home Business blog CPP • Procedure for registering a commercial organization. Creation of commercial organizations When creating a commercial organization, state registration is carried out

CPP • Procedure for registering a commercial organization. Creation of commercial organizations When creating a commercial organization, state registration is carried out

Process of creation commercial organizations breaks down into 2 stages:

institution

State registration

Establishment of commercial organizations:

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

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

Then, in the course of the activities of a commercial organization, its property is also formed at the expense of other receipts, mainly profits.

All property of a commercial organization is taken into account on its cost balance, in which it finds an external formal manifestation, property isolation of a commercial organization.

Other things

Property rights or other rights having a monetary value

* Values of the minimum authorized capital

(determined by the Decree of the President of the Russian Federation "On streamlining state registration enterprises and entrepreneurs on the territory of the Russian Federation")

The size authorized capital:

open joint-stock companies

Enterprises of any organizational and legal forms with foreign investments

State and municipal unitary enterprises

It cannot be less than a thousand times the minimum wage, per month, on the date of state registration of a commercial organization.

The amount of the authorized capital of other commercial organizations:

business partnerships

Closed Joint Stock Companies

Production cooperatives

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

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

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

sole proprietors

Collegiate

Structural divisions (branches and representative offices)

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

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

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

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

In addition to the corporate name, the individualization of a commercial organization is carried out in a way that determines its location, as well as individualization her goods.

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

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

Individualization goods of a commercial organization is produced by using the brand name, trademark or appellation of origin of the goods.

Production mark - this is a verbal description of the product placed on the product or its packaging and includes the manufacturer's brand name, its address, product name, reference to standards, a list of product properties, and a number of other data (Russian law "On consumer protection") not subject to property registration.

Trademark (service mark) is verbal, pictorial, voluminous or otherwise symbol product used to distinguish it from similar products from other manufacturers. A trademark is subject to state registration with the Patent Office.

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

General order of establishment:

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

Constituent documents:

a) memorandum of association

b) memorandum of association and articles of association

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

They define legal status commercial organization and other interests in connection with the establishment of a commercial organization.

In the memorandum of association - the founders fix their share for the creation of a commercial organization;

Determine the strand joint activities for its creation;

Conditions for the transfer of her property to her;

Participation in its activities;

The conditions are determined, and the procedure for the distribution of profits and losses among the participants;

Managing the activities of a commercial organization;

Exits of participants from its structure.

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

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

State registration of commercial organizations:

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

Civil Code provided one system state registration of legal entities. All legal entities, including commercial organizations, are subject to state registration with the judicial authorities, in the manner determined by the law on the registration of legal entities.

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

Documents for state registration:

Application for registration;

The decision to establish a commercial organization (in particular, the memorandum of association);

approved charter;

Certificate of payment of state duty;

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

AT special laws may be provided additional documents, for example for credit institution:

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

· Auditor's report on reliability financial reporting;

· Declaration of income of the founders - individuals;

· Questionnaires of candidates for positions of heads of the credit organization.

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

If the issue is resolved positively, the basic data, including its company name, are included in a single State Register legal entities, open to the public.

In case of violation of the procedure established by law for the formation of a commercial organization or inconsistency of its constituent documents with the law, the registration authority shall refuse state registration. Denial of registration on other grounds is not allowed.

Denial of state registration, as well as evasion of such registration may be appealed in court. At the same time, losses caused by the registration authority to the founders as a result of an illegal refusal to register (Article 16 of the Civil Code) are subject to compensation.

State registration is regulated by: Civil Code; Federal Law No. 129-FZ of 08.08.2001 "On State Registration of Legal Entities and Individual Entrepreneurs"; federal laws on specific organizational and legal forms of legal entities; as well as a number of resolutions of the Government of the Russian Federation adopted in pursuance of these laws.

What is the Unified State Register of Legal Entities State registers are maintained on paper and (or) electronic media. In case of discrepancy between the information included in the records of state registers on electronic media and the information contained in the documents on the basis of which such records were made, the priority is given to the information contained in these documents (paragraph 4 of n. 1 of article 4 federal law dated 08.08.2001 No. 129-FZ).

The Unified State Register of Legal Entities, in accordance with Article 1 of this Federal Law, must contain the following information and documents about a legal entity:

The registration file of a legal entity must contain all the documents submitted to the registration authority.

The information contained in the Unified State Register of Legal Entities is open and publicly available, with the exception of passport and other personal data of individuals provided for by Federal Law No. 152-FZ of July 27, 2006 "On Personal Data". Information and documents about a particular legal entity are provided in the form of: extracts from the state register; copies of the document (documents) contained in the state register; certificates on the absence of the requested information.

The term for the provision of information and documents contained in the state register is established by the Government of the Russian Federation and cannot be more than five days from the date of receipt by the registration authority of the relevant request.

The state registration itself is carried out in from the date of submission of documents to the registration authority.

The decision on state registration, adopted by the registering body, is the basis for making an appropriate entry in the state register of legal entities. The moment of state registration is the making by the registering body of an appropriate entry in the state register. Not later than one business day from the date of state registration, the registering authority issues (sends) to the applicant a document confirming the fact of making an entry in the state register.

The registration authority in no more than five working days from the moment of state registration submits information on registration to state bodies determined by the Government of the Russian Federation. These are the Ministry of Justice of Russia, the Central Bank of the Russian Federation, territorial bodies of the Treasury of Russia, the Pension Fund of the Russian Federation, the Social Insurance Fund, Rosfinmonitoring, the Federal Antimonopoly Service of Russia, the Federal Market Commission valuable papers Russia and others.

Before July 1, 2002, there were 4,500 registration bodies employing about 18,000 people. At the same time, 14 thousand of them were engaged only in the registration of legal entities. This procedure was practically unregulated. Basically, there was "lawmaking" local authorities authorities. As a result, each region had its own price for registration, which ranged from 0.5 to 200 minimum wages. In addition, in addition to the registration chamber, the entrepreneur had to go to tax office, Pension Fund, the social insurance fund, the State Statistics Committee, a notary's office, a bank, etc.

Now, in order to open a trade organization, make changes to the constituent documents or close a company, you need to come to the local tax office, hand over the required papers, pay a firm state fee - from January 1, 2010 - 4 thousand rubles. and wait five days. Thus, the process of registering a commercial organization, firstly, is freed from immoderate bureaucratic guardianship. The channel for the enrichment of dishonest officials, who take a certain bribe to quickly register an organization, is being blocked. Secondly, the principle of "one window" allows you to get rid of "dead souls".

In what cases can state registration be denied? Denial of registration trade organizations is possible only on three grounds, provided for in paragraph 1 of Art. 23 of the Federal Law of 08.08.2001 No. 129-FZ:

- failure to submit documents required by law for state registration;
- submission of documents to the wrong registration authority;
- state registration of changes made to the constituent documents of a liquidated legal entity, as well as state registration of legal entities whose founder is the specified legal entity, or state registration of legal entities that arise as a result of its reorganization are not allowed (clause 2, article 20 of the Federal Law ).

These legal norms, along with other provisions of the Federal Law, testify to the legislator's refusal from the previously existing practice of verifying the legality of the creation and compliance of the constituent documents of a legal entity with the law.

Deadline for making a decision to refuse registration is similar to the term for making a decision on the registration of a legal entity and is five working days from the date of submission of documents to the registration authority. The decision to refuse registration must be motivated and contain a reference to a specific violation committed by the applicant. This decision is sent to the person indicated in the application for state registration, with a notification of delivery of such a decision. The decision to refuse state registration may be appealed in court.

It is very important that Art. 24 of the Federal Law of 08.08.2001 No. 129-FZ provides for the responsibility of the registering authority for violating the procedure for state registration of legal entities and individual entrepreneurs. For example, for an unreasonable refusal to state registration, failure to carry out state registration within the established time limits or other violation of the procedure for state registration, as well as for an illegal refusal to provide or for untimely provision of information and documents contained in the state register, officials of the registering bodies shall bear responsibility established by the legislation of the Russian Federation . In accordance with paragraphs 1 and 2 of Art. 14.25 of the Code of Administrative Offenses, untimely or inaccurate entry of entries about a legal entity into the Unified State Register of Legal Entities entails an imposition on officials administrative fine.

The same punishment is provided for illegal refusal to provide or untimely provision of information contained in the Unified State Register of Legal Entities.

At the same time, applicants are also liable for failure to submit or late submission, or submission of false information required for inclusion in the Unified State Register of Legal Entities (parts 3 and 4 of article 14.25 of the Code of Administrative Offenses).

Federal Law No. 72-FZ dated June 25, 2002 introduced significant amendments to the Criminal Code. Firstly, criminal punishment is established for unlawful refusal of state registration of a legal entity or individual entrepreneur, or evasion of their registration, or unlawful refusal to issue a special permit (license). Secondly, criminal penalties have been established for carrying out entrepreneurial activity without registration or in violation of the procedure for registration, as well as for the provision of documents containing deliberately false information to the body that carries out state registration of legal entities.

The main problem is to ensure that existing legal entities are registered in the Unified State Register of Legal Entities. After all, registration is necessary to meet the needs of participants in the economic turnover, so that everyone can receive reliable information about a potential counterparty, its property and financial condition. Unreliable information about legal entities does not even allow law enforcement agencies to find the one who was behind this or that legal entity. It is no coincidence that in practice one can often encounter one-day firms that are used by all kinds of scammers, especially since a meager authorized capital of 10 thousand rubles. to open a legal entity will not stop them.

Registration is a legislatively established procedure for legalizing the activities of business entities. All newly created (reorganized) business entities are subject to state registration, as well as changes and additions made to the constituent documents of existing commercial and non-profit organizations. The activity of legal entities carried out without state registration is prohibited and recognized as illegal. Income received from such activities and a fine in the amount of the income received shall be collected to the budget revenue. In accordance with the law, a legal entity is considered established from the moment of its state registration.

In terms of goals legal regulation The business activity registration regime should include the following components:

a) determination of the forms of this activity subject to registration;
b) creation and establishment of the legal status of state bodies that carry out state registration of the specified activity;
c) development of procedures and rules for business registration, sample documents, establishment of rights and obligations in this area;
d) establishing responsibility and rules for its implementation in the field of business registration.

State registration pursues the following goals:

- exercising state control over the conduct of entrepreneurial activities, in particular, over the fulfillment of conditions for engaging in certain types of activities and for combating the illegal practice of secret entrepreneurship;
- conducting taxation;
- receiving state information statistical accounting for the implementation of economic regulation measures;
- providing all participants of economic turnover, state authorities and local governments with information about business entities.

State registration should be based on the principles of publicity, public knowledge and reliability of information entered in accordance with it in the register. The principle of publicity is manifested in the fact that the register is available to every person who wants to get acquainted with it. The principle of public knowledge means that any person is considered to be aware of the entry of a commercial organization into the register (on the basis of the publication of the register data in official publications), which makes it impossible to refer to ignorance of the information contained in it. And, finally, by virtue of the principle of reliability, there is a presumption of the correctness of the entries contained in the register, which can only be refuted in a judicial proceeding.

The very procedure for state registration of commercial organizations is regulated by a number of regulations. At the federal level, this is the Decree of the President of the Russian Federation of July 8, 1994 "On streamlining the state registration of enterprises and entrepreneurs on the territory of the Russian Federation", which approves the Regulations on the state registration of business entities. Registration of commercial organizations is carried out at their location after the approval of the company name on the basis of documents submitted by the founders.

Registration authorities, in accordance with their competence, perform various functions related to the state registration of business entities: the registration procedure itself, its technical and Information Support, formation and maintenance of the Unified State Register of Legal Entities.

For the state registration of commercial organizations, the founders submit to the registration authority:

1) an application in the form established by the Ministry of Justice of the Russian Federation for state registration of a legal entity, signed by the founder (founders);
2) a decision to establish a legal entity in the form of a protocol, agreement or other document in accordance with the law;
3) constituent documents (constituent agreement, charter);
4) documents confirming the formation of the authorized capital of a commercial organization in accordance with the legislation;
5) documents containing information about the owners of property (founders, participants) of commercial organizations - individuals;
6) if one of the founders is a foreign legal entity - a document confirming its legal status;
7) help tax authority at the place of residence of an individual - the owner of the property (founder, participant) of a commercial organization on the provision of a declaration of income and property;
8) letter of guarantee or another document confirming the right to place a legal entity at the place of residence;

Establishment of commercial organizations. The process of creating commercial organizations is divided into two stages: establishment and state registration.
In addition to the main goal - the systematic extraction of profits - the creation of commercial organizations pursues the same goals as the creation of other legal entities. This is the separation of the founder's property, the limitation of the participant's property risk by separate property, the organization of the management of the relevant property, the performance of a commercial organization in circulation on its own behalf. In essence, these are signs of a legal entity. Consider how they manifest themselves in relation to commercial organizations.
The separation by the founder of his property for the purpose of its exploitation and profit means in this case the personification of this property in a new subject of law, its attachment to the commercial organization being created. From an economic point of view, in this case, the function of the productive (commercial) use of the founder’s capital is separated from the rest of its capital, which is actually typical for market economy. This is especially important when combining the capitals of many founders to carry out large-scale entrepreneurial activities, for example, when creating open joint-stock companies.
Initially, the separation of the founder's property occurs through the formation of the authorized (share) capital of a commercial organization. Then, in the course of the activities of a commercial organization, its property is also formed at the expense of other receipts, mainly profits. All property of a commercial organization is accounted for on its independent balance sheet, which is the external formal manifestation of the property isolation of a commercial organization.
The authorized (share) capital, which all commercial organizations must have, is the amount of the contribution
Commercial law. Part I. Ed. V.F. Popondopulo, V.F. Yakovleva. - St. Petersburg, St. Petersburg University, 1997. P. 58
(contributions) of the founder (founders), made in rubles and fixed by the constituent documents of the commercial organization. The authorized capital of a commercial organization determines the minimum amount of property of a commercial organization that guarantees the interests of its creditors.
A contribution to the charter (reserve) capital of a commercial organization may be money, securities, other things or property rights or other rights having a monetary value. Monetary assessment of the contribution is made by agreement between the founders of a commercial organization and, in cases provided for by law, is subject to independent expert verification (clause 6, article 66 of the Civil Code).
The values of the minimum authorized (reserve) capital of commercial organizations are determined by Decree of the President of the Russian Federation of July 8, 1994 No. 1482 “On streamlining the state registration of enterprises and entrepreneurs on the territory of the Russian Federation”, taking into account the operation of special laws regulating the same issue. The size of the authorized capital of open joint-stock companies, enterprises of any legal form with foreign investments, state and municipal unitary enterprises must not be less than 1,000 times the minimum wage per month as of the date of state registration of the commercial organization. The size of the authorized capital of other commercial organizations ( business partnerships, closed joint stock companies, production cooperatives) should not be less than 100 times the minimum wage per month on the date of their state registration.
With regard to a number of commercial organizations, for example, commercial banks, special legislation a significantly larger minimum amount of the authorized capital was established, as well as other requirements (for example, on the ratio of equity and borrowed capital) that ensure the property interests of their creditors.
Limitation of the property risk of the founder by separate property for the purpose of creating a commercial organization is especially important in the field of entrepreneurship, as it relieves the founder from liability for the obligations of a commercial organization. Commercial organizations are liable for their obligations with all their property (Article 56 of the Civil Code). Exceptions to this rule may be provided for by the Civil Code or the constituent documents of a commercial organization. Thus, the Russian Federation bears subsidiary liability for the obligations of a state-owned enterprise if its property is insufficient (clause 5, article 115 of the Civil Code).
Commercial law. Part I. Ed. V.F. Popondopulo, V.F. Yakovleva. - St. Petersburg, St. Petersburg University, 1997. P. 59
Also noteworthy is the rule of paragraph 3 of Art. 56 of the Civil Code: if the insolvency (bankruptcy) of a commercial organization is caused by the founders or other persons who have the right to give instructions binding on this commercial organization or otherwise have the opportunity to determine its actions, such persons, in the event of insufficient property of the commercial organization, may be assigned subsidiary liability for her obligations.
The above exclusive rules do not contradict the principle of independent property liability of a commercial organization, since the liability of other persons for the debts of a commercial organization is only additional (subsidiary) to the responsibility of the commercial organization itself.
The organization of management of the separate property of the founder when he creates a commercial organization is carried out through the management bodies of the commercial organization (sole and collegiate), its structural units in particular branches and representative offices.
A commercial organization acquires rights and assumes obligations through its bodies acting in accordance with the law, other legal acts and constituent documents. In certain cases, as already noted, a commercial organization can acquire rights and assume obligations through other persons: commercial representatives (Article 184), participants (Clause 2, Article 53 of the Civil Code).
The procedure for appointing or electing the management bodies of a commercial organization is determined by law and constituent documents. Thus, the simplest organization of management is typical for state and municipal unitary enterprises. Here, the governing body is the sole manager, who is appointed by the owner or a body authorized by him and is accountable to him (paragraph 4 of article 113 of the Civil Code).
The most complex management organization is characteristic of joint-stock companies (Article 103 of the Civil Code). Here a multi-link system of governing bodies is created ( general meeting shareholders, board of directors, executive agency) and control ( audit committee), in a certain way and very strictly distributed between them, the competence, which ultimately not only ensures the efficient operation of the property (enterprise), but also guarantees the rights of shareholders and other creditors of the joint-stock company.
The organizational structure of commercial organizations consists of their divisions. Sometimes it is property and organizational separate divisions- branches and representative offices. The latter differ in that they are located outside the location of a commercial organization and carry out all its functions.
Commercial law. Part I. Ed. V.F. Popondopulo, V.F. Yakovleva. - St. Petersburg, St. Petersburg University, 1997. P. 60
tions or their part (branches) or represent the interests of a commercial organization and protect them (representative offices). The property that is allocated to the divisions of a commercial organization may be accounted for on a separate (within the framework of an independent balance sheet of a commercial organization) balance sheet.
Representative offices and branches, as well as other divisions of a commercial organization, are not legal entities. They operate on the basis of regulations approved by the commercial organization. Their leaders are appointed by the commercial organization and act on the basis of the power of attorney of the commercial organization. Representative offices and branches must be indicated in the constituent documents of the commercial organization that created them (Article 55 of the Civil Code).
Commercial organizations are created for the sake of acting in circulation on their own behalf, regardless of the founders. Having a separate property, organizational structure to manage this property, a commercial organization through its management bodies or representatives participates in market relations acquires and exercises rights and bears obligations on its own behalf, acts as a plaintiff and defendant in court.
A commercial organization has its own company name, which contains an indication of its organizational and legal form, and, in cases provided for by law, also the nature of the activities of a commercial organization. The trade name of a commercial organization is indicated in its constituent documents and is subject to state registration simultaneously with the state registration of the commercial organization itself. The use of a company name is the exclusive right of a commercial organization-right holder (Article 54 of the Civil Code).
Bodies of a commercial organization, its branches and representative offices, other representatives act on behalf of a commercial organization. By virtue of paragraph 3 of Art. 53 of the Civil Code, persons who, by virtue of law or the constituent documents of a commercial organization, act on its behalf must act in its interests in good faith and reasonably. In case of abuse by the representatives, they are obliged, at the request of the founders (participants) of the commercial organization, to compensate for the losses caused by them to the commercial organization.
In addition to the brand name, the individualization of a commercial organization is carried out by determining its location, as well as the individualization of its product.
The location of a commercial organization is determined by the place of its state registration (Article 54 of the Civil Code). The specific address of a commercial organization is indicated in its founding documents.
Commercial law. Part I. Ed. V.F. Popondopulo, V.F. Yakovleva. - St. Petersburg, St. Petersburg University, 1997. P. 61
documents and is tied to the location of its permanent body.
The individualization of the goods of a commercial organization is carried out by using a production mark, trademark or appellation of origin of the goods.
A manufacturing mark is a verbal description of a product placed on a product or its packaging and includes the manufacturer's trade name, address, product name, reference to standards, a list of product properties and a number of other data (Articles 7, 10 of the Law of the Russian Federation of February 7 1992 "On the Protection of Consumer Rights" as amended by the Federal Law of January 9, 1996). The trade mark is not subject to special registration.
A trademark (serving mark) is a verbal, figurative, three-dimensional or other symbolic designation of a product used to distinguish it from similar products of other manufacturers. A trademark is subject to state registration with the Patent Office.
A commercial organization that produces goods, the properties of which are largely determined by the conditions of the locality where it is produced, has the right to register and use the appellation of origin of the goods. Unlike a trademark, the right to use an appellation of origin is not exclusive.
What is the procedure for establishing commercial organizations? With regard to a particular organizational and legal form of commercial organizations, the procedure for establishing is determined by the relevant articles of the Civil Code or special laws, for example, the Federal Law of the Russian Federation “On Banks and banking” (as amended on February 3, 1996).
The general procedure for establishing commercial organizations is as follows. A commercial organization is established by decision of the owner (owners) of the property or a body authorized by him. Thus, state and municipal unitary enterprises are established by the Governments of the Russian Federation or constituent entities of the Russian Federation, the relevant committees for property management of the Russian Federation or constituent entities of the Russian Federation.
Depending on the chosen organizational and legal form of a commercial organization, its constituent documents are the constituent agreement, the constituent agreement and the charter, or only the charter (clause 1 of article 52 of the Civil Code). In the relevant constituent documents, taking into account the requirements of the legislation, the right to
Commercial law. Part I. Ed. V.F. Popondopulo, V.F. Yakovleva. - St. Petersburg, St. Petersburg University, 1997. P. 62
the status of a particular commercial organization and other interests of the founders in connection with the creation of a commercial organization.
Commercial organizations that operate solely on the basis of a constituent agreement include general partnerships and limited partnerships. Limited liability companies and additional liability companies operate on the basis of a memorandum of association and articles of association. The exception is business companies created by one founder. In this case, the constituent agreement is not concluded, the founder approves only the charter. Other commercial organizations (joint stock companies, production cooperatives, state and municipal unitary enterprises) operate only on the basis of the charter.
The constituent documents of a commercial organization determine the company name of the commercial organization, its location, the procedure for managing the activities of the commercial organization, and also contain other information provided for by special norms of the Civil Code or special laws for commercial organizations of the corresponding type (for example, clause 1 of article 113 of the Civil Code; article 10 of the Federal Law of the Russian Federation "On Banks and Banking Activities").
In the foundation agreement, the founders fix their will to create a commercial organization, determine the procedure for joint activities to create it, the conditions for transferring their property to it and participating in its activities. The contract also defines the conditions and procedure for the distribution of profits and losses among the participants, the management of the activities of a commercial organization, and the withdrawal of participants from its composition.
The charter of a commercial organization determines the individual legal status of a commercial organization. In the charter, in accordance with the generally permissible legal regime, everything that does not contradict the current legislation can be reflected, but in accordance with the binding beginning of legal regulation, the charter must define the information provided for in paragraph 2 of Art. 52 of the Civil Code, as well as other information provided by law for commercial organizations of the corresponding type. So, for example, the charter of a joint-stock company, in addition to the information specified in paragraph 2 of Art. 52 of the Civil Code, must contain conditions on the categories of shares issued by the company; their face value and quantity; on the size of the authorized capital of the company; about the rights of shareholders; on the composition and competence of the management bodies of the company and the procedure for making decisions by them, including on issues that are decided unanimously or by a qualified majority of votes (clause 3 of article 98 of the Civil Code).
Commercial law. Part I. Ed. V.F. Popondopulo, V.F. Yakovleva. - St. Petersburg, St. Petersburg University, 1997. P. 63
State registration of commercial organizations. A commercial organization is considered established and acquires the status of a legal entity from the date of its state registration (clause 2, article 51 of the Civil Code).
The Civil Code provides for a unified system of state registration of legal entities. All legal entities, including commercial organizations, are subject to state registration with the judicial authorities in the manner determined by the law on registration of legal entities.
It should be noted, however, that until the entry into force of the Law on the Registration of Legal Entities, the current procedure for registering legal entities is applied (Article 8 of the Federal Law of the Russian Federation “On the Enactment of Part One Civil Code). The current registration procedure is determined by Art. 34, 35 of the Law of the RSFSR of December 25, 1990 "On Enterprises and Entrepreneurial Activities"," Decree of the President of the Russian Federation of July 8, 1994 No. 1482 "On streamlining the state registration of enterprises and entrepreneurs on the territory of the Russian Federation" and a number of other special laws on certain types of commercial organizations. State registration of commercial organizations is carried out in different bodies: usually - the Registration Chambers of the administrations of the constituent entities of the Russian Federation, but, in particular, credit organizations - in the Central Bank of the Russian Federation; enterprises with foreign investments, starting from a certain level of authorized capital, - in the Ministry of Economy of the Russian Federation.
For state registration of a commercial organization, its founders submit the following documents: application for registration; a decision to establish a commercial organization (in particular, a memorandum of association); approved charter; certificate of payment of the state fee; documents confirming the payment of at least 50% of the authorized capital of a commercial organization specified in the decision to establish a commercial organization.
Additional documents may be provided for in special laws. Thus, for state registration of a credit institution, it is also necessary to submit to the Central Bank of the Russian Federation copies of certificates of state registration of founders - legal entities; an auditor's report on the reliability of their financial statements; income declarations of founders - individuals; questionnaires of candidates for positions of heads of the credit institution.
Commercial law. Part I. Ed. V.F. Popondopulo, V.F. Yakovleva. - St. Petersburg, St. Petersburg University, 1997. P. 64
State registration authorities are not entitled to require other documents other than those specified in the law, otherwise their actions may be appealed in court.
The decision to register or refuse to register a commercial organization must be made no later than one month from the moment the founders submit the documents necessary for this
Carrying out the state registration of commercial organizations, the registration authorities control compliance with the conditions established by law for the establishment of commercial organizations. If the issue is resolved positively, the basic data on the commercial organization, including its company name, are included in the unified state register of legal entities, open to the public.
In case of violation of the procedure established by law for the formation of a commercial organization or inconsistency of its constituent documents with the law, the registration authority shall refuse state registration of a commercial organization. Refusal to register on other grounds, in particular on the grounds of the inexpediency of creating a commercial organization, is not allowed.
Denial of state registration, as well as evasion of such registration, may be appealed in court. At the same time, losses caused by the registration authority to the founders as a result of an illegal refusal to register (Article 16 of the Civil Code) are subject to compensation.
From the moment of state registration of a commercial organization, its legal capacity arises, that is, the ability to have civil rights and bear obligations. Commercial organizations, with the exception of state and municipal unitary enterprises (paragraph 2, paragraph 1, article 113 of the Civil Code) and other types of organizations provided for by law (for example, enterprises with foreign investment - paragraph 4, paragraph 1, article 2 of the Civil Code), may have civil rights and bear civil obligations necessary for the implementation of any types of activities not prohibited by law (Article 49 of the Civil Code).
In other words, commercial organizations have a general legal capacity, which fully corresponds to the generally permissible regime of entrepreneurship. Absence legal requirement on the listing in the charter of a commercial organization of the types of activities that it can engage in, contributes to the development business activity commercial organizations, facilitates its response to changing market conditions and the flow of capital into the most promising sectors of the economy, contributes to stability trade turnover, since the transactions of a commercial organization with general legal capacity cannot be declared invalid on the grounds of contradiction to its goals.
Commercial law. Part I. Ed. V.F. Popondopulo, V.F. Yakovleva. - St. Petersburg, St. Petersburg University, 1997. P. 65
A commercial organization may be limited in its rights only in cases and in the manner prescribed by law. So, for example, a credit institution is prohibited from engaging in production, trade and insurance activities (Article 5 of the Federal Law "On Banks and Banking Activities"). From the moment a commercial organization is declared insolvent (bankrupt) and a decision is made to open bankruptcy proceedings, the alienation of its property is prohibited, and other restrictions on rights also occur (Article 18 of the Law of the Russian Federation of November 19, 1993 "On the insolvency (bankruptcy) of enterprises"). The decision to restrict rights may be appealed by a commercial organization to the court.
Of course, the legal capacity of a commercial organization can be limited not only by law, but also by the will of the founder (founders), who has the opportunity to determine the goals of the commercial organization in its constituent documents, which follows from paragraph 1 of Art. 49 GK.

SZRF 1994 No. 11. Art. 1194.
SZRF.1996. No. 3.St. 140.
On Trademarks, Service Marks and Appellations of Origin. Law of the Russian Federation of September 23, 1992 // Vedomosti RF. 1992. No. 42 Art. 2322.
SZ RF. 1996. No. 6 Art. 492.
Gazette of the RSFSR. 1990. No. 30. Art. 418.
SZRF 1994. No. 11.St. 1194.
See, for example. Art. 12–17 of the Federal Law of the Russian Federation “On Banks and Banking Activity” (as amended on February 3, 1996) // SZ RF 1996. No. 6. Art. 492.
Vedomosti RF 1993. No. 1Licensing the activities of commercial organizations. Apart from general condition implementation of the legal personality of a commercial organization, which is the fact of its state registration, the Civil Code provides for special (additional) conditions for the exercise of the legal personality of commercial organizations. These are various kinds of permits to engage in certain types of business activities: licenses, qualification certificates, quotas, etc.
In accordance with Art. 49 of the Civil Code, a commercial organization may engage in certain types of activities, the list of which is determined by law, only on the basis of a special permit (license). The right of a commercial organization to carry out activities for which a license is required arises from the moment such a license is received or within the period specified in it and terminates upon the expiration of its validity period, unless otherwise provided by law or other legal acts.
Currently, the types of business activities subject to licensing are determined not only by federal laws, as required by Art. 49 of the Civil Code, but also by other legal acts, which in the relevant part should be recognized as illegitimate. Thus, by Decree of the Government of the Russian Federation of December 24, 1994 No. 1418 “On licensing certain types activities” approved a list of types of licensed activities, as well as a unified procedure for issuing licenses.
Licensing is an administrative and legal regulator of business relations, aimed at ensuring a normal balance of private interests of a commercial organization.
Commercial law. Part I. Ed. V.F. Popondopulo, V.F. Yakovleva. - St. Petersburg, St. Petersburg University, 1997. P. 66
nization with the public interests of society as a whole. The legal relations arising during licensing between a commercial organization and a licensing state body are administrative legal relations that develop in the order state regulation economy.
Therefore, like any activity of state bodies, licensing activities should be clearly regulated by law. At the same time, the principle of “licensing only what cannot be licensed” should be taken as the basis for resolving the issue of licensing a particular type of entrepreneurial activity. For example, in order to ensure public interests, it is impossible not to license activities that are dangerous to society, highly profitable activities, etc.
Since licensing is an activity of state bodies: the Central Bank of the Russian Federation, the Federal Commission for the Securities Market, etc., it should be concluded that the transfer of such functions to non-state structures, various associations, unions, etc. is unacceptable. This follows directly from Art. 7 of the Law of the Russian Federation "On competition and restriction of monopolistic activities on commodity markets”(as amended by the Federal Law of the Russian Federation of May 25, 1995), which prohibits the transfer of functions of government bodies at all levels to business entities. At the same time, it is permissible to delegate the powers of state bodies for licensing certain types of activities to local governments.
The relevant laws provide grounds for refusal to issue licenses and revocation of licenses. The list of such grounds is exhaustive (for example, articles 11, 20 of the Federal Law of the Russian Federation "On Banks and Banking Activities"). Refusal to issue a license or revocation of a license on other grounds, except for those provided by law, is not allowed and may be appealed in an arbitration court.
It should be especially noted that unlicensed activity involves the application of civil law and administrative law sanctions to a commercial organization.
So, in accordance with paragraph 2 of Art. 61 of the Civil Code, a commercial organization may be liquidated by a court decision in the event of carrying out activities without a proper permit (license). Transactions made by a commercial organization that does not have a license to engage in the relevant activity may be declared invalid by a court at the suit of this commercial organization, its founder (participant) or government agency exercising control or supervision over the activities of a commercial organization (Article 173 of the Civil Code).
Commercial law. Part I. Ed. V.F. Popondopulo, V.F. Yakovleva. - St. Petersburg, St. Petersburg University, 1997. P. 67
As an example of administrative responsibility, one can cite the norm of Art. 157 of the Code of Administrative Offenses,25 providing for liability for carrying out activities subject to licensing in transport without a special permit (license) or violation of the conditions stipulated in the license, in the form of a fine or cancellation of the license.
Applied to individual entrepreneurs It also provides for criminal liability. The new Criminal Code of the Russian Federation provided for liability for illegal entrepreneurship (Article 171) and illegal banking activities (Article 172), expressed in particular in the implementation of entrepreneurial (banking) activities without a special permit (license) or in violation of licensing conditions.

SZRF.1995. No. 1.Art.69.
SZ RF 1995. No. 22 Art. 1977.
Code of the RSFSR on administrative offenses. M., 1993. Art. 6.

Creating a commercial organization is the first step towards creating your own own business. The law establishes the procedure for creating commercial organizations, which any citizen of the Russian Federation must adhere to. It must be remembered that an organization is recognized as established only after its registration with the justice authorities.

The procedure for creating commercial organizations

The legal regulation of the creation of commercial organizations unambiguously establishes the procedure for:

the creation of a commercial organization begins with the preparation of the Memorandum of Association, drawn up by the founders, or the Charter, approved by them. An organization can have both Memorandum of association and the Charter;
preparation of constituent documents (the Agreement and the Charter also apply to them), which indicate the name of the future organization, its location, legal status, purpose of creation;
the procedure for the formation of the authorized capital is established (for joint-stock companies - also the procedure for the placement of shares);
management bodies are determined and the terms of reference are assigned to each of them;
the form and methods of control over the activities of the organization are indicated;
the procedure for reorganization and liquidation is established;
the founders in the Agreement determine the procedure for transferring their property to a commercial organization;
the procedure for distributing profits and losses of a commercial organization between the founders is announced;
the conditions and procedure for the withdrawal of founders from the organization are discussed;
management is assigned.

Legal assistance in the organization of legal. persons

Prompt consultation by phone or in the office of the bureau

Lawyer for arbitration cases- assistance of a specialist in the organization of legal persons

The legal regulation of the creation of a commercial organization also indicates mandatory requirements. For example, the name (name) of the future legal entity must be unique. The entire procedure for registering a newly created legal entity can be divided into several stages:

initial registration (duties and fees are paid, all documents are submitted to the registration authority) Required documents) - a temporary certificate of registration is issued;
creation of a press faces;
obtaining a permanent certificate of registration (registration with the State Statistics Committee, selection of enterprise activity codes, work with banks).

The creation of a commercial organization is a complex and time-consuming process that requires deep knowledge in the field of current legislation. To carry it out in as soon as possible, without problems and complications, we recommend that you seek qualified legal assistance. The help of a lawyer in arbitration cases will be relevant in case of obstacles on the part of the registration authorities, he will help resolve the arbitration disputes that have arisen in court.