The content of what sign of entrepreneurial activity is. The main features of entrepreneurial activity. Accounting in the tax service

Entrepreneurial activity is an independent activity carried out at one's own risk, aimed at the systematic extraction of profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered as such in the manner prescribed by law.

Signs of entrepreneurial activity

aimed at systematic profit
Entrepreneurial activity is systematic and often serves as a source of livelihood for those who carry it out.
associated with risk
In general, this means laying on the entrepreneur all possible negative consequences of entrepreneurial activity. These include the risks of lack of demand for goods, the result of work, services due to competition, incurring losses due to violation of their obligations by counterparties, changes in the conditions for carrying out activities, including tax legislation, etc.
carried out by persons registered in in due course
Entrepreneurial activity is legal only if it is carried out by persons (individual entrepreneurs, organizations) who have passed the state registration procedure. In other cases, entrepreneurial activity is illegal. Administrative and criminal liability is provided for illegal entrepreneurial activity.

The term "entrepreneurial activity" is synonymous with the concept of "business". Entrepreneurial activity, entrepreneurship, entrepreneur - the concepts used in regulatory legal acts. The concept of "business" is used less frequently in legislation (for example, "gambling business"), and is used mainly in colloquial speech.

Features of entrepreneurial activity

Entrepreneurship as a special type of activity implies that the subjects of this activity have a certain way of thinking, a special style and type of economic behavior, a focus on innovation, the ability to attract and use resources from a wide variety of sources to solve tasks.

Entrepreneurship as an independent activity implies the freedom and independence of the subjects of this activity in various directions:
choice of the type and scope of business activity;
choice of directions and methods of this activity;
making economic decisions and choosing the means of their implementation;
formation of production programs, selection of sources of financing, suppliers of products and services, sources of obtaining labor resources;
choice of channels and methods of distribution;
establishment of systems and amounts of wages, other types of income of persons working for hire;
setting the level of prices and tariffs for products and services;
disposal of profit (income) from entrepreneurial activity remaining after paying taxes and making other obligatory payments.

Scientific research of an economic orientation has long determined what should be called the main feature of entrepreneurial activity. Is this definition vital for IP owners? If you ask an ordinary entrepreneur what are the signs of his activity, he will name a lot of practical aspects, but he will not say the exact definition of this concept. And he will be absolutely right. An entrepreneur must be able to work, produce and sell, invest and develop production, and knowledge of the theory by heart should be inherent in scientists.
We offer to study the topic from a practical point of view, so that the entrepreneur, after reading this article, gets the maximum benefit for work.

The main feature of the IP

Entrepreneurship is the ability to conduct business activities, engage in a process that brings profit. But after all, there are many thousands of people at the plant who are also involved in such a process or part of any process, and they are not entrepreneurs. The reason for this is that they do not work independently, for themselves, they work for the owner or for a group of them. An entrepreneur carries out activities only independently, he determines what he will do, how much he will work, what profit he wants to receive per month, per year, whether he will invest in development or will instantly spend it on himself. Therefore, the main feature of entrepreneurial activity is the independence of actions, decision-making and everything related to work.

In slightly different words, but keeping exactly this meaning, this definition is given in the Civil Code, in Article 2. Entrepreneurial activity has a number of other features, according to this wording:

activities are carried out by the entrepreneur at his own risk, that is, actions can lead to the collapse of the enterprise or at least to negative consequences;
work is aimed at regular, systematic profit;
profit is formed from the sale or purchase of goods, services, property, performance of work;
activity has economic accounting of all operations on transactions;
all transactions are interconnected;
in the process of activity, stable economic relations with sellers, buyers, agents and partners.

To perform all these functions, a businessman must be registered with the tax office as an individual entrepreneur. How to do this, and what pitfalls you may encounter, read in our other articles. It should be noted that entrepreneurial activity will be recognized as legal and competent only when it is carried out regularly and constantly. If a businessman is engaged in one-time transactions, then he cannot be called an entrepreneur. For example, having sold two houses in a year at the request of friends, a person does not become an entrepreneur. And if he opened his own real estate agency and put the business on stream, systematically receives profit, then we can say that he is engaged in entrepreneurial activity.

In connection with the foregoing, we can reformulate our thesis and believe that the main feature of entrepreneurial activity is regular, systematic profit as a result of an independently organized and produced production process.

The practical significance of knowing the signs of an entrepreneur's activity

You have your own business, you are a registered individual entrepreneur, the types of activities correspond to those indicated in the classifier. And now you have read what should distinguish you from other market participants. Does everything listed here apply to your company? If you have found all the signs in your work, especially the main one, then you have a solid foundation for work. If something is missing, or some sign is not very pronounced, then you should work on it. All aspects of the work of an entrepreneur must be present in your practical activities, must have their place in your development strategy. If not, bring them in, these will be your new areas of activity that are useful to work on.

Certain aspects of entrepreneurial activity

Now let's take a closer look at all of the above and additional features of entrepreneurial activity.

The activity of an entrepreneur should be precisely economic, that is, participate in the general economic process of the country. This is the acquisition and sale of any goods, their production, the provision of services, the performance of work. If the activity does not meet these requirements, then it cannot be recognized as entrepreneurial, and it is subject to some other system of taxation, but not the one that applies to entrepreneurs.
An individual entrepreneur, whose activities are permitted by law, carries out work only on his own behalf. If he sells goods, saying - chairs from the Ivanovo furniture factory, then he is not an entrepreneur, but a sales agent working at this factory. If he conducts entrepreneurial activities, he should say - chairs from the individual entrepreneur Petrov, produced at the Ivanovo Furniture Plant. This wording should be used in commercial offers, in advertisements, in reports and other documents. All goods sold by an individual entrepreneur must appear as goods of an entrepreneur, and this entrepreneur is responsible for it, they will bring a marriage to him, he must conduct after-sales service.
The entrepreneur makes all transactions at his own risk, with the exception of insured transactions. No one is responsible for the negative consequences of transactions, except for the entrepreneur himself. In the event of litigation, only the entrepreneur bears full material and legal liability for losses incurred or damage caused as a result of transactions. The worst thing that can come from such liability is the complete bankruptcy of an individual entrepreneur, but not in the legal sense of this term. Legally, the entrepreneur is liable for all losses with personal property.
The activity of an entrepreneur is always aimed at making a profit. If he takes steps that do not bring profit, then he ceases to be an entrepreneur. As a result, he is threatened with ruin, and he will absolutely have to liquidate his IP, paying off his debts. And if an entrepreneur quite consciously distributes goods without making a profit, then this can be called charity, patronage, humanitarian assistance, but not entrepreneurship.
An individual entrepreneur must be registered with the tax office. If he has not been registered, therefore, in the process of concluding transactions, he has no right to be called an individual entrepreneur. If a partner concludes a deal with an unregistered entrepreneur, then he will pay tax on the deal with a private person, and this is much more than with an individual entrepreneur. The partner will be obliged to conclude an agreement with such a negligent entrepreneur on the provision of services, performance of work, etc., and after receiving his salary, pay tax and pay deductions to all funds. Decent companies try not to cooperate with such persons because of the high cost of such relations.

Rights and legal capacity of an entrepreneur

Entrepreneurial activity, the definition of which we are trying to give in this article, has another interesting feature - the legal capacity of a citizen. Entrepreneurial activity can be carried out by a person who has legal capacity and capacity.

Legal capacity is the ability of a person to have rights and bear certain duties. As a rule, all citizens have rights in society, with the exception of those convicted and deprived of liberty. Disabled, sick citizens also have certain rights. Citizens of any gender, nationality, age, religion, and other characteristics can have rights. These rights also include the right to conduct business. This means that almost any free person in society can open an individual entrepreneur and conduct independent work.

Along with the rights, a number of obligations immediately arise, which are also fixed in the law and in many administrative acts. An entrepreneur has financial obligations to the state in the form of paying taxes, to employees in the form of creating comfortable working conditions and paying salaries, to suppliers in compliance with contractual obligations, and many others. All these duties are regulated by the state. That is why it is important here to know whether a person is capable in order to be able to ask him for obligations.

It is important for an entrepreneur to know that he has a number of rights, and always use this knowledge. These are the rights:

conduct activities on their own behalf, because the name is the first and inalienable right of any person. It is it that becomes the subject of proceedings in cases of plagiarism, its inviolability is regulated by copyright law. The name can be changed by a person, but the entrepreneur is then obliged to change all his documents, that is, to make changes to them regarding the name. Such documents include not only a passport and a driver's license, but also a document on registration of an individual entrepreneur, all certificates and licenses, permits and contracts, etc .;
the entrepreneur has the right to choose the place of residence and place of business;
he can own property, make transactions with it, transfer and bequeath it;
has the right to engage in any entrepreneurial activity of his choice, not prohibited by law;
the right to create other companies-legal entities;
the right to work in any other enterprise as an employee.

No one can be deprived of these rights, even if he expresses such a desire voluntarily. Only a court can restrict a person's rights if a crime has been committed.

Organizational and legal forms of entrepreneurial activity

Entrepreneurial activity, speaking of its forms, means commercial activity of any kind. Each form has its own characteristics and definition. So, entrepreneurial activity can be carried out as:
- individual enterprise;
– a legal entity with commercial and non-commercial activities;
- partnership - partnership;
- full partnership;
- partnership in faith;
- economic company - LLC, OJSC, CJSC, additional liability company;
- corporation;
- production cooperative;
- state-owned enterprises.

We note once again that all these organizational and legal forms of entrepreneurial activity belong to the general concept of entrepreneurship, among them there is also an individual entrepreneur. If you want to correctly operate with terms, then you do not need to confuse the two names.
So, now you know the signs that should be characteristic of your enterprise, what rights you have in connection with this. Now is the time to actively use them in accordance with the law.

E.Shchugoreva

The following video will talk about some of the signs of entrepreneurial activity that were not mentioned in the text of this article, about the specific experience of creating and developing an individual enterprise:

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As you know, the important features of entrepreneurial activity include the following features of modern business:

Independence is one of the main features of entrepreneurial activity carried out by any company, regardless of its type and form of ownership. It can be property and organizational. Property independence implies that the owner has his own financial resources necessary to start a business, further investment in it and fulfill obligations in relation to partners and clients of the company, i.e. liability to them. Organizational autonomy is, of course, also a key feature of successful entrepreneurial activity, since it implies the acceptance independent decisions on behalf of the company (selection of the type of activity, structure of the organization, its partners, founders, etc.).

Risk is a mandatory feature of entrepreneurial activity, since no one can do without it commercial enterprise. The company may at any time incur significant losses due to breach of obligations by partners, the emergence of a strong competitor, changes in the political and economic environment and other factors that it cannot influence.

· One of the most important signs of entrepreneurial activity is the desire of the company to receive the maximum and regular profit from the sale of goods and services.

· Other necessary features of business entities are the systematic implementation of it, a clear understanding of the goals of the enterprise and the development of a strategy to achieve them, the high professionalism of the founders of the company or PE (it is desirable that they have a specialized education and understand the mechanisms of the markets in the modern economy).

· One of the essential features of the correct conduct of entrepreneurial activity is its legality and transparency.

16. Civil law status of an individual entrepreneur. Insolvency (bankruptcy) of an individual entrepreneur.

The main link in the legal status of an entrepreneur is his civil legal personality, which implies the existence of things, mandatory and exclusive legal capacity. By participating in a market exchange, an economic entity becomes a subject of law in order to most fully realize its civil legal personality. Termination, which leads to the absolute paralysis of labor, administrative and other types of legal personality.

Real legal capacity is a legal prerequisite for the formation of the material base of a commodity producer. The presence of property rights gives the entrepreneur access to both the sphere of production and the exchange of goods. Moreover, without the property assigned to him, his financial and labor functions are impossible.

The legal capacity to act consists of bargaining power and tortiousness, and is realized, first of all, in contractual relations. Civil turnover or a set of transactions, the subject of which is an entrepreneur, mediates the process of movement of goods and services. By establishing contractual links, this subject participates in the cooperation of labor and the exchange of its results.

The personal legal capacity of an entrepreneur is dictated by the individualization of commodity producers, without which market relations are impossible. Personal legal capacity is based on personal non-property rights not alienated from the buyer. Among such rights - a) the right to a name (firm); b) the right to a trademark (service mark); c) the rights associated with the objects of creative activity; d) the right to protection of honor, dignity, business reputation.

Legal capacity outlines the range of possible subjective rights and legal obligations of the future entrepreneur, but he can act independently in accordance with them only if he has legal capacity.

Based on paragraph 1 of Art. 21 of the Civil Code, full civil capacity arises when a citizen reaches the age of eighteen. It is this article that is usually referred to to justify the fact that a citizen has the right to engage in entrepreneurial activity from the age of 18. In other cases, two exceptions are indicated: 1) paragraph 2 of Art. 21 of the Civil Code, which provides an opportunity for a citizen under the age of 18 to acquire full legal capacity from the time of marriage (for cases where the law allows marriage before the age of 18); 2) paragraph 1 of Art. 27 of the Civil Code, which allows the possibility of declaring, by way of emancipation, a minor who has reached the age of sixteen, fully capable by decision of the guardianship and guardianship authority or the court.

On the basis of the current legislation, the opinion is also reasonable that the age limit of capable persons in the field of entrepreneurship may be even lower. So, within the meaning of paragraph 1 of Art. 27 of the Civil Code, a citizen by the age of sixteen (the age of emancipation) can already work under an employment contract (Article 63 of the Labor Code of the Russian Federation allows participation in individual labor relations even for persons under the age of 14) or, with the consent of parents, adoptive parents or guardian, engage in entrepreneurial activities. It can be assumed that this refers to the provision of paragraph 1 of Art. 26 of the Civil Code, the possibility of minors aged 14 to 18 to make the bulk of transactions with the written consent of their legal representatives (parents, adoptive parents or guardian). The need to obtain such consent (or subsequent written approval) is due to the age of the participant in the transaction.

Of course, the requirement of the law to obtain the consent of legal representatives can be regarded as a restriction on the independence of the entrepreneur, which is considered as an integral feature of entrepreneurial activity (clause 1, article 2 of the Civil Code). But this restriction is of a special kind - after all, it is applied in the interests of the citizen himself. In addition, only certain aspects of its independence in property turnover are subject to such a restriction. Moreover, on the basis of paragraph 2 of Art. 26 of the Civil Code, a minor between the ages of 14 and 18 has the right to dispose of his income independently, without the aforementioned restriction.

The lack of legal capacity of a citizen in the field of entrepreneurship cannot be compensated for by the actions of his representatives (as happens in other areas of property turnover). Of course, this does not exclude the use of the institution of representation in the process of carrying out entrepreneurial activities. However, the entrepreneur himself must enter into relations with his representatives.

Thus, the legal personality of an entrepreneur in private legal relations occurs at the age of 14. Before this age, any citizen has only an abstract opportunity to carry out entrepreneurial activities.

Upon reaching the specified age, a citizen simultaneously acquires two legally significant abilities:

1) have civil rights and obligations in the field of entrepreneurship;

2) by their actions acquire and exercise civil rights in the field of entrepreneurship, create civil obligations for themselves and fulfill them. Together they form the legal personality of the entrepreneur and ensure his existence as a subject of law.

The legal personality of individual entrepreneurs should be defined as universal. They may have civil rights and bear civil obligations in any area of activity not prohibited by law. A different position contradicts Part 2 of Art. 19 and part 3 of Art. 55 of the Constitution of the Russian Federation.

But, even having legal capacity and legal capacity, a citizen cannot start entrepreneurial activity (paragraph 1 of article 23 of the Civil Code). He must acquire a subjective right to it, which arises only if there is a special legal fact - state registration.

According to paragraph 1 of Art. 23 of the Civil Code, a citizen has the right to engage in entrepreneurial activity without education legal entity from the moment of state registration as an individual entrepreneur. A citizen engaged in entrepreneurial activity, but who has not passed state registration as an individual entrepreneur, does not acquire the status of an entrepreneur (paragraph 13 of the Resolution of the Plenum Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation of July 1, 1996 N 6/8 "On some issues related to the application of the first part of the Civil Code of the Russian Federation").

State registration itself is carried out only if the citizen has the necessary legal capacity and capacity. In paragraph 1 of Art. 2 of the Civil Code, state registration is named as one of the signs of entrepreneurial activity. However, this is not only a sign that appears after registration, but also the obligation of entities wishing to carry out or carry out entrepreneurial activities. Otherwise it would not be possible to apply Art. 171 of the Criminal Code of the Russian Federation (illegal entrepreneurship), which establishes criminal liability for carrying out entrepreneurial activities without state registration.

The reverse side of the obligation to undergo state registration is a passive obligation not to carry out entrepreneurial activities without such registration. This obligation arises directly from the law simultaneously with the right to entrepreneurial activity (an element of legal capacity) and exists within the framework of general regulatory legal relations. Such an obligation, in the event of its violation, serves as the basis for the emergence of a protective legal relationship regarding the suppression of the violation and punishment for its commission.

Individual who wishes to carry out entrepreneurial activities in Russia may be registered as an individual entrepreneur in a foreign state. In this case, on the basis of Art. 1202 of the Civil Code, the subjective right of such a person to entrepreneurial activity should be determined on the basis of the law of the country where the individual entrepreneur is registered. If this rule cannot be applied due to the lack of mandatory registration of entrepreneurs in the relevant state, the objective law of the country of the main place of business shall be applied.

The entrepreneur's right to entrepreneurial activity has limits and restrictions. The limits of such a right should be considered the purpose of its implementation (making a profit), as well as the validity period of licenses (if the legislation does not provide for the perpetual validity of a license) and other permits applied in the field of state regulation market (time limits).

Restrictions on the right to entrepreneurial activity exist in the form of various obligations. Among them, one should especially highlight the obligation not to carry out entrepreneurial activities without a license (general prohibition). This prohibition applies to all entrepreneurs who do not have an appropriate license to carry out a type of activity licensed in accordance with the law.

Such a ban restricts the right to entrepreneurial activity in comparison with the content of this right, which is fixed in Part 1 of Art. 8 and part 1 of Art. 34 of the Constitution of the Russian Federation. That is why licensing should be carried out on the basis of federal law (part 3 of article 55 of the Constitution of the Russian Federation).

The legal meaning of the license lies in the fact that it legalizes entrepreneurial activity in the relevant area. Based on paragraph 1 of Art. 49 of the Civil Code, a license should be considered as the basis for the emergence of an abstract opportunity to engage in a licensed type of activity (legal capacity).

In the legal literature and among law enforcers, there is support for the position that the legal capacity resulting from obtaining a license is special.

In accordance with paragraph 1 of Art. 49 of the Civil Code, special legal capacity can be formed as a result of restrictions not only by law, but also by the constituent documents of a business entity. The restriction of general legal capacity and the emergence of special legal capacity for an entrepreneur on this basis entail an important legal consequence, which is expressed in the narrowing of the scope of activity of an economic entity. But to a large extent, an entrepreneur receives a license not to limit, but to consistently expand the scope of his entrepreneurial activity.

In addition to general, special and additional legal capacity, it is legitimate to speak of exclusive legal capacity. This legal category should be used in cases where, on the basis of a license, an entrepreneur has the right to carry out only a narrow range of certain types of activities while simultaneously imposing a ban on engaging in other types of entrepreneurship. This situation is referred to in Art. Art. 5 and 13 of the Federal Law "On Banks and Banking", Art. Art. 6 and 32 of the Law of the Russian Federation "On the organization of insurance business in the Russian Federation", paragraph 1 of Art. 2 of the Federal Law "On Investment Funds".

Proper registration of the legal status of an entrepreneur entails significant legal consequences for him in the public sphere. We are talking about the application of various exceptions to the public duties of entrepreneurs. So, on the basis of Art. 221 and paragraph 1 of Art. 227 of the Tax Code of the Russian Federation, only individuals registered in accordance with the law - entrepreneurs have the right to apply professional tax deductions when calculating the tax base of personal income tax. In accordance with paragraph 6 of Art. 149 of the Tax Code of the Russian Federation, the operations of entrepreneurs listed in it are exempt from taxation only if the taxpayers have the appropriate licenses. Let us note that these subjective rights of an entrepreneur are not independent in nature, they depend on the implementation of the public obligation to pay tax and terminate simultaneously with the termination of the tax obligation.

Legal personality in public relations is usually linked by the legislator with legal personality in private law relations. Among the exceptions, mention should be made of the legal status of an individual entrepreneur under tax legislation.

According to paragraph 2 of Art. 11 of the Tax Code of the Russian Federation, individual entrepreneurs are recognized not only as individuals registered in the prescribed manner and carrying out entrepreneurial activities without forming a legal entity, but also private notaries, security guards and detectives. According to Art. 1 of the Fundamentals of the Legislation of the Russian Federation "On Notaries", notarial activities are not entrepreneurship and do not pursue the goal of making a profit.

It can be seen from the foregoing that the legal personality of an entrepreneur is constituted in the law not arbitrarily, but taking into account the established relations and goals of the legislator. Therefore, in legislative and law enforcement activities, one should distinguish between private law and public law aspects of this important quality of entrepreneurs.

State registration as an individual entrepreneur becomes invalid, and his activity is terminated from the moment the court decides to recognize the individual entrepreneur as insolvent (bankrupt).

An individual entrepreneur may be declared insolvent (bankrupt) in judicial order, which he must officially announce to the debtors.

In accordance with Article 25 of the Civil Code of the Russian Federation, an individual entrepreneur may be declared insolvent (bankrupt) by a court decision in the event that he is unable to satisfy the claims of creditors related to his entrepreneurial activities. Article 164 of the Bankruptcy Law clarifies the grounds for declaring an individual entrepreneur bankrupt, indicating that the claim must be based on a monetary obligation and (or) associated with the obligation to pay mandatory payments, including taxes. In addition, two conditions must be present in combination:

These obligations or obligations are not fulfilled by the entrepreneur within three months from the date of their fulfillment;

The amount of liabilities exceeds the value of the property owned by the entrepreneur.

Cases on the recognition of an individual entrepreneur as insolvent (bankrupt) are considered and resolved by the arbitration court. The grounds and procedure for declaring an individual entrepreneur bankrupt or declaring his bankruptcy by a court are established federal law"On the insolvency (bankruptcy) of the enterprise" dated January 8, 1998 The law says that an entrepreneur is declared bankrupt if his inability to satisfy the requirements of creditors for payment for goods, works (services), ensure obligatory payments to the budget and extra-budgetary funds due to the excess of the debtor's obligation over his property or due to the unsatisfactory structure of the enterprise's balance sheet is established .

An application for declaring an individual entrepreneur bankrupt may be filed by a debtor - an individual entrepreneur, a creditor for obligations related to entrepreneurial activity, tax and other authorized bodies for claims for mandatory payments, as well as a prosecutor. When applying the bankruptcy procedure of an individual entrepreneur, his creditors for obligations not related to entrepreneurial activity, as well as creditors for personal claims, are also entitled to present their claims.

An entrepreneur is considered bankrupt, and his registration as an individual entrepreneur becomes invalid from the moment the arbitration court issues a decision to declare the entrepreneur insolvent (bankrupt) and to open bankruptcy proceedings. An entrepreneur's licenses issued to him to carry out certain types of entrepreneurial activity are cancelled.

In an extrajudicial procedure, an entrepreneur is considered bankrupt after he officially declares his bankruptcy in the Bulletin of the Supreme Arbitration Court of the Russian Federation and in the official publication of the state bankruptcy authority.

The debtor's announcement of bankruptcy and its liquidation shall indicate the period for filing claims and objections of creditors against the liquidation of the debtor, which may not be less than two months from the date of publication of the said announcement.

An individual entrepreneur declared bankrupt cannot be registered as an individual entrepreneur within a year from the moment of declaring him bankrupt.

The arbitration court sends a copy of the decision on declaring an individual entrepreneur bankrupt and on opening bankruptcy proceedings to the body that registered the citizen as an individual entrepreneur. To all known creditors, the arbitration court also sends a decision on declaring the entrepreneur bankrupt and on opening bankruptcy proceedings.

Claims of creditors of an individual entrepreneur, if he is declared bankrupt, are satisfied in accordance with the priority established by law at the expense of all property belonging to him, with the exception of property that cannot be levied in accordance with civil procedural legislation and the Law of the Russian Federation "On Enforcement Proceedings" dated 21 July 1997

An individual entrepreneur is liable for obligations with his personal property, and if he lacks Money foreclosure is applied to specific property (apartment, car, etc.) with the exception of property specified in the list established by the Civil Procedure Code of the Russian Federation. By property is meant both the personal property of a citizen-entrepreneur and his share in common or joint property.

Claims of creditors, including those related to obligations not related to entrepreneurial activities, are satisfied in the order of priority. Paragraph 3 of Article 25 of the Civil Code and paragraph 2 of Art. 161 of the Bankruptcy Law, there are five stages:

First of all, the claims of citizens to whom the entrepreneur is liable for causing harm to life or health are satisfied by capitalizing the corresponding time payments, as well as claims for the recovery of alimony;

In the second place, settlements are made for the payment of severance pay and wages with persons working under an employment contract, including under a contract and for the payment of remuneration under copyright agreements;

In the third place, the claims of creditors are satisfied, secured by a pledge of property belonging to an individual entrepreneur;

In the fourth place, debts on obligatory payments to the budget and extra-budgetary funds are repaid;

In the fifth place, settlements are made with all other creditors.

Claims of creditors of each subsequent turn shall be satisfied after the full satisfaction of the claims of creditors of the previous turn. If the amount is insufficient to fully satisfy all claims of one priority, these claims are satisfied in proportion to the amount of recognized claims of each creditor of the priority.

After completion of settlements with creditors, an individual entrepreneur declared bankrupt is considered free from fulfillment of the remaining obligations related to his entrepreneurial activity, even if they have not been declared to the arbitration court. Also considered repaid, regardless of whether they were actually satisfied, claims for other obligations not related to entrepreneurial activity, which were presented and taken into account by the court when declaring an individual entrepreneur bankrupt.

An exception is made only for claims for compensation for harm caused to life and health, and other claims of a personal nature, which remain valid regardless of whether they were presented or not during the bankruptcy proceedings, if they remained unsatisfied. Remain valid and may be presented to a citizen who was previously an individual entrepreneur, claims for other obligations not related to entrepreneurial activity that were not declared by creditors during the bankruptcy procedure (clause 2 of article 25 of the Civil Code, clause 3 of article 153 of the Law about bankruptcy).

Upon completion of the procedure for declaring an individual entrepreneur bankrupt, his registration as an individual entrepreneur becomes invalid. From this moment on, all disputes with his participation are resolved in the courts of general jurisdiction.

17. Recognition of a citizen as missing and declaring him dead.

A citizen may be declared missing by a court at the request of interested persons, if during the year at his place of residence there is no information about his place of stay (Article 42 of the Civil Code). The one-year period begins to be calculated from the moment of receipt of the latest information about the missing citizen. If this day cannot be determined exactly, then the period is calculated from the first day of the month following the one in which the latest information was received, and if it is impossible to determine the month, from January 1 of the next year (Article 42 of the Civil Code). The property of a citizen recognized as missing, if necessary, permanent management of it is transferred on the basis of a court decision to a person who is determined by the body of guardianship and guardianship and acts on the basis of trust agreements, concluded with this body. From the specified property maintenance is issued to citizens whom the missing person is obliged to support, and the debt on other obligations of the missing person is repaid (paragraph 1 of article 43 of the Civil Code). Along with the institution of property administration, missing persons may also entail other consequences established by law: for example, a marriage with a missing person may be dissolved in a simplified manner. In the event of the appearance or discovery of the place of residence of a citizen previously recognized as missing, the court cancels its decision (Article 44 of the Civil Code). On the basis of a court decision, the management of the property of this citizen is canceled.

Declaring a citizen dead by court is allowed if there is no information at his place of residence about his place of stay for five years, and if he went missing under circumstances threatening death (for example, during a forest fire) or giving reason to assume his death from a certain accident (say, from the explosion of the plane, among the passengers of which the missing person was listed) - within six months (clause 1 of article 45 of the Civil Code). A serviceman or other citizen who has gone missing in connection with hostilities may be declared dead by a court not earlier than two years after the end of hostilities (clause 2, article 45 of the Civil Code). The day of death of a citizen declared dead is the day the court decision on declaring him dead or the day of his alleged death specified in the court decision (clause 3 of article 45 of the Civil Code) is considered to be the day of entry into force.

The decision of the court to declare a citizen dead is based not on the reliable fact of the death of a person, but on the assumption that a long absence can only be explained by the death of an absent citizen. In this regard, it is important to distinguish between declaring a citizen dead and establishing the fact of a citizen's death. This fact differs from declaring a citizen dead in that there is evidence of the death of a citizen and there is no need to assume anything. So, if as a result of a car accident several people observed the death of a citizen, then the fact of death is subject to establishment, and if after the accident one of the passengers vehicle was not found, it can only be assumed that he died in an accident.

Declaring a citizen dead (legal death) entails the same consequences as actual death - registration of death in the registry office, termination of marriage, opening of an inheritance. In the event of the appearance or discovery of the place of residence of a citizen declared dead, the court cancels its decision, on the basis of which the record of death in the act book is annulled. A citizen has the right to demand from any person the return of the surviving property that has passed to him free of charge, that is, by way of inheritance or donation. A person who has acquired the property of a citizen who has been declared dead under a reimbursable transaction is obliged to return the property or its value only if this person's knowledge is proved that the citizen declared dead is actually alive (Article 46 of the Civil Code).

Cancellation of a court decision declaring a citizen dead cannot restore some of his rights. For example, if the spouse entered into a new marriage, then the marriage relationship cannot be restored, and the property that was inherited might not be preserved.

18. Acts of civil status.

Acts of civil status are such legal facts that determine the civil and civil-legal status of the position of citizens and have legal significance.

The law distinguishes the following groups of acts of civil status:

legal facts that are recognized as acts of civil status, regardless of registration in the manner prescribed by law (birth and death of a person);

legal facts that are recognized as acts of civil status only if they are registered (marriage and divorce, name change).

^ Registration of acts of civil status is carried out by civil registry offices (ZAGS), consisting of local governments, by entering a legal fact into the relevant act books and issuing certificates to citizens based on these records. These certificates certify the fact of state registration of the produced act of civil status.

The following acts of civil status are subject to state registration:

1.birth;

2.marriage;

3.dissolution of marriage;

4. adoption (adoption);

5. establishing paternity;

6.name change;

Cancellation, restoration of records of acts of civil status, introduction of changes in them are carried out by a court decision.

Corrections or changes in the record of the act of civil status may be made on the basis of the conclusion of the registry office. This is possible, in particular, if the civil status record contains incorrect or incomplete information, as well as spelling errors.

19. The concept and features of a legal entity. General and special legal personality of legal entities.

« A legal entity is an organization that has separate property and is liable for its obligations, can, on its own behalf, acquire and exercise civil rights and bear civil obligations, be a plaintiff and defendant in court ”, without specifying on what property right the organization owns the property (rights of ownership, economic management or operational management), and without a specific indication of what rights and obligations the organization can exercise. Also excluded is such a sign as the presence of an independent balance sheet and estimates.

Features of a legal entity are such properties inherent in it, each of which is necessary, but all together- are sufficient for the organization to be recognized as a subject of civil law.

All legal entities in Russia undergo state registration, the vast majority of them have seals and open bank accounts, but all these external attributes do not reflect the essence of a legal entity. In fact, both citizens-entrepreneurs and some non-legal organizations (that is, without the status of a legal entity), such as branches and representative offices, are subject to mandatory state registration. foreign companies. They may also have their own seals and bank accounts, but this does not make them legal entities.

The legal doctrine traditionally distinguishes four fundamental features, each of which is necessary, and all together are sufficient for an organization to be recognized as a subject of civil law, i.e. legal entity.

1) organizational unity a legal entity is manifested primarily in a certain hierarchy, subordination of the governing bodies (individual or collegiate) that make up its structure, and in a clear regulation of relations between its participants. Thanks to this, it becomes possible to turn the desires of many participants into a single will of the legal entity as a whole, as well as to consistently express this will outside. Thus, a multitude of persons united in an organization acts in civil circulation as one person, one subject of law.

The organizational unity of a legal entity is fixed by its constituent documents and regulations governing the legal

status of a particular type of legal entity.

2) If organizational unity is necessary to unite many persons into one collective entity, then separate property creates the material base for the activities of such an entity. Any practical activity is unthinkable without the appropriate tools: equipment, knowledge, and finally, just money. The combination of these instruments into one property complex owned by this organization, and its delimitation from the property owned by other persons, is called property isolation legal entity.

Degrees of property isolation of property various kinds legal entities may differ significantly. Thus, economic partnerships and societies, cooperatives have the right of ownership to their property, while unitary enterprises - only the right of economic management or operational management. However, in both cases, the ability to own, use and dispose of property indicates such a degree of isolation of property that is sufficient to recognize this social entity as a legal entity.

So, property isolation is inherent in all legal entities, without exception, from the very moment of their creation, while the appearance of separate property in a particular legal entity, as a rule, is timed to coincide with the formation of its authorized (share) capital. All property of the organization is taken into account on its independent balance sheet or carried out according to an independent cost estimate, which is the external manifestation of the property isolation of this legal entity.

The personal composition of the participants of several legal entities and their governing bodies, as well as their competence, can sometimes completely coincide, therefore, from a purely organizational point of view, it is difficult to distinguish between them. In this case, it is the property belonging to this legal entity, and only to it, separated from the property of all other legal entities, that makes it possible to accurately identify it.

3) The principle of independent civil liability legal entity is formulated in Art. 56 GK. According to this rule, the participants or owners of the property of a legal entity are not liable for its obligations, and the legal entity is not liable for the obligations of the former. In other words, each legal entity independently bears civil liability for its obligations.

A necessary prerequisite for such liability is that the legal entity has separate property, which, if necessary, can serve as an object of claims of creditors. Existing exceptions to the rule on the independent liability of a legal entity in no way shake general principle, since the liability of other subjects of law for the debts of a legal entity is only subsidiary (that is, additional to the liability of the legal entity itself).

4) Speaking in civil circulation on your own behalf means the ability to acquire and exercise civil rights and incur obligations on one's own behalf, as well as to act as a plaintiff and defendant in court. This is the final sign of a legal entity and at the same time the purpose for which it is created.

Availability organizational structure and separate property, on which independent liability is based, will just make it possible to introduce into civil circulation a new association of persons and capitals - a new subject of law.

The use by a legal entity of its own name makes it possible to distinguish it from all other organizations and therefore is a necessary prerequisite for the civil legal personality of a legal entity. Thus, in Russian civil law a legal entity is an organization recognized by the state as a subject of law, which has separate property, is independently responsible for its obligations with this property and acts in civil circulation on its own behalf.

Under the legal personality of a legal entity, it is understood that it has the qualities of a subject of law, i.e. legal capacity and capability.

In the science of civil law, it is customary to distinguish general (universal) and special legal capacity. General legal capacity means the possibility for a subject of law to have any civil rights and obligations necessary for the implementation of any type of activity. That is the power that citizens have. Special legal capacity implies that a legal entity has only such rights and obligations that correspond to the goals of its activities and are directly fixed in its constituent documents.

The legal capacity of a legal entity arises at the moment of its creation, which is dedicated to its state registration, and terminates at the moment of its exclusion from the unified state register of legal entities.

The legal definition of entrepreneurial activity is contained in par. 3 p. 1 art. 2 of the Civil Code of the Russian Federation: "... Entrepreneurial activity is an independent activity carried out at one's own risk, aimed at systematically obtaining profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law."

This definition reflects the following features of entrepreneurial activity:

1) independence;

2) entrepreneurial risk;

3) targeted focus on systematic profit;

4) certainty of sources of profit;

5) state registration of business participants.

Independence . I.V. Ershova (2008) conditionally distinguishes the property and organizational independence of the entrepreneur. Property independence is determined by the fact that the entrepreneur has a separate property as the economic base of activity. Organizational autonomy- this is the possibility of making independent decisions in the process of entrepreneurial activity, starting from making a decision to engage in such activity, choosing its type, organizational and legal form of implementation, and the circle of founders. The independence of the entrepreneur is also manifested at the stage of implementation of the results of entrepreneurial activity. Independence, being a strong-willed, subjective sign of the activity of an entrepreneur, manifests itself at all its stages. However, entrepreneurial autonomy is not unlimited. Being a social activity, it must obey the social norms that operate in society. Among these norms, the leading role is played by legal norms, establishing the rules that an entrepreneur must follow in his activities when entering the market.

Entrepreneurial risk . I.A. Zenin (2008) rightly believes that one of the central essential features of entrepreneurial activity is its conduct at the risk of the entrepreneur himself. The author notes that there is no legal definition of entrepreneurial risk. Regulatory legal acts establish only the classification of sectors (sub-sectors) of the economy according to occupational risk classes. Thus, from December 9, 2005, the Rules for classifying types of economic activity as a class of occupational risk, approved by Decree of the Government of the Russian Federation of December 1, 2005 No. 713, came into force. According to the latest Rules, the class of occupational risk is determined based on the value of the integral indicator of occupational risk, taking into account the level of occupational injuries, occupational morbidity and the cost of providing for insurance, which has developed by types of economic activity of insurers. Order No. 857 of December 18, 2006 of the Ministry of Health and Social Development of the Russian Federation approved the Classification of Types of Economic Activities by Occupational Risk Classes.

However, in the above documents, we are talking about occupational risk associated with injuries, occupational diseases, subject to social insurance, and not about the risk of entrepreneurial activity in its general sense.

Detailed review by I.A. Zenin of the issue of entrepreneurial risk with the involvement of scientific literature (Kabyshev O.A., 1996; Bokov V.V., Zabelin P.V., Fedtsov V.G., 2000) seems to be quite justified, since this sign of entrepreneurial activity has a significant theoretical and practical value.

In the scientific literature, entrepreneurial risk is usually interpreted as “the activity of an entrepreneur in the market in a situation of uncertainty regarding the probable profit or loss, when the decision maker, not being able to unambiguously foresee whether he will achieve profit or incur losses, is faced with the choice of any of the alternative options. solutions” (Kabyshev O.A., 1996).

In the economic literature, the following are distinguished types of business risks:

production, which is associated with the production of goods or services. Its causes are fluctuations in the expected volumes of production, the growth of material, monetary and other costs, an increase in tax rates, etc.;

commercial, which is associated with changes in the sale of goods, including a decrease in sales volumes, an increase in purchase prices, an increase in distribution costs, fluctuations in market demand and supply, transport problems;

financial, which arises in relationships with financial and credit institutions, including due to an unfavorable ratio of borrowed and own funds (Bokov V.V., Zabelin P.V., Fedtsov V.G., 2000).

Lawyers offer a broader classification of business risks, dividing it into main and auxiliary.

In the main classification by type of activity distinguish between banking, insurance, investment, exchange, construction, agricultural and similar risks. A broader classification is according to sources (or nature) of the danger. Among them are the risks:

natural:

atmospheric-conditioned (storms, hailstorms, floods, etc.);

geologically determined (earthquakes, tsunamis, volcanic eruptions);

cosmically conditioned (meteorite impacts, fall of remnants artificial satellites Earth);

biologically determined (epidemics, panzootics, epizootics);

social:

tort (theft, robbery, false bankruptcy, fraud, etc.);

political (wars, strikes, change of political regime, embargoes, etc.);

catastrophic (fires, accidents, explosions at work, etc.);

market (economic) - (fall in exchange rates and stocks, inflation, failure to fulfill contractual obligations, etc.);

legal (changes in legislation, introduction of export-import restrictions, etc.).

Distinguish risks that threaten certain objects:

fixed assets;

working capital;

intangible assets (loss of an entrepreneur's reputation, etc.).

Depending on the spheres of origin entrepreneurial risks are divided into risks:

external (outside the control of the entrepreneur);

internal (directly related to the activities of the entrepreneur).

By legal basis for the occurrence risks distinguish between risks:

arising from contractual obligations;

non-contractual.

By degree of entrepreneurial risk identify risks:

acceptable (normal);

unacceptable (excessive).

Auxiliary classification of entrepreneurial risks, in particular, is associated with territory risks:

global risk (threatening entrepreneurial activity throughout the country - hyperinflation, etc.);

regional risk (threats entrepreneurial activity in a particular region - the introduction of a state of emergency in a particular region, etc.);

local risk (a risk that threatens a separate business entity).

In addition, by duration of risk over time distinguish:

short-term risks (risk of non-fulfillment of obligations under a specific transaction);

permanent risks (risks that continuously threaten entrepreneurial activity in a given sector of the economy or in a given area - political risks in countries with unstable political system and so on.).

By number of risk decision makers, the risks are divided:

for individual;

group (Kabyshev O.A., 1996).

Targeted focus on systematic profit . E.P. Gubin, P.G. Lakhno (2006) note that the systematic receipt of profit, according to the legal definition of entrepreneurial activity, is its main goal. Profit is the main stimulus, the generator of entrepreneurship. This is a category of exclusively market relations, because there can be no profit outside the market. Profit is more of an economic concept than a legal one. However, due to the fact that the systematic receipt of profit is indicated as one of the signs of the legal definition of entrepreneurial activity, the authors also give a legal description of this qualifying sign of entrepreneurship.

In general terms, profit is the difference between income received and expenses incurred. According to Art. 247 of the Tax Code of the Russian Federation, the object of taxation for corporate income tax is the profit received by the taxpayer.

Profit is recognized:

1) for Russian organizations - income received, reduced by the amount of expenses incurred, which are determined in accordance with Ch. 25 NK;

2) for foreign organizations operating in the Russian Federation through permanent representative offices - income received through these permanent representative offices, reduced by the amount of expenses incurred by these permanent representative offices, which are determined in accordance with Chapter. 25 NK;

3) for other foreign organizations - income received from sources in the Russian Federation. The income of these taxpayers is determined in accordance with Art. 309NK.

Certainty of sources of profit . In accordance with the definition of entrepreneurial activity in the Civil Code, profit is derived by its subjects from the use of property, the sale of goods, the performance of work or the provision of services. I.V. Ershova (2008) rightly believes that this feature is formulated very poorly. The author draws attention to the fact that entrepreneurial activity is multifaceted and in a market economy its directions cannot be represented by a closed list. I.V. Ershova emphasizes: “Why, for example, is it necessary to talk only about the right to use in relation to property? And if the subject makes a profit in the process of exercising the right to dispose of property? According to the author, it did not make sense to enumerate the possible areas of entrepreneurial activity in the law, since they are determined primarily by the market.

State registration of business participants . E.P. Gubin, P.G. Lakhno (2006) point out that state registration is an important moment in the formation of the status of an entrepreneur. But it is not an essential feature of entrepreneurial activity. This is most likely a condition of legal (proper) entrepreneurship. Entrepreneurial activity is sometimes carried out without state registration. In this case, the law established a clear rule: a citizen who carries out entrepreneurial activities without forming a legal entity, without state registration as an individual entrepreneur, is not entitled to refer to the transactions concluded by him that he is not an entrepreneur. The court may apply to such transactions the special rules established in the Civil Code for obligations related to entrepreneurial activity (clause 4, article 23 of the Civil Code of the Russian Federation). We are talking, in particular, about the increased legal liability of entrepreneurs (clause 3, article 401 of the Civil Code of the Russian Federation).

Criminal law establishes liability for illegal business. The main feature of this corpus delicti is “carrying out entrepreneurial activities without registration or without a special permit (license) in cases where such a permit (license) is mandatory, or in violation of the terms of licensing, if this act caused major damage to citizens, organizations or the state or is associated with deriving income on a large scale” (Article 171 of the Criminal Code of the Russian Federation).

The considered signs of entrepreneurial activity, revealing its essence as a unique socio-economic phenomenon, together make it possible to qualify the relevant activity as entrepreneurial.

The main task An individual can register as an individual entrepreneur or choose a different organizational and legal form. There are a number of characteristics that relate to entrepreneurial activity:

legitimacy of work. Legalization of activities - passing state registration and execution of the appropriate package of documents;
risk. Such activity implies responsibility for the decisions that the businessman makes;
Receiving a profit. The work should be aimed at extracting a regular income;
independence. The entrepreneur decides all the working moments independently. He may not resort to the services of third-party organizations;
sources. The source of income may be transactions with property, the provision of services, the production and / or sale of products.

If entrepreneurial activity does not correspond to one of the marked signs, then there is a suspicion that the business is conducted illegally. Also, for a high-quality and profitable organization of work processes, certain skills, knowledge, experience, and education are required. Together, all these skills will allow the entrepreneur to achieve success and prosperity.

Types, advantages and disadvantages

Activities that are aimed at the provision of services or the production of products, refers to industrial entrepreneurship. If a businessman is engaged in the sale or purchase of goods / services, then this is a type of commercial enterprise. Features of work, form, functions are indicated upon receipt of a certificate of registration. Regardless of the form of work, entrepreneurial activity is characterized by such advantages as the possibility of using a simplified taxation system; simple decision-making process; distribution of profits at the sole discretion of the businessman. In addition, any citizen of Russia who has reached the age of majority will be able to open his own business.

This type of activity also has disadvantages. Firstly, it is difficult for an entrepreneur at the beginning of his work to establish cooperation with large companies, customers, and clients. Secondly, a person is required to personally participate in all work operations. In addition, under obligations, he risks his property.

Meaning

The development of entrepreneurial activity in the country should not be hindered by controlling and power structures. On the contrary, they should reduce the tax burden on this sector and adopt new legislative acts aimed at improving the conditions for business. After all, the rise of the modern market cannot be imagined without the participation of small companies and individual entrepreneurs. Modern entrepreneurial activity is able to solve several important functions:

development and implementation of innovations, new technologies;
efficient use of limited and reproducible resources;
the opportunity for a businessman to realize his potential and achieve his goals;
conveying important information to executive authorities.

Entrepreneurial activity should develop more actively in Russia. After all, from business come funds to the budgets of different levels and social funds. Businessmen hire people, thereby reducing the unemployment rate in the country. The prosperity of modern society is difficult to imagine without entrepreneurs.