Civil Code, N 51-FZ | Art. 65.1 of the Civil Code of the Russian Federation

Article 65.1 of the Civil Code of the Russian Federation. Corporate and unitary legal entities(current edition)

1. Legal entities, the founders (participants) of which have the right to participate (membership) in them and form their supreme body in accordance with paragraph 1 of Article 65.3 of this Code, are corporate legal entities (corporations). These include economic partnerships and companies, peasant (farm) enterprises, economic partnerships, production and consumer cooperatives, public organizations, social movements, associations (unions), notary chambers, associations of property owners, Cossack societies included in State Register Cossack societies in Russian Federation, as well as communities of indigenous peoples of the Russian Federation.

Legal entities, the founders of which do not become their participants and do not acquire membership rights in them, are unitary legal entities. These include state and municipal unitary enterprises, foundations, institutions, autonomous commercial organizations, religious organizations, state corporations, public companies.

2. In connection with participation in a corporate organization, its participants acquire corporate (membership) rights and obligations in relation to the legal entity they have created, except for the cases provided for by this Code.

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Commentary on Art. 65.1 of the Civil Code of the Russian Federation

1. The provisions of this article are a novelty of civil law and are designed to radically change the existing structure of subjects of civil circulation. Therefore, we will consider these provisions in more detail, making a short historical and legal digression to the origins of the formation of the foundations that consolidated the classification of legal entities reflected in the commented article.

While maintaining the traditional division of legal entities into commercial and non-commercial organizations from 09/01/2014, legal entities are also classified by membership and degree of participation in the formation and activities of a legal entity into:

1) corporate. Legal entities whose founders (participants, members) have the right to participate in the management of their activities (the right of membership) are corporate organizations (corporations);

2) unitary. Legal entities, the founders of which do not become their participants and do not acquire membership rights in them, are unitary organizations.

The division of legal entities into corporate and unitary forms (based on the nature of the connection between the participants) corresponds to the historically established doctrine of the majority Western countries and the Russian legal order, which was reflected in the works of the German civilists Geise, F. Savigny, O. Gierke, Bernatsik. This is how the Russian scientist G.F. Shershenevich: "... the concept of a legal entity plays, as it were, the role of "brackets", which contain the homogeneous interests of a certain group of persons for a more simplified definition of the relationship of this collective personality to others. These connections can be of a public nature, such as, for example, noble society, or of a private nature, such as, for example, a joint-stock partnership. "After analyzing the opinions of Russian lawyers, S.D. Mogilevsky concludes that in the Russian doctrine of the 19th century, the term "corporation", like German concepts, was used as a generic concept for a group of legal entities , within which two types of corporations were distinguished: public and private.Back in 1861, S. Pakhman, speaking on the issue of shareholder reform, proposed dividing joint-stock companies into two types: state-economic (public) and private-economic (private). hallmark companies included in the first group, was the need for them to solve social tasks e.g. building railways, organization of navigation, etc. The joint-stock companies belonging to the second group did not set themselves the goals of achieving socially useful tasks. Private corporations in Russian law called trade associations. At the same time, G.F. Shershenevich wrote that the terminology of our legislation in relation to joint stock partnerships is completely inconsistent. She calls them partnerships, companies, companies with the addition of expressions: "on shares", "on participants", "on shares".

In modern scientific doctrine, a corporation is traditionally understood as an organization based on the principles of participation (membership), which is created to realize the interests of its participants (members) by organizing its management through a special system of bodies. A corporation organized on the basis of membership, as a rule, is opposed to unitary organizations or institutions that do not have membership and are created, as a rule, in the interests of an unlimited number of people for the implementation of socially useful goals.

It should be noted that in Russian and foreign legal orders the word "corporation" is not distinguished by its unambiguous understanding. This situation is explained by two factors. Firstly, in most countries this concept is not enshrined in law, but is present only at the doctrinal level. Secondly, the term "corporation" has different interpretation in the Anglo-Saxon and Continental systems of law. In this regard, as quite rightly noted by I.S. Shitkin, the legislative consolidation of the division of organizations into corporate and unitary, introduced into the Civil Code of the Russian Federation, is an advanced idea.

The introduced changes will require the unification of legal regulation various kinds legal entities. It is obvious that further specification of the rights and obligations, for example, of a shareholder or member of a company with limited liability should be reflected in the relevant federal law. This approach to the presentation system legal regulations characteristic not only for establishing the rights and obligations of the participants in the corporation, but also for other institutions of legislation. So, legal regulation management in the corporation is carried out by Art. 65.3 of the Civil Code of the Russian Federation; in Art. 66.3 of the Civil Code of the Russian Federation provides for the features of management in public and non-public companies; Art. 67.1 of the Civil Code of the Russian Federation regulates the features of management in business partnerships and companies, and in Art. 97 of the Civil Code of the Russian Federation provides for special requirements for the management of a public joint stock company. At the same time, these articles of the Civil Code of the Russian Federation contain numerous mutual references that complicate the application of the relevant norms. When asked if this approach is suitable for practical application, there is no clear answer. According to I.S. Shitkina, it is unlikely that for purposes other than scientific classification, which could be carried out at the level of doctrine, someone will need, for example, to identify the rights and obligations inherent in both a public joint-stock company and a garage cooperative.

2. Summarizing numerous studies devoted to the analysis of the legal nature and the identification of the essence of the corporation, I.S. Shitkina identifies the following features inherent in a corporation:

1) the corporation is recognized as a legal entity;

2) a corporation is a union of individuals and (or) legal entities that are subjects of law, which acquire the status of a participant (member) of the corporation;

3) corporation - "volitional organization". The will of a corporation is determined by the common interests of its members; the will of the corporation is different from the individual wills of its members;

Judicial practice under Article 65.1 of the Civil Code of the Russian Federation:

• Decision of the Supreme Court: Ruling N 306-ES17-11880, Judicial Collegium for Economic Disputes, cassation

  Declaring the debtor bankrupt, the courts were guided by Articles 57, 58, 60.2, 65.1 Civil Code Russian Federation, articles 3, 12, 73, 124 federal law dated October 26, 2002 No. 127-FZ “On insolvency (bankruptcy)”, establishing the entire set of necessary conditions. Sufficient grounds for other conclusions were not given by the applicants ...

• Decision of the Supreme Court: Ruling N 310-ES17-3670, Judicial Collegium for Economic Disputes, cassation

  Arguments about unlawful, according to the applicant, classifying the dispute as corporate, are erroneous and based on an incorrect interpretation of the provisions of Articles 65.1 - 65.3 of the Civil Code of the Russian Federation, special corporate legislation, as well as Article 225.1 of the Code ...

• Decision of the Supreme Court: Ruling N 305-ES17-2577, Judicial Collegium for Economic Disputes, cassation

  The arguments about the unlawful, according to the applicant, classifying the dispute as a corporate one are erroneous and based on an incorrect interpretation of the provisions of Articles 65.1-65.3 of the Civil Code of the Russian Federation, special corporate legislation, and Article 225.1 of the procedural law ...

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The concept of a corporate organization (corporation) in accordance with the Civil Code of the Russian Federation

The legal concept of a corporation (or corporate organization) was introduced into the Civil Code of the Russian Federation by Federal Law No. 99-FZ dated 05.05.2014 “On Amending Chapter 4 of Part One of the Civil Code of the Russian Federation and on Recognizing Certain Provisions of Legislative Acts of the Russian Federation as Invalid”. While maintaining the division of legal entities into commercial and non-profit organizations (Article 50 of the Civil Code of the Russian Federation), a division of legal entities into corporate and unitary organizations is introduced (Article 65.1 of the Civil Code of the Russian Federation).

Corporate legal entities (corporations) are legal entities whose founders (participants) have the right to participate (membership) in them and form their supreme body in accordance with and. 1 st. 65.3 of the Civil Code of the Russian Federation.

An analysis of the norms of the Civil Code of the Russian Federation allows us to identify the following features of corporate organizations.

A corporation has a common purpose (general interest), to achieve which the participants combine their efforts. It is important that it (interest) does not contain an opposite interest, i.e. the intended benefits must be general meaning for all participants, to serve the interests of all participants.

With the complication of economic and managerial relations in the association of participants (members), while maintaining a common interest, the interests of individual participants in the association are increasingly beginning to manifest themselves, which may not coincide with both the interests of the corporation itself and the interests of its other participants. Such a state of affairs, such an objective situation exists conflict of interest, the essence of which is not the very fact of violation of corporate interest in favor of an individual or group, but the possibility of a situation arising when the question arises of choosing between the interests of the corporation as a whole and other interests of the individual.

Paying attention to the need to achieve a balance of interests of participants in corporate relations, the Constitutional Court of the Russian Federation in Ruling No. 681-O-P dated July 3, 2007 noted the following: entrepreneurial activity of a joint-stock company, the interests of creditors and shareholders, shareholders and management, shareholders - owners of large blocks of shares and minority shareholders may collide, one of the main tasks of the legislation on joint-stock companies is to ensure a balance of their legitimate interests ... ".

The corporation is a legal entity those. an organization that has separate property and is liable to them for its obligations, may, on its own behalf, acquire and exercise civil rights and bear civil obligations, be a plaintiff and a defendant in court (Article 48 of the Civil Code of the Russian Federation).

A corporation is characterized by the separation of the property of the corporation itself from the property of its members. For the simple, very first organizational and legal forms of corporations, for example, for general partnerships, which, under the laws of some states, are not legal entities, such property separation is not expressed, since the property belongs to the participants on the basis of common shared ownership. For higher organizational and legal forms of corporations - joint-stock companies - the separation of property is absolute.

Corporate organizations are the owners of property created at the expense of contributions (shares, shares) of the founders (participants), membership and other contributions to property, therefore, a mandatory sign of a corporation is making contributions by founders (participants) to the property of a corporation (payment for shares or, membership dues).

As the owner of your property, corporate organizations are liable for their obligations with all their property. As corporate organizations develop, the general responsibility of the participants for the obligations of the association passes into the personal responsibility of the association for its obligations. If in a simple partnership the participants are jointly and severally liable with their property for the obligations of the partnership, then in a joint-stock company the shareholders are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their shares.

Civil law establishes the principle of mutual irresponsibility between the state and corporate organizations: the state is not liable for the obligations of the corporation, just as the corporation is not liable for the obligations of the state.

Another general principle is that the founders (participants) of corporate organizations are not liable for the obligations of organizations, and the latter are not liable for the obligations of the founder (participant) (Article 56 of the Civil Code of the Russian Federation).

Cases when participants (founders) bear, in addition to losses, also subsidiary liability for the obligations of a corporate organization, are provided for by the Civil Code of the Russian Federation and federal laws. So, subsidiary liability is established for general partners but obligations full partnership(Article 75 of the Civil Code of the Russian Federation), for members of production cooperatives - for the obligations of the cooperative (Article 106.1 of the Civil Code of the Russian Federation); members of a consumer cooperative jointly and severally bear subsidiary liability for its obligations within the limits of the unpaid part of the additional contribution of each of the members of the cooperative (Article 123.3 of the Civil Code of the Russian Federation).

For corporate organizations participants have corporate (membership) rights, which consist, as a rule, in the right to take part in the management of the organization's affairs, receive part of the distributed profit (dividend) or use the services of a corporation, receive part of the property upon liquidation of the organization after settlements with creditors.

Participants (members) of the corporation participate in the formation of the supreme governing body of the corporation - general meeting of participants, unless otherwise provided by Art. 65.3 of the Civil Code of the Russian Federation. As it develops from simple forms business associations to higher forms the common affairs of its members are transferred to the personal affairs of the association, which differ from the affairs of its members. In a general partnership, each participant has the right to act on behalf of the partnership, unless the founding agreement establishes that all its participants conduct business jointly or the conduct of business is entrusted to individual participants; in a joint-stock company, the affairs of the company are carried out by professional managers who may not be shareholders of this company.

As business associations develop, business management is separated from the personal will of its participants. If in simple forms of an entrepreneurial association, for example, in a general partnership, management of activities is usually carried out by common consent of all participants, then in higher forms - joint-stock companies - management is carried out by separate and specially created bodies, the will and interests of which may not coincide with the will and interests of the participants. associations.

Types of corporations. Corporate organizations can be commercial or non-commercial.

To commercial corporate organizations relate:

• business partnerships and companies;
• peasant (farm) farms;
• business partnerships;
• production cooperatives.

Non-profit corporate organizations do not pursue profit making as the main goal of their activities and do not distribute the profit received among the participants. These organizations include:

• consumer cooperatives;
• public organizations;
• social movements;
• associations (unions);
• notary chambers;
• associations of property owners;
• Cossack societies entered in the state register of Cossack societies in the Russian Federation;
• communities of indigenous peoples of Russia;
• bar associations;
• legal entities that are legal entities.

Along with the division of corporations into commercial and non-commercial

it seems possible to divide them into personal corporate organizations and capital corporate organizations. Nonprofit corporations are personal. Commercial corporations can be both personal and capital.

For personal corporations the following features are characteristic:

• 1) the existence of a personal association depends on the members of such an association and is inextricably linked with the personality of the participants (members). So, in a full partnership, the death of a comrade may lead to the termination of the partnership (Article 76 of the Civil Code of the Russian Federation). For personal corporations, the law establishes the required minimum number of members. For example, a minimum of five members is required to establish a production cooperative; for the establishment public organization A minimum of three founders is required. In nonprofit corporations that are personal, membership is inalienable;
• 2) a personal association is based on a common interest that coincides with the individual interests of the participants in such an association. In principle, personal associations are conflict-free. If a member of a personal association does not act in accordance with the interests of the association, he may be expelled by decision of the other participants. The possibility of exclusion is established for partnerships, and for production cooperatives, as well as for some non-profit corporations (for example, associations). Moreover, in relation to general partners, the legislation establishes a rule on “prohibition of competition”: a participant in a general partnership is not entitled, without the consent of the other participants, to make transactions on his own behalf in his own interests or in the interests of third parties that are similar to those that are the subject of the partnership. If this rule is violated, the partnership has the right, at its choice, to demand from such a participant compensation for the losses caused to the partnership or the transfer to the partnership of all the benefits acquired from such transactions (Article 73 of the Civil Code of the Russian Federation);
• 3) personal associations are characterized by the absence of a professional management apparatus, isolated from the participants (members) themselves. In personal corporations, either there is no separate management apparatus (for example, in partnerships), or the management bodies are formed exclusively from the members of such a corporation. Thus, in production cooperatives, the governing bodies consist exclusively of members of the cooperative itself. The governing bodies of non-profit corporations are also formed only from the members of the corporation;
• 4) participants in a personal association are liable for the obligations of such an association if such liability is provided for by the Civil Code of the Russian Federation and laws on corporations. For example, in a full partnership, the participants jointly and severally bear subsidiary liability with their property for the obligations of the partnership; members of a production cooperative bear subsidiary liability in the amount provided for by law and the charter of the cooperative; members of a consumer cooperative jointly and severally bear subsidiary liability for its obligations within the limits of the unpaid part of the additional contribution of each of the members of the cooperative;
• 5) for participants in a personal corporation, it is assumed as personal participation (the obligation to participate by one’s own labor), and property participation (making certain property contributions) ^

The development of commercial corporate organizations proceeded from simple forms to more complex, higher forms, namely from contractual partnerships. (societas)- personal associations - to capital associations - joint-stock companies.

Historically, the first forms of business associations are personal associations, or associations of persons that exist in the form of a general partnership and limited partnership (limited partnership), as well as in the form of a production cooperative.

AT full partnership a sufficient legal connection with the participants is retained, which does not allow recognizing the rights of an independent entity for a general partnership. Therefore, general partnerships under the laws of Germany, the USA, England are not legal entities. M. I. Kulagin called such partnerships truncated legal entities.

A full partnership, of course, can be considered precisely as an association, since the “general” is formed in it at the expense of the “personal”, without suppressing it. In other words, in a general partnership, the “general” exists only by virtue of the presence of the “personal”, but, relying on this force, it is a vivid example of the “general”.

AT limited partnership (limited partnership)- also a combination of persons - along with general partners who are liable with all their property, there are limited partners who are responsible only for a certain contribution and do not participate in the general affairs of the partnership. In other words, in such a partnership, there is an isolation of a part of the participants from the entrepreneurial association itself. Personal participation is assumed on the side of the full comrades, the capitalist element is represented by the limited partners, "whose personal indifference is assumed."

Almost all legislations know such a form of business association as cooperatives(in Russian pre-revolutionary legislation - artel associations). This is “the connection of persons with the aim of achieving some economic goal by joint work. Personal participation is necessary condition this form. The capitalist element plays a completely secondary role.

Cooperatives are characterized by self-government, in other words, only the members of the cooperative participate in the management of its affairs, therefore, there is no separation of management from the members of the cooperative.

Capital corporate organizations are joint-stock companies. It is this organizational and legal form of doing business that acts “as the most complete, consistent embodiment of the institution of a legal entity. Some bourgeois authors even go so far as to identify a legal entity and a joint-stock company.

Society (limited partnership) known foreign countries belonging to the continental legal family. Some US state laws also have laws on such societies.

A limited liability company (hereinafter - LLC, company) is the only one of the business associations that arose not due to objective economic development, but due to a legislative establishment, which, of course, proceeded from the requirements of the economy. The appearance of this form in Germany was due to the fact that entrepreneurs were not satisfied with the existence of only two diametrically opposed forms of business associations, namely a general partnership (representing the personal principle of the participant) and a joint-stock company (representing the capitalist principle). Entrepreneurs demanded from the legislator the development of such a form of entrepreneurial association, which, in the status of a participant, would combine both a personal interest in the activities of the association and a capitalist element. German lawyers have chosen the path of modifying the construction of a "joint stock company" through the introduction of the personal principle of the participants into it. The law on limited liability companies came into force in 1892. Subsequently, this form was adopted by legislators in other countries of the world.

Ya. I. Funk, analyzing the appearance of an LLC as a modification of the “joint-stock company” design, comes to the conclusion that, from the point of view of its legal nature, an LLC can be considered as a kind of joint-stock company. A number of specialists (S. D. Mogilevsky, I. S. Shitkina, V. V. Dolinskaya) classify LLCs as corporations or corporate-type organizations. According to V. S. Belykh, LLC should be considered as an intermediate form between a joint-stock company and a personal association.

A member of an LLC does not lose contact with society, in other words, there is a personal element in the LLC. The existence of an LLC depends to some extent on the members. In this form of entrepreneurial association, the limited liability company itself no longer coincides in many respects with the participants in the company, but cannot completely break with it. As a result, we can say that in this form of association, people and their business association interact with each other. At the same time, the emphasis, of course, should be placed on the relationship of people regarding their association, given the presence of a certain will of people aimed at property. Based on this, LLC occupies an intermediate position between personal associations and a capital association - a joint-stock company.

The highest form of an entrepreneurial association, which is based not only and not so much on a person, but primarily on property (capital), is joint-stock company.“The personal participation of the members of such a union is not expected. This form of union is the highest expression of the capitalist element.

If on early stages the combination of persons really mattered, then later the combination of capital acquires significance. A person, having created an entrepreneurial association and separating part of his property from himself, in the first forms of such an association is still completely distinguishable and even dominates such an association, but after passing the peak of such an association (general partnership), less and less of its influence on the entrepreneurial association is already observed; finally, in a JSC, the individuals involved in its creation are practically indistinguishable; not personal communication, but communication of property comes to the fore, as a result of which there is no legal connection between the participants of the joint-stock company, but there is only a separated and united by them (or only a separated , if the participant is one) property .

The concept of a joint-stock company must be considered based solely on the concept of "property", which was isolated by separation and merger (or only separation). By virtue of this, a joint-stock company cannot be created without property, cannot exist without it, and in case of loss of property it is subject to liquidation.

As already noted, the difference between unitary legal entities and corporate ones is that property in unitary legal entities is not divided into parts and there is no membership in them. These include state and municipal unitary enterprises, foundations, institutions, autonomous non-profit organizations, religious organizations, as well as public companies.

The question of the need for the existence of such an organizational and legal form as unitary enterprises was one of the most discussed. AT clause 6.3 The concept of the development of civil legislation noted the futility of this organizational and legal form of a legal entity and the desirability of its gradual replacement with other types of commercial organizations, including business companies with 100% or other decisive participation of public legal entities in their property. It was also stated there that "based on the real needs of the federal state, it seems acceptable to maintain in the future only federal state-owned enterprises for certain especially important areas of the economy."

However, the legislator did not make such drastic changes. State and municipal unitary enterprises were retained, however, instead of the right of economic management, property is assigned to them on the basis of the right of operational management or economic management.

§ 3. Corporate agreement

In the new GC for the first time the concept of a corporate contract was disclosed. Corporate agreements have been included in Russian legislation relatively recently, although the need for this is long overdue. Their inclusion is caused by the need to provide participants of business companies with additional opportunities arising from the fact of owning a block of shares or shares in authorized capital business companies.

Among the reasons, one can also note the excessive overregulation of relations between participants in economic companies. As it was rightly noted in the literature, European joint-stock legislation, including Russian, is traditionally characterized, on the one hand, by the predominance of imperative norms, and, on the other hand, by the almost complete absence of any regulation of shareholders' relations. *(21) .

The need for legislative consolidation of a corporate agreement was also mentioned in the Concept for the Development of Civil Legislation. Yes, in paragraph 4.1.11 section III of the Concept for the development of civil legislation, it was noted that "it seems appropriate to establish in GC general rules on the possibility of concluding mutual agreements by participants in economic companies, known to many foreign legal orders as "shareholder agreements". Their subject may be: coordinated voting of participants on any issues, including candidates for the corporate management bodies; the right or obligation to sell or redeem one participant's shares of another participant or the pre-emptive right to purchase them; prohibition to transfer shares (shares) to third parties; obligation to transfer to other parties to the agreement dividends or other payments received in connection with the right to participate in the corporation.

This was discussed in more detail in the Concept for the Development of Legislation on Legal Entities. In paragraph 1.2 of paragraph 3 of subsection 6 of section 2 of the Concept, it was noted that the possibility of concluding "shareholder agreements" by participants in corporations is recognized by the law of many foreign countries. At the same time, various conceptual approaches to the mentioned agreements are presented in foreign legal orders. There are few restrictions under English law as to what may be the subject matter of an agreement between shareholders (participants). In France or Germany, the legislator takes a much tougher approach to regulating shareholder agreements, limiting the discretion of their parties.

At the CIS level, the admissibility of such agreements is provided paragraph 4 of Art. 3 Model Legislative Provisions for the CIS Member States on the Protection of Investor Rights in the Securities Market (adopted on April 14, 2005 by the Interparliamentary Assembly of the CIS Member States).

In this regard, in paragraph 2.1 of paragraph 3 of subsection 6 of section 2 of the Concept, it was proposed to establish in GC general rules on the admissibility and content of such agreements between participants in any economic companies (corporations), and not just limited liability companies. This will bring Russian legislation closer to the most developed foreign legal orders, and to some extent will avoid the transition of some entrepreneurs from Russian to foreign jurisdictions.

Meanwhile, in the absence of legal regulation, contracts that are essentially corporate have become quite widespread in our country. Moreover, in practice, informal corporate agreements are sometimes concluded, i.e. without complying with the statutory form and notifying the competent state authorities. The terms and conditions they contain may conflict GC RF, Law"On joint-stock companies", Law"On Limited Liability Companies" and the charters of the relevant legal entities. To achieve judicial protection in case of violation of the terms of such agreements in such cases can be quite difficult. In particular, B. Berezovsky, who insisted on the existence of such an agreement with R. Abramovich, could be convinced of this, but he failed to prove this in the High Court of England and lost the case.

The concept of a corporate agreement is closely related to the concept of corporate relations and corporate legal entities. For the first time in the Civil Code, the legislator established that the subject of civil law are also relations related to participation in corporate organizations or their management (corporate relations). Yes, in paragraph 1 of Art. 2 GC in his latest edition it is said that civil law regulates relations connected with participation in corporate organizations or with their management (corporate relations).

In accordance with the specified articles we are talking about two types of relationship. In particular, we are talking about relations related to the “right to participate” in a corporation (meaning the rights of each member of the corporation, both property and non-property), and the concept of corporate includes the corresponding obligations between the founders (participants) and the corporation itself. as a legal entity.

The need for a separate mention of corporate relations as a component of the subject of civil law is due to the fact that corporate legal relations are a special group of relations. These are legal relations between a corporation and its participants, different from legal obligations, the content of which is reduced to providing the participants of the corporation with a legally secured opportunity to manage the affairs of the corporation in any form and participate in the property results of its activities. Consequently, the object of corporate relations is participation in the corporation itself.

As for corporate legal entities, they are known to the legislation of all developed countries. The division of legal entities into corporate and unitary allows you to settle in general view not only the management structure and competence of the bodies of corporate commercial and non-profit organizations, but also a number of their internal relations that cause disputes in practice (the possibility of challenging the decisions of general meetings and other collegiate bodies, the conditions for withdrawal or exclusion from the number of participants, etc.). Therefore, it is quite natural for them to appear in the new GC. At the same time, the allocation of corporations as a special type of legal entities made it possible to fix directly in the Civil Code the general rules regarding the status (rights and obligations) of both the corporations themselves and their participants.

Thus, the fundamental feature of any corporation is the presence of membership, which gives the members of the corporation special rights and creates the basis for the emergence of special relations between the members of the corporation, as well as between the corporation and its members. These relationships are called corporate. As for the corporate agreement, it formalizes the relations between the participants of corporate legal entities.

Before the adoption of a new GC the possibility of concluding contracts that are essentially corporate, was provided Art. 32.1 Federal Law No. 208-FZ of December 26, 1995 "On Joint Stock Companies", paragraph 3 of Art. eight Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies", paragraph 4 of Art. 3 Model legislative provisions for the CIS member states on the protection of investors' rights in the securities market. So, according to paragraph 3 of Art. 8 of the Law on Limited Liability Companies, the founders (participants) of the company have the right to conclude an agreement on the exercise of the rights of participants in the company, according to which they undertake to exercise their rights in a certain way and (or) refrain from exercising these rights, including voting in a certain way at the general meeting of participants company, agree on the option of voting with other participants, sell a share or part of a share at a price determined by this agreement and (or) upon the occurrence of certain circumstances, or refrain from alienating a share or part of a share until certain circumstances occur, as well as perform other actions in concert related to management company, with the creation, operation, reorganization and liquidation of the company.

In the first case, such agreements are called shareholder agreements, and in the second - agreements on the exercise of the rights of participants in a limited liability company. The need to use shareholder agreements is associated with the objective impossibility of resolving many relations that develop between shareholders through the constituent documents of a joint stock company. Similar problems arise between members of a limited liability company.

However, there are differences between corporate agreements and shareholder agreements. So, in the shareholder agreement there is no focus on the emergence of legal relations with the participation of third parties, which, as will be shown below, is typical for a corporate agreement.

However, it should be borne in mind that the term "corporate agreement" itself was introduced only by a new GC. By concluding this agreement, the parties usually pursue such goals as acquiring the ability of a person or group of persons to influence the activities of the company, exercise additional control over it, prevent hostile takeovers, raider attacks, etc.

In the Civil Code, a corporate agreement is defined as follows. According to paragraph 1 of Art. 67.2 Members of a business company or some of them have the right to conclude an agreement between themselves on the exercise of their corporate (membership) rights (corporate agreement), in accordance with which they undertake to exercise these rights in a certain way or refrain (refuse) from exercising them, including voting in a certain way at the general meeting of participants in the company, to coordinately carry out other actions to manage the company, to acquire or alienate shares in its authorized capital (shares) at a certain price or upon the occurrence of certain circumstances, or to refrain from alienating shares (shares) until the occurrence of certain circumstances.

When concluding a corporate agreement, one should take into account the changes that have occurred in the joint-stock legislation. federal law dated May 05, 2014 N 99-FZ, it was found that paragraph 3 of Art. 32.1 The Law on Joint Stock Companies has become invalid. In the said paragraph, it was said that the shareholder agreement must be concluded in respect of all shares owned by the party to the shareholder agreement. Thus, at present, a shareholder agreement can be concluded not in relation to all, but in relation to a certain number of shares owned by a shareholder.

It follows from the definition of a corporate agreement that the subject of a corporate agreement is an agreement aimed at exercising or refraining from exercising corporate rights in a manner specified in the agreement.

The legal nature of this agreement is not entirely clear. A corporate agreement should be recognized as a kind of civil law transaction, and in particular an agreement of two or more persons, which implies the application to such an agreement general provisions about the contract and (contractual) obligations. At the same time, this agreement undoubtedly has its own specifics, arising from the fact that it regulates a special group of civil legal relations - corporate legal relations.

For example, this specificity lies in the fact that the effect of a corporate agreement indirectly extends to the company within which it is concluded, as well as to other members of the company that are not parties to this agreement. This specificity arises mainly due to the plurality of persons involved in such relations, and therefore giving rise to extremely specific contractual constructions that do not fit into traditional contractual models focused on the emergence of bilateral obligations.

It is impossible not to pay attention to the fact that this agreement is similar to the agreement on joint activities (simple partnership), but it does not completely coincide with it. This similarity lies in the fact that, unlike conventional treaties, the number of its participants can be more than two. In addition, it provides for the commission by its participants of joint actions aimed at achieving a common goal.

However, unlike a simple partnership agreement, a characteristic feature of a corporate agreement is the presence in it of elements of an agreement in favor of a third party ( Art. 430 Civil Code), which are combined with the possibility of imposing certain obligations on this person. Such persons who did not participate in the conclusion of a corporate agreement, but have certain obligations, can be called creditors of participants in a corporate agreement.

At the same time, in relation to a corporate agreement, one can speak of the absence of property relations related to making contributions to joint activities. In addition, when concluding a corporate agreement, there is no representation. At the same time, participation of all shareholders, for example, in a general meeting, is not necessary for the implementation of joint activities.

A feature of corporate agreements is that they cannot change the corporate structure, the procedure for making corporate decisions and other corporate rules established based on third parties that are not parties to the shareholders' agreement. Their terms may not be contrary to legislative, including antitrust, prohibitions, the nature of the relationship, or the public interest.

The subject of a corporate agreement, as follows from the above definition, contains a non-exhaustive list of obligations of the parties to the agreement, which includes, first of all, such as:

Coordinated implementation of other actions to manage the company;

Acquisition or alienation of a share in its authorized capital (shares) at a certain price and (or) upon the occurrence of certain circumstances, or refraining from alienating a share (shares) until certain circumstances occur.

In the same time article 67.2 The Civil Code provides for a corporate agreement a number of restrictions or, in other words, conditions that cannot be included in a corporate agreement.

Yes, in accordance with paragraph 2 of Art. 67.2 A CC corporate agreement cannot oblige its participants to vote in accordance with the instructions of the company's bodies, determine the structure of the company's bodies and their competence. The terms of a corporate agreement that contradict the rules of this clause are void.

The presence of such a rule is obviously due to the fact that, like any other civil law contract, a corporate contract implies a lack of subordination between the parties, and the implementation of instructions to vote in accordance with the instructions of the company's bodies indicates the presence of vertical relationships. In the same way, the definition of the structure of the organs of society and their competence goes beyond the framework of horizontal relations.

At the same time, the corporate agreement may provide for the very obligation to take part in voting on certain issues. Yes, according to par. 3 p. 2 art. 67.2 The CC corporate agreement may establish the obligation of its parties to vote at the general meeting of the company's participants for the inclusion in the charter of the company of provisions that determine the structure of the company's bodies and their competence, if in accordance with the Civil Code and laws on business companies it is allowed to change the structure of the company's bodies and their competence by the company's charter .

There is a special form for a corporate agreement. In particular, it must be concluded by drawing up one document signed by the parties ( paragraph 3 of Art. 67.2 Civil Code of the Russian Federation). The presence of such a clarification is due to the fact that, in accordance with paragraph 2 of Art. 434 The Civil Code for the written form of the contract established two varieties:

by drawing up one document signed by the parties;

by exchanging documents by postal, telegraph, teletype, telephone, electronic or other communication, which makes it possible to reliably establish that the document comes from the party under the contract.

In this case, we are talking about only one type of writing. Obviously, this is due to the need to specify all the terms of the contract as accurately as possible, and in the case of concluding a contract by exchanging documents, this is not always possible.

The legislator does not say anything about the consequences of non-compliance with the form of the transaction established by law. Consequently, we can only talk about such a consequence as the inability to refer to witness testimony.

Some attention to Art. 67.2 The Civil Code is devoted to the informational obligations of the participants in the corporate agreement. In particular, this refers to their obligation to inform the public about the very fact of concluding such an agreement.

Disclosure of information on the securities market is necessary so that market participants are informed about each other's actions, so that they make decisions based on their assessments of real facts, and not relying on guesswork, rumors and conjectures. In this regard, in paragraph 4 of Art. 67.2 The Civil Code establishes that the participants in a business company that have concluded a corporate agreement are required to notify the company of the fact of concluding a corporate agreement, while its contents are not required to be disclosed. In case of failure to fulfill this obligation, the participants of the company who are not parties to the corporate agreement are entitled to demand compensation for the losses caused to them.

It should be noted that, in itself, knowledge of the existence of a concluded corporate agreement is not enough, which gives. The main thing is to know its content, and the legislator has not resolved this issue clearly enough.

The information obligation to disclose the content of a corporate agreement will differ depending on whether it is a public joint-stock company or a non-public company. According to paragraph 1 of Art. 66.3 A public corporation is a joint-stock company whose shares and securities convertible into its shares are publicly placed (by open offering) or publicly traded under the conditions established by laws about securities. The rules on public companies also apply to joint-stock companies, the charter and company name of which contain an indication that the company is public. Accordingly, companies that do not meet these requirements are non-public.

At the same time, information about the corporate agreement concluded by the shareholders of a public joint stock company must be disclosed within the limits, in the manner and on the terms provided for law about joint-stock companies. Obviously, we are talking about the fact that the said law will be amended accordingly, which will provide for such limits, procedures and conditions.

With regard to corporate agreements concluded by participants in a non-public company, according to general rule information about the content of the corporate agreement is not subject to disclosure and is confidential. However, otherwise may be established by a special law.

According to paragraph 5 of Art. 67.2 The Civil Code of the corporate agreement does not create obligations for persons not participating in it as parties. In doing so, reference is made to Art. 308 GK. According to item 3 of this article, the obligation does not create obligations for persons not participating in it as parties (for third parties). In cases provided by law, other legal acts or by agreement of the parties, the obligation may create rights for third parties in respect of one or both parties to the obligation. Thus, in this case, the provisions of paragraph 3 of Art. 308 of the Civil Code, but not completely, since in this case nothing is said that third parties may have rights.

Third parties are understood as both persons who act as representatives of the parties, and persons who participate on the side of the debtor or creditor. At the same time, an obligation cannot create obligations for third parties, but only gives rise to rights in cases provided for by law,

This rule is specified in Art. 430 GK "Contract in favor of a third party". In particular, we are talking about an agreement under which it is established that the debtor is obliged to perform performance not to the creditor, but to a third party specified or not specified in the contract, who has the right to demand from the debtor the performance of the obligation in his favor.

Thus, the difference paragraph 5 of Art. 67.2 GC from Art. 308 The Civil Code lies in the fact that the latter still allows the possibility of creating rights for third parties in relation to one or both parties to the obligation, but only in cases expressly provided for by law.

Enough detail in paragraph 6 of Art. 67.2 The Civil Code refers to the consequences of a violation of a corporate agreement in cases where, at the time the relevant decision was made, all participants in the business company were parties to the corporate agreement.

In such cases, its violation may be the basis for invalidating the decisions of the bodies of the economic company at the claim of the party to the corporate agreement. This can be regarded as an additional sanction, which was not provided for in any law about joint-stock companies, nor law on limited liability companies. In practice, the only measure of liability for violation of, for example, a shareholder agreement is an attempt to recover proven damages from the violating party.

At the same time, violation of a corporate agreement, in which not all participants of the economic company participate, does not entail the recognition of the relevant decision of the meeting of participants as invalid.

However, as noted in the same paragraph of Art. 67.2 According to the Civil Code, the recognition of the decision of the body of the economic company as invalid does not in itself entail the invalidity of the transactions of the economic company with third parties made on the basis of such a decision. A transaction concluded by a party to a corporate agreement in violation of this agreement may be declared invalid by a court at the claim of a participant in a corporate agreement only if the other party to the transaction knew or should have known about the restrictions provided for by the corporate agreement. It seems that such a short story is aimed at protecting the economic turnover.

It is impossible not to pay attention to the fact that this rule coincides with the rule provided for the disposal of joint property by one of the co-owners. Yes, according to paragraph 3 of Art. 253 Each of the participants in joint ownership has the right to make transactions on the disposal of common property, unless otherwise follows from the agreement of all participants. A transaction made by one of the participants in joint ownership related to the disposal of common property may be declared invalid at the request of the other participants on the grounds that the participant who made the transaction does not have the necessary powers only if it is proved that the other party to the transaction knew or obviously should have know about it.

It is interesting to note that the Law on Joint Stock Companies resolves the issue of the consequences of recognizing a violation of a shareholders' agreement somewhat differently. According to par. 2 p. 4 art. 32.1 of the Law on Joint Stock Companies, a shareholder agreement is binding only on its parties. A contract entered into by a party to a shareholder agreement in violation of the shareholder agreement may be declared invalid by a court at the suit of the interested party to the shareholder agreement only in cases where it is proved that the other party under the agreement knew or obviously should have known about the restrictions provided for by the shareholder agreement. At the same time, the violation of the shareholders' agreement cannot be the basis for invalidating the decisions of the company's bodies.

In some cases, a corporate agreement may contradict the charter of a business entity. In such cases. parties to a corporate agreement are not entitled to refer to its invalidity. Thus, in this case, we are talking about the fact that the norms of a corporate agreement, first of all, do not contradict the law.

The adoption of such a rule is quite legitimate, since, as noted in the literature, there was previously a completely different practice, when the courts absolutely clearly expressed the position according to which the agreement between the participants should not contradict both the law and the charter of the economic company *(22) .

Situations are possible when a participant in a business company who has entered into a corporate agreement ceases to be such (for example, sells its shares or share to third parties). In Art. 67.2 of the Civil Code, the problem of withdrawal of a participant (party to a corporate agreement) from a business entity is resolved. As stated in paragraph 8 of Art. 67.2 The Civil Code of the Russian Federation, the termination of the right of one party to a corporate agreement to a share in the authorized capital of a business entity (shares) does not entail the termination of the corporate agreement in relation to its other parties, unless otherwise provided by this agreement.

It is allowed to conclude special agreements between the so-called third parties (primarily creditors of the company's participants) and the participants of the economic company, according to which the latter, in order to ensure the legally protected interest of such third parties, undertake to exercise their corporate rights in a certain way or refrain (refuse) from exercising them, including voting in a certain way at the general meeting of the company's participants, coordinating other actions to manage the company, acquiring or alienating shares in its authorized capital (shares) at a certain price or upon the occurrence of certain circumstances, or refraining from alienating shares (shares) until certain circumstances.

It is easy to see that such an agreement on the subject resembles a corporate agreement. Therefore, the rules on the corporate agreement will apply to it. The difference between the two treaties lies in the composition of its participants.

The law resolves issues of correlation between agreements on the establishment of a business entity and corporate agreements. The rules on a corporate agreement shall accordingly apply to an agreement on the establishment of a business entity, unless otherwise provided by law or follows from the nature of the relationship between the parties to such an agreement ( paragraph 10 of Art. 67.2 GK).

The agreement on the establishment of a business entity is as follows. In accordance with this agreement, the founders undertake to create a legal entity, determine the procedure for joint activities to create it, the conditions for transferring their property to it and participating in its activities.

Thus, agreements on the establishment of a business company and corporate agreements have some common features, but do not completely match.

Since 2014, in the civil legislation of the Russian Federation, there has been a division of commercial and non-commercial enterprises into corporate and unitary ones. In this article we will tell you what applies to unitary legal entities. How are corporations different? More on this later.

The difference between corporate legal entities and unitary

A corporation is understood as a set of persons whose purpose of association can be considered to be the achievement of common goals, the implementation of joint activities. In this case, the association of persons forms an independent subject of legal relations - a legal entity.

In legal practice, over time, a general idea of ​​the types and legal personality of a legal entity has been developed.

The concept denoting a corporate legal entity is known to the legislative systems of all developed countries.

Such a division helps to regulate in general not only the management structure and competence of the bodies of a corporate commercial and non-profit organization, but also a number of internal relationships that cause disputes in legal practice (for example, challenging decisions of meetings or other collegiate bodies, conditions that determine withdrawal from membership participants, etc.).

Unitary legal entities include commercial enterprises that do not own the property that is assigned to them. Corporations were singled out as special forms of formation of a legal entity, and this contributed to the consolidation in the Civil Code general norms concerning the status of the corporate enterprises themselves and their participants. It must be said that there are no similar general rules that relate to unitary enterprises in civil law. In the Russian civil legislation, a new classification criterion has been identified for the division of corporate enterprises, which are based on the membership of participants and unitary organizations. Corporate-type legal organizations are enterprises that are based on the membership of participants.

The main governing body of the legal entity is formed from the participants of the corporation - general meeting. Participation in a corporation gives its members the appropriate membership rights and obligations in relation to the formed legal entity. In the form of a corporate enterprise, enterprises of both a commercial and non-commercial nature can be created. Corporations include all commercial legal entities, with the exception of only unitary enterprises.

Unitary legal entities are legal entities whose founders do not become their participants and do not acquire membership rights in them.

Corporation types

In addition, some non-profit organizations can also be attributed to the same type:

• consumer cooperatives;
• public organizations;
• associations (unions);
• associations of property owners;
• Cossack societies included in the relevant state register;
• communities of indigenous peoples.

Based on this, the misconception that a consumer cooperative is a unitary legal entity can hardly be true. With regard to all corporate organizations, including non-profit ones, uniform rights are established for their participants and the same management rules. If the founders of a legal entity do not become members, then this enterprise is classified as a unitary legal entity. The right of ownership to the property fixed by the owner does not pass to the unitary enterprise. The property assigned to him is considered indivisible. It cannot be distributed among contributions or shares, even among employees of the organization. The category of such organizations includes unitary enterprises of the state and municipal type according to the list.

Types of unitary institutions

Unitary legal entities include various types:

• public, charitable and other foundations;
• government agencies (including state academies Sciences), municipal and private (including public) institutions;
• autonomous non-profit organizations;
• religious organizations;
• public law companies.

Unitary legal entities

As we noted above, organizations whose property cannot be divided into parts are classified as unitary legal entities. The list of such institutions, we repeat, can be presented by state and municipal enterprises, various foundations, autonomous non-profit organizations, religious organizations, as well as public companies. There is no such thing as "membership" in them.

Is transformation possible?

Experts have long noted that the existence of such an organizational and legal form as a unitary enterprise is futile from the point of view of the development of civil legislation. It also stipulated its gradual replacement with another type of commercial organization, including business companies. It is also noted that in the future, in order to meet the needs of the federal state, only federal state institutions in especially important economic areas should remain.

But the legislators did not go for such drastic changes, leaving unitary enterprises of both state and municipal types, giving them not the right to manage property, but the right to operational management or economic management. As mentioned above, legal entities whose founders do not become their participants are unitary.

Corporate legal entities

The supreme body of the corporation civil law The Russian Federation is called the general meeting of participants. In some non-profit organizations where the number of participants exceeds one hundred people, the supreme body may be in the form of a congress, conference or other collegiate body determined by their charters in accordance with the law.

Functions of the supreme body

In any corporate organization, the highest body considers the following issues:

• determining the main activities of the organization, as well as the acquisition and use of property;
• approval and amendment of the charter of the corporate organization;
• determining the rules for admission to the membership of the corporation and exclusion from the membership of its participants, unless such rules are determined by law;
• formation of other bodies of the enterprise, as well as early termination of their powers;
• approval of the annual report and accounting (financial) reports of the corporation, if in the charter or in accordance with the legislation of the Russian Federation these powers are not referred to the competence of other bodies of the organization;

• making decisions on the creation by the participants of the corporation of other legal organizations, the participation of the corporation in other legal entities, the creation of branches and the opening of representative offices of the organization;
• making decisions on the reorganization and liquidation of the enterprise, forming the composition of the liquidation commission, as well as approving the liquidation balance sheet;
• election of the audit commission and appointment of auditors of the legal entity.

Can the highest corporate body function alone?

The competence of the supreme collegial body may be expanded by Russian legislation and the charter to include other issues of the corporation. Corporate legal entities must comply with all regulations. This is important because prior to this, the possibilities for shareholders' meetings strictly corresponded to those specified in the provisions of the Federal Law "On Joint-Stock Companies". It was impossible to go beyond this law. In addition to the fact that the supreme body of power is being formed in the corporation, the sole executive body is also being created (in the person of the director, general director, chairman, etc.).

And in the event that the Civil Code, another law or the charter of the organization provides for the creation of a collegial body (board, directorate, etc.), then it is formed as accountable to the supreme body of the corporation. Corporate legal entities often also form a board that controls the activities of all these bodies.

Other conditions for exercising powers

It should be noted important point: the corporate charter may provide for special conditions for granting the powers of the executive body to several citizens who can act jointly, and it is also possible to form several sole executive bodies that can act without coordinating their decisions among themselves. Such a body can be represented by both an individual and a legal entity.

The introduction of these rules forms the basis for the emergence of a special kind of relationship among the participants in the corporation. These relationships are called corporate. In itself, the emergence of corporations is considered by experts as the development of general provisions new edition articles of the second Civil Code of the Russian Federation. Also important is clause 2 of article 65.1 of the Civil Code of the Russian Federation, according to which the participants in a corporate organization acquire membership rights and obligations in relation to a registered legal entity.

Legal Exceptions

The only exceptions are cases specified in the Civil Code of the Russian Federation. These rights apply to:

• participation in management corporate organization(with the exception of business partnerships that have special management rules);
• obtaining information about the activities of a legal entity, familiarization with accounting reports and other documents within the framework provided for civil laws and constituent documents;
• appeal against decisions of the bodies of the corporation, the application of which will lead to the onset of civil law consequences;
• actions on behalf of the corporation to compensate for the damage caused to the corporation;
• challenging transactions legally.

Members of a corporation may also be granted other rights provided for by legislative acts or statute.

Requirements for corporate members

In addition to rights, members of the corporation are also vested with obligations, which include:

• participation in the formation of property;
• non-disclosure of confidential information about the work of the corporation;
• participation in making strategic decisions for the corporation;
• the impossibility of performing actions that are knowingly aimed at causing harm to corporate interests;

Members of a corporation may also be vested with other obligations in accordance with legislative and constituent documents.

The legal personality of the considered types of legal entities is determined by their place in the economic system.

According to the method of management, the law divides legal entities into corporate and unitary. different models controls are also used in commercial companies. From the article you will learn about the features of these models.

In this article:

Corporate organizations differ from unitary ones in the amount of management authority that the founders receive. The legal entity is:

• corporate, if the founders and participants of the company have the right to membership in it and are included in the supreme body;
• unitary, if the founders do not have the right to participate.

The method of management does not affect the goals of the organization. Thus, many corporations do not exist to generate income. For example, these are associations, social movements, etc. However, companies that open for doing business are corporate.

Legal entities opened for commercial purposes are of the corporate type

The law disclosed the concept and listed the types of legal entities with corporate governance. These organizations include:

1. Economic companies. These are LLC and JSC.
2. Business partnerships.
3. Business partnerships.
4. Peasants or farms.
5. Associations of property owners.
6. production cooperatives.
7. consumer cooperatives.
8. Public organizations, as well as social movements.
9. Associations and unions.
10. Notary chambers.
11. Cossack societies.
12. Communities of small peoples of the Russian Federation.

The capabilities of corporation members depend on its characteristics. But the law prescribed common rights and obligations for all. Members can:

• manage the organization;
• receive information about the state of affairs, including financial information;
• object to the decisions of the governing bodies and appeal them;
• challenge transactions that caused damage to the company, and demand compensation for losses, etc. (part 1 of article 65.2 of the Civil Code of the Russian Federation).

Members of a corporation can manage it on the basis of an internal contract. How to protect their rights in this case, read the magazine "Corporate Lawyer".

At the same time, the participants are obliged to form the property of the organization, act in its interests, etc. (part 4 of article 65.2 of the Civil Code of the Russian Federation).

The meeting and the director are the management bodies of corporate type legal entities

How to organize the management of a corporation is stated in Article 65.3 of the Civil Code of the Russian Federation. The main function of managing the company is assumed by the general meeting of participants. The same function is performed by a congress or other representative assembly if:

• it is a production cooperative or corporate legal entity of non-commercial orientation,
• There are more than 100 members in the organization.

In more detail, the nature and powers of such a body are determined in the charter in accordance with the law.

There are actions that fall within the exclusive competence of this governing body. For example, only a meeting (congress, conference, etc.) has the right to:

1. Choose the most important areas of activity for the organization, determine the principles for the formation and use of property.
2. Approve and amend the charter.
3. Make decisions on the reorganization or liquidation of the company, etc. (part 2 of article 65.3 of the Civil Code of the Russian Federation).

Also, on behalf of the corporate legal entity, the sole executive body acts - this is CEO, chairman, president, etc. At the same time, the company has the right to:

• to grant these powers to several persons who will act jointly;
• to form several such bodies that will work independently of each other (paragraph 3, part 1, article 53 of the Civil Code of the Russian Federation).

Both a person and an organization can act as such a body.

In addition to these bodies, the company may have a board of directors, a management board, a supervisory board or another collegial body (part 4 of article 65.3 of the Civil Code of the Russian Federation). Their functions and powers depend on the instructions of the charter and the provisions of the law.

Commercial state-owned enterprises are unitary legal entities

If the founders of an organization do not receive membership rights after its creation and cannot manage its work, such an organization is a unitary legal entity. According to the law, legal entities of this type include:

• state and municipal unitary enterprises,
• funds,
• institutions,
• autonomous non-profit organizations,
• religious organizations,
• state corporations,

About how such organizations conduct activities, it is said in Chapter 4 of the Civil Code of the Russian Federation. For commercial and non-commercial legal entities of a unitary type, the rules are different, in addition, for some there is a special legal regulation. Thus, public law companies work in accordance with the requirements. And each of the state corporations has its own law.

The management of the property of such organizations depends on their type. For example, SUE and MUP do not have ownership of property. All assets of such a company belong to the Russian Federation, a constituent entity of the Russian Federation or municipality who is the founding member of the organization. SUE or MUP dispose of the entrusted property on the basis of the right of economic management or operational management. It applies to such organizations. These are commercial organizations, unlike other unitary legal entities.

When creating a SUE or MUP, they form it charter capital in accordance with the provisions of Law No. 161-FZ. An enterprise is created on behalf of a public legal entity (Article 125 of the Civil Code of the Russian Federation). founding document is a charter that is developed and approved by an authorized municipal or state body. The direct management of such an organization is carried out by the director, who is appointed by the owner. With the director draw up labor contract(Clause 7, Part 1, Article 20 of Law No. 161-FZ). The head acts on behalf of the organization and is accountable to its founder.