Business partnerships and companies- commercial organizations with shares of founders authorized capital. The property created at the expense of the contributions of the founders, as well as produced and acquired by a business partnership or company in the course of its activity, belongs to it by the right of ownership. Anything that has a valuation can be a contribution to property: property rights, securities, money, property in kind, etc.

The difference between a partnership and a society is that a partnership is an association of persons not only by capital, but also by its activities, and a society is only an association of monetary and other financial investments. Business partnerships: general partnerships and limited partnerships.

General partnership - a business partnership, the participants of which (general partners), in accordance with the founding agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with their property.

Among the norms established by the Civil Code of the Russian Federation in relation to a general partnership, the following are of significant importance, in particular:

1. The management of the partnership is carried out by common agreement of all its participants. Each participant in a partnership has the right to act on behalf of the partnership, unless the agreement establishes that all of its participants conduct business jointly or the conduct of business is entrusted to individual participants.

2. A participant in a partnership is not entitled, without the consent of the other participants, to make transactions in his own name and in his own interests or in the interests of third parties that are similar to those that constitute the subject matter of the partnership.

3. The profit and loss of a partnership shall be distributed among its participants in proportion to their shares in the share capital, unless otherwise provided by the memorandum of association or other agreement between the participants.

4. A participant in a partnership has the right to withdraw from it by declaring a refusal to join the partnership (at least six months before the actual withdrawal from the partnership).

A general partnership can be included as participants individual entrepreneurs, as well as legal entities . The relationship between them is established memorandum of association, in accordance with which general partners (participants) carry out entrepreneurial activities on behalf of the established partnership.

Participants in a general partnership bear subsidiary liability for the obligations of the partnership with all their property.

The process of creating a general partnership involves holding a meeting by its founders, at which a decision is made to establish a PT and a memorandum of association is concluded. The minutes of the meeting and the memorandum of association signed by all participants are submitted to the registering body.

Limited partnership (limited partnership) - This is a business partnership in which, along with participants carrying out entrepreneurial activities on behalf of the partnership and liable for the obligations of the partnership with their property (general partners), there are one or more participants - contributors. These investors (limited partners) bear the risk of losses associated with the activities of the partnership, within the limits of the amounts they have made contributions and do not take part in the implementation of the partnership entrepreneurial activity.

Among the norms established in the Civil Code of the Russian Federation in relation to limited partnerships, the following are of significant importance, in particular:

1. In this type of partnership, fundamental differences are established between general partners (their positions and actions are regulated mainly by the rules on a full partnership) and limited partners, whose status, rights and obligations are mainly determined by the position of the "contributor".

2. A person may be a general partner in only one limited partnership. The activities of a limited partnership are managed by full partners (guided mainly by the rules on a full partnership). Contributors have the right to participate in the management and conduct of business of the partnership, to act on its behalf only by proxy. They do not have the right to challenge the actions of general partners in the management and conduct of business of the partnership.

3. The main right of limited partners is to receive a part of the profit of the partnership due to their share in the share capital, in the manner prescribed by the founding agreement. In the event of liquidation of a partnership, investors have a priority right over general partners to receive their contributions from the property of the partnership remaining after satisfaction of creditors' claims.

In a limited partnership, there is a double responsibility: some participants (partners) are liable for the obligations of the partnership with all their property, other participants (contributors) - only with a certain contribution. This limited liability contributes to attracting more people to this form of association than to a full partnership. (G.F. Shershenevich).

The main difference between a limited partnership and a general partnership is that in it two types of participants - full partners and contributors (limited partners).

Full comrades(complementary) in a limited partnership can be individual entrepreneurs and / or commercial organizations, andcontributors(commandists) can be citizens(which may not be individual entrepreneurs) And any legal entities.If no contributors remain in a limited partnership, then it must be liquidated or transformed into a general partnership.

Responsibility:

For full partners in a limited partnership - the same as for full partners in a full partnership. Contributors are not liable for the debts of the partnership, but risk only their contribution.

Operation procedure:

Activities in a limited partnership, in general, are similar to activities in a general partnership, however, there are also differences associated with the presence of two types of participants:

Only the general partners manage the partnership, while the contributors only contribute and for this they participate in the profits of the partnership.

Contributors do not take part in the entrepreneurial activity of the partnership and in its management (contributors do not even sign the memorandum of association of the partnership).

Legislation governing activities:

The activities of a limited partnership are regulated by the Civil Code of the Russian Federation (Articles 82-86 of the Civil Code of the Russian Federation), there are no special laws.

Brand Name:

The company name of a limited partnership must contain either the names (names) of all general partners and the words "limited partnership" or "limited partnership", or the name (name) of at least one general partner with the addition of the words "and company" and the words "partnership on faith" or "limited partnership". If the business name of a limited partnership includes the name of a contributor, such contributor becomes a general partner.

The benefits of partnerships are:

Opportunity to attract additional investments into the business;

Full confidence in the participants of the partnership on the part of creditors who do not risk losing their investments, due to the fact that participants in a general partnership are also liable for the debts of the partnership with their personal property;

Combining the forces of bright personalities actively working within the framework of the established company, which contributes to its prosperity;

Trust between all participants in the partnership, characteristic of honest business.

disadvantage given organizational and legal form is the risk of loss of personal property. However, this minus gives rise to a plus, which consists in striving for the success of the company.

Economic partnerships in the conditions of the modern Russian economy are practically not widespread. At the same time, partnerships in Russia were widely represented in the pre-revolutionary period. In the Russian Empire, partnerships were legally fixed by the manifesto of Emperor Alexander I of January 1, 1807 “On new benefits granted to the merchants, differences, advantages and new ways to spread and strengthen trade enterprises”, where it was recommended to carry out trade through the formation of merchant associations (full, on faith and on plots).

Vivid examples of partnerships in Russia in the late 19th - early 20th centuries are in the confectionery industry the Abrikosov and Sons Partnership (now the Babaevsky Confectionery Concern OJSC) and the Einem Partnership, in the textile industry the P.M. Ryabushinsky with his sons", in the banking sector "The Banking House of the Ryabushinsky Brothers", in book publishing activities "Partnership of Printing, Publishing and book trade I.D. Sytin and Co., M.O. Wolf”, “Association of A.S. Suvorin". Economic partnerships are now widely spread in the economically developed countries of Europe and in the USA.

Collective economic activity individuals and legal entities in the territory Russian Federation most often takes the form of a business partnership or society. The key similarity of these legal entities is that their property is divided into contributions of the founders and formed in certain shares. However, between various types These legal entities have their own differences, which make it possible to more accurately determine the nature and purpose of the existence of organizations.

Definition

Economic partnership is an association individuals whose main purpose is to make a profit. The property of the company belongs to the whole organization on the right of ownership. A partnership may be full or limited. All members of the company are liable for the debts of their organization with their own property. At the same time, in a limited partnership there are general partners who have the right to manage, and limited partners (contributors) who are deprived of such a right.

Economical society- this commercial organization, which owns equity property (capital), divided into contributions of participants. A legal entity conducts economic and economic activities aimed at making a profit. The organization can take the form of an additional (ALC) or limited (LLC) liability company, closed or open joint-stock company(ZAO or JSC). Members of a legal entity are liable for the debts of the company only within the limits of their contributions.

Comparison

There are several fundamental differences between business companies and partnerships. They were formed due to certain traditions and are enshrined in regulatory legal acts. First, it concerns the members of legal entities. Organizations and citizens can be members of an LLC, OJSC or ALC, with the exception of a number of restrictions. Only private entrepreneurs or business entities can be participants in a partnership. Secondly, there is a difference in securing the debts of a legal entity. For the obligations of the partnership, the participants are liable with all their own property, for the debts of the business partnership - only within the limits of their share.

There is also a difference in approaches to managing an organization, freedom of exit from it. You can freely sell, donate, transfer your share in an LLC, OJSC or ALC. If we are talking about a business partnership, then in the general case only compensation is provided in case of withdrawal. Members of a full partnership may carry out the alienation of their share only with the consent of other participants in the organization.

Findings site

1. The composition of the legal entity. Commercial organizations (private entrepreneurs and firms) can be represented in a partnership, and any individuals and legal entities (within the framework of the law) in a business partnership.
2. Control. The partnership is managed by its members by convening general meeting, the economic society creates its own administration.
3. Member Responsibility. For the debts of the partnership, its participants are liable with their own property. Members of a business partnership only bear losses within the limits of their contribution in the event of unprofitable activities of the enterprise.
4. Alienation of a share. A joint-stock company (with the exception of a CJSC) assumes the free disposal of shares or its part of the property. Getting out of a business partnership is much more difficult and sometimes can only consist in obtaining a share of its property.

Business partnerships and companies (Scheme 2.2) are recognized as commercial organizations with authorized (reserve) capital divided into shares (contributions) of founders (participants). In Europe and Japan, business companies and their associations are called companies, in USA - corporations.

Property created at the expense of contributions of founders (participants), as well as produced and acquired by a business partnership or company in the course of its activities, belongs to it by right of ownership. In some cases, a business partnership may be created by one person who becomes its sole participant.

Business partnerships may be formed in the form full partnership And limited partnerships (partnerships in limited partnership).

Business companies can be created in form of joint stock company, limited company or with additional responsibility.

Business partnerships

Installed Civil Code In the Russian Federation, the organization of business partnerships and the organization of their activities are presented in diagrams 2.5 and 2.6.

From point of view commercial activities it is important to note the following features business partnerships:

• o general partners conduct business activities on behalf of the partnership, but the memorandum of association may establish a different procedure for doing business;
• o contributors (limited partners) do not participate in entrepreneurial activities and in the management of the partnership;
• o general partners carry responsibility for all their property, contributors bear the risk of loss only within the limits of their contributions;
• o profits and losses of both a general partnership and a limited partnership are distributed among the general partners in proportion to their shares in the share capital or in accordance with the terms of the contract (agreement) between the participants. The participant-investor has the right to receive a part of the profit due to his share, in the manner prescribed by the memorandum of association (which is signed by all general partners).

Let us dwell in more detail on the responsibility of participants in a general partnership. Legislative norm, providing for unlimited joint and several liability of general partners, established in the interests of the participants

Scheme 2.5.

Scheme 2.6.

property turnover and cannot be canceled or limited by the contract.

Unlimited Liability of participants in a general partnership for its debts makes it very attractive to potential counterparties, and also increases the reliability and creditworthiness of the partnership in the eyes of other participants in the property turnover. Let us consider the main issues related to such responsibility.

The partnership itself is primarily responsible for the debts of the partnership as an independent subject of law, having its own property. That's why the property of a partnership may not be subject to collection for the debts of individual partners.

At the same time, a full partnership is an association of persons from whose contributions the capital of the partnership itself is created. The participants of the partnership derive profit from the use of this capital by directly participating in the affairs of the partnership, and also bear additional (subsidiary) liability for its debts. That's why a participant's share in the property of the partnership may be levied by his personal creditors if there is a lack of other property of the partner to cover debts.

Thus, the creditor of a participant in a general partnership cannot levy execution on the private debts of the participant on the property of the general partnership, however, he can levy execution on his debtor's share in this property, demanding the division of a part of the partnership's property.

The share of property to be allocated or its value is determined according to the balance sheet drawn up at the time the creditors submit their demand for separation. Foreclosure on property corresponding to the share of a participant in the share capital of a general partnership terminates his participation in the partnership. However, at the same time, he will be responsible for the debts of the partnership over the next two years (Article 80 of the Civil Code of the Russian Federation).

If such a participant transferred any property to the partnership on the right to use, then this property may be levied for its debts, since it is not the property of the partnership, but of the comrade who contributed it. If such property is sufficient to satisfy the claims of the creditor, then the creditor does not have the right to demand also the allocation of the share of such a participant.

It should be noted that a person joining a partnership after its formation is liable on an equal footing with the founders of the partnership, including for those obligations that arose before joining the partnership. Such a responsibility lies with him even if he, entering into a partnership, is not aware of certain obligations that lie on the partnership, and even if these obligations were deliberately hidden from him. In the latter case, this partner has the right, in addition to a general recourse action against the other partners, to also bring an action against them for losses incurred by him as a result of misleading him.

If the participant pays the debt of the partnership, he has the right to claim back against the other participants in proportion the share of participation of each of them in the losses of the partnership. This share of participation must be specified in the contract. If there is no such indication, then the debtor who has fulfilled the joint and several obligation has the right to claim back the rest of the debtors in equal shares, unless otherwise provided by law or the contract. What is not paid by one of the co-debtors falls in equal shares on all the others.

In accordance with paragraph 2 of Art. 75 of the Civil Code of the Russian Federation, a participant who has withdrawn from the partnership is liable for the debts of the partnership within two years from the date of approval of the report on the activities of the partnership for the year in which he retired. The liability of the retired partner remains the same as if he had remained in the partnership, i.e., unlimited and joint and several. It extends not only to obligations that arose during his stay in the partnership, but also to those obligations that arise during the entire time during which he remains liable.

Partners are jointly and severally liable for all obligations of a general partnership, no matter for what reasons these obligations arise.(transactions, offenses, unjust enrichment). In addition, partners bear the same responsibility for obligations arising from transactions concluded by any of the partners, even if not on behalf of the partnership, but in its interests.

Business partnerships and companies are a generic concept denoting several independent types of commercial legal entities, which have in common that their authorized (share) capital is divided into shares. This is what distinguishes business partnerships and companies from other commercial organizations. 1 .

The Civil Code of the Russian Federation provides for a fairly wide range of legal forms collective management, which meets both modern international standards and domestic economic realities. The organizational and legal forms of business partnerships or companies are capable of serving the interests of individual merchants, small family groups, and giant groups of shareholders who are unfamiliar with each other.

Business partnerships in Russian law are understood as contractual associations of several persons for the joint conduct of entrepreneurial activities under a common name.

Business companies are organizations created by one or more persons by combining (separating) their property for doing business.

The main actor of any partnership - a general partner - bears unlimited liability for the obligations of the company with all his property. Therefore, in partnerships, unlike companies, the founders, as a rule, take a personal part in the affairs of the enterprise. For the same reason, a person may be a general partner in only one partnership. The circle of founders is usually much narrower than in societies, due to the personal trust relationship between them2. The fundamental provisions that determine the possible composition of participants in economic companies and partnerships are contained in paragraph 4 of Art. 66 PS. Entrepreneurship is always associated with an increased property risk, therefore the legislator considers the legal status of citizens and non-profit organizations incompatible with the status of a general partner.

For business companies, it is characteristic to combine not so much the personal efforts of the participants as their property. Participants are not liable for the obligations of the company (except for companies with additional liability), and their entrepreneurial risk is limited to the amount of contributions to the authorized capital. Therefore, it is the size of the authorized capital of the company that is the main guarantee of the interests of creditors and acquires special significance, uncharacteristic for partnerships. Reducing the size of the authorized capital of the company is possible only after notifying all of its creditors, who in this case acquire the right to demand early termination or fulfillment of obligations and compensation for losses (as in the case of reorganization).

The basic rights and obligations of participants in business companies and partnerships are generally enshrined in Art. 67 of the Civil Code and may be supplemented in the constituent documents. Participants have the right to manage the affairs of the company in one form or another, receive information about its activities, participate in the distribution of profits and receive part of the property remaining after the liquidation of the enterprise (the so-called liquidation balance). At the same time, they are obliged to participate in the formation of the property of the enterprise and not to disclose confidential information about its activities. Art. 67 of the Civil Code are imperative in nature, therefore it is impossible to deprive a participant of any of the listed rights or release from obligations.

General partnership

A business partnership, the participants of which jointly and severally bear subsidiary (additional) liability for its obligations with all their property, is called a general partnership. It arises on the basis of an agreement between several participants (general partners), which can only be entrepreneurs - individual or collective 1 .

The legislator distinguishes between the cases of managing a general partnership (Article 71 of the Civil Code) and conducting the affairs of a partnership (Article 72 of the Civil Code). The management of the partnership is carried out on the basis of decisions taken by all participants unanimously or by a majority vote (if the latter is provided for by the founding agreement). Doing business, i.e. representation of the interests of a general partnership in circulation, as a general rule, is carried out by each of the participants. In this case, a general partnership as a legal entity has several independent and equal bodies (according to the number of participants). The memorandum of association may also establish other schemes of bodies of a general partnership, for example: the conduct of business by all participants jointly (one collegial body) or by some of them (one or more sole bodies). It is important to note that the listed options for the organizational structure of the partnership cannot be applied simultaneously. Therefore, the assignment of conducting business of a general partnership to one of the participants deprives the rest of the rights to represent the interests of the company without a power of attorney. 1 .

Legislative regulation of the size of the share capital of a general partnership is only relevant for its registration. In the future, neither a decrease in the deposited capital, nor even its complete loss entails dramatic consequences (see paragraph 2 of article 74 of the Civil Code). This is not surprising, since the claims of the partnership's creditors can be satisfied at the expense of the property of its participants.

A general partner is prohibited from acting in a similar capacity in more than one enterprise. By the way, this rule, which is unusual for most foreign legislation, was established in the interests of the partnership's creditors. To protect the interests of the comrades themselves, a prohibition is provided for a participant to make, without the consent of others, transactions similar to those made by the partnership, that is, to compete with it (paragraph 3 of article 73 of the Civil Code).

A change in the personal composition of participants (withdrawal, exclusion, death or loss of full legal capacity by a citizen, recognition of him as missing, liquidation or forced reorganization of a legal entity), as a general rule, entails the liquidation of a full partnership. Otherwise, it may be provided for by the constituent agreement or agreement of the remaining participants (clause 1, article 76 of the Civil Code). A change in the property status of a participant has similar consequences - declaring him bankrupt or foreclosing by creditors on his share in the share capital.

Being by its nature an association of persons, a general partnership cannot consist of sole member and, if nevertheless this happens, it must be transformed into a business company or liquidated (Article 81 of the Civil Code).

Faith partnership

A business partnership consisting of two categories of participants: general partners (complementary partners), jointly and severally bearing subsidiary liability for its obligations with their property, and fellow contributors (limited partners) who are not liable for the obligations of the enterprise, is called a limited partnership (or limited partnership).

Similarly to a general partnership, the company name of a limited partnership must contain the names (names) of all or at least one general partner (in the latter case - with the addition of the words - "... and the company").

According to paragraph 1 of Art. 83 of the Civil Code, fellow contributors may not even participate in the signing of the memorandum of association, i.e. the principle of anonymity of limited partners is respected. The relations of fellow contributors and general partners must be regulated by an agreement. And if this is not a memorandum of association, then it must be some other, conditionally called an agreement on participation in a partnership. Such a legal construction, indeed, allows you to keep the absolute secret of the identity of the limited partner (even from the state), but still seems to be extremely contradictory. 1 .

A limited partnership, as it were, includes two relatively independent structures: a general partnership and a group (or one) of fellow contributors. On the one hand, limited partners are completely excluded from participating in the management and conduct of business of the partnership. On the other hand, they dispose of their contributions completely independently of full comrades. A distinctive feature of the rights of the limited partner to the property of the partnership is that when leaving the enterprise, he has the right to claim only the return of his contribution, and not to receive the corresponding share in the property of the company (subscript 4, paragraph 2, article 85 of the PS). However, in the event of liquidation of the company, the partner-contributor participates in the distribution of the liquidation balance on an equal basis with general partners.

The grounds for the liquidation of a limited partnership have significant specifics. In particular, a limited partnership is preserved if at least one full partner and one limited partner remain in it (part 2, clause 1, article 86 of the Civil Code). This means that in all cases of changes in the personal composition of participants, the partnership, as a general rule, continues to exist.

In the part that does not affect the legal status of limited partners, a limited partnership is similar to a general partnership, therefore everything said about general partnerships also applies to limited partnerships (see paragraph 5 of article 82 of the Civil Code).

Business partnerships are one of the oldest forms of business organization, rooted in family business. As the public relations family members were replaced by other participants in the common cause - comrades. Later, comradely associations were supplemented by contributors who received a certain percentage for their contributions.

The concept of a business partnership

The legislation does not contain a special definition of the concept of "economic partnership", but it contains a joint definition of business partnerships and companies. A business partnership is a corporate commercial organization with an authorized (share) capital divided into shares (contributions) of founders (participants).

(The use of the expression "commercial business partnerships" is redundant, since any business partnership is commercial "by definition").

Legal entities that are non-profit organizations, can be created in the organizational and legal forms of associations of property owners, which include, among other things, associations of homeowners.

Economic partnerships and companies, production cooperatives, peasant (farm) enterprises, economic partnerships, state and municipal unitary enterprises─ these are different organizational and legal forms in which legal entities that are commercial organizations can be created.

The property of economic partnerships, created at the expense of contributions of founders (participants), as well as produced and acquired in the course of activity, belongs to economic partnerships on the basis of ownership.