Commercial name. Right to a company name and commercial designation

According to the law, a commercial organization is usually called entity which seeks to make a profit in the course of its activities. Forms commercial organizations can be very different, and, nevertheless, the essence of their existence will not change.

A commercial organization is an independent economic unit that can produce goods and services for consumption by society, and of course, to make a profit from its activities. Each of them complies with the norms established at the legislative level.

Basic concept and essence of a commercial enterprise

Depending on the goals, it is customary to distinguish between commercial and non-profit organizations. Some, in the process of activity, strive to obtain a high income, others provide services of a non-commercial, that is, non-profitable nature.

Those organizations that are classified as commercial are created solely to generate income. Moreover, the activities of such organizations are directly related to the sale of goods and services. Supply material resources, as well as trade and intermediary activities. According to current legislation, there may be several types of organizations, different in characteristics. Not every one of these can be considered commercial. It is necessary to highlight the main criteria according to which an organization can be considered commercial:

The main goal is profit

• The pursuit of the goal is to make a profit that fully covers expenses.
• Created in accordance with established legal norms.
• Upon receipt of profit, distributes it in accordance with the shares of the owners in authorized capital.
• They have their own property.
• They can be held accountable for their obligations.
• They exercise their rights and responsibilities independently, act in court, etc.

The main goals pursued by business entities conducting commercial activities include:

• Release of products or services that can compete in the market. At the same time, what is produced is constantly and systematically updated, has demand and production capacity for production.
• Rational use of resources. This goal is due to the fact that it affects the final cost of the product or service produced. Thus, due to a rational approach to use, the cost of products does not increase while maintaining high quality indicators.
• Business organizations systematically develop strategies and tactics that are adjusted depending on market behavior.
• Has all the conditions to ensure the qualifications of its subordinates, including growth wages, creating a favorable climate in the team.
• Conducts pricing policy in such a way that it corresponds to the market as much as possible, and also performs a number of other functions.

Finance of commercial organizations

As part of the creation of enterprise funds, finances are created and formed, which are based on the enterprise’s own resources, as well as attracting funds from outside, that is, investments. As a rule, the finances of each organization are closely related to cash flow.
It is generally accepted that the economic independence of each commercial enterprise is impossible without the implementation of the same type of characteristics in the field of finance. Thus, regardless of other entities, each business entity determines its expenses and sources of financing in accordance with current legislation.

It is important to note that finance carries two important functions, for the enterprise, namely:

• Distribution.
• Test.

Under the distribution function, the initial capital is executed and formed, which is based on the contributions of the founders. Capital is formed depending on the volume of their investment, and accordingly determines the rights of each of them in order to ultimately distribute legally received income, as well as the possibility and procedure for using such funds. Thus, at the enterprise, it turns out to influence the production process and the interests of each of the subjects of civil turnover.

The control function is designed to take into account the costs of production and the sale of manufactured goods or products, in accordance with their value and the costs of the product. Thus, it is possible to form and predict a fund of funds, including a reserve fund.

The finances of the enterprise must be under control, which is implemented through:

• Analysis at the enterprise itself, regarding its indicators for the execution of the budget and plan, the schedule for fulfilling obligations, etc.
• Control can be exercised directly by regulatory government bodies regarding the timely and complete calculation of tax obligations, as well as the correctness of their accrual.
• Other companies hired to perform the supervisory function. These could be various consulting companies.

Thus, by exercising control over financial indicators, it is possible to identify real result from conducting economic activity, make a decision regarding the feasibility of the chosen direction of activity, the quality of its conduct, as well as its continuation.

Otherwise, without proper control, any of the business entities may become bankrupt, having no idea in which of the articles it had a “hole”

Modern classification of activities

Today, commercial organizations are usually classified as follows:

• Corporations.
• State and .

It is important to note that the first group is corporations, these are those commercial enterprises, which are managed by the founders, as well as members of supreme bodies with corporate rights. At the same time, a large group of corporations may include business societies and partnerships, industrial enterprises, as well as farming enterprises.

The second group includes organizations that do not have ownership rights to property transferred by the owner. So they can't acquire corporate law on him. Such enterprises are created under the supervision of the state.

At the same time, the legislation defines the following forms of organizational and legal form:

• Full partnership. This form is characterized by the fact that it has a company charter, which is based on the contributions of the co-founders. Profit or loss borne by the partners of the general partnership is divided proportionally.
• Farming.
• Economic society.
• A company with additional responsibility. With this form of management, participants bear obligations, that is, each participant is responsible for obligations in accordance with their investment.
• Society with limited liability. This is an institution that has one or more persons at its head. It has constituent documents, but the number of its co-founders is limited to fifty.
• . This enterprise does not have property that would be assigned to it, because such enterprises are most often state-owned.
• Trading company or foreign company.
• Multinational enterprise.
• Joint-stock company. This form of business is determined by the authorized capital, which is divided depending on the participants. Each of them is not responsible for the obligations that arise in the course of activity. Profit is distributed in proportion to shares.
• Non-public joint stock company. Limited Liability Company.
• Production cooperative.

Difference between for-profit and non-profit organizations

In terms of business form, commercial and non-profit organizations differ. In particular, one of the most important differences is making a profit. So, it does not set such a goal, unlike a commercial one.

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The main criterion by which the classification of legal entities in Russian legislation is established in Art. 50 of the Civil Code, which considers commercial and non-profit organizations.

Both groups are full participants in civil circulation. However, there are significant differences between them, causing special legal status each.

Concept and main features of commercial organizations

The law does not contain the concept of a commercial organization, which is close to the scientific one, but its main features are formulated in Art. 48, 49 of the Civil Code, as well as in parts 1 and 2 of Art. 50 GK.

Signs of commercial organizations:

• The main goals of the activities of such legal entities are to make a profit. This means that the organization's charter must contain a corresponding provision. Officials may pay attention to its presence or absence during registration. Its absence serves as grounds for refusal.
• Commercial organizations, as a rule, have general legal capacity. This means that such legal entities have legal grounds to engage in any type of non-prohibited activity. The exception is municipal and state unitary enterprises. They can carry out actions within the framework of the purposes for which they are created. Legislation regulating the position of market participants in various fields economy, can also set restrictions. Examples can be found in financial sector. Organizations performing the functions of banks or insurance companies cannot engage in other activities.
• Mandatory state registration. Only after this does the legal entity become a participant in civil transactions.

The concept of a commercial organization

Characteristics of commercial organizations based on their main characteristics make it possible to formulate the concept of a given legal entity.

A commercial organization should be understood as a legal entity, main goal which is the extraction of profit, capable, as a rule, of carrying out any activity not prohibited by legal norms.

Concept and main features of non-profit organizations

The above articles of the Civil Code contain characteristics of commercial and non-profit organizations. This classification makes it possible to distinguish the latter according to a number of characteristics.

• The main distinguishing feature is the purpose of establishing non-profit organizations. Such a structure performs functions other than those of a commercial legal entity and they are not related to making a profit. The goals can be humanitarian, social, political and other aspirations.
• Non-profit organizations have limited legal capacity. It is determined by the purposes of creation. At the same time, entrepreneurial functions that meet this requirement are also possible.
• Another sign is the inability to distribute profits among the founders. If there is one, it serves as an additional financial basis to achieve the purposes for which such an organization was created.
• Special organizational and legal forms. As in the case of commercial legal entities, there is a closed list that defines the types of these organizations.
• To start activities, state registration is required. In some cases it is much more complex and involves large quantity necessary actions. An example is the registration of political parties carried out by the Ministry of Justice.

Non-profit organization concept

The provisions of the law characterizing these legal entities allow us to derive the most complete concept.

Non-profit organizations should be understood as those registered in in the prescribed manner legal entities of certain organizational and legal forms, the goals of which are to achieve results in the social, humanitarian, political and other spheres not related to profit-making, capable of performing functions within the specified framework and not distributing the received financial resources between the founders.

How to distinguish a commercial organization from a non-profit?

This classification of legal entities can be carried out according to their main characteristics.

The characteristics of for-profit and non-profit organizations provide a clear picture of how one differs from the other.

Differences can be found in the text of the constituent document. Comparing their initial sections will help establish the goals for creating organizations. The difference will be the presence or absence of profit as the main one.

However, not every citizen has access to documents from organizations. In this case, types of organizational and legal forms will help. It is by their name that an organization can be classified as commercial or non-profit.

Forms of commercial organizations

The list of types of commercial organizations is given in Part 2 of Art. 50 GK. These include:

• Economic societies. This is the most common form. Among them there are joint stock companies, including public and non-public (PJSC and CJSC, respectively) and limited liability companies.
• Producer cooperatives. Their peak occurred during the perestroika years. However, today this is a rare type of commercial organization.
• Business partnerships, even less common are production cooperatives.
• Business partnerships.
• Municipal and state unitary enterprises.
• Peasant (farm) farms.

Forms of non-profit organizations

The legislation provides a large number of forms of such legal entities (Part 3 of Article 50 of the Civil Code). Therefore, it is easier to act by elimination.

Non-profit organizations should include all legal entities that are not commercial. In practice, such forms as political parties, foundations, public organizations, consumer cooperatives, homeowners' associations, bar associations and education.

LLC in accordance with the Civil Code of the Russian Federation and the Law on Limited Liability Companies (hereinafter referred to as the LLC Law) Federal Law “On Limited Liability Companies” dated 02/08/1998 No. 14-FZ (as amended on July 11, December 31, 1998, 21 March 2002) clause 1. Art.2. Chapter 1. A business company is recognized, the authorized capital of which is divided between participants into shares of sizes determined by the constituent documents. Its participants bear the so-called limited liability for the activities of the company, i.e. they are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of the contributions they made. The law allows a company participant to pay the due share in the authorized capital over a certain time, and not at a time.

In this case, participants who have not fully contributed to the authorized capital of the company bear joint liability for its obligations to the extent of the value of the unpaid part of the contribution of each of its participants. This type corporations are an invention of German lawyers, made in late XIX century and caused by the requirements of practice, which showed the insufficient elasticity of joint-stock companies. Participants in the company have only obligatory, but not real rights to property in relation to it. A company participant can claim his property only in cases of its liquidation, upon his withdrawal from it and other cases when it must make settlements with him, for example, in the event of failure to obtain consent from the remaining participants in the company to alienate a share to another participant.

LLC is a commercial organization, making profit for it is the main goal of its activities. This means that it can carry out any type of business activity, unlike non-profit organizations that have the right to conduct entrepreneurial activity only insofar as it serves the purposes for which they were created. Certain types of activities, the list of which is determined federal laws, the company can engage in activities only on the basis of a special permit (license). The types of activities subject to licensing are determined by the Federal Law “On Licensing individual species activities." Federal Law “On Licensing of Certain Types of Activities” dated 08.08.2001 No. 128-FZ (as amended on March 13, 21, December 9, 2002, January 10, February 27, March 11, 26, December 23, 2003, November 2, 2004) art. 17. If the conditions for granting a special permit (license) to carry out certain type activity provides for the requirement to carry out such activities as exclusive, then the company during the validity period of the special permit (license) has the right to engage only in such types of activities that are provided for by the special permit (license) and related types of activities.

LLC is considered created as a legal entity from the moment of its state registration. The legal capacity of a company ceases with its liquidation and the entry of this into the unified state register of legal entities. Unless other conditions are specified in the charter, the company operates without a time limit. The company is liable for its obligations with all its property and is not liable for the obligations of its participants. However, in certain cases there may be exceptions to this rule.

The LLC must have a full name in Russian and a postal address at which it can be contacted. Location of the company general rule determined by the place of its state registration. However, in constituent documents it may be established that it is the permanent location of its management bodies or the main place of its activities. The legislator obliges the company to use the words “limited liability company” or the abbreviation LLC in the full and abbreviated corporate name of the company, respectively, and allows the use of the name of the company in any language.

The Company has a number of characteristics that make it possible to establish its place among other business Partnerships and Societies.

Firstly, LLC, like all business partnerships and companies, is a legal entity. The features contained in the legal definition of a legal entity (Article 48 of the Civil Code of the Russian Federation) - organizational unity, the presence of proprietary rights to property, independent liability, acting in circulation in one’s own name, procedural legal personality - require different specifications for different forms of a legal entity. The only point common to all legal entities is the ability to speak outside on their own behalf.

Secondly, the lack of liability of the Company's participants for the obligations of the LLC. The very name “limited liability company” is not entirely accurate. Society bears full responsibility for its obligations with all the property belonging to it, and the participants do not bear any liability for the obligations of the Company, except in cases provided for by law.

In accordance with the Law on Companies, LLC can create branches and open representative offices by decision general meeting members of the LLC, adopted by a majority of at least two-thirds of the total number of votes of the LLC participants, unless the need for a larger number of votes to make such a decision is not provided for by the charter of the company. Creation of LLC branches and opening of their representative offices in the territory Russian Federation are carried out in compliance with the requirements of the Law and other federal laws, and outside the territory of the Russian Federation also in accordance with the legislation of the foreign state on the territory of which branches are created or representative offices are opened, unless otherwise provided by international treaties of the Russian Federation.

An LLC may have subsidiaries and dependent business companies with the rights of a legal entity, created on the territory of the Russian Federation in accordance with the Law and other federal laws, and outside the territory of the Russian Federation also in accordance with the legislation of the foreign state on the territory of which the subsidiary or dependent business company was created , unless otherwise provided by international treaties of the Russian Federation.

• 1. Participants of the Company who have not made full contributions bear joint liability for its obligations within the value of the unpaid part of the contribution of each participant (Clause 1, Article 87 of the Civil Code of the Russian Federation; Clause 1, Article 2 of the Law on Companies). The subjects of liability are all participants who have not fully made the contributions provided for by the constituent documents. Members of the company are responsible to the creditors of the Company, and not to the company. At the same time, the company itself has the right to demand that the participant fulfill his obligation - to make a contribution on time, in the prescribed manner and in the form in which it is provided for in the constituent agreement.
• 2. In accordance with clause 3. Art. 56 of the Civil Code of the Russian Federation and clause 3 of Art. 3 of the Law on Companies, if the insolvency of a legal entity is caused by its participants or other persons who have the right to give instructions mandatory for this legal entity or otherwise have the opportunity to determine its actions, such persons, in the event of insufficient property of the legal entity, may be assigned subsidiary responsibility for his obligations. The meaning of the norm is a certain compensation to creditors in the event that obligations were accepted on behalf of the Company, but the participant or other persons had the opportunity to give mandatory instructions or determine the actions of the legal entity. To impose subsidiary liability, the following conditions are required:

The legal basis for the ability to determine the actions of the Company is participation in the capital, providing a majority of votes compared to other participants, or the existence of an agreement on the obligation of instructions and the use of this opportunity.

• 3. In accordance with paragraph 2 of Art. 105 of the Civil Code of the Russian Federation and clause 3 of Art. 6 of the Law on Companies, the parent company, which has the right to give instructions to the subsidiary company that are obligatory for it, is jointly and severally liable with the subsidiary company for transactions concluded by the latter in pursuance of such instructions.
• 4. In the event of non-monetary contributions to the authorized capital of the Company, the Company’s participants and an independent appraiser, within three years from the date of state registration of the Company or corresponding changes in the Company’s charter, jointly and severally bear, if the Company’s property is insufficient, subsidiary liability for its obligations in the amount of the overvaluation of non-monetary contributions (clause 2 of article 15 of the Law on Companies).

Thirdly, a limited liability company is an organization that unites the property of its participants. Therefore, naturally, we should turn to the question of the features of the authorized capital, i.e. property. The presence of property ensures the property isolation of the company from its participants and independent responsibility. The company, even at its inception, must have a certain authorized capital, the amount of which is indicated in the constituent documents. Martemyanov V.S. Economic law. T. 1 - M., 2002. - P. 175.

The company, like other business partnerships and companies, has separate property transferred by the participants and received in the process of activity, and accounted for on an independent balance sheet (clause 2 of article 2 of the Law on Companies). An independent balance sheet reflects all property rights and obligations, revenues and expenses. The independent balance sheet includes the property of branches, representative offices and separate divisions.

Fourthly, the authorized capital of the company is divided into a certain number of parts (shares). The shares may be equal or unequal. By payment or obligation to pay these shares in a certain amount, the right to membership in the company is acquired. The authorized capital itself consists of the totality of contributions from participants.

The participant who made the contribution loses any real rights to the contributed property, acquiring rights of claim against the company. The size of the participant’s share determines the size (volume) of the participant’s legal obligations claims to the company. But in addition to rights, the share also determines the size of the participant’s obligation to society. Thus, a share of participation is a set of rights and obligations in a certain amount of each participant in relations with society, i.e., in a broad sense, a share is a complex legal rights and responsibilities; in a narrow sense - the share of participation of a participant in the property of the company Rosenberg V.V. Limited Liability Partnership. - SPb., 1999. - P. 27.. The meaning of the allocation of shares is the exercise by the participant of his rights to management, part of the profit, liquidation quota, receipt of the actual value of the share, as well as obligations to make a contribution in the amount determined by the size of the owned share in capital. A participation share in the form of a set of rights is a kind of counter-representation, an equivalent presented in an obligation in exchange for the participant’s contribution.

Fifthly, the presence of obligatory relations between the participants of the company. Internal relations in society consist of the relations of participants among themselves and participants with society. The fact of the existence of a constituent agreement signed by the participants implies the existence of rights and obligations of the participants in relation to each other for the entire period of operation of the company.

A limited liability company, although based on an association of capital (like any business company) and does not provide for the mandatory participation of the persons creating it in production and economic activities, commercial activities society, presupposes, at the same time, the establishment of closer corporate and economic ties between its participants and the company than, say, in a joint-stock company, which is manifested in: a special procedure for joining a limited liability company; the restriction permitted by law on the admission of new persons to its composition; the possibility of the company purchasing a share owned by a participant; the right of a participant to leave the company with payment to him of the actual value of his share and a number of other features characteristic of these structures. At the same time, limited liability companies are quite close to closed ones joint stock companies. These relations arise on the basis of a civil law contract, which is memorandum of association, bind certain persons and have as their content the obligation to perform active actions, i.e. these are typical obligatory legal relations.

Sixthly, the internal structure of society implies the need for governing bodies, whose actions are the actions of society itself. The totality of all participants forms only the highest body of the society, limited in its actions by the conditions contained in the constituent documents. Volobuev Yu.A. Limited Liability Company. - M.: “Filin”, 2004. - P. 19.

An LLC, like a joint-stock company, is a form of commercial organization, where the presence of a participant status does not mean the obligatory and necessary participation in the management of the company. As executive body of the company may be persons who are not members of the company, and the functions of the sole executive body may be transferred to the manager of a commercial organization or individual entrepreneur(Article 42 of the Law on Societies).

Seventhly, a company can be founded by one or more persons. However, the number of its founders cannot exceed more than fifty - the maximum number of participants established by clause 3 of Art. 7 of the Law on Societies. Moreover, society cannot have as its sole founder(participant) another business company consisting of one person (clause 2 of article 88 of the Civil Code, clause 2 of article 7 of the Law on Companies).

In paragraph 2 of Art. 2. The Law on Companies establishes the basic provisions necessary for a company to acquire the status of a legal entity:

a) a limited liability company owns separate property that is accounted for on its own balance sheet. The source of its formation is, as already noted, funds contributed by the founders (participants) of the company as a contribution to the authorized capital, as well as property acquired on other grounds provided by law - as a result of production, economic, commercial activities, etc. (Article 218-219 of the Civil Code).

As contributions to the property of a business company in accordance with Art. 27 of the Law on Companies may be amended cash and other material assets, as well as property or other rights that have a monetary value. At the same time, the company may own objects created by it in the course of its activities intellectual property- the right to industrial designs, certain technologies, trademark and etc.

b) the company may, in its own name, acquire and exercise property and personal moral rights, bear responsibilities. This is manifested in the exercise of the owner’s powers to own, use and dispose of property to meet their own needs, conduct production and economic activities, for charitable and other purposes. The company can enter into transactions for the alienation of its own property and the acquisition of new ones (purchase and sale agreements, exchange, donation); transferring your property for rent or temporary use (under a loan agreement); pledge it, make it as a contribution to the authorized capital of other business entities etc.

These rights are exercised by the company freely, except in cases where legislative restrictions apply. Yes, Art. 575 of the Civil Code does not allow commercial organizations to donate property to each other. Art. 690 of the Civil Code prohibits commercial organizations from transferring property for free use to a person who is a founder, participant in this organization, as well as its director, member of a collegial management or control body.

The company bears responsibilities related to the exercise of the rights of the owner - concerns about the maintenance of the property belonging to it (Articles 209, 210 of the Civil Code).

• c) another feature of a legal entity is the right to be a plaintiff and defendant in court. The right to judicial protection is provided for in Art. 11 Civil Code. The Company is independently responsible for its obligations except in cases established by law.
• d) society has organizational unity, which is manifested primarily in a certain hierarchy, subordination of the governing bodies that make up its structure, and in the clear regulation of relations between its participants. Thus, many persons united in society act in civil circulation as one person.

Being a commercial organization, the company in accordance with Art. 49 of the Civil Code and paragraph 2 of Article 2 of the Law on Companies has general legal capacity, that is, it can have civil rights and bear civil responsibilities necessary to carry out any types of activities not prohibited by law. Article 2 of the Law on Companies also notes that the activities of the company should not contradict the subject and goals specifically limited in the company’s charter. Such restrictions can be established in the charter by decision of either the founders (when creating the company) or the general meeting of participants (by introducing amendments and additions to the Charter), based on the purposes for which the company is being created. The execution of transactions by a company in conflict with the goals of its activities, which are definitely limited in its constituent documents, is the basis for the court to invalidate them at the request of this company, its founder (participant) or government agency supervising the activities of a given legal entity, if it is proven that the other party to the transaction knew or should have known about its illegality (Article 173 of the Civil Code).

What are commercial and non-profit organizations?

Commercial and non-profit organizations are essentially legal entities, thus being divided depending on the purposes of their creation. The former set their goal to receive profit from commercial activities and distribute it among the participants of the enterprise. The latter can also engage in business, but the profit in this case is spent on the purposes for which the legal entity was created and therefore cannot be distributed among its participants.

The activities of non-profit organizations are usually aimed at achieving social, educational, charitable, scientific and cultural goals, developing sports and meeting other needs of citizens.

Commercial and non-profit organizations. Forms.

The list of forms (types) of commercial organizations is exhaustive and is enshrined in Civil Code Russia. These include:

Business partnerships and societies. They are commercial organizations whose authorized capital is divided into contributions from participants.

Business partnerships are created in the forms of general partnership, as well as limited partnership. Members of the partnership have the right to participate in the activities of the organization. Profit is divided in proportion to shares. All participants in a general partnership are equal. They risk their property. A limited partnership is understood as a partnership in which, in addition to the participants carrying out activities aimed at making a profit on behalf of the partnership, who are liable for the obligations of the partnership with their own property, there is at least one who risks property, within the amount of the contribution, and does not take part in the implementation of the business. .

Production cooperatives.

Commercial organizations, which are associations of citizens on a voluntary basis, functioning for the purpose of joint production and other economic activities on the basis of membership. The property is formed from the shares of the members of the cooperative.

The list of non-profit organizations may be supplemented. Non-profit organizations are created in the form of: religious and public associations and organizations consumer cooperatives, institutions, non-profit partnerships, associations and unions, foundations, etc.

The activities of non-profit organizations are limited (charter and constituent agreement), they are directly stated in them and cannot go beyond their limits.

Commercial and non-profit organizations are considered created from the moment of state registration. registration. At the same time, non-profit organizations operate without restrictions on the duration of their activities and subsequent re-registration is not required.