Essay
Legal regulation of business activities
Introduction
1. Legal regulation of business activities in the Russian Federation
1.1 Concept and characteristics of entrepreneurial activity
1.2 Legal regulation of business activities
1.3 Concept, subject, method, system and sources civil law
2. Business contracts. Main types and features
2.1 Principles and procedure for concluding business contracts
Conclusion
Bibliography
Introduction
Entrepreneurial activity and the social relations that arise in connection with its implementation.
The function of such regulation is performed by the norms of a wide variety of branches of law: constitutional, international, civil, administrative, labor, financial, environmental, land, etc. The set of such norms related to the regulation of entrepreneurship is often combined under the general name “business law” (economic law ).
Of particular importance in such regulation are the constitutional guarantees of entrepreneurship. According to the Constitution of the Russian Federation (Article 34), everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law. Thus, at the constitutional level, a necessary prerequisite for free enterprise is established - the universal entrepreneurial legal capacity of citizens. In addition, recognizing the right of private property, including land and other natural resources, the Constitution of the Russian Federation enshrines the most important economic guarantee of entrepreneurial activity (Articles 35, 36).
And yet, the main role in regulating entrepreneurship belongs to the norms of civil and administrative law. Civil law determines the legal status of individual entrepreneurs and legal entities in property circulation, regulates property relations and contractual relations. The rules of administrative law establish the procedure for state registration of business entities, the procedure for licensing certain types of business activities, etc. At the same time, civil law is the basis of private legal regulation entrepreneurial activity, and administrative - public law. The leading role in the mechanism of legal regulation of entrepreneurship belongs to the norms of private law, and primarily civil law.
This is not surprising if we recall the characteristics that characterize entrepreneurial activity: organizational and economic independence, initiative, implementation at one’s own risk, and focus on making a profit.
The relevance of the topic is the change in economic relations in Russia, the emergence of diverse forms of ownership, and the development of entrepreneurial activity. All this influenced the formation of legislation, including the system of state regulation in the field of production of products, works, services, and their quality. Currently, the process of reforming the legislative system in the field of legal regulation is actively underway.
The purpose of the work is to determine the main directions for the development of the fundamentals of legal regulation in the field of production and sales of products and related processes.
In accordance with the goal, the following tasks were solved:
The concept and signs of entrepreneurial activity are considered;
The legal regulation of business activities in the Russian Federation is considered;
The concept of a business contract is considered;
The main types and features of business contracts are indicated.
The principles and procedure for concluding business contracts are considered.
1. Legal regulation of business activities in the Russian Federation
1.1 P concept and signs of entrepreneurial activity
In the conditions of the free market of goods, works and services emerging in Russia, the scope of entrepreneurial activity is expanding. Entrepreneurial activity is understood as independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by citizens and legal entities registered as entrepreneurs in the prescribed manner.
This definition reflects six characteristics of entrepreneurial activity:
Her independent character;
Implementation at your own risk, i.e. under the entrepreneurs’ own responsibility;
The purpose of the activity is to make a profit;
Sources of profit - use of property, sale of goods, performance of work or provision of services;
The systematic nature of making a profit;
Fact of state registration of business participants.
The absence of any of the first five signs means that the activity is not entrepreneurial. To qualify an activity as entrepreneurial, a sixth (formal) characteristic is also necessary. However, in some cases, an activity may be recognized as entrepreneurial even in the absence of formal registration of the entrepreneur. A citizen who carries out entrepreneurial activities without registration as an individual entrepreneur does not have the right to refer to the transactions concluded by him on the fact that he is not an entrepreneur.
Knowledge of all legal, i.e., based on the formula of the law, signs of entrepreneurial activity is necessary even if there is state registration of an entrepreneur, since it can be carried out in violation of the law. In some cases, persons who are unable to independently carry out such activities (incompetent), bear independent property liability, or do not have the goal of systematically generating profit are registered as entrepreneurs. In such cases, the registration may be declared invalid by the court, and if the violations of the law committed during the creation of the legal entity are of an irreparable nature, it may be liquidated.
1.2 Legal regulation of business activities
It is necessary to distinguish between entrepreneurial activities and the activities of entrepreneurs. Entrepreneurs not only enter into contracts and are responsible for their violation, but also attract employees, pay taxes, customs duties, and bear administrative and even criminal liability for committing illegal acts. The activities of entrepreneurs can be neither a privilege nor a burden of any one branch of law, nor of some comprehensive “entrepreneurial code.” It is regulated and protected by the norms of all branches of law - both private (civil, labor, etc.) and public (administrative, financial, etc.).
Multi-sectoral rules on the activities of entrepreneurs are provided for, for example, by federal laws of June 14, 1995 No. 88-F3 “On state support for small businesses in Russian Federation"and dated December 29, 1995 No. 222 - F3 "On a simplified system of taxation, accounting and reporting for small businesses", as well as Decree of the President of the Russian Federation dated April 4, 1996 No. 491 "On priority measures of state support for small businesses in the Russian Federation" Federation". In particular, they provide for:
The procedure for issuing a patent for the right to apply a simplified system of taxation, accounting and reporting for individual entrepreneurs and legal entities - small businesses;
Benefits for providing them with loans;
However, this does not mean that all branches of law equally regulate business activity itself. Since the content of entrepreneurial activity primarily and mainly consists of property relations of legally equal subjects, i.e., what is regulated by civil law, we can talk about civil regulation of entrepreneurial activity on the basis of the civil code and other civil legislation. This, naturally, requires mastering the basic provisions of civil law and taking into account on this basis the features of civil law regulation of business relations as a type of civil law relations.
Business law reflects the main aspects of civil law regulation of both business activities and the activities of entrepreneurs.
1.3 Concept, subject, method, system and sources of civil law
Civil law is a set of legal norms regulating property and related personal non-property relations based on equality, autonomy of will and property independence of their participants. Civil law, as the leading branch of private law, has its own subject, method, system and sources.
The subject of civil law is property and personal non-property relations. Property relations are property relations and other real relations, relations associated with exclusive rights to the results of mental work (intellectual property), as well as relations arising within the framework of contractual and other obligations. Relationships of a personal nature are recognized as related to property, such as, for example, relations of authorship of works of science, literature, art, inventions and other ideal results of intellectual activity.
The complex of entrepreneurial property relations serves as an important element of the subject of civil law. The Civil Code, other laws and other legal acts containing civil law norms not only provide a legal definition of entrepreneurial activity, but also regulate the specifics of the sources of its civil legal regulation, its subjects and their participation in obligations. An important type of business activity regulated by civil law is investment activity, i.e. investment (cash, targeted bank deposits, shares, securities, technologies, licenses, etc.) and a set of practical actions for their implementation.
Civil law does not regulate, but nevertheless protects inalienable human rights and freedoms and other intangible benefits not directly related to property relations, such as, for example, life and health, personal dignity, personal integrity, honor and good name, business reputation, personal and family secret. Without being purely entrepreneurial, these rights and freedoms play an important role in the life and activities of entrepreneurs.
Civil law is not the only branch of law regulating property relations. Some of these relationships are regulated by other private or public law. Thus, property relations for the payment of wages are regulated by labor law, for the payment of taxes and duties - financial law, and for the payment of administrative fines - administrative law. As a result, in order to distinguish civil law as a regulator of entrepreneurial activity from other branches of law that also regulate individual property relations of entrepreneurs, it is necessary to take into account a set of special techniques and means, i.e., the specifics of the method of influence of civil law on the relations it regulates.
The civil law method is characterized by the legal equality of participants in regulated relations, autonomy, i.e., the independence of the will of each of them, and their property independence. None of the participants in civil legal relations is in a state of power and subordination, order and execution. As a result, by direct instructions of paragraph 3 of Art. 2 of the Civil Code, civil legislation, as a general rule, does not apply to property relations based on administrative or other power subordination of one party to the other, including tax and other financial and administrative relations.
The method of civil law is sometimes called the method of coordination, title, permission, horizontal connections. The properties of the civil law method of regulating property relations are most adequate to the conditions of the free market, competitive environment and the needs of entrepreneurs. They are based on such basic principles of civil law as the inviolability of property, freedom of contract, the inadmissibility of arbitrary interference by anyone in private affairs, the unhindered exercise of civil rights, ensuring the restoration of violated rights and their judicial protection.
An important feature of the civil law method is the dispositive nature of many civil law norms. Dispositive norms contain a certain general rule (general model) of behavior of the participants, allowing them the possibility of forming a different model if this follows from another law and (or) agreement of the parties themselves. For example, by virtue of paragraph 1 of Art. 223 of the Civil Code, the right of ownership of the acquirer of a thing under a contract arises from the moment of its transfer, unless otherwise provided by law or contract. In the same way, the risk of accidental death or accidental damage to property, according to the general rule of the dispositive Art. 211 of the Civil Code, is borne by its owner, unless otherwise provided by law or contract.
Using these articles of the Civil Code, an entrepreneur - seller of a thing, wanting to quickly get rid of the risk of its accidental destruction and knowing that the buyer is very interested in acquiring it, can persuade the latter to stipulate in the contract that ownership will pass to him not from the moment of transfer of the thing, but, say, from the moment the agreement is signed or comes into force. The civil law method allows entrepreneurs - market participants to freely compete with each other, achieve an optimal balance of mutual interests, best satisfying the needs of consumers for necessary goods, works and services.
The civil law system is formed by civil law norms and their blocks, including civil law institutions and superinstitutions, the external expression of which can be the structural elements of the most important act of civil legislation, consisting of civil regulations, combined into articles and collections of articles: paragraphs, chapters, subsections, sections and parts.
The sources of civil law are the Constitution of the Russian Federation, civil legislation and other acts containing civil law norms; business customs; generally accepted principles and norms international law and international treaties of the Russian Federation. The Constitution of the Russian Federation, which has supreme legal force, direct effect and is applied throughout the territory of the Russian Federation, is the foundation of civil legislation. Moreover, since the courts of the Russian Federation, when considering civil cases, increasingly refer to specific articles of the Constitution, the Plenum of the Supreme Court of the Russian Federation on October 31, 1995 adopted Resolution No. 8 “On some issues of the application by courts of the Constitution of the Russian Federation in the administration of justice,” explaining the procedure for using articles of the Constitution Russian Federation in judicial practice.
According to Art. 71 paragraph “o” of the Constitution of the Russian Federation, civil legislation is under the jurisdiction of the Russian Federation and consists of the Civil Code and other federal laws adopted in accordance with it, whose norms must comply with the Civil Code. Other sources of civil law are by-laws: decrees of the President of the Russian Federation, resolutions of the Government of the Russian Federation, acts of federal executive authorities (orders, instructions, rules, etc.). The rules of civil law contained in laws other than the Civil Code must comply with the Civil Code. In turn, similar norms of by-laws should not contradict either the Civil Code and other laws, or acts of higher executive authorities.
Along with national (domestic) laws and other legal acts, the sources of civil law are generally recognized principles and norms of international law, such as, for example, freedom of trade, navigation, etc., as well as international treaties of the Russian Federation, which are an integral part of the Russian legal system. International treaties apply directly to relations regulated by civil law, except in cases where their application requires the publication of an internal Russian act. If an international treaty of the Russian Federation establishes rules other than those provided for by civil law, the rules of the international treaty apply.
The two types of sources considered regulate any civil legal relations. As for the third type - business customs - it is applied only in the field of entrepreneurial activity. A business custom is a rule of conduct that has been established and is widely used in any area of business activity and is not provided for by law, regardless of whether it is recorded in any document. Examples of such customs are the time standards often used in seaports for loading and unloading ships, which take into account the subtleties associated with tonnage, type of cargo and vessel, weather, etc. conditions of sea transportation. Only those business customs that contradict mandatory provisions of legislation or agreements for entrepreneurs are not subject to application.
2. Business contracts. Main types and features
The contract is a universal legal form organization and regulation of economic relations. It allows you to most fully determine the mutual rights, obligations and responsibilities of participants in economic relations. The contract is the main way to implement such principles of economic turnover as remuneration and equivalence.
In general, the functions of an agreement in the economic sphere (commercial agreement) boil down to the following: the agreement acts as a means of expressing the common will of the producer and consumer, which determines the correct pace of supply and demand and serves as a guarantee of product sales. An agreement is the most convenient legal means that represents the relations that develop in the process of carrying out economic activities on the basis of the principle of mutual interest of the parties to these relations; the agreement gives these relations the form of obligations, determines the procedure and methods for their implementation. The agreement provides for ways to protect subjective rights and legitimate interests of participants in these relations in the event of non-fulfillment or improper fulfillment of obligations.
A contract in the field of economic activity, by its legal nature, is a type of civil law contract, the general concept of which is enshrined in Art. 390 GK. In accordance with it, a contract is an agreement between two or more persons to establish, change or terminate civil rights and obligations. Economic activity as the scope of application of a civil contract determines its characteristics. One of them is the subject composition of the economic contract. The parties or one of them are commercial organizations in various organizational and legal forms, non-profit organizations carrying out business activities within the limits of the rights granted to them by law and constituent documents, individual entrepreneurs.
Based on the above, we can conclude that the same contract can be commercial (if both parties to the contract are entrepreneurs), civil (if both parties to the contract are not entrepreneurs), entrepreneurial, for one party - an entrepreneur, and civil law (domestic) for another party who is not an entrepreneur. In the latter case, the rules of economic legislation are applied to the entrepreneur, and the rules of civil law are applied to a person who is not an entrepreneur.
Thus, based on the subject composition, commercial contracts are those in which both parties are entrepreneurs (supply contract, contracting contract, contract for the supply of goods for state needs), as well as contracts in which one of the parties, by virtue of a direct indication of an act of legislation, can only be an entrepreneur ( retail purchase and sale agreement, energy supply agreement, rental agreement, household contract agreement, property trust agreement, loan agreement, etc.).
The second feature of a commercial contract is the purpose for which it is concluded. Since the purpose of economic activity is the systematic receipt of profit, an agreement in this area is concluded for the same purpose. This feature of commercial contracts presupposes the compensated nature of the relations mediated by them for the transfer of material and intangible benefits. Any contract in accordance with the Civil Code is assumed to be compensated.
If an entrepreneur acts as a party to a gift agreement, which by its legal nature is only gratuitous, such an agreement is not entrepreneurial, since, acting within the framework of the obligation mediated by it, the entrepreneur does not seek to make a profit. Based on the listed characteristics and taking into account the definition of a civil contract, a business contract can be defined as an agreement between the parties who are entrepreneurs, or with their participation, on the establishment, modification or termination of rights and obligations in the field of entrepreneurial activity. An entrepreneurial agreement, therefore, is the same civil law agreement, but with obvious features determined by the sphere of social relations of which it acts as a regulator. It should be noted that the term “contract” has several meanings in civil law. It also denotes a civil obligation legal relationship that arose on the basis of an agreement, a legal fact as the basis for the emergence of a legal relationship, and a document that sets out the contents of an agreement concluded in writing.
The system of commercial contracts is constantly evolving. This dynamics is determined by the development of entrepreneurial relations themselves. The legislation establishes new types of yards (agreement for the sale of an enterprise, an agreement for the assignment of claims (factoring agreement)), and previously established agreements (an agreement for the provision of paid services) become independent types. The classification of business contracts based on various criteria, depending on the goals pursued, allows one to identify and use in business activities one or another type of business agreement and its most optimal conditions.
Based on the subject of commercial contracts, they can be divided into three groups:
Agreements aimed at the transfer of property;
Contracts aimed at performing work;
Agreements aimed at the provision of services.
Within these groups, separate types of agreements are distinguished, corresponding to the names of the chapters of the Civil Code. Thus, within the framework of contracts aimed at the transfer of property, the following types are distinguished:
Contract of sale;
Lease contract;
Agreement of exchange, etc.
Within the framework of contracts aimed at performing work, the following types are distinguished:
Work agreement;
Agreement for the implementation of research, experimental - and design and technological work.
And finally, the group of contracts aimed at performing services is represented by the following types:
Contract for paid services;
Contract of carriage;
Transport expedition agreement;
Storage agreement;
Agency agreement;
Commission agreement, etc.
Types of contracts are in turn divided into types. For example, the types of purchase and sale agreement are:
Retail - purchase and sale;
Supply contract;
Agreement for the supply of goods for - state needs,
Energy supply agreement;
Sales agreement - real estate, etc.
Since commercial contracts are a type of civil law contracts, and those in turn are a type of transactions, they are subject to the classification of transactions. Thus, the division of transactions into unilateral and bilateral (multilateral), consensual and real, unlimited and urgent, etc. may equally apply to business contracts.
It should be borne in mind that in relation to contracts, the division into unilateral and bilateral (mutual) is carried out not by the number of participants (since in the contract their number cannot be less than two), but by the nature of the distribution of rights and obligations between the participants. A unilateral agreement gives rise to only rights for one party, and only obligations for the other. In mutual agreements, each party acquires rights and at the same time bears obligations towards the other party.
Thus, based on the above, it can be argued that the system of business contracts is not constant, because this is due to the constant development of entrepreneurial relations. At the same time, a business contract is always aimed at making a profit.
2.1 Principles and procedure for concluding business contracts
The conclusion of contracts in the field of economic activity must be carried out taking into account the principles that underlie the conclusion of civil contracts.
The fundamental principle of concluding a contract, enshrined in the Civil Code as a principle of civil legislation in general, is freedom of contract. Freedom of contract means that entrepreneurs are free to enter into a contract. This means that entrepreneurs are free to resolve issues with anyone regarding something, to what extent to enter into contractual relations. Any coercion to conclude an agreement is not permitted, except in cases where the obligation to enter into an agreement is provided for by law or a voluntarily assumed obligation.
There are exceptions to this principle due to the fact that for one of the parties the conclusion of an agreement may be mandatory.
The first such exception is the public contract provided for in Art. 396 Civil Code. Analysis of this article allows us to identify a number of signs indicating that the contract is not free, i.e. public, namely:
One of the parties to the contractual relationship must be a commercial organization;
The only or one of the activities carried out by this organization must be the sale of goods, performance of work or provision of services;
The activities of a commercial organization must be public, that is, carried out in relation to everyone who contacts the organization (retail trade, transportation by public transport, energy supply, communication services, medical, hotel services, etc.);
The subject of the contract must be the property sold by the commercial organization, the work performed or the service provided.
The price of goods, works, services, as well as other terms of the contract are established the same for everyone, except in cases provided for by law. In the event of an unjustified refusal to enter into an agreement that meets all of the above criteria, the consumer has the right to legally force a commercial organization to enter into an agreement with him, as well as to demand compensation for losses caused.
The second exception is the conclusion of the main agreement provided for by the preliminary requirements that the preliminary agreement established by Art. 399 Civil Code. If the party that entered into the preliminary agreement evades concluding the main agreement, then the other party has the right to demand compulsion to conclude the main agreement, on the terms determined by the preliminary agreement, and compensation for losses. Preliminary agreements must be distinguished from agreements (protocols of intent) encountered in practice. The latter only consolidate the desire of the parties to enter into contractual relations in the future. Failure to comply with agreements (protocols of intent) does not entail any legal consequences.
The third exception is the conclusion of an agreement with the person who wins the auction. If one of the parties evades concluding such an agreement, the other party has the right to apply to the court with a demand to compel the conclusion of the agreement, as well as compensation for losses caused by evading its conclusion.
The fourth exception is a state contract for the supply of goods for state needs, the conclusion of which is mandatory for enterprises that are monopolists in the sale or production of certain types of goods (works, services).
The second principle of concluding a contract, enshrined in the Civil Code, is the principle of the legality of the contract. Since an agreement as a whole is a type of transaction, then, like any general civil transaction, it is valid if it complies with the legal requirements imposed on it. The conditions for the validity of general civil transactions include: the disputability of the persons who committed it; unity of will and expression of will; compliance with the form of the transaction; compliance of the contents of the transaction with legal requirements. The business agreement must also meet the listed requirements. The procedure for concluding commercial contracts, the sequence of stages established by law, carried out through certain actions aimed at achieving agreement between the parties and called methods of concluding a contract, cover the provisions of Chapter 28 of the Civil Code. The following stages of concluding an agreement in the field of commercial activity can be distinguished: general procedure for concluding an agreement; conclusion of a contract is mandatory; conclusion of a contract by appropriation; conclusion of a contract at auction.
The conclusion of an agreement is usually preceded by so-called non-negotiable contracts. They are established in order to clarify the true intentions of the counterparties, their financial capabilities, determine the price of the future contract, taking into account costs, various design, technical, estimate and other documentation, agreed and other aspects necessary for the conclusion and execution of the contract.
As a general rule, a contract is considered concluded when an agreement is reached between the parties on all the essential terms of the contract. The process of reaching agreement involves two obligatory parties: one party sending an offer and receiving acceptance by the other party who sent the offer.
The value of concluding an agreement in the field of economic activity is explained by the fact that in the field of activity under consideration, the stage (direction of the offer) is sometimes preceded by advertising, and a public offer is often used. Advertising and other offers addressed to an indefinite number of persons are considered as an invitation to make offers. A public offer is a proposal containing all the essential terms of the contract, from which the will of the person making the offer can be seen to conclude a contract on the terms specified in the proposal by anyone who responds.
In accordance with Art. 408 of the Civil Code, the performance by a person who has received an offer (including those who have responded to a public offer) of actions or fulfillment of the terms of the contract specified in the offer (shipment of goods, performance of work, provision of services, etc.) is recognized as acceptance, unless otherwise provided legislation or not specified in the offer. In this case, it is enough that the actions are aimed at partial fulfillment of these conditions, but always within the period established by the offeror for acceptance.
The rules established by Art. 415 of the Civil Code, are applied when concluding a contract without fail, i.e., when concluding a contract is mandatory for one of the parties by virtue of law. The obligated party can either act as the recipient of an offer to conclude a contract, or itself sends the other party a proposal to conclude it. The party with whom the conclusion of an agreement is mandatory must, within thirty days from the date of receipt of the offer, review and send to the other party a notice of acceptance, from the moment the other party reads it, the agreement is considered concluded, or of acceptance of the offer on other terms (protocol of disagreement on the draft agreement ), or a notice of refusal of acceptance.
A party that has received a notice of acceptance of an offer on other terms has the right to either notify the other party of the acceptance of the contract, or to submit disagreements arising during the conclusion of the contract to the court for consideration within thirty days from the date of receipt of such notice, or the expiration of the period for its acceptance. receipt, notice of refusal to accept, as well as in the event of receiving a response to the offer within the prescribed period, the offeror may apply to the court with a demand to compel him to conclude an agreement.
In situations where the obligated party itself sends a draft agreement, the other party has the right to send it a notice of acceptance within thirty days, from the moment of receipt of which by the obligated party the contract will be considered concluded, or a notice of acceptance of the offer on other terms (protocol of disagreements to the draft agreement). If a notice of refusal to accept is received, or a response to the offer is not received within the prescribed period, the contract is considered not concluded, since its conclusion is not obligatory for the party who received the offer. In case of receipt of a protocol of disagreements to the agreement, the obligated party must, within thirty days from the date of its receipt, notify the other party of the acceptance of the agreement in its wording, or of the rejection of the protocol of disagreements. If the protocol of disagreements is rejected or notification of the results of its consideration is not received within the specified period, the party that sent the protocol of disagreements has the right to submit the disagreements that arose during the conclusion of the agreement to the court, which determines the conditions about which the parties had disagreements. If the party that sent the protocol of disagreements does not go to court, the agreement is considered not concluded. The above rules on deadlines apply unless other deadlines are established by law or agreed upon by the parties.
If the obligated party unreasonably avoids concluding a contract, it must compensate the other party for the losses caused.
The conclusion of an adhesion agreement has second features compared to the general procedure for concluding a commercial agreement. An adhesion agreement is an agreement, the terms of which are determined by one of the parties in forms or other standard forms and can be accepted by the other party only by joining the proposed agreement. The party developing its forms or standard forms is a person carrying out commercial activities in areas related to mass consumption or the provision of similar services. The conclusion of a contract by joining an offer, or to a contract as a whole, may be conditioned by the legislative regulation of the relevant contracts, the terms of which are determined by mandatory legal norms and enshrined in forms or standard forms (insurance contract), or by relations with mass consumption (communication services, energy saving, services transport, etc.). The accession agreement can be terminated or amended at the request of the joining party on special grounds, which boil down to the fact that this party has the right to demand termination or modification of the agreement if the accession agreement, although not contrary to the law, deprives this party of the rights usually granted under the agreement of this type, excludes or limits the liability of the other party for breach of obligations, or contains other conditions that are clearly not applicable to the joining party, which it, based on its reasonably understood interests, would not accept if it had the opportunity to participate in determining the terms of the contract.
The specified rules do not apply to entrepreneurs, i.e. the requirement to terminate or amend the contract if there are those listed in clause 2 of Art. 398 of the Civil Code, the grounds presented by the party acceding to the agreement in connection with the implementation of its business activities are not subject to satisfaction if the acceding party (entrepreneur) knew, or should have known, on what conditions the agreement is concluded. Thus, the accession agreement, on the one hand, increases the risk of the joining party, who is an entrepreneur, and on the other hand, it simplifies the procedure for concluding business agreements.
A special procedure is the conclusion of contracts through bidding. This method is used, in particular, when selling property in the process of privatization of state property, when fulfilling orders for the supply of goods, performance of work or provision of services for government needs, and in other cases provided for by law. Any contract may be concluded at an auction, unless otherwise follows from its essence. Any property, both movable and immovable, as well as property rights can be sold through auctions.
The essence of the contract in question is that the contract is concluded with the person who wins the auction. The organizer of the auction is the owner of the property, holder of the property right or a specialized organization acting on the basis of an agreement with the owner of the property (holder of the property right) on their behalf or on its own behalf. Bidding is carried out in the form of an auction or competition. The winner of the auction is the person who offered the best conditions, and at the auction the person who offered the highest price. Auctions and trades can be closed or open. Any person can participate in an open auction or competition, but only persons specially invited for this purpose can participate in a closed auction. Bidders make a deposit in the amount, terms and manner specified in the notice of bidding.
If the auction does not take place, the deposit will be returned. It is also returned to persons who participated in the auction but did not win it. The auction organizer must notify all prospective participants of the auction at least thirty days before the start of the auction. The notice must contain information about the time, place and form of the auction, the subject and procedure of the auction, including the registration of participants in the auction, the determination of the person who won the auction, as well as information about the starting price.
The person who wins the auction and the auction organizer sign on the day of the auction or competition a protocol on the results of the auction, which has the force of a contract. If the person who wins the auction evades signing the protocol, he loses the deposit he made. If the organizer of the auction refuses to sign the protocol, then he is obliged to return the deposit in double amount and compensate the owner who won the auction for losses caused by participation in the auction in a part exceeding the amount of the deposit. If the subject of the auction was only the right to conclude an agreement, such an agreement must be signed by the parties no later than twenty days or another period specified in the notice, after the completion of the auction and the execution of the protocol. If one of the parties evades concluding an agreement, the other party has the right to go to court with a demand to compel the conclusion of an agreement, as well as compensation for losses caused by evasion from its conclusion.
Since the contract is concluded on the basis of a tender, its validity depends on the validity of the tender. If auctions are held in violation of the rules established by law, they may be declared invalid at the request of an interested party, which is the basis for invalidating the contract concluded with the person who won the auction. Not only bidders, but also persons who were refused participation in the auction can act as an interested party. The consequences of the invalidity of the contract are determined in accordance with the rules established by Art. 168 of the Civil Code and other articles of the Civil Code, depending on the violations committed.
Art. 417 - 419 of the Civil Code provide general rules for conducting auctions. They cannot be contradicted by special rules that regulate in detail the procedure for concluding certain contracts on the basis of bidding. Such rules are established, for example, by the Regulations on auctions for the sale of state-owned shares of OAS approved by Order of the Ministry of State Property dated June 10, 1998 No. 8 (the new version of the Regulations was approved by Order of the Ministry of State Property dated June 27, 2000 No. 141).
As a general rule, an agreement is considered concluded at the moment the person who sent the offer receives its acceptance (consensual agreement). However, if, in accordance with the legislation of the conclusion of the contract, the transfer of property is also necessary, the contract is considered concluded from the moment of transfer of the relevant property (real contract).
If the agreement is subject to state registration, then it is considered concluded from the moment of such registration, and if notarization and registration are necessary - from the moment of registration, unless otherwise provided by legislative acts.
During the process of concluding a contract, disagreements may arise between the parties (pre-contractual disputes). Submitting such disagreements to court resolution is possible in cases where, firstly, the conclusion of an agreement is mandatory for one of the parties and, secondly, the parties have reached an agreement on this. There are two categories of pre-contractual disputes. These are disputes about compulsion to conclude an agreement and disputes over the terms of the agreement. The first are associated with the refusal or evasion of one of the parties from concluding a contract and, as a rule, take place when concluding contracts without fail. The court decision to compel the conclusion of an agreement specifies the conditions under which the parties must enter into an agreement. If the dispute concerns the terms of the contract, then the resolution of the dispute sets out the wording of each disputed term.
Conclusion
Recently, due to the increasing growth of entrepreneurial activity, the need for regulation of entrepreneurship and business activities has become increasingly urgent. But this regulation should be based on the requirements and needs of the entrepreneur, and not on the “capabilities” of the state. At this stage of development of entrepreneurship, the state has a huge number of ways and methods of influencing entrepreneurial activity. And the interaction between government and business structures is becoming increasingly important in both economic and political contexts. Entrepreneurship sees the stability of power and the stability of society as the main guarantee of its development. And the state acquires through them economic support and effective assistance to the state in achieving social goals. But the economic problems of both entrepreneurs and the state should be solved not by establishing thoughtless and irrational “rules of the game” by one side for the other, but by finding compromises.
Already now the state, represented by government bodies, is beginning to realize the importance of solving various problems by coordinating interests (consultations and round tables are good confirmation of this).
The functions of the state are not limited to regulation; the state must also support entrepreneurship (especially small entrepreneurship) to form a middle class. Assistance to business entities can be very diverse in its forms. It is carried out both at the state level and in the regions by recognizing state support as one of the most important areas of economic reform. For support, both comprehensive programs and tax incentives are used, as well as the allocation of credit resources on preferential terms. Information and advisory services are organized.
Now it is necessary to change the attitude of the authorities towards the entrepreneur; it is necessary to support entrepreneurship with all our might, because the entrepreneur is the basis for the advancement of society towards a more highly developed, industrial state, which is the basis for the well-being of every citizen of the country.
In this work, it was determined that an agreement in the field of economic activity, by its legal nature, is a type of civil law contract, based on which we can conclude that the conclusion of contracts in the field of economic activity should be carried out taking into account the principles that underlie the conclusion civil law contracts, namely: the principle of the legality of the contract, the principle of freedom of contract.
Bibliography
Regulatory acts
1. Decree of the Government of the Russian Federation of January 26, 2006 No. 45 “On the organization of licensing of certain types of activities” // SZ RF. 2006. No. 6.
the procedure for providing federal budget funds in 2005 for state support of small businesses, including peasant (farm) enterprises” // SZ RF. 2005. No. 18, with amendments and additions made by Decree of the Government of the Russian Federation of December 9, 2005 No. 755 // SZ RF.
3. Regulations on the Federal Registration Service, approved by Decree of the President of the Russian Federation of October 13, 2004 No. 1315// SZ RF. 2004. No. 42.
Literature
4. Andreeva L.V. Commercial law of Russia. Problems of legal regulation. M., 2004.
5. Bykov A.G. About the content of the business law course and principles
its construction // Business law. 2004. No. 1.
6. Belykh B.C. Legal regulation of business activities in Russia. M., 2005.
7. Civil law: Textbook. At 2 p.m. Part 1 / General. ed. prof. V.F. Chigira. – Mn., 2000.
8. Civil law. Volume 1. Textbook. Fourth edition, revised and expanded. / Edited by A.P. Sergeev, Yu.K. Tolstoy. – M., 2000.
9. Zinchenko S.A., Shapsugov D.Yu., Korkh S.E. Entrepreneurship and the status of its subjects in modern Russian law. Rostov n/d, 1999.
10. Parashchenko V.N. Economic law. At 2 p.m. Part 1. General provisions. – Mn.: Vedas, 1998.
11. Legal problems of small business / Rep. ed. T.M. Gandilov. M., 2001.
12. Business law: Textbook. allowance / Ed. S.A. Zinchenko and G.I. Kolesnik. Rostov n/d, 2001.
13. Lebedev K.K. Entrepreneurial and commercial law: systemic aspects. St. Petersburg, 2002.
Clause 1 Art. 2 of the Civil Code of the Russian Federation
Lebedev K.K. Entrepreneurial and commercial law: systemic aspects. SPb., 2002., S. – 48.
Zinchenko S.A., Shapsugov D.Yu., Korkh S.E. Entrepreneurship and the status of its subjects in modern Russian law. Rostov n/d, 1999., S. – 23.
Clause 1 Art. 1 Civil Code of the Russian Federation
Bykov A.G. About the content of the business law course and principles
its construction // Business law. 2004. No. 1., pp. – 19.
Andreeva L.V. Commercial law of Russia. Problems of legal regulation. M., 2004., S. – 71.
As experience shows, the practice of economically developed countries of the world, the economic well-being of any country depends on the forms of government and the stability of their legislative system. If the leadership of the state works fully and effectively and ensures the normal functioning of the laws, then the country will prosper regardless of its geographical location and cultural orientation. In all countries, the state supports entrepreneurship. Because the development of the country ultimately depends on its development.
In Russia, business activity is regulated by laws adopted State Duma, approved by the Federal Assembly and signed by the President of the country. In addition, decrees and orders of the President (V.V. Putin) and decrees and orders of the Government of the Republic of Vladimir (Fradkov) are important; orders and orders of the Ministry of Agriculture of the Russian Federation (Minister Gordeev) are directly important for the agricultural economics sector.
The Basic Law of our country is the Constitution of the Russian Federation. It reflects all the basic legal provisions and any other normative act must not contradict the Constitution.
According to the Constitution, every capable person has the right to engage in entrepreneurial and other economic activities not prohibited by law (Article 34 of the Constitution of the Russian Federation). In combination with the right of private property, such freedom of entrepreneurship acts as the legal basis of a market economy, excluding the state monopoly on the organization of economic life. This freedom is considered as one of the foundations of the constitutional system of Russia (Article 8 of the Constitution).
Therefore, the state is the guarantor of this right. State bodies are obliged: 1) not to refuse registration of an enterprise, citing inexpediency, 2) to protect the property of a private entrepreneur on an equal basis with state property, 3) must fight racketeering and extortion, 4) any damage caused to the enterprise through the fault of government officials , subject to refund. 5) no government body has the right to dictate to an entrepreneur what products he is obliged to produce and what prices should be for them (if the limits are not regulated by law), 6) the entrepreneur himself hires and fires workers in compliance with labor laws, and disposes of his own profits, 7 ) freedom of entrepreneurship also includes the right to carry out foreign economic activity, create unions and associations with other entrepreneurs, and open bank accounts.
At the same time, the state has the right to limit some of the rights of an entrepreneur: 1/. The state prohibits certain types of economic activities (production of weapons, production of orders, etc.) or conditions such activities with special permits (licenses). 2/. The state regulates exports and imports, which imposes certain restrictions on many enterprises. Finally, 3/. Government authorities have the right to demand financial reporting from an entrepreneur without affecting commercial secrets. These and a number of other restrictions are necessary in the interests of the entire national economy, but must be based on a legislative framework.
Specific issues related to the implementation of the right to entrepreneurial activity are regulated by many laws and primarily by the Civil Code of the Russian Federation, the first part of which came into force on January 1, 1995, and the second on March 1, 1996.
The Civil Code, this unique fundamental law of a market economy, introduces economic activity into the general framework of relations of any individuals and legal entities with other persons, enshrines freedom of contract, the inadmissibility of arbitrary interference by anyone in private affairs. According to the Civil Code of the Russian Federation, the main and main condition for starting a business activity, as we noted earlier, is its state registration. The subject of the right to entrepreneurial activity (it does not necessarily mean the creation of an enterprise) is any person not limited by law in their legal capacity. The legal capacity of a citizen arises at the moment of his birth and ends with his death. According to Art. 18 of the Civil Code of the Russian Federation, the content of legal capacity includes the right to engage in entrepreneurial and any other activity not prohibited by law, to create legal entities independently or jointly with other citizens and legal entities, to make any transactions that do not contradict the law and to participate in obligations, etc. Naturally, minor citizens can exercise their rights only through legal representatives (parents, guardians) The full ability of a citizen to acquire responsibilities through his actions and fulfill them (civil capacity) arises with the onset of adulthood, i.e. from 18 years old.
Other Federal laws on the regulation of business activities include the Law of the Russian Federation “On State Regulation of Foreign Trade Activities” (1995). In particular, in accordance with this Law, all Russian entities have the right to carry out foreign trade activities, “except for cases provided for by the legislation of the Russian Federation.” Foreign entities carry out similar activities in compliance with Russian legislation. The law establishes the procedure for the import and export of goods, restrictions on exports and imports, issuance of licenses, etc.
Antimonopoly regulation of business activities is carried out in accordance with the Law “On Competition and Restriction of Monopolistic Activities in Product Markets (1991). It is expressed in the fact that the state limits monopolization and unfair competition. Unfair competition refers to the conduct of competition using dishonest and illegal methods.
Abuses related to market dominance and violation of ethical competition rules are harmful to citizens and society as a whole. The lack of competition delays economic and technological progress, suppresses the activity of small and medium-sized businesses, reduces the quality of goods, leads to the maintenance of high prices, and infringes on the right of many people to free economic activity. The interests of citizens and the economy are harmed by unfair competition, which manifests itself in concluding agreements on prices (to maintain high prices), dividing markets, and eliminating other entrepreneurs from the market. The interests of consumers are infringed when they are misled about the manufacturer, purpose, method and place of production, quality and other properties of another entrepreneur’s product, through incorrect comparison of products in advertising and other information, copying the external design or use of a trademark of someone else’s product, and in other ways.
It is also prohibited for an entrepreneur to disseminate false, inaccurate or distorted information that could cause losses to another entrepreneur, to withdraw goods from circulation in order to create or maintain a shortage in the market or to increase prices, to impose contract terms on a counterparty that are unfavorable for him or not related to the subject of the contract, and a number of other actions.
The law establishes that recognition of a dominant position (i.e. monopoly) is possible if the share of goods on the market exceeds 35% and there is an opportunity to limit competition. It is prohibited not only for individual entrepreneurs to restrict competition, but also for executive authorities. A means of combating monopolization and unfair competition may be to contact the antimonopoly authorities, which have the right to issue orders to stop illegal actions, and if the orders are not followed, to impose a fine. In case of damages caused by such actions, you can go to court (both general jurisdiction and arbitration).
To implement the provisions of this Law, the State Antimonopoly Committee of the Russian Federation was created, which has territorial departments. The activities of these bodies are of a quasi-judicial nature, since they make decisions on measures of influence in procedural forms, i.e. with provision of certain guarantees to the parties, compliance with their rights and legitimate interests. However, any decisions of these bodies can be appealed to the court.
Antimonopoly legislation does not affect the scope of action of so-called natural monopolies, i.e. monopolies producing goods, the satisfaction of demand for which in the market for a given product is more efficient in the absence of competition due to the technological features of production and which have a stable demand due to the impossibility of completely replacing them with other goods. This includes transportation of oil and gas through pipelines, rail transportation, services of transport terminals and ports, electrical and postal services. The Federal Law of August 17, 1995 provides for the regulation of the activities of these natural monopolies through special federal executive authorities.
The state also provides support to the so-called small businesses (with up to 100 people employed in the enterprise), which was adopted by the Federal Law of June 14, 1995. The law provides for the creation of preferential conditions in the financial field and taxation, support for foreign economic activity of small enterprises, etc. The state called upon to implement special programs and create funds to support small businesses.
LEGAL TOPICS
Definition of business activity
Entrepreneurship is an independent economic activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property and/or intangible assets, 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. The efficiency of business activity can be assessed not only by the amount of profit received, but also by changes in the value of the business (market value of the enterprise, goodwill). Entrepreneurship and business are the most important attribute of a market economy, permeating all its institutions.
Can be carried out by a legal entity or directly by a private individual. In the Russian Federation, as in many countries, to conduct business activities an individual is required to register as an individual entrepreneur.
In Russia, this area of activity is regulated by Business Law.
Signs of entrepreneurial activity
1. Independence in carrying out entrepreneurial activities - this means that the entrepreneur carries out his activities directly on his own behalf, of his own free will and in his own interests.
2. An entrepreneur acts at his own risk - he consciously takes risks to one degree or another, because it is impossible to predict success or foresee failure with a 100% guarantee.
3. Entrepreneurial activity always has the goal of systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services.
4. Entrepreneurs can be persons (individuals and legal entities) registered in the manner prescribed by law - this means that they need to undergo state registration as an entrepreneur. From the moment of state registration, the entrepreneur acquires the rights and obligations necessary to participate in business activities, and acts as an independent participant in civil circulation, in administrative, tax, labor and other legal relations.
Forms of entrepreneurial activity: individual and collective.
Individual entrepreneurs are individuals registered in accordance with the procedure established by law and carrying out entrepreneurial activities without forming a legal entity.
Collective:
General partnership - the participants of which engage in business activities on behalf of the partnership and bear “full”, unlimited liability. Currently, this organizational and legal form is practically not used.
A limited partnership is an organization based on shared capital, in which there are two categories of members: general partners and limited investors. General partners carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with all their property. Limited depositors are responsible only for their contribution. Currently, this organizational and legal form is practically not used.
LLC - established by one or more legal entities and/or individuals economical society, the authorized capital of which is divided into shares; The participants of the company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their shares in the authorized capital of the company.
ODO - a company established by 1 or several persons, the management company is divided into shares of sizes determined by the constituent documents; Participants of such a company jointly and severally bear subsidiary liability for its obligations with their property in the same multiple of the value of their contributions, determined by the constituent documents of the company.
CJSC is a joint stock company, the shares of which are distributed only among the founders or a predetermined circle of persons
OJSC is a joint stock company. The main difference from a closed joint stock company is the right of shareholders to alienate their shares of a private or legal entity without a decision of the general meeting of shareholders.
Methods of legal regulation
When regulating legal relations, both imperative and dispositive methods of legal regulation are used, since the subject includes both horizontal relations (relations of equality) and vertical relations (relationships of the management-entrepreneur type). Other methods of legal regulation include the following.
The most important method of legal regulation used in economic (entrepreneurial) law is the method of autonomous decisions - THE METHOD OF AGREEMENT. With this method, the subject of business law independently resolves this or that issue, and upon entering into a legal relationship, resolves it in agreement with its other participant.
In the process of state regulation of business activities, the METHOD OF MANDATORY REQUIREMENTS is used. With this method, one party to the legal relationship gives the other an order that must be followed.
The METHOD OF RECOMMENDATIONS can also be used to regulate business relations. When applying it, one party to a legal relationship gives the other party a recommendation on the procedure for conducting business activities.
In addition, the PROHIBITION METHOD is used. For example, in the Russian Federation Law on the Protection environment prohibitions have been established to prevent actions by business entities that cause harm to the environment.
Sources of legal regulation of personal data
Systematization of legislation on business activities
Currently, the first steps to systematize business legislation are logically consolidation and incorporation (preparation of a set of federal laws) in such areas as: organizational and legal forms of legal entities - commercial organizations; financial relations; relations in the field of intellectual property; insolvency (bankruptcy); trade; industrial policy; building complex; agricultural complex; antimonopoly regulation; foreign economic activity; energy policy; maritime affairs; transport relations; banking; insurance business.
Regulatory acts
an official document of the established form, adopted within the competence of an authorized government body or through a referendum in compliance with the procedure established by law, containing generally binding rules of behavior, designed for an indefinite circle of people and repeated application.
Business customs
This is an established and widely used rule of conduct in any area of business activity, not provided for by law, regardless of whether it is recorded in any document, which cannot contradict the law or contract. Legal regulation of business customs is carried out by the Civil Code of the Russian Federation. Trade and port customs in the Russian Federation are certified by the Chamber of Commerce and Industry of the Russian Federation.
Purposes of creating a legal entity
Definition
A legal entity is an organization registered in accordance with the procedure established by law, which may have separate property in ownership, economic management or operational management and is liable for its obligations with this property, can, in its own name, acquire and exercise property and personal non-property rights, bear responsibilities, be a plaintiff and a defendant in a court. Legal entities must have an independent balance sheet or estimate.
Signs of a legal entity
A legal entity is an organization:
- limitation of functions
- passed state registration
- having constituent documents
- approved and registered the charter
- operating in the legal field
- activity control
- legal address
- Accounting
- supervision - fire, veterinary and others
Material:
- organizational unity
- internal structure of the organization
- presence of controls
- availability of constituent documents
- property isolation (mandatory accounting of property on an independent balance sheet or according to estimates)
- independent civil liability (the possibility of creditors filing foreclosure on the property of a legal entity, and not on its founders/participants)
- acting in civil proceedings and judicial authorities on one’s own behalf (company name)
Formal: state registration
Legal capacity
Legal capacity is the ability established by law to be a bearer of subjective rights and legal obligations.
The ability to be a subject of law as such is usually called “general legal capacity,” which is recognized for legal entities from the moment of their creation.
Special legal capacity is the ability of a person to be a participant in legal relations arising in connection with the occupation of certain positions (president, judge, member of parliament), or the person’s belonging to certain categories of legal entities (employees of a number of vehicles, law enforcement agencies, etc.). All non-profit organizations and unitary enterprises have special legal capacity, i.e. can only engage in those types of food that are expressly indicated in the constituent documents.
Property basis of PD
The right of ownership is understood as the ability, based on the law (legally secured), to have this property, to maintain it in one’s household (to actually possess it, to list it on one’s balance sheet, etc.). The right to use is the legal possibility of exploitation, economic or other use of property by extracting from it useful properties, its consumption. It is closely related to the right of ownership, because, as a general rule, one can use property only by actually owning it. The power of disposal means a similar possibility of determining the legal fate of property by changing its ownership, condition or purpose (alienation by agreement, transfer by inheritance, destruction, etc.).
Owner's rights
The owner has all three main powers - the right of possession, use and disposal. The owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and legally protected interests of other persons, including alienating his property into the ownership of other persons, transferring to them, while remaining the owner, the rights possession, use and disposal of property, pledge property and encumber it in other ways, dispose of it in any other way.
Goals and methods of privatization
The purpose of corporatization of a municipal unitary enterprise is to optimize the state and municipal sectors of the economy, as well as to increase the efficiency of management of state and municipal property.
The goals of the privatization of municipal unitary enterprises are to increase the efficiency of the privatized enterprises,
Ensuring the efficient use of municipally owned property,
Replenishment of municipal budgets through payments for the operation of property not subject to privatization,
Receiving dividends on company shares that are in municipal ownership.
The allocation of property related to the engineering infrastructure of the municipality and under the right of economic management of the municipal unitary enterprise, for its subsequent transfer to lease, trust management and concession, as well as the organization of a competitive environment for the right to work on this infrastructure, is also one of the most important goals privatization.
Methods: (methods)
*transformation of a unitary enterprise into an open joint-stock company. All shares of the company that arose as a result of such a transformation may be in state or municipal ownership, but, despite this, the transformation of a unitary enterprise into a joint-stock company is an act of privatization, since the property of any joint-stock company belongs to it by right of ownership. In other words, the state or municipal entity loses the right of ownership to the property of the enterprise, and instead acquires only corporate rights in relation to the newly established joint-stock company.
*Sale at auction is a method of privatization in which the buyer is not required to fulfill any conditions, and the right to purchase property is recognized by the buyer who offered the highest price during the auction.
*Sale of shares at a specialized auction. The specialized auction is open in terms of participants. It can be carried out simultaneously in several constituent entities of the Russian Federation and, accordingly, be interregional or all-Russian. In this case, all winners purchase shares at a single price per share.
* Sale by competition is a method of privatization in which it is necessary not only to pay the price of the privatized property, but also to fulfill certain conditions in relation to it. The winner of the competition is the participant who offered the highest price and undertook to fulfill its conditions.
*A method of privatization is also the introduction of state or municipal property as a contribution to the authorized capital of an open joint-stock company. This form of privatization can be applied by decision of the Government of the Russian Federation, a body of a constituent entity of the Russian Federation or a municipal body, and the contribution in such cases must be no less than 25% + 1 share.
Transaction concept
Transaction - lawful volitional actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.
Types and characteristics of transactions
Types of transactions
- Conditional deal:
Conditional transactions are transactions in which the emergence of rights and obligations is made dependent on circumstances regarding which it is unknown whether they will occur or not in the future. A conditional transaction has four characteristics:
The condition refers to the future, i.e. the circumstance specified in the transaction does not occur at the time of its completion;
This condition is likely to occur;
The condition must not occur inevitably, that is, it is unknown whether it will occur or not;
A condition is an additional element of a transaction, i.e. a transaction of this type can be completed without such a condition.
- Forward transaction - In forward transactions, the moment of entry into force of the transaction and termination of the transaction is determined. The period that the parties have determined as the moment when rights and obligations under the transaction arise is called suspensive. For example, the parties to the transaction agreed that the rights and obligations under the purchase and sale transaction arise from the moment the money is received in the seller’s bank account and the seller transfers the goods to the buyer within three days from the moment of payment. This is a suspensive period. If the transaction comes into force immediately, and the parties have agreed on a period when the transaction must terminate, such a period is called cancelable. For example, the parties to the transaction agreed that the lease of the property must be terminated by July 1. This is an expiration date.
- Perpetual transaction - In open-ended transactions, the moment of its entry into force and termination is not defined. The open-ended deal takes effect immediately. For example, a loan agreement, where the terms of entry into force and termination of the transaction are not specified, but the money was received on a receipt.
Signs:
- is a legal act
- a transaction is always an act of will, i.e. people's actions
- this is a legal action
- the transaction is specifically aimed at the emergence, termination or change of civil legal relations
- a transaction gives rise to civil legal relations only for its participants, but sometimes - “transactions in favor of a third party”
Transaction form
Oral form - The oral form of a transaction represents the actions of the parties to the transaction, from which their will to complete the transaction follows. According to Art. 159 of the Civil Code of the Russian Federation, in all cases where the law or agreement does not provide otherwise, transactions can be made orally.
Simple written form - involves drawing up a special document or a set of documents that reflect the content of the transaction and the will of the parties to the transaction to conclude it. The will to conclude a transaction is confirmed by the signatures of the parties or their representatives.
The notarial form of a transaction is a special case of a written transaction, when a notary makes a certification inscription on a document corresponding to a simple written form.
Concept and types of obligations
An obligation is a relative civil legal relationship, by virtue of which one party (debtor) is obliged to perform certain actions or refrain from certain actions in favor of the other party (creditor). Such actions are: transfer of certain property, performance of work, payment of money, as well as other actions. The creditor, in whose favor such an action should be performed, has the right to demand that the debtor fulfill his obligation.
Types of obligations
a) on the transfer of property:
- depending on whether the property is transferred into ownership (as in cases with economic management and operational management), it is divided into compensated (purchase and sale, rent, exchange, supply) and gratuitous (donation)
- if the property is transferred for use, also paid (rent, leasing, hiring) and gratuitous (loans)
b) related to the performance of work (contracting, R&D)
c) provision of services (insurance, credit obligations, factoring, franchising)
LEGAL TOPICS
Legal regulation of business activities.
INTRODUCTION
The textbook “Legal regulation of commercial activities” is intended for students of the Federal State Educational Institution of Higher Professional Education VSAU, studying in the specialty 080401 “Commodity science and examination of goods”. The subject of the discipline is the provisions of the current civil, business, customs, arbitration law, individual regulations governing trade, foreign economic and other commercial activities, as well as international legal acts in the field of commercial activities included in legal system RF.
The sections of civil law proposed for study cover issues of regulating the legal status of individual entrepreneurs and legal entities. The training manual examines the features of contracts involving business entities and responsibilities in the field of entrepreneurship. A number of topics in the textbook are devoted to issues of legal regulation of foreign economic activity, the peculiarities of foreign economic transactions, and the procedure for resolving disputes between participants in foreign economic relations.
According to the authors of the manual, studying the proposed topics of the training course will to a certain extent contribute to the ability to apply Russian legislation regulating professional activities in practice, and will provide the opportunity to independently protect commercial and property interests in future professional activities.
The following abbreviations are used in the text of the manual:
Civil Code of the Russian Federation - Civil Code of the Russian Federation;
Code of Administrative Offenses of the Russian Federation - Code of Administrative Offenses of the Russian Federation;
Criminal Code of the Russian Federation - Criminal Code of the Russian Federation;
GPC – Civil Procedure Code of the Russian Federation;
TC – Tax Code of the Russian Federation;
APK – Arbitration Procedure Code of the Russian Federation.
TOPIC 1. LEGAL REGULATION OF BUSINESS ACTIVITIES
The concept and main features of entrepreneurial activity. Entrepreneurial relations. Business entities. Grounds for the emergence of the right to engage in entrepreneurial activity. Areas, types and forms of entrepreneurial activity. The property basis of entrepreneurial activity. Legal status of an entrepreneur. Rights and obligations of an entrepreneur. Responsibility of the entrepreneur.
Currently in Russia, market reforms provide for the creation of a free market for goods and services, expansion and strengthening of business activities. Therefore, entrepreneurs become the main actors in the country's economy. The country's transition to a market economy took place under the most difficult conditions, which brought both moral and material losses to the population of our country. To contain the elements of the market, it is necessary government regulation, creation of a special legal framework regulating relations in the field of entrepreneurship.
Over the years of reform, the legal understanding of entrepreneurship has undergone a number of changes. So, according to paragraph 1 of Art. 2 Civil Code of the Russian Federation entrepreneurial activity – This is an independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law.
Entrepreneurial activity is distinguished by a number of characteristics, which include the following:
1) independence;
2) the presence of a goal, which is to make a profit;
3) the systematic nature of making a profit;
4) economic risk;
5) the fact of state registration of participants.
The absence of at least one of the listed signs means that the activity is no longer entrepreneurial.
Let's take a closer look at these mandatory signs of entrepreneurship:
1. The independence of entrepreneurial activity is manifested in organizational independence. Unlike an employee, who is obliged to obey the internal labor regulations established by the employer, i.e. follow the orders of the employer, observe the working hours and rest hours, comply with labor standards, etc., the entrepreneur in the sphere of his business has no other power over himself other than his own. He is his own boss, he decides what and when to do, what products to produce and how to sell them. In this regard, the entrepreneur does not depend on government agencies or other persons. No one has the right to dictate and impose their will on him, but no one is obliged to assist him. The employer is obliged to provide the employee with work, tools, etc., and create proper working conditions. Entrepreneurial activity can be carried out both by the owner himself and by the entity managing his property on the right of economic management. Independence in organizing production is complemented by commercial freedom. A business entity independently determines the ways and means of selling its products. An important condition for commercial freedom is free pricing. However, there is no absolute freedom of producers in economics. The independence of the manufacturer is manifested in the fact that there is no authority above him that determines what to do and in what quantities. But an entrepreneur depends on the market, which dictates its own rules.
2. The main goal of entrepreneurial activity is to obtain income that would exceed the expenses incurred in connection with the implementation of this activity (production costs). In the most general form, the sum of the difference between income received and production costs constitutes profit. Moreover, both profit and loss are calculated for a certain period and from all sales as a whole. Therefore, the loss from the sale of one product is covered by the profit from the sale of other goods, or vice versa. To qualify an activity as entrepreneurial, it is not necessary that as a result of its implementation only profit is actually received; what is important is the goal, the direction of the person’s will to make a profit. Entrepreneurial activity is aimed at generating profit, which is the product of a specific human resource - entrepreneurial abilities. Such work is not easy and requires, firstly, the presence of initiative to combine material and human factors, and secondly, the adoption of extraordinary decisions on the management of production and activities. Therefore, entrepreneurship is a professional activity aimed at making a profit. At the same time, the entrepreneur takes responsibility for the results of his activities.
3. Systematic profit-making is one of the most important features, therefore isolated cases of profit-making do not constitute entrepreneurship. At the same time, the Civil Code of the Russian Federation states that for an entrepreneur it is not so much the field of activity itself that is important, but the systematic receipt of profit. In addition, activity aimed at systematically generating profit is considered entrepreneurial, i.e. carried out in the form of a trade, as a more or less constant source of income for the entrepreneur. Therefore, entrepreneurial activity aimed at making a one-time profit is not considered entrepreneurial activity.
4. Economic risk is the possible adverse property consequences of an entrepreneur’s activities. At the same time, the risk can not only lead to bankruptcy of the entrepreneur, but also be detrimental to the property interests of citizens and organizations. This is a feature contained in the definition of entrepreneurial activity. It consists in the fact that this activity is carried out by the entrepreneur at his own risk. Due to various circumstances beyond the will of the entrepreneur, his commercial calculations may not be justified, and at best he will not receive the planned profit, at worst he will go bankrupt. The burden of such consequences lies with the entrepreneur himself.
5. State registration is a legal fact preceding the start of business activity. To obtain status, a business entity must be registered (recognized by the state) as such. Legal liability is provided for systematically making profit from one’s activities without state registration. Entrepreneurship can be carried out by both citizens and organizations. Commercial organizations fully enjoy this right, but even they must obtain additional permission to engage in certain activities - a license (transport, legal, medical, etc.). A state monopoly is established for certain types of activities (production and trade in weapons). A person who intends to independently, at his own risk, carry out activities aimed at making a profit must register as an entrepreneur. Otherwise, his activities will be considered illegal. But when concluding commercial transactions, the lack of registration is not an obstacle to recognizing them as such. The rules governing business activities will be applied to such transactions (Article 23 of the Civil Code of the Russian Federation).
Entrepreneurial relations are social relations in the field of entrepreneurial activity, as well as closely related non-commercial relations, including relations with state regulation of the market economy.
These relationships are divided into two groups:
1) entrepreneurial relations themselves (entrepreneur-entrepreneur) – horizontal;
2) non-commercial relations (entrepreneur – management body) – vertical.
The basis of horizontal relations (property) is the legal equality of the parties. Their rights and obligations, as a rule, arise from the contract.
The second group includes relations, although of a non-commercial nature, but closely related to entrepreneurial ones (for example, related to the formation of an enterprise, licensing, etc.). This group of relations includes relations on state regulation of the economy, on supporting competition and limiting monopolistic activities, legal regulation of the quality of products, goods, works and services, pricing, etc. Their characteristic feature is the mandatory execution by business entities of management acts adopted within the competence of such a body and addressed to these entities.
A feature of entrepreneurial relations is their subject composition. Business entity is any person whose activities are aimed at generating income, and whose legal status is regulated by the rules of business law.
Business entities differ depending on the role they perform in the economy. The most common entities are commercial organizations and individual entrepreneurs. In addition, non-profit organizations also belong to business entities. Although their goal is to conduct non-profit activities, they can engage in entrepreneurial activities to achieve the goals for which they were created. Business entities include members of management bodies and managers of commercial organizations. They directly carry out entrepreneurial functions. There are also groups of other business entities:
Branches, representative offices, other structures of commercial divisions of commercial organizations;
Industrial and economic complexes (financial and industrial groups, holdings, simple partnerships and other associations of entrepreneurs without forming a legal entity);
Commodity and stock exchanges;
Investment funds;
Non-state pension funds;
Self-regulating organizations and other associations of entrepreneurs;
Authorities and local self-government.
The right to engage in entrepreneurial activity is one of the fundamental constitutional rights and freedoms of man and citizen. The Constitution of the Russian Federation enshrines the right of every citizen to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law. The free exercise of entrepreneurial activity is an element of the constitutional principle of economic freedom.
Every citizen has the right to choose any method of carrying out economic activity. A person can carry out entrepreneurial activities as an employee or an individual entrepreneur, at the same time be an individual entrepreneur and an employee, or participate in the activities of a commercial organization. But at the same time, the law limits in certain cases and procedures the freedom of enterprise in order to protect the constitutional order, morality, protect human health and life, state security, protect the environment, protect cultural values, etc. Such restrictions include:
The business entity has legal personality;
Availability of state registration of business entities;
Obtaining a special permit (license) to carry out certain types of activities.
The right to engage in entrepreneurship includes freedom to choose the sphere, type and form of entrepreneurship . Among areas of business activity differentiate production, commerce (trade) or provision of services. By types of entrepreneurial activity differs by banking, insurance, stock exchange, production of a certain type of product, etc. By forms of entrepreneurship allocate individual and collective entrepreneurial activity(a citizen can either independently carry out entrepreneurial activities on an individual basis or through participation in a commercial organization).
The right to engage in entrepreneurship is an integral part of a citizen’s legal capacity: according to the law, only a legally capable citizen can independently engage in entrepreneurship.
To carry out entrepreneurial activities, an entrepreneur must have a certain property, and one of the conditions for recognition of an organization as a legal entity is the presence of separate property, which is under the right of ownership, under the economic control or operational management of the organization.
According to legal grounds, property is divided into:
Movable and immovable;
Negotiable, limited negotiable and withdrawn from circulation.
According to economic characteristics, property is divided into:
Fixed and working capital;
Property for production and non-production purposes;
Tangible and intangible assets;
Funds for various purposes.
To form property for the purpose of conducting business, entrepreneurs can acquire property into ownership or for temporary possession and use. Property is acquired during the formation of the authorized (share) capital (for example, when creating a partnership) and on other grounds provided by law.
The property of an entrepreneur includes all types of property intended for his activities (land plots, buildings, structures, equipment, inventory, raw materials, products, rights to a company name, trademarks, etc.). The property rights of an enterprise are secured by securities that certify certain property rights of its owners. Special types of property are money and foreign currency.
Legal status of an entrepreneur forms a set of rights and obligations that constitute the content of business relations. Entrepreneur's right is an expression in a specific legal norm of the principle of freedom of enterprise by assigning the right to a specific subject.
1) the right to perform one’s own actions;
2) the right to demand the fulfillment of duties and obligations by other persons in their own interests;
3) the ability of entrepreneurs to protect their interests.
Every entrepreneur is provided with equal opportunities to conduct business and the same legal status, regardless of place of registration or place of residence. Individual entrepreneurs can choose any place of residence, and the founders of a commercial organization can choose any location of the legal entity they create. In accordance with the principle of freedom of economic activity, an entrepreneur has the right to independently and independently set prices for goods and services, except for those regulated by the state (natural monopolies).
Commercial organizations can carry out any type of activity. Entrepreneurs have the right to own property, including land, other natural resources, funds, etc. Every entrepreneur has the right of free access to any market for a particular product. The rights of entrepreneurs may be limited by federal laws.
TO entrepreneurs' rights relate:
The right to create legal entities;
The right to own property, other property and non-property rights;
The right to make transactions that do not contradict the law;
The right to participate in obligations;
Entrepreneur's obligation- this is a measure of restriction of his economic freedom, a condition for the legality of the behavior of an entrepreneur and is established through legal requirements or legal prohibitions.
The obligations of an entrepreneur are regulated by civil law and are an element of civil law relations. They are established in relation to society, to consumers, to employees, competitors, entrepreneurs - the other party in the transaction.
Responsibilities of an entrepreneur can be divided into several groups, depending on the stages of entrepreneurial activity:
1) preparation for entrepreneurial activity. During this stage, state registration occurs, the entrepreneur receives licenses, approvals, permits, etc. He prepares forms and accounting books, financial and statistical reporting, and registers for taxes. At this stage, the formation of a production base also occurs;
2) production of goods and provision of services. At this stage, the entrepreneur’s responsibilities include compliance with legislation, transaction obligations, etc.;
3) formation of the results of entrepreneurial activity and disposal of them. At this stage, the responsibilities of the entrepreneur include:
Payment of taxes to budgets of various levels;
Payment of mandatory payments to extra-budgetary funds;
Filing tax returns, tax reports and balance sheets;
Presentation of statistical information.
Entrepreneur's responsibility is established in order to encourage entrepreneurs to comply with established procedures, standards and rules, to punish entrepreneurs for failure to comply with their duties, to prevent violations, and to ensure the restoration of violated rights.
The responsibility of the entrepreneur is expressed by a sanction that is applied to the offender in the form of imposing additional responsibilities on him (payment of a fine, penalty, damages, etc.) and deprivation of his rights, which entails negative consequences for him. Deprivation of rights is expressed in the seizure of property for the benefit of the state, deprivation of ownership of property, and the limitation or termination of the legal personality of an entrepreneur. Such measures include:
· liquidation of a legal entity by court decision in the event of carrying out activities:
Without a license;
Prohibited by law;
Repeated or gross violations of the law;
· reorganization of a legal entity by decision of government bodies or by court decision;
· suspension of the activities of a legal entity or individual entrepreneur;
· revocation of a license by a court decision (if the entrepreneur violated licensing requirements, as well as if these violations entailed a violation of the rights, legitimate interests of citizens, or damage to their health;
· application of criminal punishment in the form of deprivation of the right to engage in certain activities or hold certain positions;
· restriction of business activities or individual operations.
Responsibility arises only if there is a set of legal facts that determine the elements of the offense - illegality (illegality) of the behavior of the entrepreneur, violation of public interests, a causal connection between them, and the guilt of the violator.
TOPIC 2. SOURCES OF BUSINESS REGULATION
Business law: subject and methods of legal regulation. Principles of business law. Legal regulation of business activities. Types of legal sources. Civil legislation and its system. Effect of civil legislation. Application of civil legislation. The relationship between business law and other branches of law.
If labor relations are regulated by labor legislation, then with entrepreneurial activity the situation is more complicated. For a long time in our state, entrepreneurial activity was not only not regulated by the state, but was also directly prohibited; in the Criminal Code of the RSFSR of 1960, engaging in it was strictly punished (for example, speculation) by imprisonment for up to 10 years with confiscation of property. Only in the second half of the 1980s did the law for the first time, and then within very limited limits, allow citizens to engage in entrepreneurial activity based on their personal labor, which was called individual labor activity. Currently, the state not only recognizes the right of citizens and private organizations to engage in business, including with the involvement of hired labor, but also encourages it.
Business law is an integral component of the Russian legal system, as it regulates relations related to the market economy. A feature of business law is that it is formed from the norms of various branches of law - constitutional, civil, labor, financial, administrative, criminal, tax, etc.
Business law of the Russian Federation – a set of norms of various branches of Russian law regulating social relations in the field of entrepreneurial activity.
At the same time, the norms of business law establish:
Legal requirements for entrepreneurs and other participants in business relations;
Basic rules of entrepreneurship;
Legal liability for non-compliance with established rules.
Through the norms of business law, the state creates favorable conditions for entrepreneurship, develops market relations, promotes the creation of market structures such as exchanges, banks, trading houses, etc.
Under subject of legal regulation refers to the range of social relations that are regulated by this branch of law. Subject of business law, therefore, are social relations in the field of entrepreneurial activity and related non-commercial relations. Such relations form economic and legal relations and a single economic and legal turnover.
Under method of legal regulation is understood as a set of techniques and methods of legal influence on social relations. Methods of business law include:
Mandatory regulations (establishes the rights and obligations of subjects of business relations);
Autonomous decisions, autonomy of will of the parties to legal relations (i.e. the rights and obligations of participants in business activities are established by mutual agreement);
Coordination (the subject of business law resolves the issues that arise independently, and when entering into a legal relationship - in agreement with its other participant);
Prohibitions.
Principles of business law– these are the fundamental principles that determine the legal norms of business law. These include:
1) The principle of freedom of entrepreneurial activity (enshrined in Article 34 of the Constitution of the Russian Federation - “everyone has the right to freely use their abilities and property for entrepreneurial activity and other economic activities not prohibited by law.” But freedom of enterprise can be limited by federal laws in the interests of society. Freedom of entrepreneurship is also limited by licensing of certain types of economic activities.
2) The principle of recognition of the diversity of forms of ownership, legal equality of forms of ownership and their equal protection. According to this principle, legislation cannot establish any privileges or restrictions for business entities. All subjects are provided with equal protection of their rights.
3) The principle of a single economic space. This principle establishes the consolidation in the Constitution of “free movement of goods, services and financial resources” throughout the territory of the Russian Federation. In accordance with this principle, the establishment of customs borders, duties, fees or other obstacles to the free movement of these objects is not allowed on the territory of the Russian Federation.
4) The principle of maintaining competition and preventing economic activities aimed at monopolization and unfair competition. Compliance with this principle is necessary for the development of a market economy and the implementation of business activities.
5) The principle of state regulation of business activities. It is carried out in various forms and methods, which are determined by political conditions, the level of economic, social development and other factors.
6) The principle of legality. In accordance with this principle, entrepreneurial activity must be carried out in strict compliance with the requirements of the law, and the state must ensure the legality of legal acts, the legality of the activities of government bodies that regulate entrepreneurship.
Constitutional guarantees of entrepreneurship are of particular importance in such regulation. According to the Constitution of the Russian Federation (Article 34), everyone has the right to freely use their abilities and property for business activities and other economic activities not prohibited by law. In addition, recognizing the right of private property, including land and other natural resources, the Constitution defines the most important economic guarantee of entrepreneurial activity.
Of particular importance in modern Russia is the legal regulation of business activities, which is carried out through the use of various legal sources.
A legal source is a method of establishing legal norms. Legal sources of business law fix legal rules that regulate relations between entrepreneurs. The following legal sources of business law are in effect in the Russian Federation:
1. The main source is the Constitution of the Russian Federation, which has the highest legal force, direct effect and is applied throughout the territory of our state. All laws and regulations must not contradict it. The Constitution of the Russian Federation establishes the constitutional foundations of entrepreneurship and constitutional restrictions. Business law is within the jurisdiction of the Russian Federation and ensures uniform legal regulation of business activities throughout the Russian Federation.
2. One of the sources is the Civil Code of the Russian Federation, which regulates not only civil legal relations, but also business ones. The Civil Code reveals the concept of entrepreneurship, the organizational and legal forms of its implementation, the concept of the legal regime of the property of entrepreneurs, and the concept of contracts.
3. Federal laws on entrepreneurial activity occupy a significant place among the sources of business law. They are classified into laws:
Regulating the general condition of a certain type of market;
Establishing the legal status of a business entity;
Regulating certain types of business activities;
Establishing the legal status of individual market entities;
Establishing requirements for entrepreneurial activity.
4. By-laws play a major role in regulating entrepreneurship, which should not contradict the Constitution and federal laws. These are Presidential Decrees, Government Decrees, and regulatory acts of federal executive authorities.
5. When regulating business legal relations, the regulatory legal acts of the USSR continue to apply.
6. In a number of cases, along with federal sources of law, acts of constituent entities of the Russian Federation may also apply.
7. Legal acts in the field of entrepreneurship can also be issued by local government bodies (in the sphere of regulating the right of ownership of the property fund belonging to them).
8. Local acts that are created by business entities themselves (Charter, regulations, constituent agreement, etc.) also play an important role; they can establish a trade secret regime.
9. Business customs are also sources of business law. In Art. 5 of the Civil Code of the Russian Federation states that this is “an established and widely applied rule of behavior not provided for by law, regardless of whether it is recorded in any document.” Business customs are applied along with legislation when there are gaps in it, but not in spite of it. The legal significance of customs is that in their application they come after regulations and agreements.
10. An integral part of the legal sources of business law are generally recognized principles and norms of international law, as well as international bilateral and multilateral treaties of the Russian Federation.
The main role in regulating entrepreneurship belongs to the norms of civil and administrative law. Civil law consolidates the legal status of individual entrepreneurs and legal entities in property circulation, regulates property relations and contractual relations.
Civil law governs business activities in the following areas:
Determines the organizational and legal forms of entrepreneurial activity (there are two such forms - entrepreneurship without the formation of a legal entity (individual entrepreneurship) and entrepreneurship with the formation of a legal entity);
Regulates the procedure for the creation and termination of legal entities, establishes the bankruptcy procedure for entrepreneurs;
Regulates “internal” relations in commercial organizations, i.e. relations between the participants of the organization, as well as between the participants and the organization itself (corporate law);
Protects means that individualize business participants, their goods, works, services, brand names, trademarks, service marks, etc.;
Regulation and protection of property relations and relations derived from it (real law);
Regulates and protects contractual relationships that entrepreneurs enter into when carrying out their activities (contract law);
Establishes the grounds, forms and amount of property liability of entrepreneurs for civil torts committed by them in the process of carrying out entrepreneurial activities.
The norms of civil legislation are concentrated in the Civil Code of the Russian Federation, which has priority among the regulations governing civil relations. In addition, the norms of civil legislation include federal laws (FL), decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation, regulations of executive authorities at the federal level (ministries and departments). In accordance with the Constitution of the Russian Federation, civil legislation is under the exclusive jurisdiction of the Russian Federation. This means that constituent entities of the Russian Federation and municipalities cannot adopt acts containing civil law norms. In addition to normative sources, in this area of public relations, business customs are used, i.e., established and widely used rules of behavior in any area of business activity that are not provided for by law, but are recognized by the state. Business customs are applied in such areas as banking and insurance, as well as shipping.
Under civil law system is understood as a set of normative legal acts containing norms of civil law.
Depending on their legal force, all acts included in the civil legislation system are divided into:
a) acts that have the highest legal force - laws;
b) acts of a subordinate nature - decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation;
c) by-laws issued by other federal executive authorities - acts of federal ministries and departments.
Acts related to the civil legislation system are also classified on the basis of other criteria, in particular depending on the volume and nature of the civil law norms contained in them. Based on this criterion, acts are distinguished that are of a purely civil nature, such as, for example, the Civil Code of the Russian Federation, and complex regulatory legal acts that, along with civil law norms, also contain norms of other branches of law. An example of this kind of act is the Housing Code of the Russian Federation, which contains both civil law norms and administrative law norms.
Entrepreneurial relationships have complex content and structure.
The first group of such relations is relations associated with organization of business activities. The material was published on http://site
It is worth noting that they are based on the right of citizens to engage in entrepreneurial activity, its development, determination of the entrepreneurial legal capacity of citizens, the creation of a legal entity, the establishment of state registration of citizens as individual entrepreneurs, legal entities, licensing, as well as organizational and property relations. These relationships are interconnected by substantive unity - they will be entrepreneurial. According to this method of legal regulation - diversified relations.
The second group is relationships associated with entrepreneurial activity itself. The dominant position is occupied by civil law regulation. Although here there are a number of cases of state influence on private legal relations - for example, state regulation of prices for products and services of natural monopolies, etc.
The third group is closely related to the first and second. But if there the initiative side of organizing business activity will be mainly the citizen and other business entities, then here the state establishes the rules and consequences of their violation, protecting public and private interests.
The fourth group is intra-economic relations that arise in large business structures. Regulated by local regulations.
The specificity of the legal regulation of business activity is expressed in the combination and interaction of private law and public law interests, private law and public law means. For some actions, a private legal means of regulation is used - an agreement. In other cases, public legal means are used.
Agreement- the main legal instrument of private law. In this case, public law influence on contractual relations is applied. Many agreements are built in conjunction with Model Agreements approved by government agencies. A private legal remedy acquires a public legal character when it is sanctioned by the state.
Entrepreneurial turnover often cannot be carried out without the use of public legal means. So, in accordance with Art. 46 of the Law on Limited Liability Companies, a major transaction can be concluded if the general meeting of participants makes a decision on its completion. Such a decision cannot be attributed to private legal means, since it involves managerial action. The state influences both the contract and its individual terms.
Private legal means can be directly used in public legal relations. Thus, a tax credit is formalized by agreement.
Many private legal means are transformed into private public legal means.
The peculiarity of entrepreneurial activity is that it represents a sphere of interaction between private and public interests, and its regulation is carried out using public law and private law means.