home Diseases The right of citizens to engage in entrepreneurial activities without forming a legal entity. Entrepreneurial activity of citizens: concept, conditions and procedure for implementation. Insolvency (bankruptcy) of an individual entrepreneur

The right of citizens to engage in entrepreneurial activities without forming a legal entity. Entrepreneurial activity of citizens: concept, conditions and procedure for implementation. Insolvency (bankruptcy) of an individual entrepreneur

A citizen has the right to engage in entrepreneurial activities without the formation of a legal entity from the moment of the GR as an individual entrepreneur (Article 23). Entrepreneurial recognized as an independent production activity carried out at one's own risk and aimed at systematic profit. A necessary condition for a citizen to engage in entrepreneurial activity is: a) his legal capacity; b) GR as an entrepreneur.

The GR of an entrepreneur is made on the basis of his application, which indicates the types of activities that the citizen intends to engage in. GR is made on the day of receipt of documents. The grounds for refusal may be the incapacity of the entrepreneur, the intention to engage in activities prohibited by law, or the lack of a license, if one is needed. Refusal or evasion of registration may be appealed by the applicant in court. After payment of the registration fee, the applicant is issued a certificate, which indicates the types of activity and the period of its validity.

A citizen engaged in entrepreneurial activity, but who has not passed the GR, does not acquire the status of an entrepreneur in connection with this. He loses this status and from the moment of termination of the GR, after the expiration of the established period, cancellation of the GR, etc. In such cases, according to Decree of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 6/8, disputes involving citizens, including those related to their entrepreneurial activities, are subordinate to a court of general jurisdiction, however, when resolving a dispute, the court may apply the provisions of the Civil Code on obligations related to with business activities.

To engage in entrepreneurial activity, full legal capacity is required. Therefore, it can be carried out by citizens upon reaching the age of 18, if they are not limited in capacity. The latter can engage in entrepreneurial activities with the consent of the trustee. A person who has entered into marriage before reaching the age of 18 is recognized as fully capable (Article 21) and therefore has the right to independently engage in entrepreneurial activities. The same applies to the emancipated (Article 27) (the exception is the PD for the occupation of which the age limit is established by law).

The legal capacity of an individual entrepreneur is practically equal to the legal capacity of legal entities - commercial organizations. He may have the rights and bear the obligations necessary for the implementation of any activities not prohibited by law. However, he does not have the right to create enterprises, remaining the owner of the property transferred to him (I (S) PE, which must be transformed into business partnerships, companies or cooperatives before 07.07.99). Prior to transformation or liquidation, the norms of the Civil Code on unitary enterprises apply to them.

Paragraph 2 of Article 23 recognizes the head of a peasant (farm) economy as an entrepreneur. Such a farm can be created by only one citizen or jointly with family members or partners for the purpose of producing, processing and selling agricultural products. A peasant (farm) economy is not a legal entity. Its head is recognized as an entrepreneur from the moment of the GR of the economy.

Peasant farming is subject to registration with the local self-government body in charge of the given land plot. The use of property is carried out by the members of the farm by agreement among themselves, transactions on the disposal of the property of the farm are made by the head of the farm or other persons by his power of attorney.

Entrepreneurial activity - according to the civil legislation of the Russian Federation, an independent activity carried out at one's own risk, aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law (Article 2 of the Civil Code).

When analyzing this concept, the following features can be distinguished. The first of these is the implementation of activities for the purpose of making a profit. Each owner of property has the right to freely dispose of it at his own discretion for his own benefit, which is expressed, as a rule, in income from property.

In legislative regulation, the question was resolved: the profit from what activity is considered to be received from entrepreneurship. According to the Civil Code, its object is the use of property, the sale of goods, the performance of work or the provision of services. Indeed, as a general rule, entrepreneurs make a profit from the sale of goods and services. The concept of "profit from the use of property" looks somewhat more abstract. If we consider it literally and in a system with the norms of part two of the Civil Code, then loan agreements, contracts for the performance of research, development and technological work, transportation, transport expedition, bank deposit, bank account, storage, assignment, commission, trust property management and some other agreements with an element of profit are not entitled to conclude a citizen who is not registered as an entrepreneur.

The second sign of entrepreneurial activity is the systematic implementation of it.

entrepreneurial activity legal entity

The next sign of entrepreneurial activity is its implementation at your own risk, that is, under your own property responsibility. Such a risk includes the assumption by the entrepreneur as the owner of the property not only of adverse consequences that may occur, but also of an additional (specific entrepreneurial) risk in obligations. The responsibility of the entrepreneur is increased, adverse consequences are imposed on him, which have arisen not only through his fault, but also in other cases, except for force majeure.

The right of every citizen to freely use their abilities and property for entrepreneurship and other activities not prohibited by law is enshrined in Article 34 of the Constitution of the Russian Federation. A citizen has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur.

To acquire the status of an individual entrepreneur, a citizen must have the following general features of a subject of civil (and entrepreneurial) law:

a) legal capacity;
b) civil capacity;
c) have a given name (surname, first name, and patronymic, unless otherwise required by law or national custom);
d) have a place of residence (a place where a citizen lives permanently or predominantly).

The law categorically proclaims the inviolability of the legal status of an individual (citizen): no one can be limited in legal capacity and capacity, except in cases and in the manner prescribed by law (part 1 of article 22 of the Civil Code of the Russian Federation). Any other forms of restriction of the legal status of an individual (citizen) are in principle not allowed:

an act of any state or other body that establishes a restriction on the legal personality of an individual (citizen) that does not comply with (contradicts, worsens) the conditions and procedure for restricting the legal capacity of citizens established by law is declared invalid;

the law denies to an individual (citizen) the subjective right of full or partial self-limitation of his legal personality, recognizing such acts of expression of will as void (invalid), except in cases where such transactions are allowed. The new Civil Code of the Russian Federation expanded the scope of opportunities for acquiring the legal status of an individual entrepreneur: the legislator demonstrates this in a new concept - emancipation (Article 27 of the Civil Code of the Russian Federation), according to which a minor who has reached the age of 16 can be declared fully capable. Under the new civil legislation, the legal status of minors who have entered into marriage has been substantially supplemented.

However, if a minor who has entered into marriage enters a job under an employment contract (contract) or begins to engage in entrepreneurial activity, then the disappearance of one of the grounds for obtaining legal personality (in this case, the recognition of marriage as invalid) does not affect the status of an adult as a subject of law.

The question of the nature of the legal capacity of an individual entrepreneur in the literature remains controversial. Some authors, on the basis of Article 4 of the Law of the RSFSR of December 7, 1991 "On the registration fee from individuals engaged in entrepreneurial activities and the procedure for their registration" believe that the legal capacity of an entrepreneur is special; others, given that there are no special rules in the Civil Code of the Russian Federation regarding the legal capacity of citizens-entrepreneurs, conclude that its nature is determined on the basis of general rules on the legal capacity of citizens, which is universal (general). From a formal legal point of view, one should agree with the second group of authors. Indeed, Article 4 of the said Law of the RSFSR of December 7, 1991, which limits the legal capacity of citizens-entrepreneurs by establishing its special nature, contradicts Article 55 of the Constitution of the Russian Federation and Article 1 of the Civil Code of the Russian Federation, and therefore is not subject to application. However, the Code does not contain a special chapter on individual entrepreneurs.

On the basis of legal capacity, citizens are divided into four groups:

With the adoption of part one of the Civil Code of the Russian Federation, the status of an individual entrepreneur received the same detailed legal description as the legal status of a legal entity.

For an individual entrepreneur, his name and place of residence have now become elements of individualization, like details for a legal entity. A citizen enters into civil legal relations under his own name, "including the surname and first name, as well as patronymic, unless otherwise follows from the law or national custom." An individual entrepreneur may, in cases and in the manner prescribed by law, use a fictitious name (pseudonym) or change his name.

In any case, the name received by a citizen at birth, as well as a change of name, are subject to registration in the manner established for registration of acts of civil status (part 3 of article 19 of the Civil Code of the Russian Federation). A change of name by a citizen-entrepreneur does not affect the essence of the rights and obligations acquired by him under his own name. Additionally, he is responsible for:

notification of their debtors and creditors about changes in their status in order to avoid possible adverse consequences (violation of the terms of the contract, causing losses);

making changes at his own expense to documents drawn up in his former name.

The law protects the inviolability of the name of a citizen (part 5 of article 19 of the Civil Code of the Russian Federation), regardless of the form of violation:

harm caused to a citizen as a result of the unlawful use of his name;

distortion or use of the name of a citizen in ways or in a form that affects his honor, dignity or business reputation.

Another obligatory element of the individualization of an individual (citizen) as a subject of law is his place of residence. According to Article 20 of the Civil Code of the Russian Federation, the place of residence is the place where a citizen permanently or predominantly lives. In contrast to the past practice of administrative regulation of the right to reside (propiska), a citizen has the right to determine his own place of residence.

1. A citizen has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur.
2. Has become invalid since March 1, 2013. - Federal Law of December 30, 2012 N 302-FZ.
3. Entrepreneurial activities of citizens carried out without forming a legal entity shall be subject to the rules of this Code, which regulate the activities of legal entities that are commercial organizations, unless otherwise follows from the law, other legal acts or the essence of the legal relationship.
4. A citizen who carries out entrepreneurial activities without forming a legal entity in violation of the requirements of paragraph 1 of this article shall not have the right to refer, in relation to transactions concluded by him, to the fact that he is not an entrepreneur. The court may apply to such transactions the rules of this Code on obligations related to the implementation of entrepreneurial activities.
5. Citizens have the right to engage in production or other economic activities in the field of agriculture without forming a legal entity on the basis of an agreement on the establishment of a peasant (farm) economy, concluded in accordance with the law on a peasant (farm) economy.

The head of a peasant (farm) economy may be a citizen registered as an individual entrepreneur.

Thus, the entrepreneurial activity of a citizen is an independent activity carried out at his own risk, aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law (Civil Code of the Russian Federation, Article 2) .

Thus, entrepreneurial activity implies the implementation of activities (any actions, for example, trade, consulting, technical development of documentation, analysis, creation of intangible objects such as programs, etc.) in a certain area or, as in the legislative norms, "type of economic activity ". You can trade in timber, children's goods, food, medicines, etc. Currently, there is a list of types of economic activity in force on the territory of our country, OKVED or the All-Russian Classification of Economic Activities. That is, it is possible to carry out entrepreneurial activity in any type of economic activity. Thus, the activity that the entrepreneur conducts is specific.

Entrepreneurial activity can only be carried out independently or by an individual registered as an individual entrepreneur, or by a legal entity, in which an individual (citizen) can become a participant. All decisions about how business is conducted, who our customers are, how to attract customers, how business processes are built, where profits are spent, how the business develops, is made by the individual entrepreneur or members of the society. That is, it is these persons who bear full responsibility for the activity.

When making decisions in the process of doing business, we do not always see the whole picture or do not attach importance to certain factors, in this regard, there are opportunities for making decisions that can cause some damage to the activity, that is, there are risks. Among entrepreneurial risks, one can single out external ones related to the economic situation, market position, regulatory framework, etc., and internal ones, coming from the organization of entrepreneurial activity, for example, the quality of business processes, management, execution, personnel, etc.

Thus, if we talk about entrepreneurial activity in a nutshell, this is what (trading, consulting, developing, growing, etc.) you do and in what area of economic activity (fishing, agriculture, light industry, etc.), and in order to conduct entrepreneurial activities, a Certificate of State Registration is required.

Please note that some activities require mandatory licensing or certification. More details about such types of activities subject to licensing can be found in the law "On Licensing Certain Types of Activities".

In accordance with Article 34 of the Constitution of the Russian Federation, every citizen has the right to freely use his abilities and property for entrepreneurial and other economic activities not prohibited by law. The right to carry out entrepreneurial activities means that a citizen has the opportunity, acting in the legal field (legislative acts regulating entrepreneurial activities currently in force in the territory of the Russian Federation), to make a profit or pursue other goals (when forming non-profit organizations).

In more detail, I would like to consider the entrepreneurial activity of a citizen as an individual entrepreneur.

The main features of the activity of a citizen as an individual entrepreneur are:

1. This is an independent activity.
2. This is an activity carried out at your own peril and risk.
3. This is an activity aimed at the systematic extraction of profit from the use of property, the sale of goods, the performance of work, the provision of services.
4. This is an activity carried out by persons registered as individual entrepreneurs in the manner prescribed by law.

A citizen has the right to engage in entrepreneurial activities without forming a legal entity only from the moment of state registration as an individual entrepreneur. If this requirement is violated in relation to the transactions concluded at the same time, the citizen is not entitled to refer to the absence of the status of an individual entrepreneur. It should be borne in mind that the rules established to regulate the activities of legal entities that are commercial organizations apply to the entrepreneurial activity of a citizen, unless otherwise follows from the law, other regulations and the essence of the legal relationship.

If an individual entrepreneur is unable to satisfy the claims of creditors filed in connection with his entrepreneurial activities, then he may be declared insolvent (bankrupt) by a court decision, from the moment of which the registration of him as an individual entrepreneur loses legal force. It should be noted that when implementing the procedure for declaring an individual entrepreneur bankrupt, his creditors have the right to present claims against him that are not related to his entrepreneurial activities. Such claims of creditors, not declared by them in the above procedure, remain valid even after the completion of the bankruptcy procedure of an individual entrepreneur.

If an individual entrepreneur is declared bankrupt, the claims of creditors are satisfied at the expense of the property belonging to him in the following order:

1. claims of citizens to whom an individual entrepreneur is liable for causing harm to life or health, through the capitalization of time payments, and claims for the recovery of alimony;
2. payment of severance pay and remuneration for labor of persons working under an employment contract, including under a contract, as well as remuneration under copyright agreements;
3. claims of creditors secured by a pledge of property belonging to an individual entrepreneur;
4. arrears in mandatory payments to the budget and extra-budgetary funds;
5. payment to other creditors by law.

If an individual entrepreneur declared bankrupt has completed settlements with his creditors, then he is released from fulfilling the remaining obligations related to his entrepreneurial activity and other requirements presented for execution and taken into account when declaring him bankrupt. However, it must be borne in mind that the claims of citizens to whom an individual entrepreneur declared bankrupt is liable for causing harm to life or health, as well as other claims of a personal nature, remain valid.

And the last but important point - doing business is possible only after successful completion of state registration, which will result in obtaining a Registration Certificate. Only the presence of this certificate opens the way for you to conduct legal business activities on the territory of the Russian Federation and abroad (foreign economic activity).

New edition Art. 23 of the Civil Code of the Russian Federation

1. A citizen has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur, except for the cases provided for in paragraph two of this clause.

With regard to certain types of entrepreneurial activity, the law may provide for the conditions for citizens to carry out such activities without state registration as an individual entrepreneur.

3. Entrepreneurial activities of citizens carried out without forming a legal entity shall be subject to the rules of this Code, which regulate the activities of legal entities that are commercial organizations, unless otherwise follows from the law, other legal acts or the essence of the legal relationship.

4. A citizen who carries out entrepreneurial activities without forming a legal entity in violation of the requirements of paragraph 1 of this article shall not have the right to refer, in relation to transactions concluded by him, to the fact that he is not an entrepreneur. The court may apply to such transactions the rules of this Code on obligations related to the implementation of entrepreneurial activities.

5. Citizens have the right to engage in production or other economic activities in the field of agriculture without forming a legal entity on the basis of an agreement on the establishment of a peasant (farm) economy, concluded in accordance with the law on a peasant (farm) economy.

The head of a peasant (farm) economy may be a citizen registered as an individual entrepreneur.

Commentary on Art. 23 of the Civil Code of the Russian Federation

1. The ability of citizens to freely carry out entrepreneurial activities is one of the main subjective civil rights that make up the legal capacity of individuals. The concept of entrepreneurial activity is contained in Art. 2 GK. The commented norm, under the fear of the consequences indicated in paragraph 3, provides for the need to:

a) state registration of a person as an individual entrepreneur;

b) state registration of a peasant (farm) economy.

special law.

Federal Law No. 129-FZ of 08.08.2001 "On State Registration of Legal Entities and Individual Entrepreneurs".

Federal Law No. 74-FZ of 11.06.2003 "On the Peasant (Farmer's) Economy".

2. The main rule for the participation of individual entrepreneurs in property relations is the extension to them (with some exceptions) of the legislation on commercial organizations.

Another commentary on Art. 23 of the Civil Code of the Russian Federation

1. The current Civil Code includes in the content of the legal capacity of citizens the right to engage in entrepreneurial activity, which is understood as an independent activity carried out at one's own risk, aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services (see commentary to Article 2 ).

Paragraph 1 of the commented article establishes that a citizen can engage in entrepreneurial activities without forming a legal entity, i.e. as an individual entrepreneur, from the moment of state registration in this capacity. By virtue of paragraph 3 of Art. 23, the rules of civil law governing the activities of legal entities (commercial organizations) are applied to the entrepreneurial activity of citizens, unless otherwise follows from the law, other legal acts or the essence of the legal relationship.

State registration as an individual entrepreneur is a prerequisite for doing business without forming a legal entity. Since January 1, 2004, the procedure for its implementation has been regulated by the Law on Registration of Legal Entities and Individual Entrepreneurs.

State registration of individual entrepreneurs - an act of the authorized federal executive body, carried out by entering into the state register information about the acquisition by individuals of the status of an individual entrepreneur and, in the appropriate case, their termination of such activities. The unified state register of individual entrepreneurs contains the following information: surname, name and patronymic (last, if any) of the person in Russian, gender, date and place of birth, citizenship (in its absence, "stateless person" is indicated), place of residence in the Russian Federation (the address is indicated - the name of the subject of the Russian Federation, district, city, other settlement, street, house number, apartment - at which the individual entrepreneur is registered at the place of residence in the manner prescribed by the legislation of the Russian Federation), data of the main document proving the identity of a citizen of the Russian Federation on the territory of the Russian Federation , the date of state registration of an individual as an individual entrepreneur and the data of a document confirming the fact that an entry on the specified state registration was made in the unified state register of individual entrepreneurs, the date and method of termination by an individual of activity as an individual entrepreneur (upon an application or in connection with with death, or in connection with the adoption by the court of a decision to declare insolvent (bankrupt) or to terminate activities as an individual entrepreneur forcibly, or in connection with the entry into force of a court verdict, which was sentenced to deprivation of the right to engage in entrepreneurial activity for a certain period, or in connection with the cancellation of a document confirming the right to temporarily or permanently reside in the Russian Federation, or the expiration of the said document), information about licenses received by an individual entrepreneur. Entries are made to the state register on the basis of documents submitted during state registration. Each entry is assigned a state registration number and for each entry the date of its entry into the relevant state register is indicated (clauses 2, 4, article 5 of the Law on Registration of Legal Entities and Individual Entrepreneurs).

The information and documents contained in the state register are open and publicly available, with the exception of information to which access is limited: information about passport and other personal data of individuals can be provided exclusively to state authorities, including law enforcement agencies and courts in their proceedings. cases, local self-government bodies, bodies of state extra-budgetary funds in cases and in the manner established by the Government of the Russian Federation. This restriction does not apply to the provision of information about the place of residence of individual entrepreneurs, which can be provided by the registration authority only on the basis of a request addressed directly to the registration authority by an individual who has presented an identity document in accordance with the legislation of the Russian Federation.

The information contained in the state register about an individual entrepreneur is provided in the form of: an extract from the register; copies of the document (documents) available in the register; certificates of the absence of the requested information (clause 2, article 6 of the above Law). The deadline for providing the specified information cannot be more than five days from the date of receipt by the registration authority of the relevant request. Provision of information and documents is carried out for a fee, unless otherwise provided by federal law. Its size is established by the Government of the Russian Federation. In cases and in the manner determined by federal laws and regulatory legal acts of the Government of the Russian Federation, the registering body provides free of charge the information contained in the state register to state authorities, including law enforcement agencies and courts on cases in their proceedings, local governments, bodies of state extra-budgetary funds , as well as persons defined by federal laws.

Refusal to provide information and documents contained in the state register of individual entrepreneurs, with the exception of information to which access is limited, is not allowed.

State registration of an individual entrepreneur is carried out at the place of his residence. The following shall be submitted to the registering authority: 1) an application for state registration signed by the applicant in the form approved by the Government of the Russian Federation; 2) a copy of the main document of an individual registered as an individual entrepreneur (for a citizen of the Russian Federation), a copy of a document established by federal law or recognized in accordance with an international treaty of the Russian Federation as an identity document of a foreign citizen registered as an individual entrepreneur (for a foreign citizen); 3) a copy of the birth certificate of an individual registered as an individual entrepreneur, or a copy of a document confirming the date and place of birth of the specified person in accordance with the legislation of the Russian Federation or an international treaty of the Russian Federation; 4) a notarized consent of parents, adoptive parents or a trustee to carry out entrepreneurial activities by an individual registered as an individual entrepreneur, or a copy of the marriage certificate, or a copy of the decision of the guardianship and guardianship authority or a copy of the court decision on declaring an individual registered as an individual an entrepreneur who is fully capable (in the event that an individual registered as an individual entrepreneur is a minor); 5) a document confirming the payment of the state fee. Documents are submitted to the registration authority directly or sent by mail with a declared value when it is sent and a description of the attachment. The personal appearance of a citizen for state registration is optional.

State registration of an individual as an individual entrepreneur is carried out for a period of not more than five years. The state registration of an individual as an individual entrepreneur is not allowed if his state registration in this capacity has not expired, or if a year has not expired from the date of the court’s decision to declare him insolvent (bankrupt) due to the inability to satisfy the claims of creditors related to the previously carried out entrepreneurial activity, or a decision to forcibly terminate his activity as an individual entrepreneur, or the period for which this person was deprived of the right to engage in entrepreneurial activity by a court verdict has not expired. Article 22.3 of the Law on Registration of Legal Entities and Individual Entrepreneurs regulates the procedure for state registration when an individual ceases to operate as an individual entrepreneur.

The decision on state registration, adopted by the registering body, is the basis for making an appropriate entry in the unified state register of individual entrepreneurs, which is a federal information resource. The moment of state registration is the making by the registering body of an appropriate entry in the state register. Not later than one business day from the date of state registration, the registering authority issues (sends) to the applicant a document confirming the fact of making an entry in the state register. The form and content of the document - a certificate of registration as an individual entrepreneur - are established by the Government of the Russian Federation (clauses 2, 3, article 11 of the said Law). The certificate is issued for a fixed period. It indicates the type (s) of activities that an individual entrepreneur is entitled to engage in. A citizen-entrepreneur has the right to engage in certain types of activities only on the basis of a license - a special permit of the bodies authorized to conduct licensing. Licensable activities include types of activities, the implementation of which may entail damage to the rights, legitimate interests, health of citizens, defense and security of the state, cultural heritage of the peoples of the Russian Federation and the regulation of which cannot be carried out by other methods than licensing (Article 4 of the Law on Licensing ).

2. Peasant (farm) economy is created for the purpose of production, processing and sale of agricultural products.

On June 11, 2003, the President of the Russian Federation signed the Law on the Peasant (Farm) Economy. According to Art. 1 of this Law, a farm carries out entrepreneurial activities without forming a legal entity. This activity is subject to the rules of civil law that regulate the activities of legal entities that are commercial organizations.

Members of the farm may be: 1) spouses, their parents, children, brothers, sisters, grandchildren, as well as grandparents of each of the spouses, but not more than three families. Children, grandchildren, brothers and sisters of members of the farm have the right to be accepted as members of the farm when they reach the age of 16; 2) citizens who are not related to the head of the farm.

When carrying out entrepreneurial activity in agriculture, the head of a peasant (farm) economy is recognized as an entrepreneur. The maximum number of such citizens cannot exceed five people (Article 3 of the Law).

A farm is considered established from the date of its state registration. The management of the property of the farm is carried out in the interests of the farm by its head. For transactions made by the head in the interests of the farm, the latter is liable with his property (Article 8). A transaction made by the head of the farm is considered to be made in the interests of the farm, unless it is proved that it was concluded in the personal interests of the head of the farm. In the event of withdrawal from the farm, a citizen is entitled to monetary compensation commensurate with his share in the common ownership of the property of the farm. The term for payment of monetary compensation is determined by mutual agreement between the members of the farm or, if mutual agreement is not reached, in court and cannot exceed a year from the moment the member of the farm submits an application for withdrawal.

A citizen who left the farm, within two years after leaving it, bears subsidiary liability within the value of his share in the property of the farm for obligations arising from the activities of the farm until the moment he left it.

By mutual agreement of its members, one of its members is recognized as the head of the farm. In the event that a farm is created by one citizen, he is the head of the farm (Article 16 of the Law). If it is impossible for the head of the farm to perform his duties for more than six months, or if he dies or voluntarily renounces his powers, the members of the farm shall, by mutual agreement, recognize another member as the head of the farm. The change of the head of the farm does not entail the termination of his membership in the farm (Article 18 of the Law). The grounds and procedure for terminating a farm are defined in Ch. 8 of the Law. Disputes arising in connection with the termination of a peasant (farm) economy are resolved in court.

3. Not all individual entrepreneurs comply with the state registration requirement. Based on this circumstance, the commented article provides that such an entrepreneur is not entitled to refer to transactions made by him that he is not an entrepreneur, and the court may apply the rules governing entrepreneurial activity in relation to such transactions, in particular the rule on increased liability ( regardless of fault) in business relations for non-fulfillment or improper fulfillment of their obligations (see paragraph 3 of article 401). The Consumer Rights Protection Law imposes on an individual entrepreneur, as well as on a commercial organization, a number of additional obligations to inform consumers, ensure the safety of goods for life and health in the event of the sale of goods, the performance of work and services, etc.

A citizen has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur. Along with registered individual entrepreneurs, entrepreneurial

activity may also be carried out by the head of a peasant (farm) economy - from the moment of state registration of the economy, carrying out activities without forming a legal entity.

Entrepreneurial activity of citizens is regulated by Art. 23 and 25 of the Civil Code. At the same time, with some exceptions, the rules of the law regulating the activities of commercial organizations - legal entities can also be applied to the entrepreneurial activities of these entities. All individuals engaged in entrepreneurial activities without forming a legal entity are recognized as small businesses.

Registration of citizens of the Russian Federation, foreign citizens and stateless persons as individual entrepreneurs

is carried out in accordance with the Regulations on the procedure for state registration of business entities, approved by Decree of the President of the Russian Federation of July 8, 1994 No. 1482 “On streamlining the state registration of enterprises and entrepreneurs on the territory of the Russian Federation”. For state registration, an entrepreneur submits to the registration authority: an application in the prescribed form; a document confirming the payment of the registration fee and an envelope with a return address and signs of postal order payment (if the application is sent by valuable mail). State registration is carried out on the day of submission of documents or within three days from the date of receipt of documents by mail. At the same time, the applicant is issued or sent by mail an unlimited certificate of his registration as an entrepreneur. The maximum size of the registration fee must not exceed the minimum wage established by law.

The entrepreneurial status of a citizen obliges him to be fully responsible for his debts both to the budget and to creditors. An individual entrepreneur who is unable to satisfy the claims of creditors related to his entrepreneurial activity may be recognized by a court decision as insolvent (bankrupt) and lose the quality of an entrepreneur.

Claims of creditors of an entrepreneur who has been declared bankrupt shall be satisfied at the expense of his property, which may be foreclosed upon, in the order of priority. Of the five queues established by law, first of all, the claims of citizens to whom the entrepreneur is liable for causing harm to life and health are satisfied through the capitalization of time payments, as well as claims for the recovery of alimony (paragraph 3 of article 25 of the Civil Code).

In the course of the procedure for declaring an individual entrepreneur bankrupt, his creditors may file claims for obligations not related to entrepreneurial activity. After the completion of settlements with creditors, the entrepreneur is released from the fulfillment of claims on these obligations, if they were not only presented, but also taken into account when the entrepreneur was declared bankrupt.

In accordance with the law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”, citizens who are not registered as individual entrepreneurs can also be declared bankrupt (Articles 202-213).

An individual entrepreneur declared bankrupt cannot be re-registered as such within one year from the moment he was declared bankrupt (paragraph 2 of article 216).

The civil legal capacity of a foreign natural person is determined by his personal law. Personal law is the law of the country of which the person is a citizen. If a person, along with Russian citizenship, also has foreign citizenship, his personal law is Russian law. Similarly, Russian law is the personal law of a foreign citizen who has a place of residence in the Russian Federation. If a person has several citizenships, the personal law shall be the law of the country in which this person has a place of residence. The personal law of a stateless person is the law of the country in which this person has a place of residence (paragraphs 1-5 of article 1195 of the Civil Code). At the same time, as a general rule, foreign citizens and stateless persons (stateless persons) enjoy civil legal capacity in the Russian Federation on an equal basis with Russian citizens (Article 1196 of the Civil Code).

The capacity of a citizen is his ability to acquire and exercise civil rights by his actions, to create civil duties for himself and to fulfill them. There are four states of capacity: 1)

full capacity; 2)

partial capacity; 3)

limited capacity; 4)

"Zero" legal capacity (complete incapacity).

Full civil capacity arises with the onset of adulthood, that is, upon reaching the age of 18. At the same time, a citizen under the age of 18 may acquire full legal capacity in the event of marriage in accordance with the established procedure earlier than this age or as a result of emancipation.

Emancipation is the declaration of a minor who has reached the age of 16, fully capable, provided that he works under an employment contract (contract) or engages in business activities with the consent of legal representatives (parents, adoptive parents or guardian). Emancipation is carried out by decision of the body of guardianship and guardianship - with the consent of legal representatives or by a court decision - in the absence of such consent.

Minor citizens have partial legal capacity: minors aged 6 to 14 years and non-emancipated adolescents aged 14 to 18 years. For juvenile transactions (except for small household and some others that juveniles have the right to independently make from the age of 6) on their behalf (subject to the conditions provided for by law) only their parents, adoptive parents or guardians can carry out.

Minors aged 14 to 18 make transactions, as a general rule, with the prior (or subsequent) written consent (approval) of their legal representatives. At the same time, at this age, adolescents have the right to independently manage their earnings, scholarships, and other incomes; to exercise the rights of the author of the legally protected result of intellectual activity; make deposits in credit institutions and dispose of them; make small household and other transactions, in particular transactions aimed at obtaining gratuitous benefits that do not require notarization or state registration (for example, inexpensive gifts), and transactions for the disposal of funds provided by a legal representative or, with the consent of the latter, by a third party for a specific purpose ( for example, to purchase a camera) or for free disposal.

The limited legal capacity of citizens is also regulated by law. As a general rule, no one can be limited in legal capacity and capacity otherwise than in cases and in the manner prescribed by law. Failure to comply with the conditions and procedure established by law for restricting the legal capacity of citizens or their right to engage in entrepreneurial or other activities entails the invalidity of the act of the state or other body that established such a restriction. Moreover, as a general rule, the complete or partial voluntary waiver of a citizen's legal or legal capacity and other transactions aimed at limiting legal or legal capacity are null and void (Article 22 of the Civil Code).

Both fully capable (adults) and partially capable citizens (teenagers aged 14 to 18) may be limited in capacity.

An adult citizen may be limited by the court in his legal capacity in the manner prescribed by civil procedural legislation, and with the establishment of guardianship, provided that, firstly, he abuses alcohol or drugs and, secondly, as a result of this, puts his family in a difficult financial situation. position. After a court decision, such a citizen has the right to independently make only small household transactions, but to make other transactions, as well as receive earnings, pensions and other incomes and dispose of them, he can only with the consent of the trustee. The restriction of legal capacity and guardianship are canceled by the court upon the disappearance of the indicated grounds, by virtue of which the citizen was limited in legal capacity.

The partial legal capacity of a teenager aged 14 to 18 may also be limited only by a court decision at the request of the legal representatives of the teenager or the guardianship and guardianship authority. If there are sufficient grounds (including abuse of alcohol, drugs, reckless spending of their earnings, scholarships, other income), the court can not only limit, but also deprive the teenager of the right to independently manage any of his income.

A citizen who, due to a mental disorder, cannot understand the meaning of his actions or control them, may be recognized as completely incompetent by a court decision with the establishment of guardianship over him. On behalf of such a citizen, transactions are made by his guardian. If the grounds for recognizing a citizen as incapable cease to exist, the court recognizes him as capable, and on the basis of a court decision, the guardianship established over him is cancelled.

The Civil Code regulates in detail the functions, rights, duties and activities of guardianship and guardianship bodies, in the role of which local self-government bodies act (Articles 31 - 41).

Limitation of legal capacity and recognition of a citizen as incapacitated must be distinguished from patronage over capable citizens. Guardianship in the form of patronage is established by the body of guardianship and guardianship only at the request of the most adult capable citizen who, for health reasons, cannot independently exercise and protect his rights and fulfill his duties. A trustee (assistant) of a capable citizen may also be appointed in this case only with the consent of such a citizen. Usually, the assistant concludes with the ward a contract of agency or an agreement on trust management of the property of the ward.

Civil capacity of a foreign natural person,

as well as his legal capacity, is determined by his personal law (paragraph 1 of article 1197 of the Civil Code). However, an individual who does not have civil capacity under his personal law is not entitled to refer to his lack of legal capacity if he is capable under the law of the place of the transaction, unless it is proved that the other party knew or obviously should have known about incapacity. At the same time, the recognition in the Russian Federation of an individual as incapable or partially capable is subject to Russian law (clauses 2, 3 of article 1197 of the Civil Code). The granting of the so-called national regime to foreign citizens and stateless persons in the Russian Federation does not exclude the establishment in relation to them, as a rule, in their own interests, of certain legal formalities accepted in international practice. In this regard, in pursuance of paragraph 4 of Decree of the President of the Russian Federation of December 16, 1993 No. 2145 "On measures to introduce immigration control", the Government of the Russian Federation, by Resolution of September 8, 1994 No. No. 1021 "On measures to prevent and reduce uncontrolled external migration" - Regulations on the procedure for working with foreign citizens and stateless persons arriving and staying in Russia in search of asylum, determining their legal status, temporary accommodation and stay on the territory of the Russian Federation21

In addition, Decree of the Government of the Russian Federation of October 1, 1998 No. 1142 "On the implementation of certain norms of the Federal Law" On the procedure for leaving the Russian Federation and entering the Russian Federation "approved the Regulations on the presentation by foreign citizens and stateless persons of guarantees of providing funds for their living on the territory of the Russian Federation and exit from the Russian Federation (Rossiyskaya gazeta. October 10, 1998)

Currently, the status of foreigners in Russia is determined, in addition to the Civil Code, by federal law No. 115-F3 of July 25, 2002 "On the legal status of foreign citizens in the Russian Federation", which entered into force on October 31, 2002 (RG, July 31, 2002 .). This law defines the basic concepts (foreign citizen, stateless person, etc.), establishes three legal regimes for the stay of foreigners in Russia (temporary stay, temporary residence and permanent residence), regulates the procedure for their entry, exit from the country and their registration.

The place of residence of a citizen, which is an important element of his legal status, is the place where the citizen permanently or predominantly resides. The place of residence of minors and wards of citizens is the place of residence of their legal representatives (Article 20 of the Civil Code).

In accordance with Art. 2 of the Federal Law of June 25, 1993 No. 5242 - I "On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation" (Vedomosti of the Supreme Council of the Russian Federation. 1993. No. 32. Art. 1227. Introduced into effective from October 1, 1993) a hotel, a sanatorium, a rest home, a boarding house, a campsite, a tourist base, a hospital, another similar institution, as well as a dwelling that is not the place of residence of a citizen, in which he temporarily resides, are recognized as a place of residence. On the contrary, a place of residence is a dwelling in which a citizen lives permanently or predominantly as an owner, under a lease (sublease), lease agreement or on other legal grounds (residential house, apartment, hostel, home for veterans, or other specialized house ).

Instead of registration, the law established registration of citizens at their place of residence and stay. On its basis, the Decree of the Government of the Russian Federation of July 17, 1995 No. 713 approved the Rules for the Registration and Withdrawal of Citizens of the Russian

Federation from registration at the place of stay and at the place of residence within the Russian Federation (Rossiyskaya gazeta. July 27, 1995). By a resolution of the Constitutional Court of the Russian Federation of February 2, 1998, paragraphs 10, 12 and 21 of these Rules were recognized as inconsistent with the Constitution of the Russian Federation (Rossiyskaya Gazeta, February 10, 1998). Earlier (April 4, 1996), the Constitutional Court of the Russian Federation declared unconstitutional certain articles and clauses of a number of normative acts of the city of Moscow and some other settlements and regions regulating the procedure for registering citizens arriving for permanent residence in these regions (Rossiyskaya Gazeta. April 17, 1996 .).

By Decree No. 599 of August 14, 2002, the Government of the Russian Federation introduced new changes and additions to the Registration Rules of July 17, 199522. Now you can register at the place of stay for any period (and not for three months). Any prohibitions on registration have been canceled (in terms of the written consent of all adults permanently residing in residential premises; the amount of living space per resident, etc.).

P.). At the same time, the peculiarities of registration of citizens in certain regions, primarily in Moscow and the Moscow Region, have been preserved (see about this: WG, June 14, 21, 28, 2002)

Within the framework of his constitutional rights, a citizen of the Russian Federation also has the opportunity to leave the Russian Federation and to enter the Russian Federation. He cannot be restricted in his right to leave the Russian Federation except on the grounds and in the manner provided for by the Federal Law of August 15, 1996 No. 114 - FZ "On the procedure for leaving the Russian Federation and entering the Russian Federation" as amended on July 18 1998 No. 110-FZ (Entered into force on August 22, 1996. Rossiyskaya gazeta. August 22, 1996; July 24, 1998). Moreover, the Constitutional Court of the Russian Federation, by its decision of January 15, 1998 No. 2-P, declared unconstitutional the provisions of the first part of Art. 8 of this law, essentially preventing the issuance of a foreign passport in the Russian Federation to a citizen of the Russian Federation who has a place of residence outside its territory (Rossiyskaya Gazeta, January 29, 1998).

Important features are inherent in determining the place of residence (and, in general, the civil status) of refugees, migrants and forced migrants. Settlers are citizens who change their place of residence in connection with moving to live in another area by decision of the competent state authorities in connection with objective events (radioactive contamination of the territory, construction of a hydroelectric station, railway line, etc.) and with the provision of housing in a new place residence.

Forced migrants are citizens who leave their former place of residence as a result of the persecution of them or their family members, the commission of violence against them on the grounds of race or nationality, religion, language or political convictions. In accordance with the Federal Law of February 19, 1993 "On forced migrants" as amended by the Law of December 20, 199523, citizens of the Russian Federation who lived in the territory of a foreign state or another subject of the Russian Federation, as well as foreign citizens and stateless persons. A forced migrant receives a certificate from the territorial body of the migration service with the right to independently choose a place of residence on the territory of Russia.

According to sub. 1 p. 1 art. 1 of the Federal Law of February 19, 1993 "On Refugees" as amended by the Law of June 28, 1997 No. 95 - FZ (Effective from July 3, 1997, Rossiyskaya Gazeta. July 3, 1997), a person is recognized as a refugee, in particular who is not a Russian citizen and who, owing to a well-founded fear of being persecuted for reasons of race, religion, citizenship, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or unwilling to avail himself of the protection of that country enjoy such protection because of such fear. Like a forced migrant, a refugee is recognized as such by decision of the migration service and acquires a set of rights and obligations listed in Art. 8 of the Law "On Refugees", including the right to use housing provided in accordance with the procedure determined by the Government of Russia from the housing fund for temporary settlement. In the future, the refugee has the right either to apply for citizenship of the Russian Federation or the right to permanent residence in Russia, or to voluntarily return to the country of his former permanent residence.

An important role in legal relations related to the migration of citizens is issued by the migration departments of the Ministry of Internal Affairs, the Central Internal Affairs Directorate, and the Internal Affairs Directorate of the constituent entities of the Russian Federation. In accordance with the General Regulations on this unit, approved by the order of the Ministry of Internal Affairs of the Russian Federation of May 31, 2002 No. 522 (RG, June 11, 2002) in order to implement the Decree of the President of the Russian Federation of February 23, 2002 No. 232 (SZ RF, 2002, No. 8, article 813) and Decree of the Government of the Russian Federation of May 21, 2002 No. 327, one of the main functions of the migration unit is to ensure the application, in accordance with Russian law, of the procedure for granting refugee or forced migrant status.

In everyday life, there are frequent cases of long-term unmotivated absence of some citizens, including entrepreneurs, from their place of residence. In order to prevent unreasonably long uncertainty in the property and personal relations of these citizens with other persons, the law establishes the possibility of recognizing such citizens as missing and declaring them dead.

A citizen may be declared missing by a court at the request of interested persons if during the year there is no information about his place of residence at his place of residence. If it is necessary to permanently manage the property of a missing person, it is transferred on the basis of a court decision to a person determined by the guardianship and trusteeship body, with which this body concludes an agreement on trust management. From the property of a missing person, maintenance is given to citizens whom he is obliged to support, and the debt on his other obligations is repaid. In the event of the appearance or discovery of the place of residence of a citizen, the court cancels its decision, and on this basis, the trust management of property is also canceled.

Declaring a citizen dead by a court is allowed if there is no information at his place of residence about his place of stay for 5 years, and if he went missing under circumstances threatening death (for example, during a forest fire) or giving reason to assume his death from a certain accident (say, from the explosion of an aircraft, among the passengers of which the missing person was listed), - within 6 months. If a citizen goes missing in connection with hostilities, on the contrary, a citizen may be declared dead by a court not earlier than two years after the end of hostilities.

The day of death of a citizen declared dead shall be considered the day on which the court decision on declaring him dead or the day of his alleged death specified in the court decision shall come into force. Declaring a citizen dead (legal death) entails the same consequences as actual death - registration of death in the civil registry offices, termination of marriage, opening of an inheritance.

In the event of the appearance or discovery of the place of residence of a citizen declared dead, the court cancels its decision, on the basis of which the record of death in the act book is annulled. A citizen has the right to demand from any person the return of the surviving property that has passed to him free of charge, that is, by way of inheritance or donation. A person who has acquired the property of a citizen who has been declared dead under a transaction for compensation is obliged to return the property or its value only if this person's knowledge is proved that the citizen declared dead is actually alive.

Along with citizens, legal entities are subjects of civil law. A legal entity is an organization that owns, manages or manages separate property and is liable for its obligations with this property, can acquire and exercise property and personal non-property rights on its own behalf, bear obligations, be a plaintiff and a defendant in court. 1 article 48 of the Civil Code).

A legal entity must have a total of 4 legal features: organizational order (or unity); property isolation; the opportunity to act in civil circulation and in court on their own behalf; independent property liability.

The recognition of a certain “organization” as a legal entity does not mean that only groups of citizens can act in this capacity. So, a business company can be created by one individual. It is only important that the creation be properly organized (or ordered).

Formal confirmation of organizational orderliness is the fact of state registration of a legal entity. The procedure for state registration of legal entities in the justice authorities should be determined in accordance with Art. 51 of the Civil Code, the law on registration of legal entities. this law was adopted on August 8, 2001 No. 129-FZ (Rossiyskaya Gazeta, August 10, 2001). It came into effect on July 1, 2002.

A legal entity can act on the basis of a charter (for example, a joint-stock company), or a memorandum of association and articles of association (a limited liability company), or only a memorandum of association (general partnership). Founders (participants) of the legal

persons must conclude a constituent agreement and (or) approve the charter of a legal entity and send this (these) constituent document simultaneously with others required additionally for the registration of certain types of legal entities, as well as an application for registration and a certificate of payment of the state fee to the registering authority. Constituent documents may also be sent to the registering authority by valuable postal item with a notification and a description of the attachment.

When studying the current procedure for state registration of both the creation and reorganization and liquidation of legal entities, it is necessary to take into account the relevant changes and additions made to Art. 51. 54, 61, 62 and 63 of the Civil Code, as well as to federal laws that determine the legal status of various organizational and legal forms of legal entities, federal law of March 21, 2002 No. 31-FZ "On bringing legislative acts in line with federal law “On State Registration of Legal Entities” (RG, March 26, 2002). This law, which entered into force on July 1, 2002, in particular, introduced amendments and additions to the laws regulating the procedure for registering the creation, reorganization and liquidation of chambers of commerce and industry, public associations, charitable organizations, limited liability companies, joint-stock companies, organizations with foreign investment, etc.

State registration is carried out by the federal executive body (hereinafter referred to as the registering body), authorized in the manner prescribed by the Constitution of the Russian Federation and the federal constitutional law "On the Government of the Russian Federation".

In accordance with Decree of the Government of the Russian Federation of May 17, 2002 No. 319 “On the authorized federal executive body carrying out state registration of legal entities”, such body is the federal ministry for taxes and fees (СЗ RF, 2002, No. 20, art. 1872 ). A state fee is paid for state registration. The Russian Federation maintains a state register of legal entities containing information on their creation, reorganization and liquidation. This register is usually maintained both on paper and on electronic media. The rules for maintaining the Unified State Register of Legal Entities and providing the information contained therein were approved by Decree of the Government of the Russian Federation of June 19, 2002 No. 438. On the same day, by Resolution No. 439, the Government of the Russian Federation approved the forms of documents used in the state registration of legal entities and the requirements for their execution (RG, June 26, 2002) The state register contains the following information and documents about a legal entity:

a) full and (if available) abbreviated name, including company name, for commercial organizations in Russian. If in the constituent documents of a legal entity its name is indicated in one of the languages of the peoples of the Russian Federation and (or) in a foreign language, the name of the legal entity in these languages is also indicated in the state register;

b) organizational and legal base;

c) the address (location) of the permanent executive body of the legal entity (in the absence of a permanent executive body of the legal entity - another body or person entitled to act on behalf of the legal entity without a power of attorney), which is used to communicate with the legal entity;

d) method of formation of a legal entity (creation or reorganization);

e) information about the founders of the legal entity;

f) copies of constituent documents of the legal entity;

g) information on legal succession - for legal entities established as a result of the reorganization of other legal entities, for legal entities whose constituent documents are amended in connection with the reorganization, as well as for legal entities that ceased their activities as a result of the reorganization;

h) the date of registration of changes made to the constituent documents of a legal entity, or in cases established by law, the date of receipt by the registering body of a notification of changes made to the constituent documents;

i) method of terminating the activities of a legal entity (by reorganization or liquidation);

j) the amount of the authorized capital indicated in the constituent documents of the commercial organization (share capital, authorized fund, share contributions or other);

k) last name, first name, patronymic and position of a person entitled to act on behalf of a legal entity without a power of attorney, as well as passport data of such a person or data of other identification documents in accordance with the legislation of the Russian Federation, and taxpayer identification number, if any;

l) information about licenses obtained by a legal entity. In the event of a change in the information contained in the state register, the previously entered information is saved. The procedure and terms for deleting obsolete information from the state register and destroying obsolete documents are determined by the Government of the Russian Federation.

Entries are made to the state register on the basis of documents submitted by applicants during the state registration of legal entities and amendments to the state register. Each entry is assigned a state registration number and for each entry the date of its entry into the state register is indicated.

State registration of legal entities upon their creation is carried out by the registering authorities at the location of the permanent executive body, and in case of its absence - at the location of another body or person entitled to act on behalf of the legal entity without a power of attorney.

Submission of documents for state registration is carried out in the manner prescribed by Art. 9 of the law.

State registration is carried out within the time limits provided for in Art. 8 of the law.

Denial of state registration is allowed in the following cases: a) failure to submit documents required by law for state registration;

b) submission of documents to an improper registration authority.

The decision to refuse state registration must contain the grounds for refusal with a mandatory reference to the violations provided for in paragraph 1 of Art. 8.

The decision to refuse state registration must be made no later than the period established by Article 8 of the law for state registration.

The decision to refuse state registration is sent to the person indicated in the application for state registration, with a notification of delivery of such a decision.