The concept and types of property, the legal regime of certain types of property. Entrepreneurial law of Russia Scheme of the legal regime of certain types of property
From an economic and legal point of view, the property of entrepreneurs can be divided into the following types:
fixed assets;
working capital;
Intangible assets;
Capital;
Funds and reserves of the organization.
The legal regime of fixed assets is established by the Tax Code of the Russian Federation, the Regulation on accounting and financial reporting in the Russian Federation, approved by Order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n, and the Regulation on accounting "Accounting for fixed assets", approved by Order of the Ministry of Finance of Russia dated 30 March 2001 No. 26n.
To qualify property as fixed assets, the following conditions must be met simultaneously:
Use in the production of products, in the performance of work or the provision of services, or for the management needs of the organization;
Long-term use, that is, a useful life of more than 12 months or a normal operating cycle if it is more than 12 months;
The Organization does not intend to subsequently resell these assets;
The ability to bring economic benefits (income) to the organization in the future.
Fixed assets include, for example, buildings, structures; transmission devices, working and power machines and equipment, measuring and regulating instruments and devices, computer technology, vehicles, working and productive livestock; perennial plantations; land plots owned by the organization, objects of nature management (water, subsoil and other natural resources), etc.
The legislation of the Russian Federation establishes the rules for accounting, repayment of the cost of fixed assets, their write-off and revaluation. As part of the property of organizations, fixed assets owned by them on the basis of ownership, economic management, operational management, as well as leased fixed assets are taken into account.
Fixed assets are accounted for at historical cost. In order to bring the value of fixed assets in line with their actual value, organizations have been granted the right not more than once a year to revaluate fixed assets. The cost of fixed assets after the revaluation is called replacement. A distinction is made between full replacement cost and residual replacement cost (taking into account depreciation).
The cost of fixed assets of the organization is repaid by depreciation. Depreciation is the process of gradually transferring the value of the means of labor as they are physically and morally obsolete to the product being produced. The carry-forward value in cash is the depreciation charge that is accumulated in the company's depreciation fund. The Regulations on Accounting of Fixed Assets and guidelines define: depreciation methods (linear, declining balance, depreciation by the sum of numbers of years of the useful life, depreciation in proportion to the volume of products (works, services)); objects not subject to depreciation; the procedure for calculating depreciation charges. The amount of depreciation is determined depending on the useful life of the object.
The useful life is the period during which the use of an item of property, plant and equipment generates income for the organization.
Article 258 of the Tax Code of the Russian Federation establishes that depreciable property is distributed among ten depreciation groups in accordance with the useful life. For example, the first group includes all non-durable property with a useful life of 1 to 2 years inclusive; to the fifth group - property with a useful life of more than 7 years up to 10 years inclusive; to the tenth - over 30 years.
Business entities for taxation purposes accrue depreciation on a straight-line basis in respect of property included in groups 8-10 using a straight-line or non-linear method in respect of property included in groups 1-7.
Depreciation is charged in accordance with the depreciation rate, which is determined based on the useful life of the object according to the formulas enshrined in Art. 259 of the Tax Code of the Russian Federation. For some types of property, increasing or decreasing coefficients are established for the basic depreciation rate.
The legal regime of current assets is determined by the Regulation on accounting and financial reporting in the Russian Federation, approved by the Order of the Ministry of Finance of Russia, the Regulation on accounting "Accounting for inventories", approved by Order of the Ministry of Finance of Russia dated June 9, 2001 No. 44n, and other regulatory legal acts.
Unlike fixed assets involved in production for a long time, working capital transfers its value to products according to the general rule in one production cycle.
The assets of the organization include:
1) inventories - a part of the property used in the production of products, performance of work and provision of services, as well as intended for sale or used for management needs. The inventory includes:
Basic and auxiliary materials;
Fuel;
Purchased semi-finished products and components;
Spare parts;
Finished products - the result of the production activities of the enterprise, intended for sale;
Goods - things purchased from other persons for subsequent resale without additional processing;
2) low-value and wearing items:
Items with a useful life of less than 12 months, regardless of their value;
Items with a value at the date of acquisition of not more than one hundred times the minimum wage;
Other items - special uniforms; items intended for rental; replacement equipment; delimbers, etc.;
3) accounts receivable - the rights of claim belonging to the creditor for payment for actually delivered goods, performed works or rendered services;
4) financial investments;
5) cash.
The legal regime of intangible assets is determined by the Accounting Regulation "Accounting for intangible assets", approved by the Order of the Ministry of Finance of Russia dated October 16, 2000 No. 91n. Intangible assets include property that simultaneously has the following characteristics:
a) the absence of a material (physical) structure;
b) the possibility of identification (separation, separation) by the organization from other property;
c) use in the production of products, in the performance of work, the provision of services or for management needs;
d) use for a long time, i.e. useful life, lasting more than 12 months or normal operating cycle, if it exceeds 12 months;
e) the organization does not intend the subsequent resale of this property;
f) the ability to bring economic benefits (income) to the organization in the future;
g) the presence of properly executed documents confirming the existence of the asset itself and the organization's exclusive right to the results of intellectual activity (patents, certificates, other titles of protection, patent assignment agreement, trademark, etc.).
Intangible assets include exclusive rights to the results of intellectual activity (inventions, utility models, industrial designs, computer programs and databases, selection achievements) that have the listed characteristics and equivalent means of individualization (trademarks, service marks, appellations of origin of goods) .
Intangible assets also include:
1) organizational expenses - expenses associated with the formation of a legal entity, recognized in accordance with the constituent documents as a contribution of participants (founders) to the authorized (share) capital. The expenses of the organization associated with the need to re-register constituent and other documents during its operation (when changing types of activities, submitting samples of signatures of officials, etc.), manufacturing new stamps, seals do not relate to intangible assets, but are subject to accounting as part of general business expenses ;
2) business reputation.
The composition of intangible assets does not include the intellectual and business qualities of the organization's personnel, their qualifications and ability to work, since they are inseparable from their carriers and cannot be used without them.
Intangible assets are taken into account in the sum of the costs of their acquisition, manufacture and the costs of bringing them to a state in which they are suitable for use for the planned purposes.
Intangible assets can be contributed by the founders (owners) of the organization on account of their contributions to the authorized capital of the organization, received free of charge, acquired by the organization in the course of its activities.
It should be borne in mind that property rights or other rights having a monetary value can be made as a contribution to the organization's property. In this regard, such a contribution cannot be an object of intellectual property (patent, copyright, etc.) or know-how. However, the right to use such an object transferred to the organization in accordance with a license agreement, which must be registered in the manner prescribed by law, can be recognized as a contribution (see clause 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of July 1, 1996 No. 6/8 "On some issues related to the application of the first part of the Civil Code of the Russian Federation").
The cost of intangible assets is repaid by depreciation. Depreciation charges are determined on a straight-line or non-linear basis depending on the useful life and depreciation group.
The legal regime of capital, funds and reserves of the organization. The authorized (reserve) capital (share fund) is a set of contributions (shares, shares, units) of the founders (participants) of the organization registered in the constituent documents. The procedure for the formation of the authorized (share) capital (share fund) is determined by the norms of the Civil Code of the Russian Federation and special legislation in relation to each type of organization. So, at the time of state registration, the authorized capital of a business company must be paid by its founders at least half. A similar rule applies to the formation of share capital in business partnerships. Members of a production cooperative are required to pay at least 10% of the share contribution by the time of state registration of the cooperative. The rest of the share contribution is paid within a year after the state registration of the cooperative.
The authorized (share) capital is subdivided into shares corresponding to the contributions of the participants. Shares are taken into account when calculating the income of each participant. In business companies, the size of the authorized capital predetermines the minimum size of the company's net assets, which can be considered as a guarantee of the rights of creditors. At the same time, the minimum amount of the authorized capital of an open joint-stock company must be at least a thousand times the amount of the minimum wage established by federal law on the date of registration of the company, and for a closed joint-stock company and a limited liability company - at least one hundred times the amount of the minimum wage. The minimum amount of the authorized capital is increased for organizations of certain types of activities (credit, insurance organizations).
Since in partnerships and production cooperatives the principle of subsidiary liability of general partners (members of a cooperative) for the obligations of the organization with all their property (except for property that cannot be foreclosed), the share capital (share fund) is not a minimum guarantee of the rights of creditors. Therefore, there is no need to define a minimum size in the law. The size of the share capital and share fund are established in the constituent documents when the organization is created.
The legislation formulates the requirements for the formation of authorized (share) capital. It is necessary that there is a specific property that can satisfy the interests of potential counterparties. The contributed property or other rights must have a monetary value. If the monetary valuation does not correspond to current prices, it is necessary to submit an opinion of an independent appraiser or auditor. Participation in the formation of the authorized (share) capital or share fund is the responsibility of the founders of the organization.
The decrease and increase in the authorized (share) capital are made based on the results of consideration of the results of the organization's activities for the previous year and after making appropriate changes to the constituent documents. The legislation provides for guarantees of the rights of creditors in the event of a decrease in the authorized capital. So, in accordance with Art. 30 of the Federal Law "On Joint Stock Companies", creditors must be notified in writing of a reduction in the authorized capital of the company no later than 30 days from the date of such a decision. Not later than 30 days from the date of sending the notification to them, creditors have the right to demand from the company the termination or early performance of its obligations and compensation for the losses associated with this.
When creating state and municipal enterprises, an authorized fund is formed. The authorized capital is determined by the owner of the enterprise and must be fully paid by him before state registration. As part of the property of a unitary enterprise, the statutory fund is indivisible and cannot be distributed among contributions (shares, shares). The size of the fund of a state enterprise cannot be less than 5,000 minimum wages, of a municipal enterprise - 1,000 minimum wages. Reduction and increase in the authorized capital of a federal state unitary enterprise is carried out by the decision of the founder, agreed with the executive authority. An increase in the authorized capital of an enterprise can be made both at the expense of an additional transfer by the founder of property, existing assets, and at the expense of profit remaining at the disposal of the enterprise. If the founder decides to reduce the authorized capital, the enterprise is obliged to notify its creditors in writing. In any case, the value of the net assets of the enterprise cannot be less than the size of the authorized capital. Other guarantees of the rights of creditors have also been established in case of a decrease in the size of the authorized capital ().
Additional capital includes:
Amounts from the revaluation of fixed assets, capital construction projects and other tangible objects with a useful life of more than 12 months;
Share premium of a joint-stock company, i.e. amounts received in excess of the nominal value of the shares placed by the company less the costs of their sale;
Values donated by the organization;
Funds allocated from the budget used to finance long-term investments;
Other similar amounts.
The reserve capital (fund) is created on a mandatory basis in accordance with the legislation of the Russian Federation or on a voluntary basis - by decision of the organization itself in accordance with its constituent documents and accounting policies. Thus, the obligation to create a reserve fund is provided for joint-stock companies. In accordance with Art. 35 of the Federal Law "On Joint Stock Companies", a reserve fund is created in the company in the amount provided for by the company's charter, but not less than 15% of its authorized capital. The reserve fund of the company is formed by mandatory annual deductions until it reaches the amount established by the charter of the company. The amount of annual deductions is also provided for by the charter of the company, but cannot be less than 5% of net profit until the amount established by the charter of the company is reached. If the reserve capital is created on a voluntary basis, then the decision on its formation is an element of the accounting policy of the organization.
The current legislation gives organizations the right to create reserves for doubtful debts. Doubtful debt is the accounts receivable of the organization, which is not repaid within the period established by the contracts, and is not secured by appropriate guarantees. The source of the formation of this reserve is the financial results of the organization, i.e. profit before tax. The reserve for doubtful debts is created based on the results of an inventory of receivables carried out at the end of the reporting year. The amount of the reserve is determined separately for each doubtful debt, depending on the financial condition (solvency) of the debtor and the assessment of the probability of repaying the debt in full or in part. Article 266 of the Tax Code of the Russian Federation regulates the procedure for calculating the amount of the formed reserve. It cannot exceed 10% of the revenue of the reporting period. The reserve can only be used to cover losses from bad debts. Bad debts are those debts for which the established limitation period has expired, as well as those for which, in accordance with civil law, the obligation has been terminated due to the impossibility of its execution, on the basis of an act of a state body or the liquidation of an organization.
The amount of the reserve for doubtful debts, not fully used in the reporting period, may be transferred to the next period in the manner prescribed by Art. 266 of the Tax Code of the Russian Federation.
A reserve for warranty repair and warranty service may be created in respect of those goods (works) for which, in accordance with the terms of the concluded contracts, service and repair are provided for during the warranty period. The maximum amount of the reserve cannot exceed the amount determined as the share of expenses actually incurred by the entity for warranty repair and maintenance in the amount of proceeds from the sale of these goods for the previous three years. At the end of the tax period, the amount of the reserve is adjusted based on the actual expenses incurred. For goods for which the period of warranty service and repair has expired, the unspent amounts of the reserve for their intended purpose are included in non-operating income of the corresponding reporting period. The depreciation fund is formed from depreciation deductions intended for the full restoration of fixed assets.
Targeted funding and receipts represent funds received by the organization from the budget and off-budget funds to finance capital investments, research and development, to cover conversion losses and other needs. These funds are intended for use and can be withdrawn if facts of their misuse are revealed. Reserves for future expenses and payments are created by the organization in order to evenly include future expenses in the costs of production or circulation of the reporting period. Organizations can create reserves: for the upcoming vacation pay, the payment of annual remuneration for length of service, the cost of repairing fixed assets, the payment of remuneration based on the results of work for the year and other purposes. If such reserves are not created, then the costs incurred are included in the cost of production for the relevant cost elements as they are incurred.
From the profit remaining at the disposal of the organization, various funds can be formed (savings and consumption, social, housing, material incentives). Their creation is an element of the accounting policy of the organization.
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Topic 3. Legal regime of property of business entities.
Ownership.
The right of economic management and the right of operational management.
The concept and types of property, the legal regime of certain types of property.
An object is an element of any legal relationship. The objects of economic legal relations are understood as material and intangible benefits, which give rise to subjective rights and obligations of participants in economic legal relations. Article 128 of the Civil Code distinguishes the following types of objects of economic legal relations:
1. things, including money and securities, other property, incl. property rights;
2. works and services;
3. protected information;
4. intellectual property;
5. intangible benefits.
Article 129 of the Civil Code divides objects into three groups:
1. objects that circulate freely;
2. objects of restricted circulation;
3. objects withdrawn from circulation.
Withdrawal of objects from civil circulation means that these objects cannot be the subject of transactions at all and otherwise be transferred from one person to another within the framework of civil legal relations. Withdrawal of objects of civil rights from circulation is possible only on the basis of the law. An example of such objects are state-owned objects that are in public use (roads, archival materials, subsoil, water resources, property of the Armed Forces of the Republic of Belarus, etc.)
Objects restricted in circulation include objects that, firstly, can belong only to certain participants in civil circulation, or, secondly, their acquisition is allowed only on the basis of special permits. The former include objects that are not withdrawn from civil circulation, but which can only be owned by the state. The second includes objects that can be acquired in ownership, but only with special permits, such as firearms, potent poisons, aircraft, etc.
Land and other natural resources may be alienated or otherwise transferred from one person to another only to the extent that the circulation of such objects is allowed by the legislation on land and other natural resources (clause 3 of article 129 of the Civil Code).
Most economic legal relations are connected with things. Things- these are objects of the surrounding material world that can satisfy the needs of subjects of economic legal relations.
The current legislation establishes certain rules for the behavior of people in relation to things, i.e. its legal regime. The legal regime of a thing is a normatively established procedure for the acquisition, use and disposal of things as objects of economic legal relations.
Taking into account the individual characteristics and purpose of things, as well as the difference in their legal regime, legislation allows you to classify things according to a number of criteria. The classification is done on the basis of Articles 128 - 142 of the Civil Code.
Immovable and movable things.
In accordance with Article 130 of the Civil Code, real estate includes land plots, subsoil plots, isolated water bodies and everything that is firmly connected with the land, that is, objects that cannot be moved without disproportionate damage to their purpose, including forests, perennial plantations, buildings, structures. According to the legal regime, a number of objects movable in terms of their natural properties are equated to real estate, namely: aircraft and sea vessels, inland navigation vessels, river-sea navigation vessels, and space objects. The extension of the real estate regime to them is due to the high cost of these objects and the associated need for increased reliability of the rules for their civil circulation.
Legislative acts may classify other property as immovable property.
All other objects, i.e. objects that are not related to real estate and are not equated to such are movable property.
The legal regime of immovable property differs from the legal regime of movable property, primarily in that the circulation of real estate is associated with the fulfillment of certain formalities. The right of ownership and other real rights to immovable things, the emergence of such rights, the transfer and termination are subject to state registration. State registration is of a title character, which means that real rights to real estate arise from the moment of such registration. State registration of rights should not be confused with special registration or accounting for certain types of movable property, which does not have a title value.
Divisible and indivisible things.
Such a classification of things is carried out from a legal point of view, because physically all things are divisible. Divisible are things that, as a result of their physical division into separate parts, do not lose their essence, properties and economic purpose (lemonade in a bottle can be poured into glasses, it will remain the same as it was in the bottle). When a thing, as a result of its division in nature, loses its former purpose, it is considered indivisible (Article 133 of the Civil Code) (the bottle itself is indivisible, division is tantamount to the destruction of the thing).
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Legal regime of certain types of property of an entrepreneur
The classification of things that exists in law is important for determining the moment of occurrence and termination of the right of ownership, the method and limit of the disposal of this thing, and the registration of the transfer of things from one person to another.
Things are the most common object of civil rights. Things are called objects of the surrounding material world, created both by nature and by man, which can be objects of civil rights. The legal concept of a thing is much broader than the everyday concept of a "thing". In law, things are called a wide range of objects, the legal regime of which is similar to ordinary things. Things in the civil law sense are buildings and structures, land, water, gas, oil, electricity, animals.
Since the range of objects attributed by law to things is quite wide, there is a need to systematize things. In civil law, there is a classification of things, on the basis of which the types of things that have a different legal regime are distinguished. The classification of things is not only theoretical, but also practical, since the assignment of a thing to a particular group determines the possibility of making certain transactions, concluding contracts, etc.
Things in civil circulation are usually divided into the following groups:
1) permitted for circulation, restricted circulation and withdrawn from circulation (Article 129 of the Civil Code of the Russian Federation);
2) immovable and movable things (Article 130 of the Civil Code of the Russian Federation);
3) divisible and indivisible things (Article 133 of the Civil Code of the Russian Federation);
4) complex and simple things (Article 134 of the Civil Code of the Russian Federation);
5) main things and accessories (Article 135 of the Civil Code of the Russian Federation);
6) individually defined things and things defined by generic characteristics;
7) consumable and non-consumable things.
The assignment of a thing to a particular group entails the extension to it of a certain procedure for using and legal registration, the method and limit of disposing of this thing.
As a general rule, things as objects of civil rights can be freely alienated or transferred from one person to another, if they are not withdrawn from circulation or limited in circulation (Article 129 of the Civil Code of the Russian Federation). Objects with restricted circulation are objects of civil rights that can belong only to certain participants in the circulation or whose presence in circulation is allowed by special permission; such objects are determined in the manner prescribed by law (for example, monuments of history and culture). Objects of civil rights, which are not allowed to be in circulation (objects withdrawn from circulation), must be directly indicated in the law. An example of things withdrawn from circulation are subsoil plots.
Consumable and non-consumable things differ from each other depending on whether they are destroyed in the process of use. Food, fuel, raw materials are consumable things, because as a result of economic activity they are destroyed or turned into another thing. Non-consumable things are used for a long time and only deteriorate (wear and tear) when used, without losing their material form. Such a difference must be taken into account when concluding transactions, since the subject of a lease (lease), loans can only be non-consumable things, and the subject of a loan agreement can only be consumed.
The division of things into individually defined things and things determined by generic characteristics is very conditional and depends on their individualization by the participants in the legal relationship. Things for which common (generic) characteristics are indicated and which are determined by weight, measure, number, are generic things. An individual thing is distinguished only by its inherent features: number, name, size. As a result of the individualization of a thing, determined by generic characteristics (indications of distinctive features inherent only in it), it becomes individually defined. The division of things into individual and generic should also be borne in mind when concluding transactions, since the subject of a lease (rent), loans can only be individual things, and the subject of a loan agreement can only be generic (Article 807 of the Civil Code).
Of particular importance for determining the legal regime and concluding transactions with things is the division of things into movable and immovable. Immovable things include, firstly, objects, the movement of which is impossible without disproportionate damage to their purpose: land plots, subsoil plots, isolated water bodies, forests, perennial plantations, buildings, structures and other objects that are firmly connected with the land, and in secondly, things that are not "immovable" in the literal sense of the word, but classified as real estate as directed by the law, since they need special state registration: aircraft and ships; inland navigation vessels; space objects; enterprises as property complexes (Articles 130 and 132 of the Civil Code of the Russian Federation). Thus, to real estate include things that are immovable due to natural qualities, as well as those classified as immovable by virtue of law, including residential premises, land plots. movable property all other things not related to real estate are recognized, including money and securities.
The fundamental difference between movable and immovable things is that, firstly, the rights to real estate are subject to registration, and, secondly, only from the moment of registration a person acquires rights to real estate. The right of ownership and other real rights to immovable things, restrictions on these rights, their occurrence, transfer and termination are subject to state registration in the Unified State Register in the manner prescribed by a special law. The rights to property subject to state registration arise from the moment of registration of the relevant rights. In Art. 219 of the Civil Code of the Russian Federation specifically states that the ownership of buildings, structures and other newly created real estate subject to state registration arises from the moment of such registration. A complex issue of legal regulation is the determination of the moment of appearance of an immovable thing and, accordingly, the legal significance of state registration: does an immovable thing appear only from the moment of its state registration as immovable or is a thing immovable from the moment of its physical creation due to natural properties, and state registration in In this case, it only endows a certain subject with the rights of the owner of this thing. From the interpretation of the law, we can conclude that the moment of state registration determines the moment the thing itself appears as an object of civil law.
An enterprise is a property complex used for entrepreneurial activities. The structure of the enterprise as a property complex includes all types of property intended for its activities, including land plots, buildings, structures, equipment, inventory, raw materials, products, rights of claim, debts, as well as rights to designations that individualize the enterprise, its products, work and services (company name, trademarks, service marks), and other exclusive rights, unless otherwise provided by law or contract (Article 132 of the Civil Code of the Russian Federation). Thus, the enterprise refers to all property (including claims and debts) of a commercial organization as a legal entity. The owner of the enterprise is a legal entity. Usually, the term "enterprise" refers to a separate production complex: a factory, plant, etc., owned by a legal entity, but these objects, within the meaning of Art. 132 of the Civil Code of the Russian Federation, are only part of the enterprise as a whole. That is, an enterprise is all the property of a legal entity. The enterprise as a whole or part of it may be the object of sale, pledge, lease and other transactions related to the establishment, change and termination of property rights (Article 561 of the Civil Code of the Russian Federation). The enterprise as a whole as a property complex is recognized as real estate, therefore transactions concluded in relation to it require registration.
A variety of things are securities. A security is a document certifying, in compliance with the established form and mandatory details, property rights, the exercise or transfer of which is possible only upon its presentation (Article 142 of the Civil Code of the Russian Federation). A security certifies certain property rights of its owner: the right to demand the payment of a sum of money or the transfer of property, other property rights. The rights certified by the security can only be exercised upon its presentation. A security, unlike other documents, is a strictly formal document, i. its form and mandatory details must comply with the requirements established by law for the relevant type of securities. As a general rule, a security is a written document drawn up in a certain form and having some kind of protection against forgery, although in some cases specified in the law, the fixation of rights secured by a security can also be carried out in a non-documentary form.
In any case, regardless of the form of issue, the security has certain details. The absence of mandatory details or the non-compliance of a security with the form established for it entails its nullity (clause 2, article 144 of the Civil Code of the Russian Federation).
The peculiarity of a security lies in the fact that only it secures certain rights, therefore, it is impossible to transfer the right secured by it without transferring the security itself.
In accordance with paragraph 1 of Art. 142 of the Civil Code of the Russian Federation, when transferring a security, all the rights certified by it are transferred in aggregate.
Securities are classified on various grounds. The main division of securities is carried out according to the method of indicating their owner. On this basis, securities are divided in paragraph 1 of Art. 145 of the Civil Code of the Russian Federation for bearer, nominal and order. A specific person is not indicated in a bearer security, and all the rights certified by it belong to its actual owner, i.e. to the person who can present the security for execution. The transfer of rights under a bearer security to another person is carried out by handing it over to this person. The owner of a bearer security is not obliged to explain how and from whom he received it - the possession of it indicates the legality of possession. Bearer securities include winning lottery tickets, bearer bonds, bank and savings certificates to bearer and bank savings book to bearer, privatization check, etc.
A registered security differs from a bearer one in that it indicates a specific person - the owner of the security. All rights certified by a registered security belong exclusively to the person named in it, and no one except this person can be executed. In accordance with paragraph 2 of Art. 146 of the Civil Code of the Russian Federation, rights certified by a registered security are transferred in the manner established for the assignment of claims (cession). The right to a registered security passes to the acquirer from the moment a credit entry is made on the acquirer's personal account in the register system. In the event that a registered security is issued in documentary form, the rights to it are transferred to the acquirer from the moment an entry is made in the registry system and the security certificate is transferred (Article 29 of the Law on the Securities Market). When transferring rights secured by a registered security, the transferor shall be liable only for the validity of such a requirement, but not for its execution. Registered securities include registered shares, registered bonds, registered deposit and savings certificates, etc.
In an order security, just as in a registered security, a person is indicated who can exercise the rights certified by it. But the holder of an order security has the right not only to exercise the indicated rights independently, but also to appoint another authorized person by his order (order). In this case, the new owner also has the right to transfer this security to another person. The transfer of rights certified by an order security is carried out in accordance with Art. 146 of the Civil Code of the Russian Federation, with the help of an endorsement - endorsement.
Securities can exist both in the form of a written document (a record made on paper in the form specified by law and containing the necessary details), and in non-documentary form. The non-documentary form of securities implies the absence of the issue of the securities themselves on paper. Rights to non-documentary securities are fixed by entering data on their owners and on the number, nominal value and category of securities belonging to them in special lists (registers). However, such a method of fixing rights certified by a security is allowed only in cases expressly provided for by law or in the manner prescribed by it (Article 149 of the Civil Code of the Russian Federation). Only registered and order securities can be issued in non-documentary form, since bearer securities must exist exclusively in documentary form. Non-documentary securities include shares and registered bonds, treasury bills, government short-term zero-coupon bonds, etc. Fixation of the rights secured by a security in a non-documentary form is carried out in the form of an entry on the owner's account or by the person who issued the security, or by an authorized person, acting on the basis of a special permit (license). At the request of the owner, the person who has carried out the fixation of the right in a non-documentary form is obliged to issue him a document certifying the secured right, which is not a security, but confirms the fact of holding a certain amount of securities. The transfer of rights secured in non-documentary form is carried out by replacing the previous entry with a new one. The legal nature of uncertificated securities is the subject of ongoing controversy. According to many civil scientists (E.A. Sukhanov, V.A. Belov and others), book-entry securities cannot be classified as securities, since they are not things.
A distinctive feature of securities is the special fulfillment of obligations certified by them. According to paragraph 2 of Art. 147 of the Civil Code of the Russian Federation, it is not allowed to refuse to fulfill an obligation certified by a security due to the lack of grounds for the occurrence of such an obligation or due to its invalidity. In other words, the obligated person must fulfill his obligations under the security only if he has the details necessary for this security, and when acquiring it, the owner must check the compliance of the details of the security with the requirements of the law, but not the grounds for its issuance. Such a property of a security is designated in law by the term "public certainty". Refusal to execute a security is possible only on formal grounds: the absence of any requisite, a missed deadline, etc. Thus, obligations under a security are independent in nature and do not depend on the relationship on the basis of which they were issued. It is possible to demand the fulfillment of an obligation under a security only upon presentation of the security itself.
A variety of securities are: a government bond, a bond, a bill of exchange, a check, a deposit and savings certificate, a bank savings book to bearer, a bill of lading, a share, privatization securities and other documents that are classified as securities by securities laws or in the manner prescribed by them. papers
(Article 143 of the Civil Code of the Russian Federation).
| Table of contents |
|---|
| Russian business law |
| Didactic plan |
| The concept of entrepreneurship and entrepreneurial activity |
| Business law and its place in the Russian legal system |
| The right to engage in entrepreneurial activities: the grounds for the emergence and ways of exercising this right |
44. Legal regime of certain types of property used in business activities.
Things are called objects of the surrounding material world, created both by nature and by man, which can be objects of civil rights.
Things in civil circulation are usually divided into the following groups:
1) permitted for circulation, restricted circulation and withdrawn from circulation (Article 129 of the Civil Code of the Russian Federation);
2) immovable and movable things (Article 130 of the Civil Code of the Russian Federation);
3) divisible and indivisible things (Article 133 of the Civil Code of the Russian Federation);
4) complex and simple things (Article 134 of the Civil Code of the Russian Federation);
5) main things and accessories (Article 135 of the Civil Code of the Russian Federation);
6) individually defined things and things defined by generic characteristics;
7) consumable and non-consumable things.
The property of an economic entity is very heterogeneous in its composition. From an economic point of view, property can be divided into means of labor and objects of labor. Legal is the division of property into current and non-current assets2. The presence of specific properties for different types of property determined the need to fix the features of their legal regime in regulatory legal acts. For example, the legislation establishes a registration regime for rights to real estate and transactions with it.
A special legal regime may be established in relation to:
Certain types of property allocated on economic and (or) legal grounds;
Funds, when property is separated and accounted for according to special rules;
Capital and reserves formed for insurance and other purposes, when the law requires or allows their creation.
Reasons for establishing uniform rules regarding the legal regime of certain types of property:
Creation of the same type of solution of taxation issues;
Formation of unified institutions for the implementation of PD (for example, the same legal value of the authorized capital, reserve fund, etc.);
Keeping property records by organizations according to uniform rules in order to be able to control the fulfillment of obligations to the state.
The property and liabilities of the organization are reflected in the balance sheet. It characterizes the property and financial position of the organization as of the reporting date. The balance sheet is data on the economic means of the organization, called assets, and their sources - liabilities.
Assets, for example, include fixed assets, intangible assets, financial investments, inventories, receivables, cash in accounts and on hand. The legislation also uses the concept of “net assets” (for example, to assess the degree of liquidity of an organization). Net assets - this is the amount determined by subtracting from the amount of assets applied to the calculation, the amount of its liabilities applied to the calculation. When calculating the value of net assets, organizations are currently guided by the procedure set out in the order of the Ministry of Finance of Russia and the Federal Commission for the Securities Market dated January 29, 2003 No. 10n / 03-6 / PZ “On the procedure for assessing the value of net assets of joint-stock companies”
The composition of liabilities includes the capital and reserves of the organization, long-term (payable in more than 12 months) and short-term borrowed funds, accounts payable, etc. The correct accounting of the assets and liabilities of the organization is important, their ratio characterizes the property and financial position of the organization.
The composition of the property of business entities is a combination of fixed and current assets, intangible assets, as well as capital, funds and reserves.
The presence of specific properties for various types of property predetermined the need to fix the features of their legal regime in regulatory legal acts.
The legal regime of property is a set of procedures and rules established by law for the use of certain types of property in business activities, as well as the transfer of the powers of the owner of property from one person to another in civil circulation. [
The classification of things that exists in law is important for determining the moment of occurrence and termination of the right of ownership, the method and limit of the disposal of this thing, and the registration of the transfer of things from one person to another.
Things are the most common object of civil rights. Things are called objects of the surrounding material world, created both by nature and by man, which can be objects of civil rights. The legal concept of a thing is much broader than the everyday concept of a “thing”. In law, things are called a wide range of objects, the legal regime of which is similar to ordinary things. Things in the civil law sense are buildings and structures, land, water, gas, oil, electricity, animals.
Since the range of objects attributed by law to things is quite wide, there is a need to systematize things. In civil law, there is a classification of things, on the basis of which the types of things that have a different legal regime are distinguished. The classification of things is not only theoretical, but also practical, since the assignment of a thing to a particular group determines the possibility of making certain transactions, concluding contracts, etc.
Things in civil circulation are usually divided into the following groups:
- 1) permitted for circulation, restricted circulation and withdrawn from circulation (Article 129 of the Civil Code of the Russian Federation);
- 2) immovable and movable things (Article 130 of the Civil Code of the Russian Federation);
- 3) divisible and indivisible things (Article 133 of the Civil Code of the Russian Federation);
- 4) complex and simple things (Article 134 of the Civil Code of the Russian Federation);
- 5) main things and accessories (Article 135 of the Civil Code of the Russian Federation);
- 6) individually defined things and things defined by generic characteristics;
- 7) consumable and non-consumable things.
The assignment of a thing to a particular group entails the extension to it of a certain procedure for using and legal registration, the method and limit of disposing of this thing.
As a general rule, things as objects of civil rights can be freely alienated or transferred from one person to another, if they are not withdrawn from circulation or limited in circulation (Article 129 of the Civil Code of the Russian Federation). Objects with restricted circulation are objects of civil rights that can belong only to certain participants in the circulation or whose presence in circulation is allowed by special permission; such objects are determined in the manner prescribed by law (for example, monuments of history and culture). Objects of civil rights, which are not allowed to be in circulation (objects withdrawn from circulation), must be directly indicated in the law. An example of things withdrawn from circulation are subsoil plots.
Consumable and non-consumable things differ from each other depending on whether they are destroyed in the process of use. Food, fuel, raw materials are consumable things, because as a result of economic activity they are destroyed or turned into another thing. Non-consumable things are used for a long time and only deteriorate (wear and tear) when used, without losing their material form. Such a difference must be taken into account when concluding transactions, since the subject of a lease (lease), loans can only be non-consumable things, and the subject of a loan agreement can only be consumed.
The division of things into individually defined things and things determined by generic characteristics is very conditional and depends on their individualization by the participants in the legal relationship. Things for which common (generic) characteristics are indicated and which are determined by weight, measure, number, are generic things. An individual thing is distinguished only by its inherent features: number, name, size. As a result of the individualization of a thing, determined by generic characteristics (indications of distinctive features inherent only in it), it becomes individually defined.
The division of things into individual and generic should also be borne in mind when concluding transactions, since the subject of a contract of employment (rent), loans can only be individual things, and the subject of a loan agreement can only be generic (Article 807 of the Civil Code).
Of particular importance for determining the legal regime and concluding transactions with things is the division of things into movable and immovable. Immovable things include, firstly, objects, the movement of which is impossible without disproportionate damage to their purpose: land plots, subsoil plots, isolated water bodies, forests, perennial plantings, buildings, structures and other objects that are firmly connected to the land, and in - secondly, things that are not "immovable" in the literal sense of the word, but classified as real estate as directed by the law, since they need special state registration: aircraft and ships; inland navigation vessels; space objects; enterprises as property complexes (Articles 130 and 132 of the Civil Code of the Russian Federation). Thus, real estate includes things that are immovable due to natural qualities, as well as those classified as immovable by virtue of law. All other things that are not related to real estate, including money and securities, are recognized as movable property.
The fundamental difference between movable and immovable things is that, firstly, the rights to real estate are subject to registration, and, secondly, only from the moment of registration a person acquires rights to real estate. The right of ownership and other real rights to immovable things, restrictions on these rights, their occurrence, transfer and termination are subject to state registration in the Unified State Register in the manner prescribed by a special law. The rights to property subject to state registration arise from the moment of registration of the relevant rights. In Art. 219 of the Civil Code of the Russian Federation specifically states that the ownership of buildings, structures and other newly created real estate subject to state registration arises from the moment of such registration. A complex issue of legal regulation is the determination of the moment of appearance of an immovable thing and, accordingly, the legal significance of state registration: does an immovable thing appear only from the moment of its state registration as immovable or is a thing immovable from the moment of its physical creation due to natural properties, and state registration in In this case, it only endows a certain subject with the rights of the owner of this thing. From the interpretation of the law, we can conclude that the moment of state registration determines the moment the thing itself appears as an object of civil law.
An enterprise is a property complex used for entrepreneurial activities. The structure of the enterprise as a property complex includes all types of property intended for its activities, including land plots, buildings, structures, equipment, inventory, raw materials, products, rights of claim, debts, as well as rights to designations that individualize the enterprise, its products, work and services (company name, trademarks, service marks), and other exclusive rights, unless otherwise provided by law or contract (Article 132 of the Civil Code of the Russian Federation). Thus, the enterprise refers to all property (including claims and debts) of a commercial organization as a legal entity. The owner of the enterprise is a legal entity. Usually, the term "enterprise" refers to a separate production complex: a factory, plant, etc., owned by a legal entity, but these facilities, within the meaning of Article 132 of the Civil Code of the Russian Federation, are only part of the enterprise as a whole. That is, an enterprise is all the property of a legal entity. The enterprise as a whole or part of it may be the object of sale, pledge, lease and other transactions related to the establishment, change and termination of property rights (Article 561 of the Civil Code of the Russian Federation). The enterprise as a whole as a property complex is recognized as real estate, therefore transactions concluded in relation to it require registration.
A variety of things are securities. A security is a document certifying, in compliance with the established form and mandatory details, property rights, the exercise or transfer of which is possible only upon its presentation (Article 142 of the Civil Code of the Russian Federation). A security certifies certain property rights of its owner: the right to demand the payment of a sum of money or the transfer of property, other property rights. The rights certified by the security can only be exercised upon its presentation. A security, unlike other documents, is a strictly formal document, i. its form and mandatory details must comply with the requirements established by law for the relevant type of securities. As a general rule, a security is a written document drawn up in a certain form and having some kind of protection against forgery, although in some cases specified in the law, the fixation of rights secured by a security can also be carried out in a non-documentary form.
In any case, regardless of the form of issue, the security has certain details. The absence of mandatory details or non-compliance of the security with the form established for it entails its nullity (clause 2, article 144 of the Civil Code of the Russian Federation).
The peculiarity of a security lies in the fact that only it secures certain rights, therefore, it is impossible to transfer the right secured by it without transferring the security itself. In accordance with paragraph 1 of Article 142 of the Civil Code of the Russian Federation, when a security is transferred, all the rights certified by it are transferred in aggregate.
Securities are classified on various grounds. The main division of securities is carried out according to the method of indicating its owner. On this basis, securities are divided in paragraph 1 of article 145 of the Civil Code of the Russian Federation into bearer, registered and order. A specific person is not indicated in a bearer security, and all the rights certified by it belong to its actual owner, i.e. to the person who can present the security for execution. The transfer of rights under a bearer security to another person is carried out by handing it over to this person. The owner of a bearer security is not obliged to explain how and from whom he received it - the possession of it indicates the legality of possession. Bearer securities include winning lottery tickets, bearer bonds, bank and savings certificates to bearer and bank savings book to bearer, privatization check, etc.
A registered security differs from a bearer one in that it indicates a specific person - the owner of the security. All rights certified by a registered security belong exclusively to the person named in it, and no one except this person can be executed. In accordance with paragraph 2 of article 146 of the Civil Code of the Russian Federation, rights certified by a registered security are transferred in the manner established for the assignment of claims (cession). The right to a registered security passes to the acquirer from the moment a credit entry is made on the acquirer's personal account in the register system. In the event that a registered security is issued in documentary form, the rights to it are transferred to the acquirer from the moment an entry is made in the registry system and the security certificate is transferred (Article 29 of the Law on the Securities Market). When transferring rights secured by a registered security, the transferor shall be liable only for the validity of such a requirement, but not for its execution. Registered securities include registered shares, registered bonds, registered deposit and savings certificates, etc.
In an order security, just as in a registered security, a person is indicated who can exercise the rights certified by it. But the holder of an order security has the right not only to exercise the indicated rights independently, but also to appoint another authorized person by his order (order). In this case, the new owner also has the right to transfer this security to another person. The transfer of rights certified by an order security is carried out, in accordance with Article 146 of the Civil Code of the Russian Federation, with the help of an endorsement - endorsement.
Securities can exist both in the form of a written document (a record made on paper in the form specified by law and containing the necessary details), and in non-documentary form. The non-documentary form of securities implies the absence of the issue of the securities themselves on paper. Rights to non-documentary securities are fixed by entering data on their owners and on the number, nominal value and category of securities belonging to them in special lists (registers). However, such a method of fixing rights certified by a security is allowed only in cases expressly provided for by law or in the manner prescribed by it (Article 149 of the Civil Code of the Russian Federation). Only registered and order securities can be issued in non-documentary form, since bearer securities must exist exclusively in documentary form. Non-documentary securities include shares and registered bonds, treasury bills, government short-term zero-coupon bonds, etc. Fixation of the rights secured by a security in a non-documentary form is carried out in the form of an entry on the owner's account or by the person who issued the security, or by an authorized person, acting on the basis of a special permit (license). At the request of the owner, the person who has carried out the fixation of the right in a non-documentary form is obliged to issue him a document certifying the secured right, which is not a security, but confirms the fact of holding a certain amount of securities. The transfer of rights secured in non-documentary form is carried out by replacing the previous entry with a new one. The legal nature of uncertificated securities is the subject of ongoing controversy. According to many civil scientists (E.A. Sukhanov, V.A. Belov and others), book-entry securities cannot be classified as securities, since they are not things.
A distinctive feature of securities is the special fulfillment of obligations certified by them. According to paragraph 2 of Article 147 of the Civil Code of the Russian Federation, it is not allowed to refuse to fulfill an obligation certified by a security due to the lack of grounds for the occurrence of such an obligation or due to its invalidity. In other words, the obligated person must fulfill his obligations under the security only if he has the details necessary for this security, and when acquiring it, the owner must check the compliance of the details of the security with the requirements of the law, but not the grounds for its issuance. Such a property of a security is designated in law by the term "public certainty". Refusal to execute a security is possible only on formal grounds: the absence of any requisite, a missed deadline, etc. Thus, obligations under a security are independent in nature and do not depend on the relationship on the basis of which they were issued. It is possible to demand the fulfillment of an obligation under a security only upon presentation of the security itself.
A variety of securities are: a government bond, a bond, a bill of exchange, a check, a deposit and savings certificate, a bank savings book to bearer, a bill of lading, a share, privatization securities and other documents that are classified as securities by securities laws or in the manner prescribed by them. securities (Article 143 of the Civil Code of the Russian Federation).
Special types of property are money and foreign currency. The legal regime of these types of property, including the use in settlements, will be discussed in the relevant chapters of the textbook.
property entrepreneurial property real property