their rights and obligations.

Engaging in entrepreneurial activity is an expression of the freedom of entrepreneurship as one of the fundamental rights and fundamental freedoms of a person and citizen. The Constitution of the Russian Federation provides every citizen with the right to freely use his abilities and property for entrepreneurial and other economic activities not prohibited by law (Part 1, Article 34 of the Constitution of the Russian Federation). Thus, the free exercise of entrepreneurial activity is an element of the constitutional principle of economic freedom.

The implementation of entrepreneurship is also the result of the implementation of a more general right of citizens to work, i.e. the right to freedom to dispose of one's abilities for work, to choose the type of activity and profession (Article 37 of the Constitution of the Russian Federation).

The principle of free enterprise means that every citizen has the right to choose any way of carrying out economic activity. For example, he can become an employee, providing the entrepreneur with his labor force and not taking on the risk and responsibility for the economic results of his work. A citizen can also carry out entrepreneurial activities by obtaining the status of an individual entrepreneur, or through participation in a commercial organization. In this case, he bears positive responsibility, i.e. he must understand that he will carry out these activities at his own risk and be solely responsible for the results of his actions. The law does not prohibit a citizen from working as an employee and at the same time carrying out entrepreneurial activities, however, on a contractual basis, a restriction on the participation or work of a citizen in relation to competing business entities in order to avoid conflicts of interest can be established. A citizen, being both an employee and an entrepreneur, has the right to choose the sphere of the economy, type of activity and profession.

However, this choice depends, first of all, on the availability of special knowledge in a particular area of social production. The right to engage in entrepreneurship, due to economic freedom, includes several elements covering the freedom to choose the scope, type and form of entrepreneurial activity. Among the fields of activity, production, commerce (trade) or the provision of services are distinguished. A citizen can also specialize in any type of activity, including bank insurance, exchange activities, the production of a certain type of product, etc. A citizen is free to independently carry out entrepreneurial activities both individually without forming a legal entity (as an individual entrepreneur), and by participating in an economic company, partnership or cooperative, i.e. uniting with other people on the basis of creating a commercial organization for the implementation of collective entrepreneurship. When creating a commercial organization, a citizen has the right, independently or jointly with other citizens and legal entities, to choose the organizational and legal form of the organization from those indicated in the law that is best suited for conducting a certain type of business and achieving the goals of the founders.

The law may restrict the form of implementation of certain types of entrepreneurial activity. For example, the Federal Law of August 8, 2001 No. "On Auditing Activities" establishes that an audit organization can be created in any organizational and legal form, with the exception of an open joint stock company, Article 4 of the Banking Law provides for the creation of a credit organization only in the form of a business company.

The natural-legal nature of the principle of freedom of entrepreneurship means the recognition by society of the natural need of a person to realize their economic interests related to obtaining personal income, providing a material base for the implementation of the entrepreneur's own ideas, achieving other socially significant goals, ultimately related to ensuring the common good.

However, the freedom of entrepreneurship may be limited by law in order to protect the foundations of the constitutional order, morality, security, protect life, health, rights, interests and freedoms of others, ensure the defense of the country and the security of the state, protect the environment, protect cultural values, and prevent abuse of a dominant position. in the market and unfair competition (Articles 55, 74 of the Constitution of the Russian Federation, Article 1 of the Civil Code of the Russian Federation). Such restrictions include, in particular, preconditions for starting a business activity: a citizen or a commercial organization has civil legal personality, state registration of business entities and obtaining a special permit (license) to carry out certain types of activities or certain actions within the framework of entrepreneurship.

If entrepreneurial activity is carried out by a citizen without registration, or without a license (if obtaining a license is mandatory), or in violation of the terms of licensing, this activity is considered illegal entrepreneurship, a citizen may be held criminally liable if such activity causes large damage to other persons or the state or received income on a large scale (Article 171 of the Criminal Code of the Russian Federation). The right to engage in entrepreneurial activity is an integral part of the legal capacity of a citizen (Article 18 of the Civil Code of the Russian Federation).

Legal capacity is the ability to have civil rights and bear obligations. Civil law also contains the category of legal capacity, which means that only a capable citizen has the ability to exercise civil rights and perform duties by his actions. Consequently, only a capable citizen can independently carry out entrepreneurial activities.

Some types of activities, the list of which should be contained only in the law, can be carried out by entrepreneurs solely on the basis of a special permit (license).

A license is a permission (right) for an entrepreneur to carry out a certain type of activity on the conditions specified in it. Licensed activities usually require special knowledge, are extremely profitable, are aimed at ensuring public interests in the field of national defense, the production of military equipment, public utilities, or they require more careful control by the state in order to protect the interests of citizens. Licensing can be established both in relation to the actual entrepreneurial activity, which is of a continuous nature (notarial activity), and individual operations within the same type of activity (insurance).

Entrepreneurial legal relations are social relations for the implementation of entrepreneurial activities, related non-commercial relations and relations for the state regulation of entrepreneurial activities, regulated by the norms of entrepreneurial law. Entrepreneurial legal relations as one of the types of legal relations have common features that are characteristic of all legal relations:

The emergence, change or termination only on the basis of legal norms that directly give rise (bring to life) legal relations and are realized through them;

Connectivity of subjects of legal relations with mutual rights and obligations;

Volitional character;

State protection;

Individualization of subjects, strict certainty of their mutual behavior, personification of rights and obligations.

The structure of a business relationship includes the following elements:

1) subjects of legal relationship;

2) objects of legal relationship;

Subjects (parties) of a legal relationship are participants in a legal relationship (subjects of law) who are bearers of mutual rights and obligations. The possibility of a particular subject to be a participant in a legal relationship is determined by its legal personality, i.e. ability to be a subject of law. Legal personality is a special property of a certain person and includes three elements:

Legal capacity - the ability to have subjective rights and legal obligations;

Legal capacity - the ability to exercise rights and obligations by one's actions;

Delicacy - the ability to bear legal responsibility for their actions.

The objects of legal relations are material and ideal goods or the process of their creation. Within the framework of business legal relations, the process of creating material and spiritual wealth is called either the production of work or the provision of services. Ideal benefits are expressed (objectified, personified) in the form of products (results) of creative activity or in the form of personal non-property benefits. Traditionally, the following objects of business legal relations are distinguished:

Things (property), including money and securities;

Actions of obligated subjects;

Own activity of the subject of law;

Non-property benefits used in the conduct of business activities (for example, trade secrets, company name, trademark, etc.).

Depending on the specifics of the object of legal relations, entrepreneurial relations are divided into the following types:

Real (real absolute and real absolute-relative);

Obligatory (in turn, subdivided into economic and managerial, on-farm, territorial-economic, operational-economic);

Absolute legal relations for the conduct of their own economic activities;

Non-property absolute economic relations.

Subjective law is a measure of the permitted behavior of the subject of an entrepreneurial legal relationship. The subjective right consists of the legal possibilities granted to the subject.

A subjective duty is a measure of the proper behavior of a participant in an entrepreneurial legal relationship. The essence of duties is the need for the subject to perform certain actions or refrain from socially harmful actions.

Entrepreneurial rights and obligations that make up the content of entrepreneurial legal relations arise from legal facts with which the law and other legal normative acts associate the emergence, change and termination of these rights and obligations. The grounds for the emergence, change and termination of entrepreneurial rights and obligations are:

Contracts and other transactions, both provided for by law and not provided for, but not contrary to it;

Acts of state bodies and local governments;

Judgments;

Other actions of persons provided for by law and other legal acts, as well as, although not provided for by law and such acts, but

by virtue of the general principles and meaning of entrepreneurial legislation, generating entrepreneurial rights and obligations;

Events with which the law or other legal act connects the onset of business legal consequences.

Types of legal relations in the field of entrepreneurial activity. Control questions

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