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The right to economic management

Economic management of a unitary enterprise according to the legislation of the Russian Federation.

Despite the authorities' declared desire to reduce the presence of the state in the economy, in practice, up to 10 thousand unitary enterprises, including subsidiary unitary enterprises, are involved in civil circulation.

The status and specificity of the activity of a unitary enterprise is determined primarily by the fact that “the property of a unitary enterprise belongs to it on the basis of the right of economic management or on the right of operational management, is indivisible and cannot be distributed by contributions (shares, shares), including among the employees of the unitary enterprise . " (paragraph 3, clause 1, article 2 of the Federal Law "On Unitary Enterprises").

At the same time, property on the basis of the right of economic management can only belong to a state or municipal unitary enterprise.

The joint-stock company applied to the arbitration court with a claim for recognition of the right of economic management for the occupied non-residential premises that were not included in the authorized capital.

When considering the case, the arbitration court proceeded from the following.

According to article 294 of the Civil Code of the Russian Federation, state property belongs on the basis of the right of economic management to a state or municipal unitary enterprise.

A joint-stock company created by privatization is not a state-owned enterprise and therefore the property cannot be assigned to it on the basis of the right of economic management.

In this regard, the arbitration court rightfully refused to satisfy the claims - clause 11 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 28, 1997, No. 13.

2. The right to use property, that is, the ability to extract useful properties, fruits and income.

In Art. 136 of the Civil Code of the Russian Federation, it is established that the ownership of the fruits, products and income received as a result of the operation of property belongs to the person using such property on a legal basis. The same rule is enshrined in clause 2 of Art. 299 of the Civil Code of the Russian Federation: the fruits, products and income from the use of property under the economic jurisdiction of the enterprise go to the economic management of the enterprise (and, of course, to the ownership of the founder of the enterprise). In this regard, the practice established by the municipal acts of Yekaterinburg seems to be at least controversial, when a municipal enterprise under an agreement pays to the municipality for the use of municipal property, that is, in fact, transfers to the municipality a part of the income received from the use of the property. Moreover, for the delay in the payment of such a fee in the standard agreement on the transfer of property on the basis of the right of economic management, a penalty is established in the amount of 0.3% of the amount of quarterly payments per day. Apparently, clause 39 of the Resolution of the Plenums of the RF Armed Forces and the RF Supreme Arbitration Court No. 6/8 speaks of this situation, according to which the terms of contracts concluded between the owner of the relevant state (municipal) property and the enterprise, which change the nature and limits of these powers, are null and void.

However, in accordance with paragraph 2 of clause 1 of Article 295 of the Civil Code of the Russian Federation, the owner has the right to receive part of the profit from the use of the property.

In accordance with paragraph 2 of Art. 17 of the Federal Law "On Unitary Enterprises", a state or municipal enterprise annually transfers to the appropriate budget a part of the profit remaining at its disposal after paying taxes and other obligatory payments, in the manner, in the amount and within the time frame determined by the Government of the Russian Federation, authorized bodies state authorities of the constituent entities of the Russian Federation or local government bodies.

According to clause 3 of Art. 58 of the Regional Law "On the Management of State Property of the Sverdlovsk Region", the Sverdlovsk Region, as the owner of the property, has the right to receive a portion of the profit from the use of property that is under the economic jurisdiction of the regional state enterprise. The specified part of the profit is collected in the form of deductions from the profits of regional state enterprises in the manner prescribed by the regional law, and goes to the regional budget.

One of the limits of the exercise of the right to use the enterprise is the subject and purpose of its activities (clause 1 of article 113 of the Civil Code). In particular, the special nature of the legal capacity of the UP in comparison with the legal capacity of other legal entities is emphasized in Art. 49 of the Civil Code of the Russian Federation. By virtue of paragraph 1 of Art. 3 of the Federal Law "On Unitary Enterprises", a unitary enterprise may have civil rights corresponding to the subject and objectives of its activities, provided for in the charter of this unitary enterprise, and bear obligations related to this activity.

Therefore, the enterprise is obliged to use the property in accordance with the objectives of the UP, defined in its charter. If the actions of the UE lead to the impossibility of using the property for its intended purpose or limit the company's ability to fulfill its statutory tasks, the relevant transactions at the suit of the owner of the property or a person authorized by him may be recognized by the court as invalid - clause 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of September 17, 1992 “On some issues of the practice of resolving disputes related to the application of property law ”.

3. The right to dispose of the transferred property, which is most limited by the Civil Code of the Russian Federation. Moreover, the exercise of the powers belonging to a unitary enterprise may be additionally limited by a special law or even other legal acts.

According to paragraph 2 of Art. 295 of the Civil Code of the Russian Federation, an enterprise does not have the right to independently dispose of real estate belonging to it on the basis of the right of economic management without the consent of the owner.

This rule is concretized by clause 2 of Art. 18 of the Federal Law "On Unitary Enterprises", according to which a state or municipal enterprise is not entitled to sell its real estate, lease it, pledge it, make a contribution to the authorized (joint-stock) capital of a business company or partnership, or otherwise dispose of such property without the consent of the owner of the property of a state or municipal enterprise.

According to the general rule (clause 1 of article 18 of the said law), the enterprise disposes of movable property belonging to it on the basis of the right of economic management independently, except for the cases established by the specified law, other federal laws and other regulatory legal acts.

At the same time, the right of a unitary enterprise to independently dispose of the movable property belonging to it is very strongly limited by the Federal Law “On Unitary Enterprises”.

So, according to par. 1 p. 4 art. 18 of the said law, an enterprise is not entitled, without the consent of the owner, to conclude transactions related to the provision of loans, guarantees, receipt of bank guarantees, with other encumbrances, assignment of claims, transfer of debt, as well as conclude simple partnership agreements.

In addition, the Charter of a state or municipal enterprise may provide for the types and (or) the size of other transactions, the conclusion of which cannot be carried out without the consent of the owner of the property of such an enterprise (paragraph 2 of paragraph 4 of article 18 of the said law).

By the decision of the Yekaterinburg City Duma of April 15, 1997 No. 16/4, the Regulation “On assigning property to a municipal unitary enterprise on the basis of the right of economic management” was approved. According to clause 10 of the said Regulation, transactions with movable property on the balance sheet of the enterprise having a value of more than one hundred minimum wages established by law on the date of the proposed transaction, as well as writing off this property from the balance sheet of the enterprise, can be made only with the consent of the Management Committee property of the city of Yekaterinburg. Since the above provision is "another normative act", which, in accordance with paragraph 1 of Art. 18 Federal Law "On Unitary Enterprises" may establish such restrictions, this rule must be taken into account when concluding transactions with municipal unitary enterprises in Yekaterinburg.

In accordance with paragraph 5 of Art. 25 of the Law of the Sverdlovsk Region of 12.02.98, No. 5-OZ "On Amendments and Additions to the Regional Law" On Management of State Property of the Sverdlovsk Region ": decisions of the Government of the Sverdlovsk Region on alienation under contracts of sale and purchase, gratuitous transfer of property and exchange of objects regional property that generates income, as well as property, the book (estimated) value of which is at least fifty thousand times higher than the minimum wage established by federal law, or consent to the regional state enterprises for the alienation of such objects or property can be accepted only after obtaining the consent of the Regional Duma of the Legislative Assembly of the Sverdlovsk Region.

However, it should be borne in mind that in accordance with sub. 10 p. 1 art. 20 of the Federal Law "On Unitary Enterprises", consent to the disposal of immovable property, and in cases established by federal laws, other regulatory legal acts or the charter of a unitary enterprise, for other transactions, is given by the owner of the property of the unitary enterprise.

In accordance with paragraph 3 of Art. 9 of the Federal Law "On Unitary Enterprises", information about the body or bodies exercising the powers of the owner of the property of a unitary enterprise, a unitary enterprise must be contained in the Charter of the enterprise.

Since in practice, in the Charter of the enterprise as the body exercising the powers of the owner of the property of a unitary enterprise, the executive authority is indicated (the Ministry of State Property Management of the Sverdlovsk Region, the Ministry of Agriculture and Food of the Sverdlovsk Region, etc.), it appears that the specified norm of the regional law contrary to federal law.

In addition, this provision of the regional law, pursuing the good goals of protecting and preserving regional property, contradicts the constitutional principle of separation of powers.

Considering the restrictions on the rights of a unitary enterprise to dispose of the property belonging to it, special attention should be paid to the rule of clause 3 of Art. 18 of the Federal Law "On Unitary Enterprises", according to which an enterprise disposes of movable and immovable property only within the limits that do not deprive it of the opportunity to carry out activities, goals, subject, the types of which are determined by the charter of such an enterprise. Transactions made by a state or municipal enterprise in violation of this requirement are void.

At the same time, both "depriving an enterprise of the opportunity to carry out activities, goals, subject, the types of which are determined by its charter" and the compliance of a specific transaction with "goals, subject matter, types determined by the charter of the enterprise" are evaluative categories, the content of which can be determined only on the basis of specific circumstances of the case.

In practice, the counterparty of the enterprise, concluding any transaction with the latter, as a rule, does not have accounting, financial and other internal information about the status and condition of the unitary enterprise, therefore, it is not able to assess the existence of these circumstances.

Consequently, this rule is formulated arbitrarily, gives rise to the possibility of abuse on the part of a unitary enterprise, ultimately violating the principle of stability of civil turnover.

In accordance with paragraph 1 of Art. 22 of the Federal Law "On Unitary Enterprises", a transaction in the conclusion of which there is an interest of the head of a unitary enterprise cannot be made by a unitary enterprise without the consent of the owner of the property of the unitary enterprise.

A transaction in the conclusion of which there is an interest of the head of a unitary enterprise and which was made in violation of the requirements provided for by this article may be invalidated at the suit of the unitary enterprise or the owner of the property of the unitary enterprise.

According to Art. 23 of the Federal Law "On Unitary Enterprises", a major transaction is a transaction or several interrelated transactions related to the acquisition, alienation or the possibility of alienation by a unitary enterprise, directly or indirectly, property, the value of which is more than ten percent of the authorized capital of a unitary enterprise or more than 50 thousand times exceeds the minimum wage established by federal law.

The decision to conclude a major transaction is also made with the consent of the owner of the property of the unitary enterprise.

The need to obtain the owner's consent to conclude a transaction for the alienation of property, the cost of which exceeds the minimum wage established by federal law by more than 50 thousand times (that is, more than 5 million rubles) seems, of course, reasonable and justified. At the same time, a major transaction is also a transaction related to the alienation or the possibility of alienation by an enterprise of property, the value of which is more than ten percent of the authorized capital of a unitary enterprise. Taking into account the fact that the minimum size of the authorized capital of a unitary enterprise can be determined by the owner in the amount of 500,000 rubles (clause 3, article 12 of the Federal Law "On Unitary Enterprises"), in practice most of the current transactions of the enterprise will fall under the definition of large ones.

In addition to the above restrictions, the legislation establishes other, special, restrictions on the rights of the subject of the right of economic management to dispose of property.

The right to establish the management of state property belongs to those bodies that exercise the power of the owner-state to determine its legal fate. The property trust regime is intended to replace economic management and operational management, and not to exist as an additional superstructure along with them, forming another link in management, splitting the exercise of the owner's powers into several successive links.

The right of economic management or operational management of property is terminated according to general rules on the termination of property rights, as well as in cases of lawful seizure of property by decision of the owner (clause 2 of article 296 of the Civil Code).

It seems that the legal nature of the right of economic management gives rise to contradictions between clause 2 of article 299 of the Civil Code of the Russian Federation, by virtue of which property acquired by a unitary enterprise under a contract or other grounds is transferred to the economic jurisdiction of this enterprise, and the norms of contract law, for example, clause 2 of Art. 1 tbsp. 454 of the Civil Code of the Russian Federation.

In accordance with paragraph 1 of Art. 454 of the Civil Code of the Russian Federation, under the contract of sale, one party (the seller) undertakes to transfer the thing (goods) to the ownership of the other party (the buyer). By virtue of Art. 299 of the Civil Code of the Russian Federation, an enterprise, being a buyer under a sale and purchase agreement, acquires not the right of ownership, but the right of economic management. Moreover, in these cases, with the exception of those of them when the legislation on privatization should be in force, the general rules on the acquisition or termination of property rights are applied (clauses 2 and 3 of Art. 299 of the Civil Code of the Russian Federation). You also need to take into account, in our opinion, that the meaning of the sale and purchase agreement from the moment of its inception and up to the present is the transfer of property on the most absolute right - the right of ownership.

When concluding an exchange by state and municipal unitary enterprises, by virtue of an agreement, the right of economic management is transferred or arises, although Art. 567 of the Civil Code of the Russian Federation says that under an exchange agreement, each of the parties undertakes to transfer the goods to the ownership of the other party.

The same inconsistency arises in the loan agreement. A loan is an agreement under which money or other things determined by generic characteristics are transferred by the lender into the ownership of the borrower (clause 1 of Art. 807). In cases where the borrower is a unitary enterprise or institution, the borrowed funds are transferred to their economic management. Separate features of the use and accounting of borrowed funds may be established by an agreement or regulatory rules. This, however, does not affect the fundamental provision that the borrowed funds, along with the so-called own funds of the borrower, are with him on the right of economic management. The borrowed funds, in particular, along with other property belonging to the borrower, may be foreclosed on his obligations, among which the debt to the lender may be just one of many debts.

In addition, the scheme used in the Civil Code of the Russian Federation, according to which an enterprise, being, for example, a buyer, acquires not the right of ownership, but the right of economic management, gives rise to another contradiction. The fact is that according to a sale and purchase agreement concluded by a unitary enterprise, the ownership right is acquired by the founder of the enterprise - the Russian Federation, a constituent entity of the Russian Federation or a municipality. But the founder acquires the right of ownership regardless of his desire and without any expression of will on his part. Thus, the law, in this case, is acquired in fact by force, which, of course, contradicts the very nature of law as a measure of possible behavior.

Business law appears to have two mutually exclusive objectives. On the one hand, it is to ensure the participation of state and municipal property in economic circulation, and on the other, to ensure the preservation of public property by creating artificial obstacles to its free disposal. The structure of the right of economic management is a compromise between the civil-law freedom to dispose of property and the inevitable administrative-legal restrictions on the rights of the owner of public property. The right of economic management ensures the participation of non-owners in economic circulation.

Meanwhile, the thesis about the possibility of participation of non-owners in the economic turnover is not indisputable. E. Sukhanov expressed himself most definitely and harshly in this regard, believing that an economic entity endowed with “property rights not very clear for traditional classical approaches, the right of operational management or full economic management ... a subject that does not have ownership rights to its property goes into circulation ... ”. "Participants in normal market relations are always owners who independently manage their property"

This position, according to V. Bublik, seems to be somewhat maximalist. In accordance with the current civil legislation, not only legal entities with property, but also non-owner economic agents (unitary state and municipal enterprises) continue to be direct participants in economic turnover. Moreover, the Civil Code of the Russian Federation does not close the way to business for those non-proprietors who are not commercial organizations (institutions, various foundations and public organizations). And the point is not that the preservation "in our property turnover of" enterprises "and" institutions "- non-owners testifies to its transitional nature, due, in turn, to the transitional nature of the economy itself, which inevitably, but temporarily and in a modified form, retains certain elements the former economic system ", which include the named property rights, as E. Sukhanov writes.

Trends in the country's modern economic and legal development confirm that the state not only does not abandon its quota of participants in civil economic turnover, but also strengthens its own economic function. As long as there is state and municipal property (and it will obviously exist as long as the state is functioning, only the volumes of this property will change), real rights and their carriers criticized by the supporters of the concept of "normal" market relations will inevitably remain ... The state, as the owner of a significant mass of property, being unable to directly manage the objects belonging to it, but also not wanting to part with them, will objectively be forced to preserve what is now called unitary enterprises and institutions in the Civil Code of the Russian Federation, even in conditions when the market is in country will become classically complete.

Otherwise, you can again go to extremes: if earlier everything was state-controlled and centralized to the limit, now it is proposed to privatize the economy as much as possible, minimizing its public sector.

As an echo of the opinion of E. Sukhanov, section 4 of the Concept of Reforming Enterprises and Other Commercial Organizations, which was approved by the Decree of the Government of the Russian Federation of October 30, 97 No. 1773, can be regarded, which directly states that “it is necessary to gradually reduce the application of the right of economic management in relation to enterprises state and municipal property. The further existence of this legal institution in the Russian economy leads to a slowdown in structural restructuring necessary for economic growth, concentration of industrial capital, and also serves as an obstacle to the vertical and horizontal integration of enterprises.

In this regard, it is advisable:

• to stop the creation of unitary enterprises based on the right of economic management, as well as their reorganization through division and separation, unless otherwise provided by the current legislation;
• to reorganize all unitary enterprises based on the right of economic management, by transforming them into business entities with the consolidation in the prescribed manner of the rights to participate in the authorized capital of such companies in the ownership of the Russian Federation, or into federal state-owned enterprises or institutions. "

Nevertheless, the right of economic management is included by the legislator in the Civil Code of the Russian Federation. The structure of the right of economic management, despite all its shortcomings and contradictions, exists and works. It seems that this situation will continue in the near foreseeable future.

"Bulletin of the Supreme Arbitration Court of the Russian Federation" 1997 No. 7.

The right of economic management is expressed in the fact that a state or municipal unitary enterprise, which owns property on the basis of the right of economic management, owns, uses and disposes of this property.

The right of economic management is a property right. The right of economic management of property is broader than the right of operational management. The owner of the first has the right to perform any actions in accordance with the law.

The right of economic management of property, in respect of which the owner has made a decision to assign it to a unitary enterprise or institution, arises for this enterprise or institution from the moment the property is transferred.

Fruits, products and income from the use of property under economic jurisdiction, as well as property acquired by a unitary enterprise or institution under an agreement or other grounds, are transferred to the economic management of this enterprise or institution.

The powers of the owner of property under economic jurisdiction: solving issues of creating an enterprise, determining the subject and goals of its activities, terminating its activities (reorganization and liquidation), appointing the head of the enterprise, exercising control over the use of property belonging to the enterprise for its intended purpose and its safety.

An enterprise that owns immovable property on the basis of the right of economic management of property is prohibited from leasing it, pledging it, making a contribution to the authorized (pooled) capital of economic societies and partnerships, or any other way of disposing of this property without the consent of the owner.

The right to economic management. This right is a derivative of the property right of legal entities - non-owners for the economic and other use of the owner's property, its foundations are enshrined in Ch. 19 GK. The right of economic management is significantly narrower than the right of ownership. The limitation of the rights of the title owner (the owner of the right of economic management) goes along the line of limiting the powers of disposal and use, since the rights of ownership are exercised by the enterprise quite fully - it fixes the transferred property on its independent balance sheet.

The subjects of the right of economic management can only be state or municipal unitary enterprises, as well as subsidiaries created by state and municipal enterprises. Such enterprises are called unitary, since their property is indivisible and cannot be distributed among deposits, shares, shares, shares. The property transferred to the enterprise on the basis of the right of economic management is removed from the actual possession of the founding owner and is credited to the balance sheet of the enterprise. This property becomes "distributed", isolated from the property of other persons, including the owner, and serves as the basis for the independent property liability of the enterprise.

By securing the property by the enterprise, the owner transfers to him part of his powers. However, in Art. 295 of the Civil Code defines the rights of the owner himself. The owner of the property, i.e. the state as a whole or a municipality has the right to create an enterprise, appoint its director, determine the subject and objectives of the enterprise, reorganize and liquidate the enterprise, monitor the performance and safety of the property belonging to the enterprise, receive part of the profit from the use of property located in the economic conducting. In turn, a state and municipal enterprise is not entitled, without the consent of the owner, to sell real estate, lease, pledge, make real estate as a contribution to the authorized (pooled) capital of economic societies and partnerships and otherwise dispose of this property. Cash and other property can be used by these enterprises at their own discretion (clause 8 of the Decree of the Supreme Arbitration Court of the Russian Federation No. 8).

Speaking about the right to use, it should be noted that it is carried out by state and municipal enterprises in accordance with the objectives of the activity and the purpose of the property. However, it must be remembered that the owner cannot seize property used for other purposes as sanctions, because he is not endowed with this right, as well as the right to lease or otherwise dispose of property that is under the economic jurisdiction of a state (municipal) enterprise (clause 40 of the Permanent Plenary of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 6/8).

Defining in Art. 294, 295 of the Civil Code of the authority of a unitary enterprise to own, use and dispose of state (municipal) property under economic jurisdiction, the legislator does not provide for the obligatory conclusion of contracts between the owner of the relevant property and the enterprise. However, this does not deprive the parties of the right to conclude such an agreement, specifying in it the composition of the property, rights, obligations, responsibilities of the parties.

Business management at the enterprise

The right of economic management and the right of operational management constitute a special type of property rights, unknown to developed legislation. These are the property rights of legal entities for the economic and other use of the owner's property. They are designed to formalize the property base for independent participation in civil legal relations of non-owner legal entities, which is impossible in the usual, classical property turnover.

The emergence and preservation of these property rights in Russian law is associated with the existence of a planned-regulated, state economy. The state, as the owner of the bulk of the property, being unable to directly manage the objects belonging to it and at the same time not wanting to lose ownership of them, was objectively forced to release independent legal entities, enterprises and institutions into property circulation, assigning their property to them on a limited property right. Since the 60s, this right began to be called in the USSR the right of operational management, and later, in the laws on property, it was divided into a broader right of full economic management intended for industrial enterprises, and a narrower right of operational management - for state budgetary and similar ones. institutions.

The participants in normal market relations are always owners who independently manage their property, citizens, including individual entrepreneurs, partnerships and societies, cooperatives, etc. , in turn, by the transitional nature of the economy itself, inevitably, but temporarily and in a modified form, retaining certain elements of the previous state economic system. These elements also include property rights, such as the right of economic management and the right of operational management.

The subjects of the rights of economic management and operational management can only be legal entities and, moreover, not any, but only enterprises and institutions existing in special organizational and legal forms.

The subject of the right of operational management can be both unitary (state-owned) enterprises (Article 115 of the Civil Code), belonging to the category of commercial organizations, and institutions (Article 120 of the Civil Code), related to non-commercial structures, as well as enterprises owned by private owners. At the same time, institutions can be created both by state and municipal formations, and by others, for example, by private owners - citizens and legal entities. Within a certain framework, they can also engage in income-generating activities, which entails the emergence of their special right to the property obtained in this way, which can also be defined as the right of economic management in accordance with paragraph 2 of Art. 298 CC.

The difference between the rights of economic management and operational management consists in the content and volume of powers that they receive from the owner for the property assigned to them. The right of economic management belonging either to an enterprise as a commercial organization, or to an institution carrying out entrepreneurial activities permitted by the owner, is therefore broader than the right of operational management, which can belong either to non-commercial institutions by the nature of their activities, or to state-owned enterprises.

According to Art. 295 of the Civil Code, the owner of property under economic control, in accordance with the law, decides the issues of creating an enterprise, determining the subject and goals of its activities, its reorganization and liquidation, appoints a director (head) of the enterprise, exercises control over the use and safety of the property belonging to the enterprise ...

The owner has the right to receive part of the profit from the use of the property that is in the economic jurisdiction of the enterprise.

An enterprise is not entitled to sell real estate belonging to it on the basis of the right of economic management, lease it, pledge it, make a contribution to the authorized (joint-stock) capital of economic companies and partnerships, or otherwise dispose of this property without the consent of the owner.

The rest of the property belonging to the enterprise, it disposes of independently, except for cases established by law or other legal acts.

A state-owned enterprise, as well as an institution in relation to the property assigned to them in accordance with Art. 296 of the Civil Code, within the limits established by law, in accordance with the goals of their activities, the tasks of the owner and the purpose of the property, the right to own, use and dispose of them in accordance with Article 297 of the Civil Code:

A state-owned enterprise has the right to alienate or otherwise dispose of the property assigned to it only with the consent of the owner of this property.
A state-owned enterprise independently sells its products, unless otherwise provided by law or other legal acts.

The procedure for the distribution of income of a state-owned enterprise is determined by the owner of its property.

The procedure for the disposal of the property of the institution is determined in Art. 298 CC. The institution is not entitled to alienate or otherwise dispose of the property assigned to it and property acquired at the expense of the funds allocated to it according to the estimate.

If, in accordance with the constituent documents, the institution is granted the right to carry out income-generating activities, then the income received from such activities, and the property acquired at the expense of these incomes, go to the institution's independent disposal and are recorded on a separate balance sheet.

In accordance with Art. 299 of the Civil Code The right of economic management or the right of operational management of property, in respect of which the owner has decided to assign it to a unitary enterprise or institution, arises from this enterprise or institution from the moment the property is transferred, unless otherwise provided by law and other legal acts or the decision of the owner.

Fruits, products and income from the use of property under economic jurisdiction or operational management, as well as property acquired by a unitary enterprise or institution under an agreement or other grounds, enter the economic management or operational management of an enterprise or institution in the manner prescribed by this Code, others laws and other legal acts for the acquisition of property rights.

The right of economic management and the right of operational management of property are terminated on the grounds and in the manner prescribed by the Civil Code, other laws and other legal acts for the termination of the right of ownership, as well as in cases of lawful seizure of property from an enterprise or institution by decision of the owner.

In accordance with Art. 300 of the Civil Code, upon transfer of ownership of a state or municipal enterprise as a property complex to another owner of state or municipal property, such an enterprise retains the right of economic management or the right of operational management to the property belonging to it.

When the ownership of an institution is transferred to another person, this institution retains the right of operational management to the property belonging to it.

The right of economic management of property

This right is a proprietary right of legal entities - non-owners, derived from the right of ownership for the economic and other use of the owner's property. The foundations of the modern legal regime of economic management are enshrined in Chapter 19 of the Civil Code of the Russian Federation. The subjects of the right of economic management can be state or municipal unitary enterprises, as well as subsidiaries created by state and municipal enterprises. The listed enterprises are called unitary, since their property is indivisible and cannot be distributed among deposits, shares, shares, shares. The property transferred to the enterprise on the basis of the right of economic management is eliminated from the actual possession of the founder-owner, is credited to the balance sheet of the enterprise and serves as the basis for its independent property responsibility.

The legislation determines the rights of the owner himself in relation to property that is under economic jurisdiction. By virtue of Art. 295 of the Civil Code of the Russian Federation, the owner, who in this case is a public entity, decides on the creation, reorganization, liquidation of a state or municipal enterprise. Thus, the decision to create and liquidate federal enterprises is made by the Government of the Russian Federation on the basis of a joint submission by the Ministry of Property of the Russian Federation, the Ministry of Economy of the Russian Federation and the federal executive body, which, according to the current legislation, is entrusted with the coordination and regulation of activities in the relevant industry. Reorganization decisions are made in the same manner. In addition, decisions on the creation and reorganization of enterprises must be agreed with the antimonopoly authority in the cases and in the manner provided for by the Law of the Russian Federation "On Competition and Restriction of Monopolistic Activities in Commodity Markets.

The competence of the RF Ministry of Property includes the implementation of legal actions related to the creation, reorganization and liquidation of federal enterprises. The owner makes a decision on the endowment of the enterprise with property, including the formation of the statutory fund. The transfer of property to economic management is carried out by the relevant authorities (Ministry of Property, Department of State and Municipal Property of Moscow). The right of these bodies is to exercise control over the intended use and safety of state property assigned to enterprises. A prerequisite of the contract with the heads of state enterprises is the duty of the head to ensure the safety, rational use, timely reconstruction, restoration and repair of the property assigned to the enterprise. Also provided is the financial responsibility of the head for causing damage to the enterprise as a result of his guilty behavior and the mandatory reporting of the head of the enterprise.

In accordance with Art. 49 of the Civil Code of the Russian Federation, unitary enterprises are classified as legal entities with special legal capacity. Transactions made by unitary enterprises that contradict the subject matter and goals of their activities are void on the basis of Art. 168 of the Civil Code of the Russian Federation. The subjects and goals of the activity of unitary enterprises are fixed in their charters. The charters of state enterprises are approved by the federal executive authorities or the executive authorities of the constituent entities of the Russian Federation.

According to the law, the owner has the right to receive a part of the profit from the use of the property of the enterprise under the economic control. The procedure for distribution of profits is coordinated with the relevant sectoral management body and is fixed in the charter.

The rights of an enterprise to own, use and dispose of property are defined as follows. The right of ownership is realized by the enterprise by securing the transferred property on an independent balance sheet. The right to use until; 1 should be carried out in accordance with the objectives of the activity and the purpose of the property. However, the owner does not have the right to seize misused property as a sanction for the misconduct of the enterprise.

State and municipal enterprises enjoy all the rights granted by law to the owner, to judicial protection of the property assigned to them on the basis of the right of economic management, including the right to file vindication and negative claims, including against the owner of the said property.

The exercise of the authority to dispose of the assigned property has the following features. In accordance with Art. 295 of the Civil Code of the Russian Federation, an enterprise has the right to independently, without the consent of the owner, dispose of movable property, with the exception of cases established by law or other legal acts. As for immovable property, an enterprise has the right to sell it, lease it, pledge it, make a contribution to the authorized (pooled) capital of economic societies and partnerships, or otherwise dispose of it only with the consent of the owner. The procedure for obtaining consent must be regulated in the charter of the enterprise or in the agreement on the transfer of property. In any case, consent must be prior and in writing.

Since the law establishes the principle of the special legal capacity of unitary enterprises (Article 49 of the Civil Code of the Russian Federation), the actions of an enterprise to dispose of the property of the owner assigned to it should be determined, first of all, by the tasks of the statutory activities of the enterprise and the purpose of the property provided for the fulfillment of these tasks. Therefore, in cases where the actions of an enterprise for the alienation or provision for long-term use to other persons of movable and immovable property assigned to the enterprise on the basis of the right of economic management, directly involved in the production process, leads to the impossibility of using the property for its intended purpose, the corresponding transactions are invalid on the grounds , provided for by Art. 168 of the Civil Code of the Russian Federation. Transactions are void even if they are made with the consent of the owner (his authorized body).

According to Art. 299 of the Civil Code of the Russian Federation, fruits, products and income from the use of property under economic jurisdiction, as well as property acquired by a unitary enterprise under an agreement or other grounds, are transferred to the economic management of the enterprise.

Defining in Art. 294, 295 of the Civil Code of the Russian Federation of the authority of a unitary enterprise to own, use and dispose of state (municipal) property under economic jurisdiction, the legislator does not provide for the obligatory conclusion of contracts between the owner of the relevant property and the enterprise. However, this does not deprive the parties of the right to conclude such an agreement, specifying in it the composition of the property, rights, obligations, responsibilities of the parties.

A model agreement on the consolidation of state (municipal) property on the basis of the right of economic management for a state (municipal) unitary enterprise in Moscow was approved by the Decree of the Government of Moscow No. 5422. The purpose of the agreement is to create economic conditions that ensure an increase in the efficiency of use of property owned by the city of Moscow ... The agreement is concluded between the Department of State and Municipal Property of Moscow and the unitary enterprise represented by its head.

An integral annex to the agreement on securing property is the passport of the property complex containing the following documents: acts of assessing the value of the property complex, certificate of endowment with working capital, staffing, certificate for the right to lease real estate, extracts from BTI passports (by object), certificate of ownership on land plots, land plot plan. The right of economic management in accordance with Art. 299 of the Civil Code of the Russian Federation arises from the moment of transfer of property. The actual transfer of property to the economic management of the enterprise is carried out after the registration of the certificate of ownership, the conclusion of the contract and the signing of the act of acceptance and transfer of property. The property is transferred from the balance holder of city property (or the previous balance holder) to the balance sheet of the enterprise.

The right of economic management is terminated on the grounds and in the manner provided for the termination of the ownership right, as well as in cases of lawful seizure or redistribution of property by the owner (for example, during the reorganization or liquidation of an enterprise). The state (municipal) enterprise retains the right of economic management of the property when the owner changes.

Rights of operational economic management

The right of economic management as a way of exercising the right of state and municipal property. Article 216 of the Civil Code. calls the right of economic management of property among the property rights of persons who are not owners. A more detailed description of the right of economic management is given in Art. 294, 295, 299, 300 and other articles of the Civil Code. In contrast to the previous legislation, the range of subjects of the law of economic management is narrowed, and its content is limited. The Civil Code stipulates that the right of economic management may be vested in state and municipal unitary enterprises, except for federal state-owned enterprises, to which property is assigned on the basis of the right of operational management. Accordingly, the Civil Code does not provide for the use of the right of economic management as a way of exercising other forms of ownership, except for state and municipal property. The position taken by the Civil Code on the issue of the boundaries of the use of the right of economic management corresponds to Art. 8 of the Federal Law on the Enactment of Part One of the Civil Code, which prescribes the transformation of enterprises that are not in state or municipal ownership and based on the right of full economic management into business partnerships, societies or cooperatives, or their liquidation. Prior to their transformation or liquidation, these enterprises are subject to the rules on unitary enterprises based on the right of operational management, taking into account the fact that the owners of their property are their founders.

Refusal to use the right of economic management in the implementation of other forms of ownership was hasty and led in practice to all kinds of difficulties. Apparently, it was caused by the euphoria associated with business companies and partnerships, which at a certain stage were considered as the optimal organizational and legal form for the formation of legal entities engaged in commercial activities. It is difficult to understand why, say, a cooperative, public or religious organization cannot form a subsidiary enterprise, allocating part of its property to it for economic management, but it is imperative to follow the path of creating an economic partnership or society, endowing it with the right of ownership. Currently, there is a revival of the category of economic management. The first swallow can be considered the Law of the Russian Federation "On Trade Unions, Their Rights and Guarantees of Activity." In Art. 24 of the Law stipulates that trade unions, their associations (associations), primary trade union organizations own, use and dispose of property that is not only in their ownership, but also in economic jurisdiction. Apparently, we can expect a further expansion of the boundaries of the use of the right of economic management.

This right is also narrowed in its content, which is reflected not only in the renaming of the corresponding right (earlier it was called "the right of full economic management", and now "the right of economic management"), but also in how the owner's rights in relation to property are outlined, under economic jurisdiction. If earlier the right of full economic management was built according to the same model as the right of ownership, now the rights of a state or municipal enterprise, to which property belongs on the basis of the right of economic management, are strictly limited, and at the same time, the rights to this property of the owner are quite broadly defined. ... This is explained by the fact that the size of the authorized capital of such an enterprise cannot be less than the amount determined by the law on state and municipal enterprises, and even before the registration of the enterprise, it must be fully paid by the owner. If at the end of the financial year the value of the company's net assets turns out to be less than the size of the authorized capital, the body authorized to create the enterprise is obliged to reduce the authorized capital in the prescribed manner. If the value of net assets is less than the amount determined by law, the company may be liquidated by a court decision.

In addition to the fact that the owner of the property under economic jurisdiction decides the issues of creating an enterprise, determining the subject and goals of its activities, its reorganization and liquidation, appoints the head of the enterprise, he also exercises control over the use and safety of the property belonging to the enterprise and has the right to receiving part of the profit from the use of property in the economic management of the enterprise. As we can see, the right of economic management is sharply limited in its content. This is explained, not least of all, by its strict binding to the law of state and municipal property, which, perhaps, especially affected the Decree of the President of the Russian Federation "On the regulation of lease relations and privatization of property of state and municipal enterprises leased." the beginning of a sharp restriction of the rights of state and municipal enterprises to dispose of the property assigned to them, primarily immovable.The same tendency is clearly visible in the Civil Code, even if we leave aside the question of the legal regime of property of state-owned enterprises, to which property is assigned on the basis of operational management and whose rights in relation to this property are even more limited (see more on this further).

As a result, the right of economic management, not to mention the right of operational management, although formally they are enshrined in the law as property rights, are drained of blood. In terms of their content, they are even more limited than the previous right of operational management (see Article 93 of the Civil Code), although the latter was at one time sharply criticized as an attribute of the administrative-command system that hindered the development of market relations. It seems that restrictions on the right of economic management and, say, looking ahead, the rights of operational management are far from always justified, especially if we take into account the expansion of the boundaries of the use of the right of economic management. At the same time, one should not go to extremes and build them along the same model as property rights.

Unitary enterprise of economic management

A unitary enterprise on the basis of the right of economic management is an enterprise that is created by a decision of a state body or a local government body.

Features of a unitary enterprise:

The constituent document of a unitary enterprise is its charter, which is approved by the owners of the enterprise.
- The property transferred to the unitary enterprise is credited to its balance sheet, and the owner does not have ownership and use rights in relation to this property.
- Movable property (equipment) are at the full disposal of the unitary enterprise.

Actions to be taken by the founding owner:

Appoint a director;
- to approve the charter of the unitary enterprise;
- reorganize or liquidate a unitary enterprise in the event of its unprofitable activity;
- to exercise control over the use and safety of property;
- to receive part of the profit from the use of the property transferred to the unitary enterprise.

Actions that a unitary enterprise is not entitled to perform without the consent of the founding owner:

Sell ​​real estate;
- rent it out;
- to contribute real estate as a contribution to the authorized capital of other companies and partnerships.

Unitary enterprise on the basis of operational management

A unitary enterprise on the basis of operational management is a federal state-owned enterprise, which is created by a decision of the Government of the Russian Federation on the basis of federal property.

Features of a unitary enterprise on the basis of operational management:

Constituent document - the charter approved by the Government of the Russian Federation;
- the founding owner has the right to seize surplus property, unused property, as well as property used for other purposes;
- a state-owned enterprise is not entitled to dispose of movable and immovable property without special permission from the owner;
- the firm name of an enterprise based on the right of operational management must contain an indication that the enterprise is a state enterprise.

The difference between the rights of economic management and operational management (consist in the content and scope of powers that they receive from the owner for the property assigned to them):

The right of economic management is broader than the right of operational management, that is, an enterprise operating on the basis of the right of economic management, has greater independence in management than an enterprise based on the right of operational management;
- the founders of unitary enterprises based on the right of economic management are not liable for the obligations of the enterprise, except for cases when the founder himself is to blame for the bankruptcy of the enterprise. In case of insolvency of state-owned enterprises, the Government of the Russian Federation bears subsidiary liability for the obligations of this enterprise in the event of insufficient property. It follows from this that a unitary enterprise based on the right of operational management, in principle, cannot be bankrupt.

Also, there are non-profit organizational and legal forms of enterprises:

Consumer cooperatives;
- public and religious organizations;
- funds;
- institutions;
- associations.

Conducting financial and economic activities

Each taxpayer (organization, individual entrepreneur), in connection with the peculiarities of doing business, one way or another, has certain factors of tax risks.

Federal Tax Service of Russia by order No. MM-3-06 / [email protected]"On the Approval of the Concept of the Planning System for Field Tax Audits", the Criteria for assessing the risks for taxpayers used by the tax authorities in the process of selecting objects for conducting field tax audits were approved.

Given that these criteria are publicly available, taxpayers have the right to conduct an independent risk assessment based on the results of their financial and economic activities, taking them into account.

This risk assessment, first of all, is necessary precisely for the taxpayer in order to preserve his economic security while carrying out entrepreneurial activities. Since the presence of a number of signs in the work of a taxpayer may serve as a good reason for including him in the plan of field inspections.

Priority for inclusion in the plan of on-site tax audits are those taxpayers in respect of whom the tax authority has information about their participation in tax evasion schemes or schemes to minimize tax liabilities.

Criterion 12 approved by Order No. MM-3-2 / [email protected], contains a list of signs and other additional circumstances, in the presence of which the tax authorities conclude that the taxpayer has a high degree of tax risk:

Lack of personal contacts;
- lack of documentary evidence of the authority of the head (or his representative), a copy of his identity document;
- lack of information about the actual location, as well as the location of warehouse, production and retail space;
- lack of information on the method of obtaining information about the counterparty;
- lack of information in the Unified State Register of Legal Entities, etc.

Signs of doing business with tax risk are assessed in aggregate and interrelationship, and, accordingly, the more signs are simultaneously present in the relationship of a taxpayer with counterparties, the higher the degree of its tax risks.

Taxpayers wishing to secure themselves for the future (to completely eliminate tax risks) are advised to:

First, to establish and analyze the reasons that influenced the high level of tax risks;
- secondly, to exclude questionable transactions when calculating tax liabilities for the relevant period;
- thirdly, to notify the tax authorities about the measures they have taken to reduce these risks (clarify tax liabilities), to timely take into account the adjusted tax liabilities when selecting objects for field tax audits. To do this, it is necessary to submit to the inspectorate the revised tax declarations for taxes for those periods in which activities with a high tax risk were carried out. In addition, you can submit an explanatory note in the form recommended by the Federal Tax Service of Russia (Appendix No. 5 to Order No. MM-3-06 / [email protected]).

Transfer business management

To transfer property into economic jurisdiction, it is necessary:

Step 1. Make a decision on the assignment of property to a unitary enterprise;
Step 2. Sign the acceptance certificate with the unitary enterprise;
Step 3. Register the right of economic management in relation to the property, the rights to which are subject to registration.

What to indicate in the decision (order) on securing property

The owner's obligation to make a decision on the transfer of property to economic jurisdiction is established in Art. 299 of the Civil Code of the Russian Federation. The form of the relevant order is not provided for by law, therefore the owner develops it independently. The order is signed by the head of the body exercising the powers of the owner.

Examples of orders for securing property on the right of economic management.

The owner's decision must include information that allows the identification of the property that is transferred to economic management.

Real estate identification

The individualizing characteristics of real estate include:

Type of real estate object (building, structure, premises, object of construction in progress);
- cadastral number;
- square;
- address or other description of the location of the property.

Liter;
- number of storeys (for buildings);
- length (for linear objects);
- number on the floor plan (for premises);
- the purpose of the property (residential or non-residential);
- number and date of registration of ownership;
- date of commissioning;
- number in the register of state (municipal) property.

Identification of property will avoid refusal to register on the grounds that the title document indicates that the applicant does not have the right to the object.

If there are encumbrances of rights (pledge, easement, attribution to cultural heritage objects, etc.), the decision must reflect the type of encumbrance and the persons in whose favor it is established. Otherwise, registration may be refused on the grounds that a person who has rights limited by certain conditions has drawn up a document without specifying these conditions.

Vehicle identification

The concept of a vehicle includes both road transport and other types of devices intended for the transport of people and goods.

Specifying the brand, model and year of manufacture alone cannot individualize the vehicle.

Its unique features are also:

Vehicle passport identification number;
- vehicle identification number (VIN);
- state registration plate;
- number of the body, chassis, engine.

To identify other types of vehicles subject to registration, we recommend that you provide the information required for such registration. As individualizing signs, you can indicate the numbers assigned earlier during the registration of the vehicle (rights to it).

Identification of other movable property

Unique characteristics of such property are, for example, serial and serial numbers.

Insufficient identification can make it difficult to return property to the treasury, reclaim it from someone else's illegal possession, and in some cases, the court may recognize the right of economic management to be absent.

How the acceptance certificate is drawn up

The right of economic management according to the general rule arises from the moment of transfer of property (clause 1 of article 299 of the Civil Code of the Russian Federation). The owner in the decision can determine another point. However, in any case, we recommend that you draw up an act of acceptance and transfer in order to avoid refusal of state registration, as well as disputes about the quantity and quality of the transferred property.

The form of the act of acceptance and transfer of property into economic jurisdiction is not established by law, therefore the owner develops it independently.

The description of the property in the acceptance certificate and in the owner's decision must match.

In the act, a note should be made that the property transferred to economic management is in proper technical condition, allowing it to be used for its intended purpose. Otherwise, by a court decision, the owner may be charged for the cost of repairing this property.

The authorized representatives of the body exercising the powers of the owner and the unitary enterprise sign the act and affix it with seals.

How to register the right of economic management

Registration of rights to certain types of property is regulated by special regulatory legal acts.

When transferring to the economic management of real estate, both the owner and the unitary enterprise can apply for state registration.

Property under economic control

Owner's powers to property under economic jurisdiction:

Creation of an enterprise, definition of the subject and purpose of its activity, appointment of the head of the enterprise;
- reorganization and liquidation of the enterprise;
- control over the safety and use of this property;
- receiving part of the profit from the use of property.

The right of economic management is terminated:

On the grounds of termination of ownership;
- in case of lawful seizure of property by the decision of the owner.

Subjects of the right of operational management:

State enterprises;
- institutions.

The object of the right of operational management is in essence similar to the object of the right of economic management.

The subject of the right of operational management in relation to the property assigned to him exercises within the limits established by law, in accordance with the goals of his activities, the tasks of the owner and the assignment of the right to possess, use and dispose of the property.

A state-owned enterprise has the right to dispose of the property assigned to it only with the consent of the owner of this property, and the institution does not at all have the right to dispose of the property transferred to it.

The owner of the property under the right of operational management has the right:

Exercise all the powers of the owner of property under economic jurisdiction;
- seize unnecessary unused or misused property and dispose of it at your own discretion.

Economic management of municipal property

The method of managing economic and municipal property is based on the transfer of state, municipal property to unitary enterprises for a certain period to fulfill the goals set by the owner.

The right of economic management is regulated by the Civil Code of the Russian Federation (Articles 294, 295) and the Federal Law “On State and Municipal Unitary Enterprises in the Russian Federation”.

Article 294. Right of economic management:

A state or municipal unitary enterprise to which property belongs on the basis of the right of economic management, owns, uses and disposes of this property within the limits determined in accordance with this Code.

Article 295. The rights of an owner in relation to property under economic jurisdiction:

1. The owner of the property under economic jurisdiction, in accordance with the law, decides on the creation of an enterprise, determining the subject and purposes of its activities, its reorganization and liquidation, appoints a director (head) of the enterprise, exercises control over the use and safety of the property belonging to the enterprise. The owner has the right to receive part of the profit from the use of the property that is in the economic jurisdiction of the enterprise.
2. An enterprise shall not have the right to sell real estate belonging to it on the basis of the right of economic management, lease it, pledge it, make a contribution to the authorized (pooled) capital of economic societies and partnerships, or otherwise dispose of this property without the consent of the owner. The rest of the property belonging to the enterprise, it disposes of independently, except for cases established by law or other legal acts.

Economic management applies only exclusively to state and municipal property.

The participants in the relationship in this case are:

Owners of state and municipal property, represented by state and municipal authorities, and unitary enterprises formed by the same owners to fulfill their goal.
- The owner of the property, in accordance with the law, decides on the creation of an enterprise, the definition of the subject and goals, its activities, its reorganization and liquidation, the appointment of the director of the enterprise, exercises control over the use and safety of the property belonging to the enterprise.
- The owner of the property transfers the property to unitary enterprises under an agreement on the right of economic management, which reflects the conditions for the transfer of property.

After the transfer of property to economic jurisdiction, the unitary enterprise has the right to conclude any transactions with the transferred property, independently, without the consent of the owner, with the exception of immovable property.

Legal transactions with real estate are carried out only with the permission of the owner of the property.

The contract between the owner and the unitary enterprise is subject to state registration, and the transferred property is subject to insurance.

A unitary enterprise is obliged to pay the owner from its incomes cash (part of the profit) for the use of the property. If the enterprise changes the purpose of using the property, or uses the property ineffectively, in the opinion of the owner, then the property can be seized, or the unitary enterprise can be liquidated or reorganized.

The owner and the unitary enterprise are not liable for debts to each other.

"An enterprise is not entitled to sell real estate belonging to it on the basis of the right of economic management, lease it, pledge it, make a contribution to the authorized capital of economic companies and partnerships, or otherwise dispose of this property without the consent of the owner."

The right of economic management arises for this enterprise from the moment of transfer of property (Art. 299).

Conducting business transactions

Documentation in accounting is used as a method of initial registration and legal registration of monitored objects, i.e. the method of primary reflection of the influence of fait accompli of economic life on the state of objects of accounting supervision. At this stage of accounting work, which is the initial stage of systemic perception and registration of individual transactions (facts), the information in the primary documents must be reflected reliably, have evidence. An accounting document must be drawn up at the time of the business transaction, and if this is not possible, then it must be drawn up immediately after the end of the business transaction.

The documents differ both in form and in terms of indicators that determine the content of the transactions recorded in them. The main indicators of documents that characterize the essence of operations are called details.

Attributes are an information element that carries an independent meaningful load (for example, type of material, unit of measure, etc.).

Requisites are subdivided into qualitative attributes (attributes) and substantial (indicators). Qualitative (signs) details reflect accounting objects (for example, the name of the material, etc.); meaningful details - characteristics of the accounting object (for example, grade, standard size of material, etc.).

Differences in the forms and content of documents determine the peculiarities of their use in accounting work. Therefore, in order to facilitate the processing of accounting documents, they are grouped (classified) according to homogeneous characteristics. The main features and classification of documents are purpose, volume of reflected business transactions (formation procedure), method of use, place of compilation. When grouping accounting documents according to their purpose, they are subdivided into distribution documents; executive (exculpatory); accounting documents; combined.

Administrative documents are called documents that contain an order or order for the performance of any business transaction. These include various orders and written orders of the head of the organization and heads of structural divisions, powers of attorney for receiving material assets for the organization, checks for receiving money from the bank, etc. Administrative documents serve as the basis for performing a certain economic action and do not contain confirmation of the facts of performing business transactions.

Executive (source) documents confirm the accomplished fact. Such documents include receipts for registration of receipt of materials at the warehouse, delivery notes, various receipts indicating the acceptance of valuables, etc. Executive documents are drawn up at the time of transactions and are the basis of the accounts.

Accounting documents have no independent meaning. They are drawn up on the basis of administrative and executive (source) documents and are a technical means for systematizing accounts.

Accounting documents are also documents drawn up by an accountant to prepare and simplify accounting records for further use in the accounting process (for example, accounting statements, calculations, etc.). Such documents are used only in the accounting department of this organization. The content and forms of these documents depend on the technical means used in accounting work, the nature and list of indicators of synthetic and analytical accounting.

Combined documents are called documents that combine the signs of several types of documents - let's say, the signs of administrative documents for the performance of business transactions and executive documents certifying the fact of the operation, for example, requirements for the release of materials from the warehouse, a work order. The cash outflow order is at the same time an administrative, executive and accounting document. The use of combined documents in accounting practice is very common. When grouping accounting documents by the volume of reflected business transactions (the order of formation), primary and consolidated documents are distinguished. Primary documents are called documents that formalize the facts of economic life at the time of their fulfillment. These documents are located at the very beginning of the technological chain of the accounting process. They form the basis of primary accounting, for in the primary document the fact of economic life is registered by means of preliminary observation and measurement. The primary includes most of the accounting documents that formalize business transactions (for example, receipt and expense cash vouchers, acceptance certificates, invoices, etc.).

Consolidated documents record data on the facts of economic life from several primary documents. The use of consolidated documents is associated with the need to generalize the data of primary documents and obtain aggregated indicators or obtain additional information about the business transactions recorded and reflect them in accounting in the relevant sections. An example of a consolidated document can be cashier reports (cash reports), which summarize the information of incoming and outgoing cash orders and documents attached to them; commodity reports compiled on the basis of primary documents on the receipt and consumption of material assets, etc.

Primary and consolidated accounting documents can be drawn up both on paper and on computer media. If the document is drawn up on a machine carrier, then at the same time a copy of it on paper must be prepared. This condition is also maintained if there is a requirement from law enforcement agencies and bodies exercising control in accordance with current legislation.

According to the method of use, documents are divided into one-time and accumulative. One-time documents are considered documents that are used only for a one-time registration and reflection of business transactions: incoming and outgoing cash orders; requirements for the release of materials from the warehouse, etc.

Cumulative documents are called documents that are used for multiple registration and reflection in them of homogeneous business transactions over a period (for a week, a decade, a month): limit cards; limit fence cards used to register the release of materials from a warehouse to the same recipient - a workshop, a production site; two-week reports on production, etc. The use of accumulative documents contributes to a significant reduction in documentation.

According to the place of preparation, documents are divided into external and internal. External documents are considered documents that are drawn up outside the organization, i.e. documents received from other organizations: invoices - payment claims of suppliers; bank statements for current and foreign currency accounts; court orders of execution, etc.

Internal documents are documents that, regardless of their purpose, are drawn up within a given organization.

Only properly executed documents (unified or developed in the organization) are accepted for accounting.

Standardized documents are standard documents approved in the prescribed manner and intended for registration of the same (homogeneous) business transactions in all economic entities: receipts and expenditures, advance reports, invoices - payment requests, etc. They are mandatory for use by all organizations, regardless of ownership and types of activities of organizations.

Document unification leads to streamlining of documentation. It should be addressed simultaneously with the standardization of documents, i.e. development of the same size of blanks for the corresponding documents.

The unification of the forms of primary accounting documentation is of great importance for improving the formulation of accounting, as it establishes and consolidates uniform requirements for documenting the economic activities of organizations.

Unified forms of primary accounting documentation can be drawn up on paper or computer media. The Government of the Russian Federation by Decree No. 835 "On primary accounting documents" entrusted the Goskomstat of the Russian Federation with the functions of developing, approving and distributing albums of unified forms of primary accounting documentation and their electronic versions. Documents drawn up in an automated way require special confirmation of the data received, which is achieved by printing copies of documents on paper, and issuing signatures of officials provided for by the corresponding forms of documents. The legal evidence of a document stored, processed and transmitted using automated information and telecommunication systems can also be confirmed by an electronic digital (code) signature in accordance with the current procedure. In all other cases, when documents, the form of which is not presented in the albums of unified forms, acquire legal legal evidence in the presence of the mandatory details established by the Federal Law "On Accounting".

When documenting business transactions, the documents must be compiled with good quality, contain reliable data on the volume and timing of business transactions. The officials who signed the document are responsible for the accuracy of the data.

Documents should be completed clearly, clearly, in ink or by technical means. They do not allow erasures and unauthorized ways to correct the written data. Errors made in documents must be corrected by striking out the incorrect text or numbers with one line so that you can read the corrected and correct data written above. Correction of the error must be agreed and confirmed by the signature of the persons who signed the document, indicating the date of the correction. In a number of documents (banking, cash), no corrections are allowed. Their registration is regulated by the Procedure for conducting cash transactions in the Russian Federation, approved by the Central Bank of the Russian Federation (Central Bank of the Russian Federation). So, in the accounting documents for the receipt and issuance of money, the amount is indicated not only in numbers, but also in words, while the entry begins with a capital letter in order to prevent postscripts. This procedure also applies to accounting documents for the release of material assets.

For the extract of some accounting documents, special control is established by filling in the stubs of checks, receipts of orders, extracts of documents for a carbon copy. This control is carried out in order to prevent the commission of incorrect and illegal operations, to prevent, if possible, cases of waste, theft and other abuses by officials.

To prevent the same documents from being used twice, some of them are subject to cancellation, for example, cash orders, powers of attorney, etc. Cancellation is made with a stamp or the inscription "Received" or "Paid" with the date. The stamp "Redeemed" terminates the validity of all bank documents, as well as accounting documents related to the calculation and payment of wages.

Accounting documents drawn up in the prescribed manner are transferred to the accounting department for their further processing and reflection in the accounting of the transactions executed by them. After use, the documents are transferred to the archive for storage. The process of movement of accounting documents from the moment of their issuance (compilation, occurrence), operational use, accounting processing, recording in accounting registers and until they are deposited in the archive is called document flow.

Organization of document flow provides for the development of schemes and schedules for the movement of accounting documents. The schedules establish a list of documents indicating who draws up what documents, to whom and where they transfer them for control, processing and grouping.

Having entered the accounting department, accounting documents are, first of all, subject to verification of the essence of the operation and the correctness of the document execution.

Verification of the essence of the operation consists in the fact that the compliance of the completed operation, drawn up by the document, with the current legal provisions is checked. Such a check is one of the most important means of control on the part of accounting employees over the observance of the legality and economic feasibility of the operations performed.

When checking the correctness of the execution of documents, it is determined whether the document has been drawn up in the prescribed form, whether all its details are filled in correctly, whether the rules for correcting errors in the document are observed, the authenticity of the signatures of officials, etc. Documents executed in violation of the established rules are returned for additional processing.

After verification, accounting documents are accepted by the accounting department for accounting processing. The purpose of this processing is to prepare documents for further entries in accounting registers. The list of works that make up the accounting processing of documents is determined by the content and volume of operations reflected in the documents. If the documents received by the accounting department do not contain a monetary measure, then first they are priced or taxed, i.e. multiplying the corresponding quantitative indicators by the price. If it is necessary to systematize and accumulate the data contained in the accounting documents, the documents are grouped according to the economic content of the business transactions reflected in them by compiling grouped and cumulative statements. The next stage of accounting processing of accounting documents is their account assignment (marking), i.e. an indication of the corresponding accounts on which the records of business transactions, drawn up by these documents, should be made.

The use of computer technologies and software tools makes it possible to create an electronic document management system. In these cases, primary documents are placed not in files and directories, but (by analogy with ordinary documents) in electronic folders, shelves, cabinets and sections. To quickly find the necessary documents, a special search system is used, the control points of which are the date the document was compiled, keywords, the name of the organization and other parameters.

Used documents are handed over to the archive for storage. The documents in the archive serve as the basis for documentary audits of organizations, audits, are used as legal evidence in resolving disputed cases with different organizations and individuals, as well as for various references. In this regard, the storage of documents should be organized in such a way as to ensure their safety and speed of finding.

Fully processed documents are stored until the end of the reporting year in the archive of the accounting department, and then transferred to the archive of the organization. For filing into the archive, accounting documents are arranged in chronological order, in separate folders by type of transactions (cash transactions, transactions on current accounts, etc.). The transfer of documents to the archive is recorded in a special archive book.

In the archive of the organization, accounting documents are stored within the time limits established by the Federal Archival Service. The minimum period of storage of accounting documents in the archive of the organization is 5 years. For individual documents, other storage periods are established. For example, the personal accounts of employees of an organization must be kept for 75 years, a power of attorney for receiving funds and inventory items - 3 years, etc.

After the expiration of the storage period, especially important documents are handed over to the local State Archives, and the rest are destroyed. The transfer of documents to the State Archives is noted in the archive book with reference to documents certifying this transfer.

The seizure of primary documents from an organization is permitted only by the bodies of inquiry, preliminary investigation, the prosecutor's office and the courts, the tax inspection on the basis of a resolution of these bodies in accordance with the current Russian criminal procedure legislation. The seizure of documents is drawn up in a protocol, a copy of which is handed over against receipt to the head of the organization and the chief accountant. The chief accountant or other official has the right, with the permission and in the presence of representatives of the bodies that seize documents, to remove copies from the documents indicating the grounds and date of the seizure.

In case of loss or destruction of accounting documents, the head of the organization appoints a commission to investigate the reasons for the loss or destruction of documents. In necessary cases, representatives of the investigative security authorities and the State Fire Supervision are invited to participate in the work of the commission, which is stipulated in the order. The results of the commission's work are formalized by an act, which is approved by the head of the organization.

Registration of economic management

To register the right of economic management or the right of operational management, legal entities submit the following documents to the registering authority:

1. Identity document of the applicant (passport).
2. A document confirming the payment of the state duty (the state duty is paid by a legal entity by bank transfer, a payment order is submitted to the registering authority).
3. Documents confirming the authority of the representative of the legal entity to act on behalf of the legal entity (notarized power of attorney).
4. Constituent and other documents confirming the legal capacity of a legal entity (notarized copies of the charter, certificates of assignment of the OGRN and TIN, document on the appointment of the head).
5. Documents confirming the assignment of property to an enterprise or institution on the basis of economic management or operational management: the owner into legal force, a judicial act, an agreement on the acquisition of property under a sale and purchase agreement, an act of putting an object into operation, permission to put an object into operation, etc.).
6. A document confirming the transfer of property by the owner to an enterprise or institution of property on the basis of the right of economic management or operational management.
7. The plan of the real estate object in the case of state registration of the previously arisen right of economic management or the right of operational management.
8. Passport of a cultural heritage object, a security lease, a security agreement or a security obligation - if the property is a cultural heritage object; the conclusion of the historical and cultural expertise - if the object is an identified object of cultural heritage.

State registration of the right of economic management or operational management of real estate acquired by an enterprise or institution is carried out only simultaneously or after state registration of the ownership right of the founder of the enterprise or institution to the acquired property in the Unified State Register of Rights (USRR).

State registration of the right of economic management or operational management of real estate can be carried out in the absence of rights in the Unified State Register only if the ownership right of the founder of an enterprise or institution arose earlier.

Original documents are submitted for registration.

Objects of economic management

Any property can be an object of economic management, unless otherwise provided by law:

1. The property of the enterprise consists of fixed assets and circulating assets, as well as values, the value of which is reflected in the independent balance sheet of the enterprise (clause 1 of article 10 of the Decree on the state enterprise).

2. Any property can be an object of the right of economic management, if the legislation or special legal capacity does not provide for direct restrictions. It follows from this as one of the conclusions that, as a rule, only the property that is necessary for it to ensure the activities stipulated by its statutory goals, or turned out to be a product of this activity (Article 20 of the Decree about a state enterprise).

3. Land plots, mineral resources, water, forests and some other property are not subject to economic management. Land plots and subsoil may be in the use of the enterprise within the limits established by the relevant special legislation.

4. Income received by the enterprise from the performance of activities prohibited by legislation, not provided for by its charter and for which it has not received permission from the authorized body, as well as income received as a result of overstating the established prices for the goods (work, services) sold, are subject to seizure, respectively, in republican or local budgets by decision of an authorized or other competent authority (article 14 of the Decree on state enterprise).

Transfer of property to economic management

The right of economic management is the limited right to own, dispose and use the property provided to them by state and municipal unitary enterprises, incl. the right to receive part of the profit from the use of property. For example, on the basis of the right of economic management, real estate is transferred to housing and communal services, in particular, housing stock, communications and other property.

A unitary enterprise on the basis of clause 1 of Art. 2 of Federal Law No. 161-FZ "On State and Municipal Unitary Enterprises" (hereinafter - Federal Law No. 161-FZ), a commercial organization is recognized that is not endowed with ownership of the property assigned to it by the owner. Only state and municipal enterprises can be created in the form of unitary enterprises. The property of a unitary enterprise belongs to the ownership of the Russian Federation, a constituent entity of the Russian Federation or a municipal formation.

In the article we have already said that according to paragraph 1 of Art. 131 of the Civil Code of the Russian Federation, the right to economic management is subject to state registration.

The procedure for state registration of rights to property provides for Art. 8.1 of the Civil Code of the Russian Federation.

The right of economic management or the right of operational management of property, in respect of which the owner has made a decision to assign it to a unitary enterprise or institution, arises from this enterprise or institution from the moment of transfer of property, unless otherwise provided by law and other legal acts or by a decision of the owner, which is determined by clause . 1 tbsp. 299 of the Civil Code of the Russian Federation.

At the same time, the right to property assigned to a unitary enterprise on the basis of the right of economic management by the owner of this property, in accordance with paragraph 2 of Art. 11 of Federal Law N 161-FZ, arises from the moment such property is transferred to a unitary enterprise, unless otherwise provided by federal law or established by the owner's decision to transfer property to a unitary enterprise. The transfer of property to economic management is carried out according to the act of acceptance and transfer of property in the value appraisal of the property approved by the founder, as stated in the Letter of the Ministry of Finance of Russia N 03-06-01-04 / 373.

Thus, when an organization receives real estate for operational management from the owner of the property, the reflection in the accounting of real estate should be carried out on the date of signing the act of acceptance and transfer of real estate, and not on the date of state registration of such a right.

Business entity

The list of subjects of the law of economic management and its closedness

The essence of the right of economic management will not be fully disclosed if we do not consider the subjects that may have this right. The legislator in this case specifically defines that the subjects of economic management rights can only be legal entities and, moreover, not any, but only existing in special organizational and legal forms - "unitary enterprises", which, according to paragraphs 1.2 of Article 113 of the Civil Code, are commercial organizations and can be created only on the basis of state and municipal property. The founder of such enterprises, in accordance with clause 1 of article 114 of the Civil Code, is the state or local government represented by its authorized bodies.

Therefore, it should be recognized that the subjects of the right of economic management under the current legislation can only be a state or municipal unitary enterprise as a kind of commercial organizations. Hence, in accordance with Article 294 of the Civil Code, a generalizing definition of the right of economic management can be given.

The right of economic management is the right of a state or municipal unitary enterprise to own, use and dispose of the property of the owner, within the limits established by law or other legal act. Thus, the right of economic management is also limited in the sense of the regulation of its legal bearers, that is, it is not general as, for example, the right to property. (After all, any citizen, any legal entity can have the right of ownership). The concept of the right of economic management does not exist without specifying a specific, moreover, determined by the legislator, the owner of this right.

Competence of subjects of the law of economic management

Since the property transferred to a unitary enterprise on the basis of the right of economic management is removed from the actual possession of the founding owner and is credited to the balance sheet of the enterprise, the owner himself can no longer exercise in relation to this property, at least, the powers of ownership and use (and to a large extent - and the power of the order). It should also be borne in mind that with the property held by the enterprise on the basis of the right of economic management, they are responsible for their own debts and are not responsible for the obligations of the owner who created them (clause 5 of article 113 of the Civil Code), since it becomes (a binding procedure) “distributed »State or municipal property (paragraph 1, clause 4, article 214, paragraph 1, clause 3, article 215 of the Civil Code).

With respect to such property, the founding owner retains the powers provided for in paragraph 1 of Article 295 of the Civil Code, that is, he has the right to create a non-owner enterprise (including the appointment of a director, approval of the charter, subject matter and goals of the created enterprise); reorganize and liquidate it; exercise control over the intended use and safety of the property belonging to the enterprise (in particular, carrying out periodic inspections of its activities); receive part of the profit from the use of the property transferred to the enterprise. Despite the fact that this power was assigned to the owner by Art. 5 of the Law of the RSFSR "On Property in the RSFSR", in practice it has not received wide distribution. This, however, does not mean that the owner, or the body authorized to act on his behalf, will not resort to concluding agreements (including conditions in the constituent documents) on transferring part of the profit to the owner.

At the same time, it is also impossible to talk about complete independence and freedom of a unitary enterprise beyond the listed powers and capabilities of the owner of the property. This applies primarily to the right of an enterprise to dispose of property. If in the previous law on property the rules on the right of ownership were applied to the right of full economic management (Article 5, Clause 2 of the Law on Property in the RSFSR), now from the powers of disposal in accordance with Clause 2 of Article 295 of the Civil Code we considered earlier the possibility of independent, without the prior consent of the owner (represented by the relevant committee for property management, if we are talking about state property), the disposal of real estate.

As for movable property, the enterprise disposes of it independently, unless the law or other legal act provides for appropriate restrictions (paragraph 2 of paragraph 2 of article 295 of the Civil Code). Thus, even under a legal act of the federal government, it is possible to restrict the right of a unitary enterprise to dispose of state or municipal property assigned to it on the basis of the right of economic management, including movable property. However, outside the limits stipulated by law and other legal acts, an enterprise has the right to independently use monetary funds, movable property as a contribution to the authorized (pooled) capital, as well as to pay for the shares of the created company or to acquire an existing joint-stock company at its discretion.

Along with this, the Code does not provide for the possibility for the founder-owner to arbitrarily restrict the powers to own, use and dispose of the property assigned to a unitary enterprise, in particular, to seize it without the consent of such an enterprise (unless we are talking about its liquidation or reorganization). Such restrictions, in any case, cannot be established by other (subordinate) legal acts (clause 5 of article 3 of the Civil Code). To this end, the legislator equalizes the rights of non-owners and owners to protect their property rights (Article 305 of the Civil Code). An important element of the enterprise's powers is the fact that the right to own, use and dispose of property that is on the right of economic management of the enterprise remains in the event of a change of owner (clause 1 of article 300 of the Civil Code).

In addition, the legislation allows an enterprise to independently dispose of the property entrusted to it in terms of granting the right to create another unitary enterprise (subsidiary) as a legal entity by transferring part of its property to it in accordance with the established procedure, to approve the charter of a subsidiary and to appoint its head (p. .7 Article 114 of the Civil Code).

In general, the legal status of unitary enterprises, in addition to the Code, is regulated by the corresponding law on state and municipal unitary enterprises, which has not yet been adopted by the State Duma of the Russian Federation.

Termination of the right of economic management

I understand that the topic of termination of economic management, on the one hand, is not new, on the other hand, due to the draft amendments to the Civil Code, it is not very relevant, but I would like to discuss this.

One of the grounds for the termination of the right of economic management is the lawful seizure of real estate from an enterprise by the decision of the owner (clause 3 of article 299 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation)).

Clause 3 of Art. 299 of the Civil Code of the Russian Federation also provides for other methods of termination of the right to economic management of property on the grounds and in the manner prescribed by civil law for the termination of property rights.

So, according to paragraph 1 of Art. 235 of the Civil Code of the Russian Federation, the right of ownership is terminated when:

Alienation by the owner of his property;
- refusal of the owner from the right of ownership;
- loss or destruction of property;
- loss of ownership of property in other cases provided for by law.

Applicable to clause 1 of Art. 235 of the Civil Code of the Russian Federation to the termination of the right of economic management, it follows that the rightholder of the real right can waive his right.

The Office of Rosreestr in Moscow, in most cases, carried out state registration of the termination of the right of economic management both in the event of the seizure of property by the decision of the owner, and in the event of the refusal of the unitary enterprise from the right of economic management.

At the same time, numerous judicial practice has formed a different position regarding the termination of the right of economic management in connection with the seizure of immovable property by the decision of its owner, as well as in the event of the refusal of a unitary enterprise from property rights.

Clause 40 of the Resolution of the Plenum of the Armed Forces of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 6/8 "On some issues related to the application of part one of the Civil Code of the Russian Federation" established that when resolving disputes, it is necessary to take into account that the owner (the body authorized by him) is not entitled to seize, lease or otherwise dispose of property that is under the economic jurisdiction of a state (municipal) enterprise. Acts of state bodies and local self-government bodies on the disposal of property belonging to state (municipal) enterprises on the basis of the right of economic management according to the requirements of these enterprises must be recognized as invalid.

Paragraph 3, clause 5 of the Resolution of the Plenum of the RF Armed Forces and the Plenum of the Supreme Arbitration Court of the RF No. 10/22 provides the following: the owner, having transferred the property to a unitary enterprise, is not entitled to dispose of such property, regardless of the presence or absence of the consent of such an enterprise.

Rosreestr carries out its activities in accordance with the Civil Code and the Registration Law; its activities must, among other things, ensure the stability of civil turnover.

However, as follows from judicial practice, state registration of the termination of the right of economic management on the basis of the refusal of a unitary enterprise from the right, as well as the seizure of property by the owner, is subsequently recognized as illegal, violating the norms of law.

So, the resolution of the FAS MO in case No. А40-11781 / 07-101-26 established the following: "... in accordance with the provisions of the Civil Code of the Russian Federation, as well as Federal Law No. 161-FZ" On State and Municipal Unitary Enterprises ", the owner of the property of a unitary enterprise formed on the right of economic management, is not entitled to seize property from such an enterprise.

Taking into account the provisions of Art. 295, paragraph 2 of Art. 296 and clause 3 of Art. 299 of the Civil Code of the Russian Federation, the seizure of excess, unused or misused property is allowed only in relation to property assigned to a state-owned enterprise or institution on the basis of operational management.

In addition, the voluntary refusal of the enterprise from the property assigned to it on the basis of the right of economic management is not allowed by virtue of the provisions of paragraph 3 of Art. 18 of Law No. 161-FZ "On State and Municipal Unitary Enterprises", which directly obliges an enterprise to dispose of its property only within the limits that do not deprive it of the ability to carry out activities, goals, subject, the types of which are determined by the charter. Meanwhile, the property directly intended for the implementation of statutory activities was withdrawn from the unitary enterprise.

In connection with the above, the court of cassation ruled that, in accordance with Art. 168 of the Civil Code of the Russian Federation, a transaction on termination of the right of economic management of a state enterprise by property is void, regardless of whether it was made on the initiative of the enterprise or by decision or with the consent of the owner. "

By ruling by the Supreme Arbitration Court of the Russian Federation No. VAS-15183/10, the court, having established the unlawfulness of the withdrawal of the disputed building from the economic jurisdiction of the plaintiff, satisfied the claims of the bankruptcy administrator of the state unitary enterprise for the recognition of the right of economic management to an immovable object. Since in Art. 295 of the Civil Code of the Russian Federation, which determines the rights of the owner in relation to property under economic jurisdiction, it is not provided otherwise, the owner, having transferred the property into the possession of a unitary enterprise, is not entitled to dispose of such property, regardless of the presence or absence of the consent of such an enterprise.

Taking into account the indicated judicial practice, it turns out that the owner, having transferred the property into the possession of a unitary enterprise, is not entitled to dispose of such property, regardless of the presence or absence of the consent of such an enterprise.

In this connection, colleagues, I ask you to express your opinion on the issue of the possibility of confiscating property from a unitary enterprise, confiscation with its consent, refusal of the enterprise from the right.

In accordance with Art. 294 of the Civil Code, the right of economic management is the right of a state or municipal unitary enterprise to own, use and dispose of the property of a public owner within the limits established by law or other legal acts.

At the same time, the property of this enterprise, on the direct instruction of the law, belongs entirely to its owner-founder (clause 4 of article 214, clause 3 of article 215 of the Civil Code) and is not divided in any part.

Subjects this right can only be state or municipal unitary enterprises

Object of this right is a property complex (Article 132 of the Civil Code), which is on the balance sheet of an enterprise as an independent legal entity.

Since the property transferred to a unitary enterprise on the basis of the right of economic management is removed from the actual possession of the founding owner and is credited to the balance of the enterprise, the owner himself can no longer exercise in relation to this property, at least, the powers of ownership and use (and to a certain extent, the right orders).

It should be borne in mind that the property held by enterprises on the basis of the right of economic management, they are responsible for their own debts and are not responsible for the obligations of the owner who created them, since it becomes "distributed" state or municipal property. Therefore, the owner - the founder of the enterprise (the body authorized by him) under no circumstances has the right to seize or otherwise dispose of the property (or any part of the property) of a unitary enterprise, which he has on the right of economic management, while this enterprise exists as an independent legal entity.

In relation to the property transferred to the enterprise founding owner retains only certain powers directly provided for by law (clause 1 of article 295 of the Civil Code). He has the right:

Create a non-owner enterprise (including defining the subject matter and objectives of its activities, i.e. the scope of legal capacity, approval of the charter and appointment of a director);

Reorganize and liquidate it (only in this situation it is allowed to seize and redistribute the property transferred by the owner to the enterprise without the consent of the latter, but, of course, in compliance with the rights and interests of its creditors);

Exercise control over the intended use and safety of the property belonging to the enterprise

Fourth, to receive part of the profit from the use of the property transferred to the enterprise.

The specific procedure for exercising these rights is provided for by a special law on state and municipal unitary enterprises.

Upon the transfer of ownership of a state or municipal enterprise as a property complex to another owner of state or municipal property, such an enterprise retains the right of economic management or the right of operational management to the property belonging to it.

The statutory fund of a state or municipal enterprise determines the minimum size of its property, which guarantees the interests of the creditors of such an enterprise. The authorized capital of a state or municipal enterprise can be formed at the expense of money, as well as securities, other things, property rights and other rights that have a monetary value. The size of the statutory fund of a state or municipal enterprise is determined in rubles. The size of the authorized capital of a state enterprise must be at least five thousand times the minimum wage established by federal law on the date of state registration of a state enterprise. The size of the authorized fund of a municipal enterprise must be at least one thousand of the minimum wages established by federal law on the date of state registration of the municipal enterprise.

The procedure for the formation of the authorized capital. The statutory fund of a state or municipal enterprise must be fully formed by the owner of its property within three months from the date of state registration of such an enterprise. The statutory fund is considered formed from the moment the corresponding sums of money are credited to the bank account opened for this purpose and (or) the transfer, in the established manner, to the state or municipal enterprise of other property assigned to it on the basis of the right of economic management, in full.

Increase of the statutory fund An increase in the statutory fund of a state or municipal enterprise is allowed only after its formation in full, including after the transfer to a state or municipal enterprise of real estate and other property intended to be assigned to it on the basis of the right of economic management. An increase in the authorized capital of a state or municipal enterprise can be carried out at the expense of the property additionally transferred by the owner, as well as income received as a result of the activities of such an enterprise. The decision to increase the authorized capital of a state or municipal enterprise can be made by the owner of its property only on the basis of the data of the approved annual financial statements of such an enterprise for the past financial year. The size of the authorized capital of a state or municipal enterprise, taking into account the size of its reserve fund, cannot exceed the value of the net assets of such an enterprise.

Reduction of the authorized capital. The owner of the property of a state or municipal enterprise has the right, and in the cases provided for by this article, is obliged to reduce the authorized capital of such an enterprise. The authorized capital of a state or municipal enterprise may not be reduced if, as a result of such a decrease, its size becomes less than the minimum size of the authorized capital determined in accordance with this Federal Law. Reserve fund and other funds of a unitary enterprise. A unitary enterprise, at the expense of the net profit remaining at its disposal, creates a reserve fund in the manner and in the amount provided for by the charter of the unitary enterprise. The funds of the reserve fund are used exclusively to cover losses of a unitary enterprise. A unitary enterprise at the expense of net profit also creates other funds in accordance with their list and in the manner provided for by the charter of the unitary enterprise. The funds credited to such funds can be used by a unitary enterprise only for the purposes determined by federal laws, other regulatory legal acts and the charter of the unitary enterprise.

The procedure for the realization by the owner of the property of a unitary enterprise of the right to profit from the use of property belonging to the unitary enterprise. The owner of the property of a state or municipal enterprise has the right to receive part of the profit from the use of property that is in the economic jurisdiction of such an enterprise. A state or municipal enterprise annually transfers to the appropriate budget a part of the profit remaining at its disposal after paying taxes and other obligatory payments, in the manner, in the amount and within the time limits determined by the Government of the Russian Federation, authorized state authorities of the constituent entities of the Russian Federation or local self-government bodies ...

Disposal of the property of a state or municipal enterprise. A state or municipal enterprise disposes of movable property belonging to it on the basis of the right of economic management independently, with the exception of cases established by this Federal Law, other federal laws and other regulatory legal acts. A state or municipal enterprise does not have the right to sell its real estate, lease it, pledge it, make a contribution to the authorized (joint-stock) capital of a business company or partnership, or otherwise dispose of such property without the consent of the owner of the property of a state or municipal enterprise. A state or municipal enterprise disposes of movable and immovable property only within the limits that do not deprive it of the opportunity to carry out activities, goals, subject, the types of which are determined by the charter of such an enterprise. Transactions made by a state or municipal enterprise in violation of this requirement are void. A state or municipal enterprise is not entitled, without the consent of the owner, to conclude transactions related to the provision of loans, guarantees, receipt of bank guarantees, with other encumbrances, assignment of claims, transfer of debt, as well as conclude simple partnership agreements. The charter of a state or municipal enterprise may provide for the types and (or) size of other transactions, the conclusion of which cannot be carried out without the consent of the owner of the property of such an enterprise. A state or municipal enterprise that is a lessee of a land plot in state or municipal ownership is not entitled to:

1) sublease such a land plot;

2) transfer their rights and obligations under the lease to other persons (we transfer);

3) to give lease rights as a pledge;

4) make rental rights as a contribution to the authorized capital of business partnerships and companies or as a share contribution to a production cooperative.

From the authority of the order in accordance with paragraph 2 of Art. 295 of the Civil Code now directly withdrawn the possibility of independent disposal of real estate, without the prior consent of the owner (represented by the relevant committee for property management). Sale, lease or pledge, making as a contribution to the authorized or share capital of companies and partnerships and other forms of alienation and disposal of real estate of a unitary enterprise without the consent of the owner are not allowed.

As for movable property, the enterprise disposes of it independently, unless appropriate restrictions are provided for by law or other legal act. The law, however, also does not provide for the possibility for the founder-owner to arbitrarily restrict the powers to own and use the property assigned to a unitary enterprise, in particular to seize it without the consent of such an enterprise (unless it is a question of its liquidation or reorganization). In any case, such restrictions cannot be established by departmental regulations.

The right of economic management is preserved during the transfer of a state or municipal enterprise from one public owner to another (which also reveals its property-legal nature). When the ownership of the respective property complex is transferred to a private owner, we should talk about the privatization of this property, in which the non-owner enterprise is usually transformed into a joint stock company, which, in turn, excludes the preservation of the right of economic management.

The right of economic management and the right of operational management do not belong to the category of classical property rights. The standards existing today have a significantly reduced scope in comparison with their prototypes. Thus, the possibility of abuse of economic freedom is limited.

The right of economic management belongs only to unitary and state enterprises. Their object can be not only real estate, but also any other things that are necessary for the activities of the subjects. The right of economic management applies only to municipal or state property. The composition of the property is fixed in accordance with the procedure established by the owner. Its cost is calculated in accordance with the legislation on

The right of economic management is a right that is established by federal law. It cannot be amended on the basis of an agreement between the legal representative and the owner of his property. The right of economic management, which is vested with commercial organizations - unitary enterprises, has a fairly wide scope.

So, the right to use, as far as the possibility of appropriating the fruits and income from the use of property, is limited by the possibility of the owner receiving a part of the profit from this use.

The disposal of the property of a unitary enterprise is carried out within the framework that does not limit the conduct of its own statutory activities. It can only dispose with the consent of the owner. Also, consent is required when disposing of shares (contribution) in the joint (authorized) capital or shares. Transactions that were made in violation of the restrictions are void.

The specifics in accordance with which the right of economic management is exercised in relation to certain types of property located outside Russia (securities, real estate, shares and shares) can be established by the Government of Russia.

The termination of powers, as well as their occurrence, in accordance with the general rule, is directly related to the moment of transfer of property. We are talking about a certain property, in relation to which the authorized bodies representing the public owner decide on its assignment to a legal entity. Other moments at which these rights arise can be established in the decision on the transfer of property made by the public owner.

The emergence and termination of powers must be registered with the relevant government agencies.

The termination of the rights of economic management is carried out in accordance with the general grounds that are established for termination. In addition, there is a special basis for termination, in connection with a unilateral transaction of the owner - a decision on withdrawal (in accordance with the law). This procedure can take place in the event of the implementation of measures for reorganization or liquidation at a unitary enterprise.

Another specific reason for the termination of these rights may be the transfer of ownership to a private owner from a public one. This usually happens as a result of privatization. This ground is an exception to the rule.

One of the methods of exercising the authority to order is considered to be a waiver of the rights of economic management. It should be noted that the unilateral expression of the will of a legal entity is not enough to terminate the disposal of property. But this expression of will can become the basis for the owner to make a decision on the lawful seizure of property.

Hello Alexey!

I will supplement my colleagues with an example. It is mostly about trust management, but here it is clear what business management and operational management are.

2.2. Output
from judicial practice:
Property that is on the right of economic
management or operational management, cannot be transferred to a trust
control. Otherwise, the fiduciary agreement is
invalid (void).
Arbitrage practice:
Resolution
FAS of the East Siberian District of 03.06.2004 N
А78-3597 / 03-С1-5 / 73-Ф02-1958 / 04-С2
"... As can be seen from the materials
cases and established by the courts, in 2002 between the military unit
44413 (founder of the management) and LLC "Company" Vostochny
transit “(trustee) a trustee agreement was concluded
management of real estate N 68. Appendix N 1 contains the names and
characteristics of objects transferred under a trust management agreement,
34 items in total (case sheets 6 - 9, v. 1).
Satisfying claims about
recognition of the trust agreement N 68 null and void, by the courts
proceeded on the basis that, in accordance with paragraph 12 of Article 1



operational management. The contested contract does not comply with the requirements of Articles 1013,
1014, 1017

According to article 1014
Of the Civil Code of the Russian Federation, the founder of trust is
the owner of the property.
In accordance with paragraph 12 of Article 1
Federal Law "On Defense" property of the Armed Forces of the Russian
Federation, other troops, military formations and bodies is a federal
property and is with them on the basis of economic management or
operational management.
The courts have come to
the correct conclusion that, under contract No. 68, the founder of the trust
management of the disputed property was not the owner, but the military unit 44413,
for which, since 2003, only part of the disputed property has been assigned to
operational management, which contradicts the requirements of Article 1014
Of the Civil Code of the Russian Federation.
At the same time, the courts
proceeded from the fact that in accordance with paragraph 3 of Article
1013 of the Civil Code of the Russian Federation property,
which is under economic authority or operational management cannot be
transferred to trust management. Transfer to trust
property under economic control or operational management,
is possible only after the liquidation of a legal entity, in economic jurisdiction or
the operational management of which the property was located, or the termination of the right
economic management or operational management of property and its receipt
into the possession of the owner on other grounds provided for by law.
According to article 167
Of the Civil Code of the Russian Federation, if the transaction is invalid, each
of the parties is obliged to return to the other everything received under the transaction.
Decree of February 25, 2004
year of appeal of the Arbitration Court of the Chita Region in case N
A78-3597 / 03-C1-5 / 73 shall be left unchanged, and the cassation appeal - without
satisfaction ... "