SAINT PETERSBURG UNIVERSITY FOR THE HUMANITIES
TRADE UNIONS
Krasnoyarsk branch
Specialty 021100
"jurisprudence"
Discipline: Commercial Law
Test
Theme: Subjects commercial activities
Completed: student 5-YuSO
Checked by: Nazarenko V.A.
Krasnoyarsk 2008
PLAN
1. Classification of business entities 5
2. Features legal status individual entrepreneurs 8
3. Organizational and legal forms of commercial organizations 11
Full partnership. eleven
Faith partnership. 12
Limited Liability Company (LLC). 12
Additional Liability Company 13
Joint Stock Company (JSC) 13
Production cooperatives 14
State and municipal unitary enterprises 16
Conclusion 18
References 19
INTRODUCTION
The totality of enterprises in the economy forms its own sector. As you know, in a market economy, this sector takes the form of a sector of commercial organizations or an entrepreneurial sector.
Commercial entities are independent business units different forms property that combined economic resources to carry out their commercial activities.
Commercial activities are understood as activities for the production of goods and the provision of services for third parties, individuals and legal entities, which should bring commercial benefits to the enterprise.
The commercial sector of the national economy usually consists of great amount enterprises that, for the purposes economic analysis grouped according to a number of essential features. The most common is the classification by form of ownership, size, nature of activity, industry affiliation, dominant factor of production, legal status.
The purpose of this work is to consider various participants commercial activities and features of their legal status in the exercise of their rights and obligations.
1. Classification of business entities
In legal theory, a subject of law is usually understood as a person or organization that is endowed with the ability to have subjective rights and legal obligations (ie, legal capacity) Encyclopedic Dictionary of Legal Knowledge. M. 1965. S. 447. . Based on the prevailing understanding of the subject of law, subjects of commercial law are persons who have the ability to have rights and fulfill obligations arising from trade relations, participating in trade and bearing independent property liability. Determining the species diversity of subjects of commercial law, it should be noted that in modern legal literature there is no single, established approach to this issue. So, for example, in some publications, subjects of commercial law are divided into:
individual entrepreneurs;
General and limited partnerships;
Limited and additional liability companies;
Joint stock companies;
Production cooperatives;
State and municipal enterprises;
Non-profit organizations engaged in entrepreneurial activities Commercial Law: Textbook / A.Yu. Bushev, O.A. Gorodov, N.S. Kovalevskaya and others; Ed. V.F. Popondopulo, V.F. Yakovleva. - SPb., 1997. S. 88. .
In other publications, when classifying subjects of commercial law, the focus is on determining not so much the legal (organizational and legal form) as the functional type of the entrepreneur, determined by his place in the trade turnover and the main content of the activity Golyshev V.G. Commercial Law: Lecture Notes. M., 2005. S. 9. .
The classification of business entities according to functional characteristics is as follows:
Manufacturers of products selling products both independently and through representatives;
Representatives of manufacturers, suppliers and resellers;
Consumers;
Entities that regulate and control trading activities.
The first group of citizens, registered individual entrepreneurs, and commercial organizations that manufacture products and sell them on their own. This group also includes non-profit organizations engaged in commercial activities. Carrying out such activities, they enter into trade relations, act as subjects of commercial law.
The second group of subjects of commercial law - representatives and resellers. Individual entrepreneurs and commercial organizations can act as intermediaries.
Of the non-profit organizations, only those whose charter provides for the possibility of engaging in trading activities can be intermediaries.
The third group of subjects of commercial law - consumers. AT legal regulation Consumers are further divided into the following categories:
Industrial consumers using purchased goods, raw materials for their entrepreneurial activity;
Non-production consumers using purchased goods for economic non-entrepreneurial activities (non-profit organizations);
Citizens who purchase goods for personal, family, household and other similar needs.
Depending on the affiliation of consumers to one or another category, for example, the limit of liability of the supplier (seller) can be established, or the condition for the presence of guilt of the parties in case of non-performance or improper performance of the contract can be applied.
The fourth group of subjects of commercial law is the subjects that regulate and control trading activities. These include government and municipalities, state bodies and bodies local government, commercial and non-profit organizations that regulate the activities of their subdivisions, for example, unions (associations) of commercial organizations.
Legal entities that are commercial organizations, can be created in the form of business partnerships and companies, production cooperatives and unitary enterprises. Constituent documents legal entity are its charter ( joint-stock company, production cooperative, unitary enterprise based on the right of economic management), memorandum of association (general partnership and limited partnership), memorandum of association and articles of association (limited liability company and additional liability company).
Commercial legal entities are subject to state registration in the manner prescribed by law. State registration data are included in the Unified State Register of Legal Entities, open to the public. A legal entity is considered established from the moment of its state registration. The legal capacity of a legal entity is its ability to have rights and bear obligations as a participant in commercial activities. With regard to the legal capacity of non-profit organizations as participants in commercial activities, the rule on special legal capacity applies.
The institution of special legal capacity is also applicable to unitary enterprises, whose charters, in addition to the information specified in paragraph 2 of Article 48 of the Civil Code, must contain information about the subject and goals of the enterprise's activities, Article 113 of the Civil Code of the Russian Federation. .
2. Features of the legal status of individual entrepreneurs
Entrepreneurship is a special type of economic activity, which is understood as an activity aimed at making a profit, based on independent initiative, responsibility and an innovative entrepreneurial idea.
From a formal legal point of view, an entrepreneur is only a citizen who is engaged in entrepreneurial activity and is registered in this capacity by the state. At the same time, the Civil Code of the Russian Federation fixed the so-called presumption of entrepreneurial activity of a citizen. It consists in the fact that a citizen engaged in entrepreneurial activity, but not registered as an entrepreneur, is not entitled to refer to the transactions concluded by him with all this that he is not an entrepreneur. The court may apply the rules on obligations related to entrepreneurial activity to such transactions.
From the standpoint of public law (criminal and administrative), entrepreneurial activity carried out by a person who is not registered as an entrepreneur is illegal entrepreneurship.
To acquire the status of an individual entrepreneur, a citizen must have the following characteristics of a subject of civil law:
legal capacity (ability to have civil rights and bear obligations)
civil capacity (the ability to acquire and exercise civil rights by one's actions, to create civil obligations for oneself and fulfill them);
have a name;
have a place of residence.
The main feature is civil capacity. On this basis, citizens are divided into the following groups:
incapacitated - minors under 6 years of age and recognized by the court as suffering mental disorders that do not give the opportunity to understand the meaning of their actions or manage them;
not fully capable - minors from 6 to 14 years old and minors from 14 to 18 years old;
persons with limited capacity - recognized by the court as abusing alcohol or drugs;
fully capable - adults who have reached the age of 18, or emancipated.
Features of the status of an individual entrepreneur acting without the formation of a legal entity, in comparison with the general civil legal capacity of a citizen, are as follows:
1) this status is acquired from the moment of state registration of a citizen as an individual entrepreneur. A citizen who is actually engaged in entrepreneurial activity, but has not been registered, does not acquire the status of an individual entrepreneur. Therefore, disputes involving such citizens are not under the jurisdiction of the arbitration court, but the court of general jurisdiction.
2) the rules of the Civil Code of the Russian Federation, which regulate the activities of legal entities that are commercial organizations, are accordingly applied to the entrepreneurial activities of these citizens, unless otherwise follows from the law, acts of the President and the Government of the Russian Federation or the essence of the legal relationship.
3) an individual entrepreneur has the right to conclude employment contracts. Persons working under an employment contract are included in the number of creditors of an individual entrepreneur.
4) property disputes between individual entrepreneurs or between them and legal entities are under the jurisdiction of the arbitration court, but only related to entrepreneurial activity.
5) an individual entrepreneur who is unable to satisfy the claims of creditors related to the implementation of entrepreneurial activities by him may be recognized as insolvent (bankrupt) by a court decision.
6) the claims of creditors, in the event that an individual entrepreneur is declared bankrupt, are satisfied at the expense of his property.
At the same time, individual entrepreneurs have a lot in common with non-entrepreneurial citizens. This allows us to conclude that the legal status of individual entrepreneurs is on the border of the powers of ordinary citizens and commercial organizations.
Unlike legal entities, the property of an individual entrepreneur, constituting the objects of entrepreneurial activity, can be inherited. But the right to engage in entrepreneurial activity is not inherited. Considering that an individual entrepreneur in the legal field is between individuals and legal entities, one should be attentive to the spread of the norms of Russian legislation to him. In this regard, there is a different experience of the application of legislation in judicial practice with the participation of individual entrepreneurs. Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 6641/97 of August 25, 1998
3. Organizational and legal forms of commercial organizations
The legal capacity of legal entities, unlike citizens, even within the same organizational and legal form, is different. The legal capacity of a legal entity arises from the moment of its state registration. In addition, on certain types activities defined by law, legal entities need to obtain a special permit - a license.
Under current legislation, all legal entities, including business organizations, are divided into two large groups.
The first includes those entrepreneurial organizations that have a general legal capacity. They may have civil rights and bear civil obligations necessary for the implementation of any types of entrepreneurial activities that are not prohibited by law. The circle of such legal entities includes commercial organizations (with the exceptions established by law. Making a profit for them is the main goal of their activity, they are professionally engaged in entrepreneurship. These include:
General partnership
A partnership is recognized as full, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations, property belonging to them. The management of the activities of a general partnership is carried out by common agreement of all participants. As a rule, each participant in a general partnership has one vote. The participants jointly and severally bear subsidiary liability with their property for the obligations of the partnership.
General partnerships are predominantly Agriculture and service industries; as a rule, they are small-scale enterprises, the activities of which are quite easy to control.
Faith partnership
A limited partnership (limited partnership) is a partnership in which, along with the participants, who carry out entrepreneurial activities on behalf of the partnership and are responsible for entrepreneurial activities on behalf of the partnership and liable for its obligations with their property (general partners). There are one or more participants-contributors (limited partners) who bear the risk of losses associated with the activities of the partnership, within the amount of their contributions and do not take part in the implementation of entrepreneurial activities by the partnership.
Since this legal form allows attracting significant financial resources through an almost unlimited number of limited partners, it is typical for more large enterprises.
Limited Liability Company (LLC)
A company founded by one or more persons is recognized as such, the authorized capital of which is divided into shares determined by the constituent documents; LLC participants are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the size (value) of their contributions. The authorized capital of an LLC is made up of the value of the contributions of its participants. The LLC is not bound by public liability. This legal form is most common among small and medium enterprises.
Additional Liability Company
A company whose members jointly and severally bear subsidiary liability for the obligations of the company with their property in the same multiple for all of the value of their contributions, determined by the constituent documents of the company itself. Features of the responsibility of ALC participants and determined the existence of this organizational and legal form of commercial organizations
Joint Stock Company (JSC)
A company is recognized as such, the authorized capital of which is divided into certain number shares; JSC participants (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.
A joint stock company whose members may alienate their shares without the consent of other shareholders is recognized as open. Such a joint-stock company has the right to subscribe for shares issued by it and their free sale on the terms established by law. An open joint-stock company is obliged to annually publish for general information the annual report, balance sheet, profit and loss account.
A joint stock company, the shares of which are distributed only among its founders or other predetermined circle of persons, shall be recognized as closed. The founding document of a joint-stock company is its charter. The authorized capital of a joint-stock company is made up of the nominal value of the shares of the company acquired by the shareholders. supreme body JSC management is the general meeting of shareholders. The advantages of the joint-stock form of organization of enterprises are: the possibility of mobilizing large financial resources; possibility of fast transfer financial resources from one industry to another; the right to freely transfer and sell shares, ensuring the existence of companies, regardless of changes in the composition of shareholders; limited liability of shareholders; separation of ownership and control functions. Legal form joint-stock company is preferable for large enterprises where there is great need in financial resources.
Production cooperatives
A production cooperative (artel) is a voluntary association of citizens on the basis of membership for joint production activities based on their personal labor and other participation and the association of property shares by its members (participants). In Russia, they were known as artel associations Sukhanov E.A. Production cooperative as a legal entity // Economy and law. - 1998. - No. 4. .
A production cooperative is a commercial organization. The founding document of a production cooperative is its charter, approved by general meeting its members. The number of members of the cooperative must not be less than five. The property owned by the PC is divided into shares of its members in accordance with the charter of the cooperative. The cooperative is not entitled to issue shares. A member of a cooperative has one vote in making decisions by the general meeting.
A special kind of commercial organizations are subsidiaries and dependent business companies. A business company is recognized as a subsidiary if another (main) business company or partnership, by virtue of its predominant participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise, has the ability to determine decisions made by such a company. A business company is recognized as dependent if another (predominant, participating) company has more than 20% of the voting shares of a joint-stock company or 20% of the charter capital of a limited liability company.
The second group includes legal entities - holders of special legal capacity. The essence of special legal capacity is that its holders can have only those civil rights that correspond to the goals of the activity provided for in their constituent documents, and bear the obligations associated with this activity. This group consists of:
a) commercial organizations that, as an exception to the general rule, do not have general legal capacity (state and municipal unitary enterprises and other types of organizations provided for by law, such as banks, insurance companies). Unitary enterprises, as well as other commercial organizations, in respect of which special legal capacity is provided, are not entitled to make transactions that contradict the goals and subject of their activities, determined by law or other legal acts. Such transactions are void.
The state and other public legal entities as subjects of commercial law have legal capacity and legal capacity. Moreover, the legal capacity of these subjects in the field of commercial law as part of civil law is a special subject of civil law. - M., 1984. S.270. .
The state and administrative-territorial entities should be classified as special, different from citizens and legal entities, participants (subjects) of commercial legal relations.
State and municipal unitary enterprises
A unitary enterprise is a commercial organization that is not endowed with the right of ownership of the property assigned to it by the owner.
Some enterprises (the majority of them) own property on the right of economic management, and others - on the right of operational management. The legislation establishes the types of activities that can be carried out exclusively state enterprises(production of weapons and ammunition, narcotic and nuclear substances, processing precious metals and radioactive elements, etc.).
b) non-profit organizations (making profit is not their main goal, and the profit received is not divided among the participants of the organization). These include: consumer cooperatives(they are the only type of non-profit organization in which the income received from entrepreneurial activity is distributed among its members); public or religious organizations (associations) financed by the owner of the institution; charitable and other foundations; other organizational and legal forms provided by law. In particular, the Federal Law "On non-profit organizations" dated January 12, 1996 No. two such forms have been introduced: a non-profit partnership and an autonomous non-profit organization.
Non-profit organizations can be created to achieve social, charitable, cultural, educational, scientific and managerial goals, in order to protect the health of citizens, develop physical culture and sports, meeting the spiritual and other non-material needs of citizens, protecting the rights, legitimate interests of citizens and organizations, resolving disputes and conflicts, providing legal assistance, as well as for other purposes aimed at achieving public benefits. It must be emphasized that non-profit organizations can carry out entrepreneurial activities only insofar as it serves to achieve the goals for which they were created, and corresponding to these goals. Such activity is the profitable production of goods and services that meet the goals of creating a non-profit organization, as well as the acquisition and sale of securities, property and non-property rights, participation in business companies and participation in limited partnerships as a contributor. A non-profit organization keeps records of income and expenses for entrepreneurial activities.
Conclusion
Even a brief legal description of legal entities, including individual entrepreneurs, indicates that they are the main driving force reformed Russian economy.
In legal regulation and in practice, in order to avoid errors in determining the status of business entities and misunderstandings in the relationship of authorities with them state power and local governments, it is necessary to correctly understand the relationship between commercial activities and related activities, in particular entrepreneurial activities. Commercial activity is an ambiguous concept. In the narrow sense of the word, it means the implementation of trade, for example, retail sales. AT broad sense(and this is enshrined in legislation) commercial activities include activities that set profit as their main goal.
Thus, every commercial activity is entrepreneurial, but not every entrepreneurial activity is commercial. Their difference in the goals of activity: "systematic profit" characterizes entrepreneurial, and "the main goal - profit" - commercial activity.
A clear distinction between entrepreneurial and commercial activities, as well as distinguishing them from other non-entrepreneurial activities, is important. practical value. The law puts the possibility of the emergence and functioning of certain legal relations in direct dependence on the respective status of the parties - subjects of commercial or other activities. Knowledge of the legal status of the subject makes it possible to prevent offenses in this area of relations.
List of used literature
Constitution of the Russian Federation. M., 2005.
Civil Code of the Russian Federation. M., 2006.
Not all participants in civil law relations may be subjects of commercial law. Only those entities (participants) who have special permission to conduct professional trading or in whose statutes trading is one of the statutory tasks. These entities include:
1) legal entities;
2) citizens-entrepreneurs;
3) special subjects.
Individuals are not subjects of commercial law. The subjects of commercial activity are only those individuals and legal entities that carry out professional activities to bring goods from the manufacturer to consumers.
In the Russian Federation, citizens can engage in professional commercial activities if they are registered as entrepreneurs in the manner prescribed by law. Such registration as a citizen-entrepreneur gives the citizen the right to engage in commercial activities, if such a right is provided for in the certificate of registration issued to him. In addition to rights, registration as a citizen-entrepreneur imposes on him a number of obligations, as well as special civil liability. Citizen-entrepreneur can participate in arbitration court both as a plaintiff and as a defendant.
Legal entities can be subjects of commercial law. A legal entity is an organization that owns, manages or manages separate property and is liable for its obligations with this property, may, on its own behalf, acquire and exercise property and personal non-property rights, perform duties, be a plaintiff and a defendant in court. 1 article 48 of the Civil Code of the Russian Federation).
Special subjects of the commodity market do not make transactions, but create opportunities for other persons to make transactions. Such organizations include, for example:
1) commodity exchanges;
2) wholesale fairs;
3) intermediary organizations (trading houses, dealer firms, traders, distributors, brokers, stockists, agency firms).
All special trading entities can be grouped into two groups:
1) special subjects of the commodity market that do not directly participate in transactions, but create opportunities and conditions for transactions to other persons. Such organizations include:
a) commodity exchanges - organizations that form the wholesale market in the form of open and public auctions held in certain place and by certain rules;
b) currency exchanges;
in) stock exchanges;
d) exhibitions-fairs;
e) chambers of commerce and industry;
2) business organizations or individual entrepreneurs who are directly involved in the conclusion of transactions. They are classified as follows:
a) independent intermediaries - act on their own behalf and at their own expense:
- dealers - special trade and intermediary organizations specializing in the sale of a certain product, performing certain operations with a certain type of product;
- trading houses - diversified organizations that are engaged in trade and production activities for the processing, packaging and packaging of goods sold, are built as a single legal entity or an association of legal entities engaged in trade, warehouse and production activities;
- traders - specialized intermediaries who make transactions on behalf of clients, but on their own behalf and at their own expense. Traders can be legal entities and individual entrepreneurs. They specialize in short operations;
- stockists - a special type of specialized intermediaries who carry out export-import operations on the basis of a commission agreement, under which they carry out the exclusive sale of goods from a certain supplier. They first receive the goods of the exporter to the warehouse, and then sell them under a commission agreement to medium and small buyers;
b) intermediary organizations that do not acquire ownership of the goods, but provide, as their main activity, services for bringing the goods from the manufacturer to the consumer. This type of intermediary includes distributors. These are organizations that sell imported goods on the territory of their country. They are characterized by the long-term nature of relations, the creation of their own sales network, the implementation of activities not directly related to trading operations (studying demand, advertising products, etc.).
Distributors are classified into:
- regular - have their own warehouses where goods are accumulated and stored, conclude contracts for the supply in future periods, provide services for the selection of an assortment of groups of goods;
- irregular - rent warehouses, participate mainly in transit deliveries;
c) organizations that do not perform operations with goods, but provide a variety of services, contributing to the promotion of goods. They enter into transactions, the purpose of which is to promote the product:
- brokers - organizations, individuals who conclude contracts on the stock exchange on behalf of and at the expense of the client, act on the stock exchange as offices or independent brokers;
- agency firms - look for buyers for the seller firm (trading agencies) or study the supply and demand in the market for a particular product with the prospect of selling it (marketing agencies). The list of commodity market participants is not exhaustive. In connection with the constant development of trade relations, trade legislation, it is possible to improve existing ones and the emergence of new forms of participants in the trade market.
Classification of types of trade:
1. at the venue A) Internal - within 1 state B) External: - export, - import, - transit, - re-export to the USSR
2. According to the degree of approximation of the goods to the consumer A) Wholesale B) Retail.
3. by means of transport goods: a) land b) sea c) air
The subjects of commercial law are persons who have the ability to have rights and fulfill obligations arising from trade relations, participating in trade turnover and bearing independent property liability.
The classification of business entities according to functional characteristics is as follows:
Manufacturers of products selling products both independently and through representatives;
Representatives of manufacturers, suppliers and resellers;
Consumers;
Entities that regulate and control trading activities.
The first group of citizens, registered individual entrepreneurs, and commercial organizations that manufacture products and sell them on their own. This group also includes non-profit organizations engaged in commercial activities. Carrying out such activities, they enter into trade relations, act as subjects of commercial law.
The second group of subjects of commercial law - representatives and resellers. Individual entrepreneurs and commercial organizations can act as intermediaries.
Of the non-profit organizations, only those whose charter provides for the possibility of engaging in trading activities can be intermediaries.
The third group of subjects of commercial law - consumers. In legal regulation, consumers, in turn, are divided into the following categories:
Industrial consumers using purchased goods, raw materials for their business activities;
Non-production consumers using purchased goods for economic non-entrepreneurial activities (non-profit organizations);
Citizens who purchase goods for personal, family, household and other similar needs.
Depending on the affiliation of consumers to one or another category, for example, the limit of liability of the supplier (seller) can be established, or the condition for the presence of guilt of the parties in case of non-performance or improper performance of the contract can be applied.
The fourth group of subjects of commercial law is the subjects that regulate and control trading activities. These include state and municipal formations, state bodies and local governments, commercial and non-profit organizations that regulate the activities of their subdivisions, for example, unions (associations) of commercial organizations.
In the trade turnover of a particular product, different schemes for the movement of goods can be applied. All types of entities can participate in the turnover, and direct links between the producer and the consumer can also be used.
Since the days of the administratively planned economy, there has been a desire for long-term transactions that do not require immediate execution, which is reflected in the preservation of the number of contracts for direct relations between producers and consumers.
The global trend is associated with the desire to reduce the time gap between the conclusion of agreements and their execution. Hence the growing role of representatives and intermediaries who form various channels sales of goods, as well as expanding the functions of auxiliary participants in wholesale trade and types of legal means for the implementation of these functions.
The main types of representation in commercial activities include:
Representation carried out by employees of commercial organizations;
Commercial representation, carried out by various kinds of independent agents who enter into transactions on behalf of the represented and are with him in a permanent relationship.
Representatives of the first kind - employees of a commercial organization - are individuals acting on the basis of employment contract, whose official function includes the representation of a commercial organization - the head, deputy heads, legal adviser, as well as persons who directly conclude the transaction: retailers, cashiers, etc.
Those named are not entrepreneurs, as they:
They act not on their own behalf, but on behalf of a commercial organization, performing labor duties in accordance with their position;
Carry out activities not at their own risk and bear disciplinary rather than property liability for guilty illegal actions;
The main purpose of their activities is not to make a profit, they receive remuneration for their work;
They are not subject to state registration as entrepreneurs.
However, these representatives are subjects of commercial law, participating in trade turnover, having the ability to have rights and fulfill obligations arising from trade relations.
In addition, by participating in a trade transaction in excess of their official powers, they may be recognized as an independent party to the transaction in the event of subsequent disapproval by the represented person.
Representatives of the second number are persons (individuals or legal entities) who are not in official relations; entrepreneur. They themselves can be and, as a rule, are entrepreneurs, for example, an attorney in an agency agreement (clause 3, article 972 of the Civil Code of the Russian Federation).
In accordance with Art. 184 of the Civil Code of the Russian Federation, a commercial representative is a person who constantly and independently represents entrepreneurs when they conclude commercial transactions. A feature of commercial entrepreneurship is that a commercial representative can represent different sides in the transaction at the same time, but the following conditions must be met:
The parties have agreed to a simultaneous commercial representation;
This consent is expressed in powers of attorney or agreements between the representative and the parties and contains specific powers.
Sales representatives are, as a rule, sales agents - representatives of the manufacturer, in a certain region selling the manufacturer's products, searching for potential buyers, negotiating, formalizing the transfer of products.
Peculiarity legal status representative for Russian legislation consists in the fact that those persons who act, albeit in someone else's interest, but on their own behalf, are not recognized as representatives. As such, in paragraph 2 of Art. 182 of the Civil Code of the Russian Federation, in particular, commercial intermediaries are named.
Intermediaries and intermediary organizations carry out transactions for the purchase and subsequent sale of goods on their own behalf and at their own expense. At present, the share of intermediaries in the trade sector in Russia is insignificant, while in developed countries it reaches 75%.
Commercial intermediaries include:
Intermediary distributors who are granted exclusive or preferential rights to buy and resell certain goods or services within a specified territory or market;
Brokers or brokerage firms - members or participants of the commodity exchange, preparing and carrying out transactions on the exchange on behalf of clients. Their advantage is knowledge of market conditions, procurement and sales opportunities;
Dealers - intermediaries acting in trade turnover on their own behalf and at their own expense, being agents of large companies and included in their dealer network;
Wholesalers are resellers who own the infrastructure of the market (storages, transport, pre-sale preparation workshops, information networks etc.), carrying out the purchase of large quantities of goods for their subsequent sale to retailers, as well as persons purchasing goods for business purposes or for economic use, with the exception of home, family and other similar consumption;
Retailers - resellers selling goods by the piece or in small quantities for personal consumption (home, family and otherwise).
The commercial activities of individual entrepreneurs are regulated in the same manner as organizations. Features of legal capacity are as follows. According to the Civil Code of the Russian Federation (Article 23), individual entrepreneurs have general legal capacity. In accordance with the Law of the RSFSR dated December 7, 1991 No. 2000-1 “On the registration fee from individuals engaged in entrepreneurial activities and the procedure for their registration”, as well as based on the form and procedure for issuing a certificate approved by the Ministry of Finance of the Russian Federation, citizens can engage only in the activities that are recorded in the certificate of registration. Despite the fact that the Civil Code of the Russian Federation has a higher legal force, in the practice of regulation, the special legal capacity of individual entrepreneurs is applied.
Another feature associated with the trading activities of citizens. In commercial transactions, a citizen who is not registered as an individual entrepreneur is not entitled to refer to the absence of such registration and is liable for obligations on an equal basis with entrepreneurs (higher).
Features of the trading activities of legal entities are also related to legal capacity. The Civil Code of the Russian Federation (Article 49) proceeds mainly from the establishment of general legal capacity for commercial organizations. Special laws on the regulation of specific types of activities (banking, leasing, stock exchange, etc.) establish, as a rule, special legal capacity for the subjects of this activity. For example, commercial organizations with the status of banking (credit) organizations, professional participants in the securities market and a number of others are not entitled to engage in trading activities. Exchanges are not entitled to produce products.
Citizens and legal entities may create commercial organizations in the form of business partnerships and companies, as well as in the form of a production cooperative.
A feature of a general partnership is the full property (solidary-subsidiary) liability of the participants, because they are more trusted by counterparties. But since any of the participants can act on behalf of the partnership in transactions, it is desirable for a full partnership to have a large number of members, well knowing friend friend. In this form, "family businesses" can be created. The advantage of a general partnership is the almost complete distribution of profits based on the results of work.
The economic significance of a limited partnership lies in the fact that some participants (contributors), as it were, lend to others (general partners), entrust them with certain funds for doing business, similar to a general partnership, in connection with which such an organization is called a limited partnership.
In Russia, the most common form of a limited liability company (LLC). It is based on the investment of personal funds in entrepreneurial activities in the absence of the actual responsibility of the founders. In case of bankruptcy of such a company, which often happens in Russian reality, the founders bear the risk of losses only in the amount of contributions to authorized capital. At the same time, the founder has the opportunity to participate in the management of the company, that is, to influence the use of invested funds. This form is most suitable for creating small firms in the trading sector with a gradual increase in capital.
An additional liability company (ALC) differs from a limited liability company only in that the participants in such a company jointly and severally bear subsidiary liability in the amount of a multiple of their contribution, as a rule, more increased, additional. This type of society has not received distribution in practice.
A joint-stock company is a corporate enterprise most adapted to the conditions of a modern market economy; it was widely used in the process of privatization of state and municipal enterprises. Joint-stock companies are divided into closed and open.
A closed joint stock company (CJSC) is created by closed subscription for shares between the founders. At its core, it is close to an LLC, however, the activity of a CJSC is more reliable, since in the event of a participant leaving the CJSC, the property of the company does not decrease.
An open joint stock company provides for the concentration of initial capital in order to create large-scale production or a large trading, other intermediary firm. The underdevelopment of the securities market in Russia prevents the wide entry of open joint-stock companies into our market.
underdeveloped in modern Russia such a form of enterprise as a production cooperative, although this form is closest to the communal ideology of Russians, primarily in agriculture. Perhaps the main feature of production cooperatives is the obligation of members of the cooperative to take part in its activities.
The state, its subjects and municipalities create commercial organizations in the form of unitary enterprises based on the right of economic management and operational management of property. A feature of unitary enterprises is a special (statutory) legal capacity. The constituent documents of such enterprises should contain information about the subject and goals of their activities.
The management of the enterprise is carried out by the director appointed by the state or municipal body. The property of the enterprise belongs to the state or municipality, is indivisible and cannot be distributed by contributions (shares, shares) among its employees.
Of the non-profit organizations, only those whose charter provides for the possibility of engaging in commercial activities can be producers and intermediaries.
The legal status of non-profit organizations is regulated by the Civil Code of the Russian Federation, the Law on Non-Profit Organizations dated January 12, 1996. The Law emphasizes that non-profit organizations do not have the goal of making a profit as the main goal of their activity, and if they make a profit, then it is not subject to distribution among the participants of the organization. The law determines the organizational and legal forms in which non-profit organizations are created.
Non-profit organizations, as a rule, can trade in goods related to the main purpose of the activities of such organizations. For example, educational institution may stipulate in the charter the possibility to engage in the sale of books and magazines, student furniture and other items related to education, but not the sale of alcoholic or tobacco products. A sports society has the right to include the purchase and sale of sporting goods in the scope of its activities.
In a number of foreign laws, non-profit organizations that have the right to engage in trading activities are referred to as small merchants, and in regulating transactions, they are subject to the rules as citizens who are not entrepreneurs, that is, less stringent. In order to apply liability measures to small merchants in the event of their failure to fulfill their obligations, it is necessary to establish guilt.
Any sectoral commodity market is a process of selling goods, expressed in interaction of subjects, performing various functions. In the current economic situation, no matter what market we are considering, the marketing of goods is dealt with, firstly, by its producers themselves, and secondly, by intermediary organizations. At the same time, the role, quantity, and importance in promoting the goods of intermediaries in various commodity markets differ, just as the influence on the sale of the producers of the goods themselves also differs.
B. I. Puginsky notes that if “according to the tradition that developed centuries ago, trading companies or individual traders were considered as the main figure, the main subject of trade turnover” 1, then at present, the development of commodity turnover required a revision of this approach. Despite the importance of such iconic figure, how businessman, narrowing the subjects of trading activity within the framework of this one figure would be fundamentally wrong. Continuing his thought, the scientist writes that “according to the place in the process of commodity circulation, commercial organizations are divided into sellers, resellers, trade organizers and buyers." At the same time, these categories of subjects should be clearly correlated with certain product market since in different product markets the same entity can act as a buyer (for example, when acquiring one or another resource for the production of goods), and on another - as a seller of goods in the production of which this resource was used. Thus, the subjects of commercial activity can be divided, first of all, on a functional basis.
Businessmen. A merchant (trader, intermediary) carries out activities for the acquisition of other people's goods in the calculation of the subsequent resale. At the same time, a merchant can provide various related services, such as storage, sorting, packaging, etc.
ditch, in others he concludes contracts with buyers on his own behalf, but at the expense of the seller, or acts completely “independently”, purchasing goods from the manufacturer (or other merchant) in his own name and at his own expense and for the purpose of its further sale (resale) on its own behalf, at its own expense, at its own peril and risk. In any case, its main functional purpose does not change - buying goods and selling them, i.e. intermediary activity in the economic sense of the word.
The historical name of Russian merchants - merchants, or merchants. As G. F. Shershenevich wrote, “from an economic point of view, the merchant is an intermediary between the producer and the consumer. His social role is to distribute finished products among those who need them. In this respect, the merchant is opposed to the farmer, manufacturer, breeder, artisan, on the one hand, and on the other hand, to the consumer.
A merchant in the broad sense of the word cannot be perceived only as a technical transmission link between production and consumption. A merchant is, first of all, a performer of tasks inherent in the field commodity circulation. The general meaning of the merchant’s activity is “improving the process of commodity exchange, which involves the timely and high-quality provision of consumers with goods, the creation of prerequisites for their economic and rational use, and the reduction of production and distribution costs” . Merchants are able to increase the competitiveness of goods by reducing the delivery time from warehouses, providing pre-sales and warranty services. By creating commodity stocks, intermediaries ensure the coordination of the rhythm of production and consumption, insuring manufacturers and consumers from various fluctuations.
Among the merchants (merchants, intermediaries), it is necessary to single out wholesale organizations. These organizations, like other intermediaries, purchase goods for the purpose of their subsequent resale for business and economic needs. However, their role in the circulation of commodities is never reduced to the resale of commodities alone—it is much broader. Wholesale organizations are called upon to perform significant functions in the distribution of goods, the organization of the process of product distribution. The point is that wholesale trade organizations, in addition to the functions of an ordinary intermediary, often also take over the implementation of trade facilitation functions. “Wholesale organizations are called upon to divide the received mass of goods into assortment groups, complete sets of goods from different manufacturers, and form batches of goods for shipment to customers. Intermediaries perform many commodity operations to receive customer orders, select and deliver goods to them, organize after-sales service" one .
Wholesalers often work with large quantity sellers and buyers, purchase goods of a wide range. When purchasing this or that product, such an intermediary does not always have a clear idea of who and when he will sell this product. In fact, the specificity of wholesale trade organizations is that they work "at their own peril and risk" in terms of the fact that the purchased product may not find its consumer.
Manufacturers. We believe that at the present time it would be correct to include among the subjects of trading activity not only the actual merchants - persons who earn money on the resale of goods without changing their essence and appearance - but also manufacturers. Manufacturers and intermediaries are united by such goals of their trading activities as (a) organizing an uninterrupted system for the effective promotion of goods to consumer citizens and (b) making a profit. Producers of goods - no matter what product market they work in - have their own sales divisions, which sell at least some of the goods produced; there are also manufacturers who manage exclusively on their own and do not involve intermediary structures to organize the sale of their goods. But such work - by one's own efforts alone - can hardly be effective in all commodity markets. Hence the need for close interaction between producers of goods and merchants and intermediaries in the proper sense of the word.
Trade intermediaries. The interaction of manufacturers with merchants can be diverse - from the usual unconditional sale of their goods to merchants who purchase them on given name and not associated with the producers in any way, until the resale of a purely nominal property to merchants who are affiliated with the producers and even belong to the same group of persons with them. However, there are a large number of industry product markets in which product manufacturers work exclusively with intermediaries in narrow (own) sense of the word- resellers that bring manufacturers together with potential buyers for the purpose of selling goods, or facilitate the promotion of goods from manufacturers through intermediate buyers (merchants) to end consumers. For more information about resellers in this - special - sense of the word - see the next paragraph of this chapter.
Manufacturers' contracts with independent merchants and intermediaries often contain numerous "restrictive" conditions.
rules that constrain one or both of their parties in matters of further sale of goods, the possibility of making transactions with goods from other manufacturers, as well as in the freedom to choose the territory in which a merchant or intermediary can operate. These conditions must be carefully checked for compliance with competition law and not fall under prohibited "vertical" agreements.
Buyers as subjects of trading activities include merchants who purchase goods for subsequent sale to end consumers. These include organizations not only wholesale, but also retail trade - merchants who purchase goods on the wholesale market, resell goods to citizens for personal, family, home use, as well as legal entities to meet their daily business needs.
When concluding and executing commercial contracts, the interests of buyers are often not easily reconciled with the interests of sellers of goods, whether they are merchants or manufacturers. Buyers are interested in purchasing goods that will be in demand on retail market subsequent purchasers, including consumers - goods High Quality and a wide range at prices that would be attractive to consumers and would allow merchant buyers to receive a decent reward for their activities. Despite the apparent simplicity of this goal, it is not so easy to achieve it; significant amount barriers. The first of these is, oddly enough, the interest of the manufacturer, aimed at selling the largest possible batches of the same type of goods at maximum prices.
Not everything is simple when interacting with intermediaries. On the one hand, for buyers, working with intermediaries increases the possibility of satisfying their requests. Intermediaries ensure the availability of goods for consumers scattered at a considerable distance, allow you to receive goods in the required quantity and the right quality. However, on the other hand, working with intermediaries has negative aspects. The intermediary does not always strive to fulfill its functions of providing a wide range of goods, checking the quality of this product, and providing premises for the proper storage of goods. Often the purpose of intermediary structures is solely an additional markup on the price of goods. As B. I. Putinsky writes, “in the wholesale sector, the ideology is being popularized... that the task of the wholesaler is to sell the purchased batch of goods faster and at a higher price” 1 . This situation is exacerbated when intermediaries are affiliated with the producers of goods. In this case, buyers do not have to expect real help from interacting with them. However, the task of state protection of the market from unscrupulous intermediaries in no way cancels the fact that to be able to defend one’s interests
when interacting with both intermediaries and direct manufacturers of goods, buyers themselves should be able to.
Trade organizers (for details, see § 3 and 4 of this chapter). The main characteristic and purpose of the organizers of the trade turnover is not to make transactions, but to creating conditions and opportunities for the performance of trading operations by other persons. In addition to the formation of markets, such entities contribute to the development of commerce, stimulate the development of trade and economic relations. Regulation of the activities of organizers of internal trade turnover is carried out by the Federal Law of November 21, 2011 No. 325-FZ “On organized trading”.
The most famous type of organized trading is trading exchange; the most common forms of bidding organizers are commodity exchanges. Unfortunately, this is the case practically all over the world, except for ... the Russian Federation: the commodity exchanges currently operating on its territory are almost incapable of solving the tasks traditionally assigned to exchange trading, namely, to contribute to the formation of a fair price for goods, to ensure concentration on the market of supply and demand. The price of goods formed in the course of organized trading on Russian stock exchanges is not a guarantee of either its fair or even simply market nature. The fact is that the volumes of goods traded on Russian exchanges are extremely small; in addition, a large number of persons affiliated with each other participate in the auction, which in some cases only creates the appearance of real market relations.
The role of other internal trade organizers such as wholesale fairs, exhibitions and wholesale food markets,- currently also not as great as it could be. This is due, among other things, to the lack of full legal regulation of their activities. As a positive trend, one should note the growing recent times the role of such trade organizers as professional self-regulatory organizations.
Trade Facilitators. Along with proper trading commercial law also governs relationships that serve trade. A special group of business entities is distinguished by persons promoting trade, including marketing agencies, advertising and information companies; transport and forwarding organizations; commodity warehouses; credit and insurance companies.
Marketing activities is to study the demand for goods and identify the circle of consumers interested in purchasing certain goods. "AT modern conditions marketing has become an obligatory stage ... of trading activity, acquired complex character. It not only ensures that production is adapted to the needs of buyers, but also includes the development of ways to stimulate sales, enhance sales. The implementation of this activity by the sellers themselves is clearly not enough. AT in full this can be done only by specialized marketing agencies that perform such work on the basis of contracts.
advertising in relation to commercial activity, the dissemination in any form and by any means of that information about a product or a legal entity that is intended for an indefinite circle of persons and is designed to form or maintain interest in these goods or a person and facilitate the sale of goods is recognized. Currently, the creation of advertising has become an independent industry. A variety of contracts (depending on the type of advertising produced or used) are concluded both for the purpose of creating individual advertising products, and for conducting entire advertising campaigns.
next the most important category participants in the trade turnover - persons facilitating trade - are organizations involved in delivery goods from the seller to the buyer, i.e. transportation goods (transport organizations). As B. I. Putinsky notes, “when establishing transportation, merchants have to solve a number of complex tasks. Here, the issues of speed of delivery to the recipient, reduction of transport costs, and ensuring the safety of goods come to the fore. Based on these circumstances, the mode of transport of the vehicles used is selected, the terms of the contracts are developed, and measures for protecting the cargo are provided.
The activities of the actual transport organizations (carriers) cannot be effective without assistance in its organization and implementation. This is done by forwarders (forwarding organizations). According to the Federal Law of June 30, 2003 No. 87-FZ “On Freight Forwarding Activities”, freight forwarding activities consist of provision of services for the organization of transportation of goods by any means of transport and the execution of transportation documents, documents for customs purposes and other documents necessary for the carriage of goods. That is, we are talking about services related to transportation but not the actual transportation.
Services play a significant role in the promotion of goods warehouse distribution centers- organizations providing a range of services, and first of all, of course, services for the storage of goods. According to Art. 907 of the Civil Code of the Russian Federation, under a warehousing agreement, a goods warehouse (custodian) undertakes, for a fee, to store goods transferred to it by the goods owner (bailer) and return these goods intact. A commodity warehouse is an organization that, as a business activity, stores goods and provides storage-related services.
"Registration" requirements for trading activities. There is a common procedure abroad when a person wishing to become a merchant must register with special trade register. In the West, trade registers are run by municipalities or the judiciary. They register the participants in trading activities themselves, concerning their facts, and sometimes the transactions they make. In Russia Art. 20 of the Trade Act also provides for the creation and maintenance of a trade register. However, inclusion in this register not a requirement for trading activities. At the moment there is only notifying order of inclusion in the register. As for mandatory registration procedures, then in Russia there is a general procedure for state registration for the implementation of any entrepreneurial activity legal entities and individual entrepreneurs. Commercial (trade) activities, as well as trade organization and promotion activities, are no exception.
Legal entities acquire commercial legal capacity from the moment of state registration. At the same time, commercial organizations, with some exceptions, may have civil rights and bear civil obligations necessary for the implementation of any types of activities that are not prohibited by law. Unlike them, non-profit organizations can carry out income-generating activities if this is provided for by their charters and only in so far as it serves to achieve the goals for which they were created, and if it corresponds to such goals.
Concerning citizens, then they have the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur. Citizens have the right to economic activity in the field of agriculture without forming a legal entity on the basis of an agreement on the establishment of a peasant (farm) economy, concluded in accordance with the law on a peasant (farm) economy.
A separate problem is the question of the possibility or impossibility of being considered as merchants state structures. As G. F. Shershenevich wrote, it is difficult to agree that the state can be recognized as a merchant in relation to its fishing activities. “The state cannot be compared with private farms, it has completely different tasks and means to achieve them than the latter. If it takes upon itself the production of the commercial industry, it must not be forgotten that by doing so it has in mind public good... the state has in mind the interests ... of promoting trade, and not the income from the enterprise” 1 . We believe that at present given position completely justified. State formations really participate in trade through your organs, usually - having the status of legal entities; Moreover, it is the state that determines legal framework com- Puginsky BI Problems of regulation of commercial intermediation // Commercial law. S. 7.
The subjects of commercial activity are legal entities and individuals who have the right to carry it out.
A subject of law is commonly understood as a person or organization that is endowed with the ability to have subjective rights and legal obligations (i.e.
legal capacity). Based on the prevailing understanding of the subject of law, subjects of commercial law are persons who have the ability to have rights and fulfill obligations arising from trade relations, participating in trade and bearing independent property liability. Determining the species diversity of subjects of commercial law, it should be noted that in modern legal literature there is no single, established approach to this issue. So, for example, in some publications, subjects of commercial law are divided into:
individual entrepreneurs;
general and limited partnerships;
Limited and additional liability companies;
joint-stock companies;
production cooperatives;
state and municipal enterprises;
non-profit organizations engaged in entrepreneurial activities.
The classification of business entities according to functional characteristics is as follows:
Manufacturers of products selling products both independently and through representatives;
· representatives of manufacturers, suppliers and resellers;
· consumers;
entities that regulate and control trading activities.
The first group of citizens, registered individual entrepreneurs, and commercial organizations that manufacture products and sell them on their own. This group also includes non-profit organizations engaged in commercial activities. Carrying out such activities, they enter into trade relations, act as subjects of commercial law.
The second group of subjects of commercial law - representatives and resellers. Individual entrepreneurs and commercial organizations can act as intermediaries.
Of the non-profit organizations, only those whose charter provides for the possibility of engaging in trading activities can be intermediaries.
The third group of subjects of commercial law - consumers. In legal regulation, consumers, in turn, are divided into the following categories:
· industrial consumers using purchased goods, raw materials for their business activities;
non-production consumers using purchased goods for economic non-entrepreneurial activities (non-profit organizations);
Citizens purchasing goods for personal, family, household and other similar needs.
Depending on the affiliation of consumers to one or another category, for example, the limit of liability of the supplier (seller) can be established, or the condition for the presence of guilt of the parties in case of non-performance or improper performance of the contract can be applied.
The fourth group of subjects of commercial law is the subjects that regulate and control trading activities. These include state and municipal formations, state bodies and local governments, commercial and non-profit organizations that regulate the activities of their subdivisions, for example, unions (associations) of commercial organizations.
Legal entities that are commercial organizations can be created in the form of economic partnerships and companies, production cooperatives and unitary enterprises. The founding documents of a legal entity are its charter (joint stock company, production cooperative, unitary enterprise based on the right of economic management), foundation agreement (general and limited partnerships), foundation agreement and charter (limited liability company and additional liability company).
Commercial legal entities are subject to state registration in the manner prescribed by law. State registration data are included in the Unified State Register of Legal Entities, open to the public. A legal entity is considered established from the moment of its state registration. The legal capacity of a legal entity is its ability to have rights and bear obligations as a participant in commercial activities. With regard to the legal capacity of non-profit organizations as participants in commercial activities, the rule on special legal capacity applies.
The institution of special legal capacity is also applicable to unitary enterprises, the charters of which, in addition to the information specified in paragraph 2 of Article 48 of the Civil Code, must contain information about the subject and goals of the enterprise.
