The concept of the development of civil legislation of the Russian Federation. Concept of development of legislation on legal entities

CONCEPT

Development of civil legislation of the Russian Federation

I. Introduction

1. The concept of the development of civil law of the Russian Federation (concept) was prepared on the basis of the Decree of the President of the Russian Federation of July 18, 2008 No. 1108 "On the improvement of the Civil Code of the Russian Federation".

2. The concept proceeds from the fact that during the past century since the beginning of the 1990s, in Russia, mainly, was economically, socially and logically reasonable and generally justified by modern civil legislation. The basis and core of this legislation was the Civil Code of the Russian Federation 1994 - 2006 (Civil Code, GC) - the system of principled and most important legal normswhich are largely common to the whole civil legislation, and in a certain part - for Russian legislation in general (norms on civil law constituent entities, ownership, on the protection of intangible goods, etc.).

The civil code of Russia has been checking the time, extensive practice of use (primarily by the courts) and an objective doctrinal assessment. Interests of the stability of civil law regulation and sustainability economic relations and civil turnover The country require maintaining the fundamental role of the GC in the system of civil legislation and careful preservation for the future of most of its norms. Therefore, the concept does not imply a new codification of domestic civil legislation, nor even the preparation new edition GK.

3. At the same time, since the beginning of the 90s, when existing civil legislation began to be created and when it was developed and adopted by the defining its fundamental content of part of the first GK (1994), there were important economic and social transformations in the country who did not receive due reflections in this legislation.

In 1992-1994, Russia still rose on the path of creating private property and a market economy, and although everything from civil legislation was eliminated by all that the planned-administrative regulation was eliminated property relations, Such regulation, which fully responded by the needs of a social state with a developed market economy, then could not be created. In particular, it affected the regulation of relations that form the statics of civil turnover, which make a "matrix" for its dynamic development - on the definition of organizational and legal forms and status of legal entities, species and content real rights on property. Almost beyond the GC, in the former Soviet tradition, there is regulation of civil relations on the property that makes up the basis of civil turnover - land and other natural resources. Moreover, regulation was very late and imperfect: the first Land Code of the Russian Federation was adopted only at the end of 2001 and over the past 7 years almost 40 times was subjected to serious changes.

Numerous, including serious economic offenses at the stage of the establishment of a market economy, often committed under the cover of civil law standards, revealed insufficient conditions for new conditions. Completion in the law of a number of classical civil law institutions, such as invalidity of transactions, creation, reorganization and liquidation of legal entities Legal interest, assignment of requirements and debt transfer, pledge, etc.

In the context of the democratic legal state, the freedom and multivariate of the economic behavior of participants in civil turnover from the very beginning were predetermined in the new civil legislation of Russia the diversity of these turnover of legal norms and used in it legal means. However, in subsequent years, the extensive practice of applying this legislation by the courts showed that many general provisions of GC need additions and detail, the absence of which cannot be replenished by a judicial interpretation.

In addition, the intensive development of the economy in general and the financial market in particular requires adequate to the development of regulation valuable papers and financial transactions. Scientific and technical progress in general and continuously growing opportunities to use information and telecommunication networks in particular, dictate the need for continuous improvement of legislation on rights to the results of intellectual activity ( intellectual Rights). Active and effective efforts undertaken in recent years within the framework of the European Union for the Development of Collineal Law, encourage comparable changes in domestic international private law.

4. The main objectives and corresponding to these goals are defined. main directions development of Russian civil legislation provided for by the concept. The basis of the formation of these areas in the concept is to identify and summarize the numerous specific needs of improving civil legislation. Wherein the main role in the implementation of such areas in the concept is given to the modernization of the Civil Code, First of all, its first part as a law defining the subject and principles of civil law and establishing the general and most important rules for civil law regulation. On the basis and taking into account the changes offered in the GC, a number of major changes in other federal laws are scheduled, including through the transformation of legal institutions and individual branches of legislation.

This approach complies with the decree of the President of the Russian Federation of July 18, 2008, which provides for development on the basis of the concept in 2009-2010 bills on amending the Civil Code (paragraph "A" of Article 3). Following this, during 2011-2012, a large amount of work should be done in line with the concept and with arising from it changes in the GC of an extensive array of Russian legislation.

5. To date, there is a need to make two principal changes of the systemic nature.

In the circle of relations regulated by civil law and the subject defining its subject (Article 2 of the Civil Code) should include corporate relations. This, to a certain extent conditional, the title is covered by a fairly clearly addicted group of intensively developing relations to create corporate entities, participation in them and related obligations related to such participation. The definition of corporate relations as a special subject of civil law regulation will contribute to the identification of stable patterns of their regulation and further crystallization of these patterns in the form of relevant general norms of civil law.

To no less need to create in the GC complex of interrelated institutes of Real RightsWith its basis, ownership and united by the overall system of common norms of real law. Despite the fact that in the conditions of a democratic society, a developed market and the legal state, these institutions should be the basis and core of the stability of civil law, in the current legislation, many of them are absent, and others are only outlined by "dotted" with serious distortions. In contrast to most developed Western law enforcement in russian legislation A system of stable real rights to land and other natural resources has been created. The implementation of the concept should lead to its creation, which will result in the redistribution of the relevant regulatory material between the GC and the comprehensive laws of native legislation.

6. The development of the economy and the formation of civil society requires the use of all possible measures and means of civil legislation in order to ensure conscientious and proper exercise of civil rights and the fulfillment of civil duties.

To this end, the concept provides a wide range of measures aimed at strengthening the moral principle of civil law regulation - Introduction to civil law principle of good faith In the quality of one of the most common and important principles of civil law, the concretization of deprived legal protection "Other forms of abuse of law", Introduction to the GC Institute Contribute responsibility According to the principle of Culpa in Contrahendo, significant Modification of many norms about the invalidity of transactions and etc.

The same goals should serve numerous steps outlined in the concept strengthening and improving the effectiveness of civil liability. Among many of the measures offered in the concept for this purpose solidarity responsibility persons constituting a legal entity (paragraph 3 of Article 53 of the Civil Code), the possibility "Removing corporate cover" under article 56 of the Civil Code, regardless of the inconsistency of a legal entity, the establishment of a legal entity for untimely and improper data actualization in Single Registry legal entities, significant strengthening the responsibility of banksfor improper settlements, liability without guilt for transmission of fake secularand etc.

The concept also contains a number of provisions about strengthening the compensatory function of civil lawThe value of which goes beyond civil liability and which is directed mainly to maintain a stable civil turnover. For this purpose, the introduction of general rules for the calculation and compensation of "abstract losses", on cases and conditions of compensation legitimately caused losses, etc.

7. The central place in the concept is occupied by provisions providing for the development and effective functioning of the economy further detailed development of civil lawBy replenishing the gaps that have discovered in it, transform into general norms (generalization) of a number of available private rules, replenishing legislation with new institutions, clarify the norms that allow ambiguous interpretation.

Thus, a number of new ones for the current legislation are proposed to introduce in Section II. Envisaged replenishment of GC Rules On public joint-stock companies, standards on the possibility and consequences of challenging the illegal reorganization of legal entities, the system of norms on non-documentary securities, about the pledge of rights under the bank account and contribution agreement, on "metal accounts" and the contract of deposit of precious metals, etc.

Particularly important for the development of civil law are the provisions of the Concept providing for creating new general rules in GC Either making a broader scope of the standards already installed earlier in the GC for certain types of relations. Essentially, should be re-created and placed in GK a common part of real law, general rules about state registration Property rights, securities and their appeal. Many rules are to be translated into general rules, as long as specially established for JSC or only for Ltd., the norms for the mortgage, which have already mentioned the rule of "abstract" loss, existing so far only for delivery relations, and many other special rules civil laws.

Very significant and, often, scrupulous detail concept proposes to expose many norms of the total communicative right. Almost all proposals on this subject, contained in the concept, are conclusions from the analysis of the extensive practice of applying the appropriate norms by arbitration courts or borrowing successful decisions found in the codification of the principles of contractual law under UNIDRA, in the European Union.

8. The concept is proposed to look somewhat somewhat on the ratio of private and public elements in civil law. The search for a balance between the specified elements is characteristic of the entire history of civil law. The concept offers its vision of this balance based on the achievements of the European Doctrine of Private Law and take into account the domestic realities, which are reflected in judicial practice.

In some cases, it is proposed to abandon public elements of regulating in favor of private-planning approaches. These are the proposals for refusal to sanction a confiscation nature contained in Article 179 of the Civil Code and the restriction of the scope of similar sanction for anti-belative transactions (Article 169 of the Civil Code). This also includes rules that make agreements of participants in economic societies. It is also directed to the restriction of the circle of insignificant transactions, the shift of the emphasis on the challenge of transactions when the deprivation of them legal force Depends on the private will of participants of the legal relationship.

However, this does not mean that the concept is focused only on the strengthening of the private component. In the common interests of all participants in civil turnover, in the interests of society as a whole, the influence of the state and as a legislator, and as a judiciary on the content and state of civil law and order in the country should be significantly enhanced. For a number of issues, it is proposed to tighten the regulation, giving it greater imperativeness. This is especially manifested in the real and corporate law. The proposed property protection, clear rules on the ways to protect real rights and other proposals on the problems of real rights are directed, first of all, on the creation of a regulatory system in which freedom of the discretion of the parties is limited in the interests of the stability of turnover and the predictability of legal goods belonging. In the corporate right, it is proposed to tighten the requirements for registering legal entities, requirements for the types and size of contributions to the authorized capital, to allow the use of corporate forms that limit the responsibility of the founder on the debts of a legal entity only under the condition of the significant contribution of the founder to the authorized capital.

At the same time, the concept proceeds in general from the fact that civil law is the right private, and the private regulatory method should prevail in it, which does not exclude the use of funds for public (administrative, criminal) law provided for by the relevant legislation.

9. In a special direction proposed by the concept of the development of civil legislation, it is possible to distinguish those of which direct goal of which is ensuring the stability of civil law regulation and the sustainability of civil turnover.

A number of such provisions of the Concept are aimed at streamlining the civil law system. It is proposed in principle to abandon the "three-level" system of civil laws, when between GK and its developing special laws are supposed to create a "layer" in the form of general laws (on the reorganization of legal entities, about property, etc.). It is necessary to reduce the number of laws on certain types of legal entities through the consolidation of a number of such laws (laws on JSC and LLC, laws on cooperatives) or even complete cancellation of certain laws with the transfer of individual standards to the GC (many laws on non-commercial organizations). It is necessary to streamline the legislation formed by the reduction of poorly agreed norms about the pledge, significant corrections are needed at the level of "Legal ABC" in the legislation on railway and inland water transport.

When improving the GC and other acts of civil law, it is necessary to pay attention to the clarity and clarity of the legal structures used. So, it is possible to abolish the construction of CJSC without prejudice to the case, it is advisable to establish an exhaustive list of organizational and legal forms commercial organizationsIn analyzing and correction, such organizational and legal forms of legal entities as "state corporation" and "state-owned" are needed.

10. When implementing the concept, all the steps arising from it under the change in GK and other acts of civil legislation should be made in such a way as not to create unnecessary obstacles and difficulties in their activities, their rights and performance of duties for participants in civil turnover. To implement new standards, transitional provisions provided by the necessary guarantees should be developed, including significant transitional periods.

II.. General provisions

Civil Code of the Russian Federation

1. Civil law

1.1. In modern civil law, the principles on which the civil law system is based on its effective and uniform use.

In the GC there is no indication on such general principle civil law as good luck. Participation of the behavior of individual legal relations found in the GC in accordance with the conscientiousness of the behavior of individual legal relations for effective legal regulation.

The principle of conscientiousness should be applied to actions (behavior) of turnover participants at: a) the establishment of rights and obligations (negotiating the conclusion of contracts, etc.); b) acquisition of rights and obligations; c) the rights and performance of duties; d) Protection of rights. The principle of good faith should be obeyed and assessing the content of the rights and obligations of the parties.

1.2. From the point of view of the subject of civil legislation, it is necessary to include in paragraph 1 of Article 2 of the GC, another group of relations regulated by civil law, namely corporate relationsSupported by relations related to the "right to participate" in the corporation, as well as the relevant obligations between the founders (participants) and the corporation.

The norms regulating corporate relations can also be applied on a subsidiary basis and to legal entities of an uncorruptive type, unless otherwise follows from the being of such relations.

1.3. In Article 5 of the GC, the custom of business turnover is named as a source of civil law. Meaning custom Widely applied not only in business activities, for example, in relations related to the definition of citizens of the procedure for using common property. In Article 5 of the GC, it is necessary to make appropriate additions.

2. The emergence of civil rights and obligations,

implementation and protection of civil rights

2.1. An important role associated with the strengthening of civil rights and obligations, giving them an open nature, performs the Institute state registration. Registration in some cases is one of the elements of civil rights and obligations.

In GC, it is advisable to include general provisions on state registration of property rights, uniforms for various objects, for which the right-point (non-accounting) registration is provided, establishing, in particular, the principles of registration: checking the legality of the foundations of registration, publicity registry, the presumption of its reliability; The rule that the right arises from the moment of registration of the right in the registry. Features of registration (primarily procedural) can be established by special laws relating to certain types of property.

In relation to the registration of rights to real estate Currently, not only property rights are subject to registration, but also some transactions with the specified property. It is advisable to eliminate the specified mixing of various registration systems and go to a genuine license system.

2.2. It is advisable to perceive experience judicial practice and detail in article 10 GK concept other forms of abuse of rightRelated to their number knowingly or obviously the unscrupulous behavior of the subject of law, action bypassing the law (imperative norms), etc. This Article Article may also be complemented by the Regulations that no one can benefit from their illegal or unfair behavior.

In the event of non-compliance with the rules for the preposition of abuse, the person who suffered from such abuse should have the right to compensation for damages caused to him in the manner prescribed by Articles 15, 1064 of the Civil Code.

2.3. The legislative procedure should resolve the foundations and procedure for compensation (compensation) paid for damage to personality or property caused by legitimate actionsWhen the law provides such a compensation.

3. Civil rights objects

3.1. A significant problem is associated with the concept of a thing consisting of parts, which in turn could be independent things. IN domestic legislation There are no rules that are found to foreign law enforcement, enshrine criteria in which the inclusion of one thing is part of another thing can mean the loss of the qualities of an independent object of rights at the first of them.

It is proposed to supplement article 133 of the Civil Code on the indivisible item by the rules defining the legal regime part of a complex thing. Such an integral part of the thing is advisable to consider everything that relates to its composition according to the ideas of civil turnover participants and cannot be separated from the thing without its destruction, damage or change its functional purpose. As an additional criterion, an approach should be provided according to which the temporary connection of things should not form a single complex thing and discontinue the rights to the connected things. Replacing one component parts of the thing by other does not entail the occurrence of a different thing, because the essential properties of the thing are preserved.

Following the introduction of the concept of an integral part of a complex thing, it is necessary to resolve the following relations:

- ownership of the thing, included as an integral part in another (main) thing, should be terminated without succession. The person whose ownership ceased, has the right to demand compensation for losses from the owner of the new (main) thing, unless otherwise provided by law;

- with the termination of the right of ownership to the thing should be terminated by other real rights to it, including the right of collateral; In order to protect the interests of the mortgagee, it may be provided for legislatively provisions that instead of a thing, the subject of pledge recognizes the right of demand that has arisen in the pledger to the owner of the new thing;

- the appeal of recovery on a complex thing is permissible only in general and on the debts of its owner; At the same time, in some cases, the rules of allocation from a complex thing of its separate component can be provided for a particular sale purposes;

- the allocation of a separate component should lead to the initial occurrence of ownership of the new thing; The specified right may arise from a person who belonged to a complex thing, or by the person who existed on legal grounds; In order to stability, turnover in some cases, the law may include that the new thing is the same encumbrances (for example, the right of collateral), which were established for a complex thing.

3.2. It is required to clarify the provisions of Article 128 of the Civil Code on such civil rights objects as money and securities. In particular, it is necessary to point out that the rules on things can be applied to non-cash money and non-documentary securities, unless otherwise established by law, other legal acts and does not follow from the creature of these objects.

3.3. From the list of real estate objects (paragraph 1 of Article 130 of the Civil Code) it is necessary to exclude air and Maritime Courts, Inland Space Courts, Space Objects. It is also necessary to eliminate the provision that the law to real estate can also be attributed to other property, in addition to the first paragraph of Article 130 of Article 130.

3.4. Practice has shown that article 132 of the Civil Code, by virtue of which enterprise as a property complex It should be considered as a real estate (real estate), was actually not implemented. The enterprise of the building, structure, structures are recorded as separate real estate objects, and the registration of the enterprise gives rise to difficult questions as real estate, which property is part of this real estate. For this reason, the company has practically retired from the turnover of real estate. In this regard, it is necessary to exclude from article 132 of the GC recognition of the enterprise as a whole as a whole real thing.

It is necessary to work on the inclusion in the GC of the new special object of real estate - the technological property complex of real estate.

3.5. It is necessary to preserve in the GC for the first time introduced in 1994 in the domestic civil law. The principal provision on the possibility of using all ways to protect civil rights to protect any intangible benefits of a citizen, since the use of such methods is compatible with the creature of violated law and the nature of the violation (Article 150). At the same time, the head of 8 GK ("intangible benefits and their protection") should be supplemented by a detailed system of detailed legal norms that are intended to regulate and (or) protect specific species. intangible benefits and personal non-property rights citizens. When creating these norms, it is necessary to maximize not only the achievements of domestic legal science, but also the experience of other countries with developed civil legislation in this area (France, Germany, Ukraine, etc.).

developmentcivilianlegislation ...

Government of the Russian Federation (119)

Educational and thematic plan

FROM administration The part of the first Civilian Code RussianFederations // Bulletin ... civic right. M., 2001. Conceptdevelopmentlegislation about the real right: project / ConceptdevelopmentcivilianlegislationRussianFederation ...

Council of Federation of the Federal Assembly of the Russian Federation Analytical Office of the Council of the Federation Council Analytical Report

Report

... Civilian Code Russian Federation »30, in which the development was envisaged concepts Improving civilianlegislationRussianFederation. ConceptdevelopmentcivilianlegislationRussianFederation ...

Chamber of Commerce and Industry of the Russian Federation

A task

On codification and improvement civilianlegislation Examined was conducted Conceptsdevelopmentlegislation On legal entities and ConceptsdevelopmentcivilianlegislationRussianFederation. In 2009, representatives ...

On the draft concept of development of theological law

The draft concept of development of the legislation on the real law (hereinafter - the Concept) was prepared by the Working Group, which included A.A.Ivanov (Head of the Group), R.S.Bevzenko, V.V.vitryansky, I.A. Drozdov, A.A. Zavyalov, I.A. Iconitskaya, OMKozyr, A.A. Makovskaya, D.V. Novak, V.I. Senchishchev, K.I. Skolovsky, E.A.Sukhanov, N.A. Dzeodoev, V.V. Bubarov.

The concept is part unified Concept Development of civil laws of the Russian Federation developed in accordance with the Presidential Decree of July 18, 2008 No. 1108 "On Improving the Civil Code of the Russian Federation".

The main provisions of the concept are reduced to the following. First of all, the concept developers offer a completely new systematics of the legislation on the real law. In accordance with the tradition of the Pandek system countries, it is proposed to allocate in the legislation on the real law overall and special parts. Thus, it is assumed that in law, finally, will be embodied the long-term proposal of domestic civilists about the need to develop a common part of the real law, the absence of which VK Yakherh was so sad.

In relation to the improvement of the norms of the legislation on the real law, the concept of the concept was set by the task of detailing the relevant standards, taking into account the current judicial practice, the needs of civil turnover, as well as the latest trends in the development of civil law science.

The concept of significant attention is paid to improving the legal regulation of certain types of limited real rights, since the current legislation containing relatively detailed rules on the right of ownership, unreasonably dismisses with such rights a minor role. At the same time, a circle of limited real rights is significantly expanded. The main objective of the proposed changes is to provide civil turnover participants, primarily citizens, wide opportunities for the choice of real law, which is purchased by property or which the owner burden its property, taking into account the true needs of these persons. Thus, the negative trend of the narrowing of the list of rights to real estate objects is overcome, which is clearly manifested, first of all, in the latter years of recent years, when citizens and legal entities were invited to meet their economic needs in the framework of the model "Property-Rent". Such a poor palette of the legal possibilities of land relations causes fair complaints of scientists, practitioners, as well as economic entities.

The principal approach of the concept developers is that themella legislation on items cannot entail the procedure for compulsory re-issuance of rights and deliver any inconvenience to citizens. The provisions of the Concept either come from an indefinite conservation of the canceled real rights for their owners, or from their automatic transformation into law entered by the new legislation. Moreover, in the latter case, the volume of rights converted, at least, cannot be reduced.

In addition, the expansion of the circle of limited real rights is a step forward to the implementation of the principle of unity of fate land plot and the buildings on it, which allows in perspective to significantly simplify the turnover land plotsand therefore prevent possible disputes in court and other jurisdictional bodies. Moreover, it should be noted that new items are well forgotten old, who have passed a centuries-old test for strength. Introduction to the domestic law enforcement in the modified form of real rights on the model of superficiation, an emphiteveavisis, uzufruct and a number of others - tribute to the historical tradition and at the same time reflection of the needs of today.

It is unlikely to be unnoticed by the proposal on consolidation in the law of the material and legal nature of registered mortgage law. Yes, and in general, the authors of the concept of an attempt to find a compromise in the dispute about legal Nature Pledge and related legal consequences is of interest.

A noticeable new concept is proposals for the legal registration of the institution of ownership, in fact that there are no current Russian legislation, but known to many foreign legislation. The purpose of the proposed innovations is to ensure the operational and effective protection of the rights of owners. Fragmented rules on the protection of possessions contained in the GC are obviously not satisfying the needs of the civic turnover complicated in the conditions of the market economy. For the years that have passed since the adoption of the GC, a significant number of studies on the topic of ownership and ownership of protection, the authors of which practically unanimously recognize the feasibility of the development of this institution in the context of Russian reality. Rich legal Material (Historical and comparativist) lay out the basis of the concept of the concept of ownership.

These are only the main rod ideas of the concept, with which the reader will be able to meet. Nevertheless, they give an idea of \u200b\u200bhow important recycling is proposed to undergo the legislation on the real law. The concept of the concept is aware of how convincing the arguments in favor of those or other provisions of the Concept so that they are perceived by the legal community and the public. It is no coincidence that the developers tried to carefully do with the tools accumulated legal science And practice in previous years, without rejecting him exclusively in favor of its own scientific views. Where the authors found the necessary breaking of established institutions, transitional provisions were proposed, which should mitigate the inevitable inconvenience caused by a change in the current legislation.

The concept of the development of civil law of the Russian Federation

I.. Introduction

1. The concept of the development of civil law of the Russian Federation (concept) was prepared on the basis of the Decree of the President of the Russian Federation of 01.01.01 No. 1108 "On the improvement of the Civil Code of the Russian Federation".

2. The concept proceeds from the fact that during the past century since the beginning of the 1990s, in Russia, mainly, was economically, socially and logically reasonable and generally justified by modern civil legislation. The basis and core of this legislation was the Civil Code of the Russian Federation 1g. (Civil Code, GK) - a system of fundamental and most important legal norms, which are largely common to the whole civil legislation, and in a certain part - for Russian legislation in general (norms on the subjects of civil law, about property, on the protection of intangible goods and others .).

The civil code of Russia has been checking the time, extensive practice of use (primarily by the courts) and an objective doctrinal assessment. The interests of the stability of civil law regulation and sustainability of economic relations and civil turnover in the country require maintaining the fundamental role of the GC in the system of civil law and careful preservation for the future of most of its norms. Therefore, the concept does not imply a new codification of domestic civil legislation, nor even the preparation of the new edition of the GC.

In years, Russia has just embarked on the path of creating private property and a market economy, and although from civil legislation, everything was eliminated by the planned-administrative regulation of property relations, such regulation, which fully responded by the needs of a social state with a developed market economy , then it still could not be created. In particular, this affected the regulation of relations that form the statics of civil turnover, which would be a "matrix" for its dynamic development - on the definition of organizational and legal forms and status of legal entities, species and content of real property rights. Almost beyond the GC, in the former Soviet tradition, there is regulation of civil relations on the property that makes up the basis of civil turnover - land and other natural resources. Moreover, regulation was very late and imperfect: the first Land Code of the Russian Federation was adopted only at the end of 2001 and over the past 7 years almost 40 times was subjected to serious changes.

In the context of the democratic legal state, freedom and multivariates of the economic behavior of civil turnover participants from the very beginning were predetermined in the new civil law of Russia the diversity of these turnover of legal norms and legal resources used in it. However, in subsequent years, the extensive practice of applying this legislation by the courts showed that many general provisions of GC need additions and detail, the absence of which cannot be replenished by a judicial interpretation.

In addition, the intensive development of the economy in general and the financial market in particular requires adequate to the development of securities and financial transactions. Scientific and technical progress in general and continuously growing opportunities for the use of information and telecommunication networks in particular, dictate the need for continuous improvement of legislation on rights to the results of intellectual activity (intellectual rights). Active and effective efforts undertaken in recent years within the framework of the European Union for the Development of Collineal Law, encourage comparable changes in domestic international private law.

This approach complies with the decree of the President of the Russian Federation of 01.01.01, providing for development on the basis of the concept in the years of draft laws on amending the Civil Code (paragraph "A" of Article 3). Following this, during the years, a large amount of work should be done in line with the concept and with the changes in the GC of the extensive array of Russian legislation.

5. To date, there is a need to make two principal changes of the systemic nature.

To no less need to create in the GC complex of interrelated institutes of Real RightsWith its basis, ownership and united by the overall system of common norms of real law. Despite the fact that in the conditions of a democratic society, a developed market and the legal state, these institutions should be the basis and core of the stability of civil law, in the current legislation, many of them are absent, and others are only outlined by "dotted" with serious distortions. Unlike most developed Western law enforcement, the Russian legislation did not create a system of stable real rights to land and other natural resources. The implementation of the concept should lead to its creation, which will result in the redistribution of the relevant regulatory material between the GC and the comprehensive laws of native legislation.

To this end, the concept provides a wide range of measures aimed at strengthening the moral principle of civil law regulation - Introduction to civil law principle of good faith In the quality of one of the most general and important principles of civil law, the concretization of deprived of the legal protection of "other forms of abuse of law", the introduction of the Institute in the GC Contribute responsibility According to the principle of Culpa in Contrahendo, significant Modification of many norms about the invalidity of transactions and etc.

The same goals should serve numerous steps outlined in the concept strengthening and improving the effectiveness of civil liability. Among many of the measures offered in the concept for this purpose solidarity responsibility persons constituting a legal entity (paragraph 3 of Article 53 of the Civil Code), the possibility "Removing corporate cover" under article 56 of the Civil Code, regardless of the inconsistency of a legal entity, the establishment of a legal entity for untimely and improper data actualization in a single register of legal entities, significant strengthening the responsibility of banksfor improper settlements, liability without guilt for transmission of fake secularand etc.

Thus, a number of new ones for the current legislation are proposed to introduce in Section II. Envisaged replenishment of GC Rules On public joint-stock companies, norms on the possibility and consequences of challenging the illegal reorganization of legal entities, the system of norms on non-documentary securities, about the pledge of rights under the bank account agreement and the contribution, on "metallic accounts" and the contract of the contribution of precious metals, etc.

Particularly important for the development of civil law are the provisions of the Concept providing for creating new general rules in GC Either making a broader scope of the standards already installed earlier in the GC for certain types of relations. Essentially, a general part of the real law, general standards for state registration of property rights, securities and their treatment are renovated and placed in GC. Many rules are to be transformed into general rules, as long as specially established only for AO or only for Ltd., the norms for the mortgage, already mentioned by the Rule of "abstract" loss, existing so far only for delivery relations, and many other special rules of civil laws.

Very significant and, often, scrupulous detail concept proposes to expose many norms of the general part of the obligatory right. Almost all proposals on this subject, contained in the concept, are conclusions from the analysis of the extensive practice of applying the appropriate norms by arbitration courts or borrowing successful decisions found in the codification of the principles of contractual law under UNIDRA, in the European Union.

In some cases, it is proposed to abandon public elements of regulating in favor of private-planning approaches. These are the proposals for refusal to sanction a confiscation nature contained in Article 179 of the Civil Code and the restriction of the scope of similar sanction for anti-belative transactions (Article 169 of the Civil Code). This also includes rules that make agreements of participants in economic societies. The restriction of the circle of insignificant transactions is also aimed at this, the shift of the emphasis on the challenge of transactions, when the deprivation of their legal force depends on the private will of the participants in the legal relationship.

A number of such provisions of the Concept are aimed at streamlining the civil law system. It is proposed in principle to abandon the "three-level" system of civil laws, when between GK and its developing special laws it is planned to create a "layer" in the form of general laws (on the reorganization of legal entities, about the property, etc.). It is necessary to reduce the number of laws on certain types of legal entities through the consolidation of a number of such laws (laws on JSC and LLC, laws on cooperatives) or even complete cancellation of certain laws with the transfer of individual standards to the GC (many laws on non-commercial organizations). It is necessary to streamline the legislation formed by the reduction of poorly agreed norms about the pledge, significant corrections are needed at the level of "Legal ABC" in the legislation on railway and inland water transport.

When improving the GC and other acts of civil law, it is necessary to pay attention to the clarity and clarity of the legal structures used. So, without prejudice to the case, it is advisable to establish a structure of CJSC, it is advisable to establish an exhaustive list of organizational and legal forms of non-profit organizations, such organizational and legal forms of legal entities as "state corporation" and "state-owned" are needed in analysis and correction.

II.. General provisions

Civil Code of the Russian Federation

1. Civil law

1.1. In modern civil law, the principles on which the civil law system is based on its effective and uniform use.

In GK, there is no indication of such a general principle of civil law as good luck. Participation of the behavior of individual legal relations found in the GC in accordance with the conscientiousness of the behavior of individual legal relations for effective legal regulation.

The principle of good faith should be applied to the actions (behavior) of the participants in turnover at: a) the establishment of rights and obligations (negotiating the conclusion of contracts, etc.); b) acquisition of rights and obligations; c) the rights and performance of duties; d) Protection of rights. The principle of good faith should be obeyed and assessing the content of the rights and obligations of the parties.

The norms regulating corporate relations can also be applied on a subsidiary basis and to legal entities of an uncorruptive type, unless otherwise follows from the being of such relations.

1.3. In Article 5 of the GC, the custom of business turnover is named as a source of civil law. Meaning custom It is widely applied not only in business activities, for example, in relations related to the definition of citizens of the procedure for using common property. In Article 5 of the GC, it is necessary to make appropriate additions.

2. The emergence of civil rights and obligations,

implementation and protection of civil rights

As applied to the registration of rights to real estate, not only property rights are subject to registration, but also some transactions with the specified property. It is advisable to eliminate the specified mixing of various registration systems and go to a genuine license system.

2.2. It is advisable to perceive the experience of judicial practice and detail in Article 10 of the GC. other forms of abuse of rightRelated to their number is obviously or obviously unfair behavior of the subject of law, action bypassing the law (imperative norms), etc. This article of the Civil Code may also be supplemented by the Regulations that no one can benefit from their illegal or unfair behavior.

3. Civil rights objects

3.1. A significant problem is associated with the concept of a thing consisting of parts, which in turn could be independent things. In the domestic legislation, there are no rules for foreign law enforcement, enshrine criteria in which the inclusion of one thing is part of another thing can mean the loss of the qualities of an independent object of rights at the first of them.

Following the introduction of the concept of an integral part of a complex thing, it is necessary to resolve the following relations:

5.2.3. Since the transactions committed by the legal entities and representatives deliberately caused by the damage to the represented were widely disseminated in the turn, measures should be made to combat this phenomenon.

In order to prevent the abuse of representatives, it is necessary to improve the compositions of challenging transactions, stipulated by articles 174, 179 GK.

5.2.4. It is advisable to clarify the criteria used in the law to assign misconception Persons who committed a deal, to delusions that are essential and allowing to dispute the transaction on the basis of Article 178 of the Civil Code.

5.2.5. Article 179 of the Civil Code should be supplemented with provisions regulating the relationship of the transaction parties in cases deception emanating from a third party. In such cases, it is justified to recognize the transaction by invalid on the claim of a deceived person only if the other party, as well as a person, to whose benefits is a one-way deal, knows or should know about the deception.

5.2.6. In a relationship boiled transactions Article 179 of the Civil Code must be supplemented by the presumption of extreme disadvantage of the transaction for the party that fell into a predicary position. According to such a presumption, the transaction can be considered perfect on extremely unfavorable conditions, if the price, interest rate or other counter-granting, obtained or transmitted by the victim, is two or more times different from the provision of the other party.

5.2.7. From Article 179 of the GCs should be excluded provisions on special confiscational consequences invalidity of transactions on the grounds provided for in this article (withdrawal to the state of state).

Instead, civil measures may be provided for civil response measures, for example, the rules for laying on the guilty side of the risk of the death of the object of the transaction until its challenge.

6. Representative office

6.1. The provisions of the GC on the representation are mainly focused on regulating voluntary powers. Powers based on the law or act of the authorityonly mentioned, but are not regulated in detail. Meanwhile, in circulation, their value is constantly increasing.

Powers of parents for transactions on behalf of juvenile children and guardian powers also need more detailed regulation. This work can be carried out in the framework of improving family legislation.

Note 1.

By the decision of the Council under the President of the Russian Federation on the codification of legislation of the seventh October 2009, the concept of the development of civil legislation was approved. It includes a complex of basic proposals aimed at improving legal regulation in the field of civil turnover. The concept consists of eight chapters and takes about six hundred and sixty pages.

Basic provisions

The creature of the concept can be expressed in the following provisions:

first, she absorbs many years of practice civil Affairs. Attention is paid to both decisions of the Constitutional Court and the problems set out in the resolutions of the Plenums of the Supreme and Supreme Arbitration Courts.
secondly, the concept summarizes the results scientific work Over the past decade, the existence of market relations in Russia;
thirdly, the training of European countries, including the economic practice of the Council of Europe, was used.

Conducted from 1994 to 2006 the global codification of civil legislation revived private law in Russia as legal phenomenon, The basis of the legal system of the modern economy. Was created one system civil law. The concept is obliged to ensure the evolution of civil legislation, taking into account the experience gained by the existence of a market economy, as well as the needs for ensuring the national interests of the country in the new world of universal globalization.

To achieve these landmarks, the Concept provides for the following provisions:

The idea of \u200b\u200bthe stability of civil legislation along with its development to increase overall efficiency. The concept does not provide for a new codification or a new edition of the Civil Code. In the fifteen years of the actions of the Civil Code of the Russian Federation, changes were made only in a hundred ninety articles from a thousand five hundred fifty one;
The concept provides for a slight change in such general provisions as subject and principles in civil law. The subject is invited to allocate corporate relations to develop private provisions on corporate law. Also modernization is proposed to subjected to the Institute for Real Estate Real Estate;
The circle of civil law principles is invited to supplement the requirements of the conscientious behavior of participants in civil legal relations;
Based on international experience, it is proposed to make evolutionary changes to such institutions as invalidity of the transaction, the creation, reorganization and liquidation of a legal entity, the assignment of the rights of the requirements and translation of debt, securities institutions.
It is proposed to modernize the system of protection by the right of its interests, the inclusion of "abstract losses", as well as damage, which was caused by lawful actions in the norms of the Civil Code of the Russian Federation.
The need for new standards and institutions about public joint-stock companies, on challenging illegal reorganization and liquidation of legal entities, on the possibility of pledge of rights under bank account and contribution contracts and deposits of precious metals, etc.
It is proposed to build a two-tier system of sources of civil law, which includes the Civil Code of the Russian Federation and other special laws. In this way, the emergence of intermediates of laws, which could contain general provisions (for example, a law on the reorganization of legal entities), as their existence undermines the civil law system;
It is important to regulate private and public relations in the field of environmental management and the use of natural resources.

Note 2.

The concept proceeds from the need to complement the private and public-legal principles when regulating the sphere, where private and public interests are intersect.

The draft concept of the development of legislation on legal entities (hereinafter referred to as the concept) is an integral part of the overall design concept of the development of civil legislation of the Russian Federation, which is preparing a research center for private law under the President of the Russian Federation on behalf of the Council under the President of the Russian Federation for codification and improving civil legislation - Decree of the President of the Russian Federation of 07/18/2008 No.1108 "On the improvement of the Civil Code of the Russian Federation".

The project of the concept is recommended for publication and further public discussion on the decision of the Council under the President of the Russian Federation for codification and improving civil law of 16.03.2009. In general, the concept proposes to optimize legislation on legal entities by reducing the total number of laws acting in this area and simplify regulation with some increase in the norms of the Civil Code of the Russian Federation devoted to the status of legal entities. In accordance with the concept, other significant changes must also be made to the legislation. Consider the most important of them.

General provisions concept

The concept analyzed the state and is given an assessment, and also formulated proposals for the improvement of current legislation. The main direction of lawmaking in the field of legal regulation of the status of legal entities should be considered to be preserved and maintaining the central, fundamental role of the general norms of the Civil Code of the Russian Federation on legal entities. This makes it necessary for the presence in the Civil Code of the Russian Federation the rules that all the norms of individual laws of both civil law and public-legal, governing the status of organizations as legal entities must comply with the norms of the Civil Code of the Russian Federation on legal entities. These norms by virtue of this are subject to use in the presence of contradictions between individual laws and the Civil Code of the Russian Federation or between the laws themselves.

It is recognized as the inexpediency of the creation and functioning of individual laws of a general nature that make up an additional level of regulation between the Civil Code of the Russian Federation and the laws on certain types of legal entities (for example, a law on the reorganization of legal entities, about non-commercial organizations, etc.). Civil law regulation in this area should remain two-level (Civil Code of the Russian Federation and special laws).

As a result, it seems quite achievable and justified significant optimization of the system of legislation on legal entities, carried out by reducing the total number of laws and simplify the regulation itself with some increase in the norms of the Civil Code on the status of legal entities.

Constituent documents

It is assumed that legal entities should have only one constituent document - the Charter. The presence of a constituent agreement as a constituent document is not caused by a practical necessity (since the founders of a legal entity in any case express their agreed will on its creation when approving the Charter), and typical and other provisions (used mainly for state and municipal institutions) They differ from the statute not in content, but only terminologically. At the same time, the charters should be in all legal entities, including government corporations. They can be typical, approved in the established law (Civil Code of the Russian Federation). Only for economic partnerships a constituent agreement can be preserved, which has the power of the Charter (which is more consistent with the peculiarities of the status of the partnership and its participants).

Registration of legal entities

The concept also offers changes to the order of registration of legal entities. In the Civil Code of the Russian Federation, it is necessary to establish the principle of public authenticity of the registry - this principle assumes that any bona fide person believed to the registry data is not affected by the inconsistency of the registry data by actual circumstances. The legislation should ensure the accuracy of the data submitted for state registration of a legal entity, primarily about the founders and composition of its bodies operating on his behalf, as well as to protect the interests of all participants in the legal entity in challenging the state act on the registration of a legal entity. It is noted that it is advisable to consolidate the functions for registering all legal entities and conducting a single state registry for the judicial authorities.

Reorganization of legal entities

It is proposed to establish a ban on the transformation of commercial organizations to non-profit and vice versa (as well as a ban on the emergence of non-profit organizations as a result of the reorganization of commercial organizations and, on the contrary, for example, on the division of a limited liability company to another economic company and the Foundation, the allocation of the Fund from the production cooperative, the conversion of consumer Cooperative to Joint Stock Company, etc.). The meaning of such a restriction is to prevent the distortion of the legal nature and legislative division of legal entities on commercial and non-profit organizations, which ultimately also contributes to the maximum protection of the property interests of their creditors and all civil turnover participants. An exception can only be unitary enterprises and institutions that are not owners of their property and therefore acting on the basis of special real rights to it.

At the same time, the community of the corporation's legal nature makes it possible to allow the transformation of any commercial corporation to another commercial corporation (economic society in the economic partnership and (or) cooperative and vice versa), while a combination of one act is possible in one act of reorganization of its various forms (separation or allocation with merger or attachment). By analogy, non-profit corporations can also be transformed into non-commercial corporations of other organizational and legal forms. This should not concern funds and institutions that, not being corporations, are not subject to transformation at all, and other forms of their reorganization cannot lead to other organizational and legal forms of non-profit (and even more commercial) organizations. In other words, funds and institutions can merge, to join, stand out and divided only to other funds and institutions, respectively. It should be noted that any reorganization of institutions with the emergence of other organizational and legal forms of non-profit and commercial organizations will actually mean the privatization of their property. At the same time, the transformation of institutions to unitary enterprises is excluded, as it will contribute to an unjudal increase in the number of the latter.

The transmitter act in the merge procedures, attachments and transforms must have an account, rather than a guide. In these cases, the lack of references to any right or responsibilities cannot mean their termination in connection with the exception of the state register of a reorganized legal entity. In the selection or division of legal entities, the absence in the dividing balance or in transmission Act Mention of any responsibility of the reorganized legal entity should lead the solidarity responsibility for it all of its successors.

The right of creditors of the reorganized legal entity to require early fulfillment of obligations should be legally limited, and by agreement of this person with the lender it may be discontinued.

The right of these lenders to demand additional support should be distributed not only to open joint-stock companies, but also to other types of legal entities, but it should be carried out under the control of the court, and only guarantee, bank guarantee and pledge can be used as such collateral.

It is advisable to be introduced for cases of reorganization with a violation of the law. The possibility of restoring the participant in the legal entity of the lost corporate control (primarily for cases of complete or partial deprivation or loss of participation in a reorganized legal person). Persons who have benefited from this situation may be obliged to return to the return (additional) share of the victim.

In order to maintain the stability of civil turnover, it is necessary to provide that transactions committed by legal entities that arose as a result of the reorganization, subsequently recognized illegal, general rule are valid, and legal entities - those who existed before the recognition of the reorganization of invalid or failed. Alternatively, only transactions caused damage to the reorganized legal entity (or aimed at causing damage) subject to the establishment of the unscrupulousness of counterparties on such transactions.

Liquidation of legal entities

In the Civil Code of the Russian Federation, a rule should be provided, according to which an independent basis for the elimination of a legal entity is invalidation by the court of state registration of a legal entity.

In addition, it is proposed to establish that a joint duty to liquidate a legal entity must be assigned to its founders (participants). In case of non-fulfillment of them, the obligation to eliminate the legal entity within certain periods of such liquidation can be carried out by the court of liquidator, which can be appointed from among the arbitration managers.

The liquidation should be carried out at the expense of the property of a legal entity, and in its absence - at the expense of the property of the founders (participants).

In addition, the law should provide for specific deadlines for the liquidation, and control over the execution by the obligations of the court decision on the implementation of the legal entity should be entrusted to the bailiffs.

"Formal" legal entities should be eliminated mainly at the expense of those who created them. The law need to establish a joint duty of participants (founders) or property owners of the organization (hereinafter - participants) to eliminate legal entities that ceased to operate. If it is impossible to oblige participants in an invalid legal entity, an administrative (extrajudicial) system of exclusion of invalid legal entities from the registry should be eliminated by such an organization. Legislative criteria for the assignment of a legal entity to the "formal" could also be:

Failure to submit for more than a year of tax reporting in tax authorities and the lack of property sufficient to cover the costs of judicial liquidation;

Lack of bank accounts for more than a year;

Lack of a designated (selected) executive body for more than a year;

Lack of participants in the organization;

The establishment of a court in a case that is not related to the elimination of the defendant, which in reality the participants of the relevant organization did not establish it;

Termination of the case of the insolvency of a legal entity due to the lack of funds for bankruptcy procedures.

When identifying any of these circumstances, the authorized state body conducts an inspection economic activity The appropriate legal entity and, if confirmed, decides on the liquidation of a legal entity, placing the obligation to implement it on participants in a legal entity. The decision on liquidation is subject to publication, and the participants of the legal entity are notified in the manner prescribed by law. Participants in a legal entity must be given the right to appeal the indicated decision in the arbitration court. If in set time The legal entity will not be liquidated, the state body decides to exclude a legal entity from the registry from the participants of the legal entity, while the executive body of such a legal entity and its participants is imposed on the corresponding penalty.

The basis of the transition to judicial liquidation of a legal entity can be:

Statement of any lender of a legal entity on the need for judicial liquidation, subject to the imposition of all expenditures on elimination, which are subject to subsequent reimbursement of a legal entity or at the expense of the participants of the legal entity;

Statement of the legal entity, including the appropriate authority, or its participants in the presence of the necessary financing of judicial procedures.

It also seems to be appropriate to establish legislative rules to satisfy the requirements of creditors in the course of the liquidation of the legal entity (including under its bankruptcy) in the event of a legal entity detection after its exclusion from the registry. According to the stakeholder, the arbitral tribunal could resume the liquidation procedure (including bankruptcy), appointing the arbitration manager. The latter with the adequacy of the property of the liquidated legal entity for the resumption and conduct of the liquidation procedure (including bankruptcy) or in the presence of other financing of this procedure could be distributed among lenders, and if they were absent to transfer it to the founders (participants) of a legal entity ( p. 7 tbsp. 63 of the Civil Code of the Russian Federation).

Proposals for certain types of legal entities

The main source of legal regulation of relations arising within the framework of economic societies should remain the Civil Code of the Russian Federation. In the future, all the rules of law that determine the civil-law status of economic societies could be included in the Civil Code of the Russian Federation. At the present stage of improving the norms of civil law on economic societies, it is advisable to adopt a single law on economic societies. In favor of this approach, there is a multitude of general rules, which with minor seizures can be applied to all types of economic societies. Specifics of civil law status of individual types of economic societies, including with state participation in authorized capital, and their varieties allocated depending on the scope of these legal entities and other criteria can be established in the relevant sections of such a law.

It is advisable to leave two main types of economic societies in civil law: joint-stock companies and limited liability companies. There is no sufficient grounds for maintaining such an organizational and legal form of a legal entity as a company with more responsibility ( art. 95 of the Civil Code of the Russian Federation): The civil law status of data of economic societies is almost entirely determined by the provisions of the legislation on LLC. Obviously, the imposition on the participants of the Company of additional responsibility for the debts of a legal entity does not require consolidation in the law a special organizational and legal form, and may be authorized at the level of the Charter.

At the same time, in the Civil Code of the Russian Federation it is necessary to consolidate the special requirements for the civil status of public joint-stock companies. The main criterion for the allocation of such societies should be strictly formally legal, and not actual: the JSC must acquire the status of the public from the moment of state registration of the prospectus of securities (shares) to be accommodated among the unlimited circle of persons in an open subscription. Features of such status should be:

In increased requirements for the minimum value of authorized capital;

On a compulsory entry into the Board of Directors of Independent Directors;

In public jurisdiction, the Company, which is manifested in the disclosure of information about its activities;

In stock Specialized registrar leading the register of shareholders and performing the functions of the Court of the Commission in general meetings of shareholders.

Joint-stock companies that do not have public status should not turn into LLC, which actually happens now with CJSC. In this regard, it is invalid by the establishment of restrictions on the treatment of shares of such societies, including through the consolidation of their participants preferential rights to acquire shares, alienated to third parties. Thus, it should be in principle to abandon artificial allocation of types of joint-stock companies (open and closed).

In addition, it is advisable to refuse to use the concepts of "prevailing society" and "dependent society" in the Civil Code of the Russian Federation as not justifying themselves in practice. Unlike the categories, the "main society" and "subsidiary", called above the concept of any semantic load carry. At the same time, the provisions of the Civil Code of the Russian Federation on major and subsidiaries need to be improved.

Norms about "companies of one person" ( p. 2 art. 88.and p. 6 art. 98 of the Russian Federation, as well as the relevant rules of federal laws on JSC and LLC), it is necessary to supplement the rules on the subsidiary responsibility of the founders and (or) of the participants of the "companies of one person" on debts (transactions) of such legal entities in deficiency in recent property, if the economic company made a transaction (transaction ) In pursuance of the will (instructions) of its only founder (participant). In fact, it will mean for these situations "Removing a corporate mask" and disseminating the rules on the responsibility of the main (maternal) debts of subsidiaries ( art. 105 GK of the Russian Federation).

Along with this, in the Civil Code of the Russian Federation, it is necessary to secure a clearer structure of the AO bodies with a clear division of management and control functions. To this end, it is necessary to abandon the terminological confusion in the title control authority. He must be referred to as the Supervisory Board, and not the "Board of Directors (Supervisory Board)". To split these functions, it is also necessary to establish in the Civil Code of the Russian Federation and in the Law on Economic Societies a ban on combining posts in the Supervisory Board and the Board of JSC. The proposed novels can also be extended to the LLC in which the Supervisory Board is being created.

It is advisable to abolish the mandatory formation of the Audit Commission (election of the auditor) ( pP. 2 p. 1 Art. 103 of the Civil Code of the Russian Federation, Art. 85 of the Federal Law of December 26, 1995 No.208-FZ "On Joint-Stock Companies"). The formation of the specified body should occur only when this is provided for by the Charter of JSC. At the same time, it is necessary to preserve the mandatory external financial control (Audit).

On the "internal" (corporate) relations that are developing between economic societies, persons belonging to the executive bodies and participants, it is also advisable to extend the actions of the rules for the responsibility of the main (maternal) debts of subsidiaries, consolidating the necessary additional rules in art. 105 GK of the Russian Federation. In such situations, persons who identify the will of society will be played in such situations to perform the appropriate transaction (persons who are part of the executive bodies, a shareholder or other participant with a deliberately controlling stake in shares (fractions), etc.).

The authorized capital of economic societies

In order to increase the effectiveness of the category "Authorized capital", it is necessary to make a high-quality leap in the amount of authorized capital, providing, especially for joint-stock companies, a really high level of authorized capital. The implementation of this provision will not create artificial obstacles to the development of small entrepreneurship, since it can be carried out not only using the design of the economic company, but also in the form of individual entrepreneurship, contracts of a simple partnership (about joint activities), as well as in undeservedly forgotten modern legislation The form of a production cooperative.

It is proposed (taking into account the experience of European law enforcement) establishing the minimum amount of authorized capital for LLC in the amount of 1 million rubles. (about 25,000 - 30,000 euros), and for AO - in the amount of at least 2 million rubles. (about 50,000 euros). This increase should not be an obstacle to the preservation of higher requirements for the size of the authorized capital of legal entities involved in activities such as banking, insurance (possibly applying and other activities) established by special law. In addition, when improving the norms of the Federal Law on joint-stock companies should consider establishing an increased amount of share capital for those JSC, which resort to open (public) subscription to shares. At the same time, for already existing business companies, it is necessary to provide a considerable period of time (one or two years) to bring the size of their authorized capital in line with the new requirements of the legislation. The calculation of the size of the authorized capital should be carried out in rubles, and not in the minimum amount of wages or in the equivalent of foreign currency, as adopted in most cases at present.

When maintaining special requirements for the composition of the authorized capital of credit and banking organizations established by federal laws should be formulated general restrictions on making contributions to the authorized capital in non-monetary form and general requirements to deposits contributed in non-monetary form.

First of all, it is necessary to ensure that a substantial part of the authorized capital is paid in cash. Without demanding the formation of authorized capital with only money, it is necessary to establish that with the establishment of the economic society, all authorized capital should be paid in cash, and upon subsequent increase in its size, non-monetary deposits are allowed.

At the same time, the question of maintaining the current procedure for making contributions to the authorized capital of credit institutions, which allows the use of not only cash, but also determined by the law of types of property, should be discussed additionally, as it will require some of the exemptions from the general order.

The percentage of monetary and non-monetary contributions to share capital should be established by law or in the manner determined by law (as it exists today in relation to the authorized capital of credit institutions).

Under the establishment of a business community, all authorized capital should be paid in cash. At the same time, the minimum authorized capital must mainly be paid for the time of state registration, the remaining part - during the year from the date of state registration, if a shorter period is not provided for by the Company's charter (deserves discussions and the rule on simultaneous payment of all authorized capital when establishing a society). With an increase in the authorized capital, the period of payment is negotiated in the documents, on the basis of which such an increase occurs.

In addition, the rules of current legislation should be preserved, on the transition of shares (participant's share) to the economic society in case of failure to fulfill full payment of shares (share), as well as that the statute of society may be provided for the recovery of a penalty in favor of society for delay payment (deposit).

Based on the nature of the legal entities and the specifics of their activities, the above rules on the authorized capital (its size, composition and procedure) can be distributed to production cooperatives and become common to commercial organizations (except for partnerships).

It is also appropriate to create authorized capital in those non-profit organizations whose charters provide for the right to conduct an entrepreneurial (income) activities (with the exception of institutions whose debts of the founder bears subsidiary responsibility). Requirements for this authorized capital can be determined by analogy with LLC.

At the same time, it is advisable to limit the possibility of mutual participation of economic societies in the authorized capital of each other (cross-ownership). The lack of such restrictions allows the management of the main society through a subsidiary - shareholder to vote in general meetings of shareholders of the main society. The optimal way to fight against these abuse is an imperative ban in the Civil Code of the Russian Federation for cross-ownership of shares (shares). As the consequences of the violation of this prohibition, it is not necessary to invalidate the transactions of the main society for the acquisition of shares (fractions) of the subsidiary; It can be established that stocks (shares) acquired on any reasons, but with a violation of the specified prohibition, do not provide their owners (do not vote, do not participate in the definition of the quorum of the general meeting of shareholders, dividends are not charged on them, etc.) .

It is advisable to abandon the design of fractional stocks as special civil turnover facilities by setting the appropriate ban in the Civil Code of the Russian Federation. The concept of "fractional action" does not respond to the main provisions of legislation establishing features legal regime Securities, nor civil-legal doctrine as a whole and the concept of solid authorized capital in particular. When "crushing" shares of it former owner Money compensation should be paid.

It is important to consistently adhere to criteria that determine the specifics of preferred shares. For these purposes, in the Civil Code of the Russian Federation, the norm obliging JSC in the presence of net profit on the basis of activities for some periods to decide on the payment of dividends on such shares and actually pay them. The size of the dividend in all types of preferred shares should be indicated in the Company's charter. The main provisions on the declaration and payment of dividends should be included in the Civil Code of the Russian Federation, since the right to dividend is the main property law shareholder - a member of a commercial organization, which is an association of capital.

Protecting the interests of joint-stock and other economic societies in the commission of large transactions and transactions with interest should be built not by providing them with the right to challenge concluded with the counterparties of the transaction, referring to the violation of the intracorporate procedure for their design, but by establishing the legislative claim on the obligatory consolidation of the procedure for designing such transactions in The Charters of JSC, providing for the property responsibility of the executive bodies of the Company for its violation in front of the Society itself. The possibility of recognizing such transactions invalid on the claim of the economic company should be recognized only for cases when the counterparty on the transaction knows or should have been aware of the restrictions for its commitment provided for by the Company's Charter ( art. 174 of the Civil Code of the Russian Federation).

Cooperatives

It is proposed to unite legislative norms on the status of cooperatives currently contained in numerous special laws, in two main federal laws: on production cooperatives and consumer cooperatives. This will simplify and unify legislative regulation in this field, eliminate as unreasonable duplication of the same in the essence of the rules in various legislative Actsand the mutual contradictions and inconsistencies in them general provisions Civil Code.

It also seems that consumer cooperatives With the participation of citizens, in all cases, without exception, to limit the period of their existence by the period of payment by individual members of their mutual contributions for the appropriate property (apartment, cottage, garage, etc.), which flows out of the general rule p. 4 art. 218 of the Civil Code of the Russian Federation. The creation of permanent cooperatives to meet certain material needs of citizens should be allowed, the existence of which will not be depending on the payment of their members of mutual contributions (this is greater extent comply with the classical ideas about cooperatives and overseas experience). For this purpose, the norm p. 4 art. 218 of the Civil Code of the Russian Federation Must become a dispossed, not imperative.

Unitary enterprises

The concept substandulates the futility of this organizational and legal form of a legal entity and the desirability of its gradual replacement by other types of commercial organizations, primarily by economic societies with 100% or other decisive participation of public legal entities in their property. Based on the real needs of the federal state, it is permissible to preserve only federal government enterprises in the future for some particularly important areas of the economy.

Non-commercial organizations

Organizational and legal forms of non-profit organizations must be optimized depending on the real legal (civil-law) features of them internal device. So, existing in the legislation, the diversity of types of non-profit organizations can be combined into two groups from the point of view of the proposed classification of legal entities on corporations and other legal entities of an incorrect nature.

In the Civil Code of the Russian Federation, it is necessary to envisage the possibility of creating non-commercial organizations in the following forms:

1) for corporations:

Consumer cooperative;

Social organization;

Union of persons;

2) For legal entities of non-corporate nature:

Institution.

This list should be considered as exhaustive. Non-commercial organizations mentioned in certain legislative acts must exist only in one of the forms provided for by the Civil Code of the Russian Federation, which should be directly said in these acts.

A public organization must be enshrined in the Civil Code of the Russian Federation as a general organizational and legal form for public organizations (associations) and religious organizations (associations). Organizations such as religious and charitable, sports federations, public organizations of persons with disabilities, lawyers (lawyers' colleges, lawyers) and lawyers of the subjects of the Russian Federation, professional alliances, Cossack societies, political parties should be considered as a species of a public organization. In the future, it is possible to merge a public organization and association of persons (they have no fundamental forming differences) in one organizational and legal form - the association of persons.

Institutions

At the current stage of improving the Civil Code of the Russian Federation, the design of the institution as a legal entity that is not owned by property can be saved. In the future, it is necessary to focus on the modernization of the civil law of the institution as the owner of his property, which is responsible for obligations to lenders to all its property. At the same time, a number of organizations (public authorities) may lose the rights of a legal entity - institutions: they will be able to speak in civil relations only as organs (legal representatives) of relevant public legal entities.

In addition, the unification of the norms contained in certain laws regulating the civil status of institutions is required, by incorporating in the Civil Code of the Russian Federation.

The proposed adjustments remain only a project that can be changed. At the same time, the main trends in the concept are indicated, and it is quite realistic that in the near future they will be reflected in the current legislation. In this regard, it seems to be very important to follow the fate of the considered project and begin to gradually prepare for possible changes in legal regulation legal entities.

Today, the concept has been submitted for universal discussion, comments and proposals for the project can be sent to [Email Protected]