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Legal regulation of entrepreneurial activity: features and structure. Entrepreneurial activity of the enterprise

Main problems of legal regulation connected: Firstly, with the definition of entrepreneurial activity and the designation of its subjects, the status of the entrepreneur and his qualities; Secondly the rights and obligations of the entrepreneur, third, with the definition of organizational and legal forms of entrepreneurial activity and, fourthly, with the legal regulation of small business.

Definition entrepreneurial activity and the basic qualities that an entrepreneur should possess are discussed in the first question of this topic. The second question reveals the characteristic features of the main organizational and legal forms of implementation entrepreneurship and business.

law the following signs of entrepreneurial activity:

1. Independent nature of entrepreneurial activity which means implementation entrepreneurial activity entrepreneur at his will and in his own interests. The state exercises general regulation entrepreneurial activity, establishing some restrictions related to the protection of the foundations of the constitutional order, morality, health, rights and interests of others, ensuring the defense of the country and the security of the state. For example, the need to obtain a special permit (license) to carry out types of entrepreneurial activities.

By her own independence means the inadmissibility of unlawful interference, i.e. interference of the state and other persons in the activities of an entrepreneur not based on the norms of the current legislation. If the latter took place, then the entrepreneur has the right to apply to the courts for protection.

2. Carrying out business activities at your own risk, means that the entrepreneur independently assumes and bears all the consequences (favorable and unfavorable) of his activities.

3. Entrepreneurial activity is aimed at systematic profit. This feature is intended to distinguish entrepreneurial activity from other types of activity. Making a profit should remain the main goal of entrepreneurial activity. Otherwise, this activity cannot be qualified as entrepreneurial. The systematic receipt of profit does not mean accidental, one-time and temporary, but its permanent receipt.

4. A special feature of entrepreneurial activity is its implementation by persons registered as entrepreneurs in the manner prescribed by law. State registration is of a formal (external) nature and denotes a requirement that is imposed on an entrepreneur by law and is an element of the mechanism State regulation of entrepreneurial activity. It is designed to ensure the accounting of business entities in respect of which the state uses specific measures of legal regulation.

Entrepreneur may be physical or entity, as well as united in societies (partnerships) several physical And legal entities , which ownership(or by proxy) own, use and dispose of enterprise property(economic unit), manage and organize its economic and financial activities.

Business entities may speak Foreign citizens And stateless persons within the limits of rights and obligations.

Entrepreneurship can be carried out without education or with the formation of a legal entity, using And without the use of hired labor.

The law allows the following forms of entrepreneurial activity on property:

1. Private enterprise carried out by business entities on the basis of their property or on the basis of property received and used legally.

2. Collective entrepreneurship carried out on the basis of collective property or on the basis of property obtained and used legally. As organizational and structural forms of collective entrepreneurship, joint-stock companies, limited liability companies, with additional liability, rental, people's, joint and cooperative enterprises, whose property has been purchased from the state, can act.

The law defines entrepreneurial status which is acquired through state registration. Entrepreneur status determined by the following qualities:

1. Know the organizational and legal foundations of entrepreneurship, the basic laws and principles of the relationship of rights, duties and responsibilities.

2. To have state-guaranteed freedom of entrepreneurial activity within the framework of existing economic legislation, the right to economic accounting.

3. Possess a systematic approach to solving problem situations, intuition and the ability to predict the market situation, business conditions and its consequences.

4. Be able to draw up an effective strategy and tactics of economic behavior in the market, purposefully organize business activities.

The law establishes rights and obligations of an entrepreneur.

Entrepreneur's rights:

1. The right to independently choose the form of ownership and forms of management.

2. The right to occupy any economic activity not prohibited by law.

3. The right to create any enterprises, the organization of which does not contradict the law.

4. The right to attract property, funds and certain property rights of other citizens, organizations and enterprises, including foreign legal entities and individuals, on a contractual basis for conducting entrepreneurial activities.

5. The right to participate with one's own property and legally obtained property in the activities of other economic entities.

6. The right to independently form a program of economic activity, choose suppliers and consumers of their products and services, set prices and tariffs.

7. The right to independently hire and dismiss employees in accordance with applicable law and employment contract(contract).

8. The right to establish forms, systems and amounts of wages and other income.

9. The right to open accounts in banking institutions for the storage of all types of settlement, credit and cash transactions.

10. The right to freely dispose of their property and profit from entrepreneurial activity, remaining after paying taxes and making other obligatory payments.

11. The right to receive any, unlimited in size, income.

12. The right to use the state system of social security and social insurance.

13. The right to act as a plaintiff and defendant in court, arbitration and arbitration court.

14. The right to acquire foreign currency and independently carry out foreign economic activity in accordance with the law.

Responsibilities of an Entrepreneur:

1. Fulfill all obligations arising from the current legislation and concluded agreements.

2. Do not interfere with the association of employees in trade unions to protect their interests, provide in labor contracts, agreements, contracts for remuneration of employees not lower than the established minimum level, violate other socio-economic standards.

3. An entrepreneur is obliged to make contributions to the state social insurance fund for the insurance of employees.

4. Property liability arises in cases:

Violations of the law;

Non-fulfillment of concluded agreements;

Environmental pollution;

Deception of the consumer in relation to the quality of the product, the method of its application, the provision of incomplete information for the purpose of deliberately misleading the consumer;

Reporting or spreading false information about competitors;

Release of goods with external design used by other manufacturers;

Illegal access to a competitor's trade secret or its disclosure;

Use of someone else's trademark, company name or production mark without the permission of the participant in the economic turnover in whose name they are registered;

Obtaining additional income as a result of creating an artificial shortage of goods by limiting their entry into the market with a subsequent increase in prices;

Conclusion of contracts when it is known that it is impossible to fulfill them and in cases of dishonest business.

In all these cases, the court, at the claim of the interested party, may oblige the entrepreneur who carries out the specified illegal actions to stop them, restore the situation that preceded the offense, compensate for the damage and take other actions. The guarantee of the fulfillment of the goals of entrepreneurial activity, obligations and the presence of responsibility are open personal qualities based on competence, high professionalism, knowledge of market relations and their development.

Types of responsibility:

1. Legal liability– Liability of legal entities and individuals for non-compliance with laws and regulations.

2. Administrative responsibility– legal liability for administrative misconduct.

3. Civil responsibility- legal liability for non-fulfillment or improper fulfillment of obligations and contracts, other civil offenses.

4. Shared responsibility- 1) a part of income, property, other valuables, which one of the participants in the common cause, collective owners, heirs is entitled to claim;

2) the extent to which a participant in a common business contributes his own resources, money, is called equity participation. For example, shared construction.

5. Contract liability- unconditional liability for violations of obligations assumed under the contract, arising from the moment of its conclusion.

6. Material liability- the obligation of the employee to compensate for property, material damage caused through his fault to legal entities and individuals.

7. Taxpayer liability- responsibility borne by a taxpayer who has violated tax legislation, within the limits established by law cases, as:

a) collection of the entire amount of hidden or underestimated income or the amount of tax for another hidden or unaccounted for object, a fine in the amount of the same amount. In case of repeated violation - the corresponding amount and a fine twice the amount of this amount. If the court establishes the fact of intentional concealment or underestimation of income by a sentence, or by a court decision on the claim of a tax institution or a prosecutor, a fine in the amount of five times the concealed or underestimated amount of income may be collected to the Federal budget;

b) penalty for a specific violation:

For the lack of accounting for objects of taxation and for maintaining this accounting in violation of the established procedure, which entailed hidden or underestimated income for the audited period - in the amount of 10% of the accrued tax amounts;

For failure to submit or untimely submission to the tax authority of the documents necessary for the calculation and payment of tax - in the amount of 10% of the tax amounts due by the due date;

in ) collection of interest in case of late payment of tax- in the amount of 0.3% of the unpaid tax amount for each day of delay in payment, starting from the established payment deadline for the identified delayed tax amount, unless other amounts are provided by law;

G) other sanctions provided by law.

Recovery of arrears on taxes and other obligatory payments, as well as amounts of fines And other sanctions prescribed by law, with legal entities produced in indisputably, and with individuals- in judicial okay. Given penalty applied to the income they received, and in case of absence - to the property of these persons. Officials and citizens guilty of violating tax laws are subject to criminal, administrative and disciplinary liability.

8. Unlimited Liability- the obligation of the subject to answer for his obligations with all his own property, including personal property.

9. Limited liability- 1) the main aspect of shareholding, which consists in the fact that the shareholder is liable for debts. Joint-Stock Company only within the limits of his share in the share capital, that is, within the limits of the amount paid by him for the acquired shares;

2) limitation of the firm's liability, consisting in its promise to be responsible for its obligations; compensate for causal losses only within the limits of the invested capital.

3) limitation of payments of insurance indemnity and sums insured, provided for by the conditions of property and life insurance.

10. Liability of the guarantor- a guarantee of the guarantor to assume the obligations of the person for whom he vouched. And if the person for whom another person is guaranteed does not fulfill his obligations, then the other person who has become his guarantor is obliged to fulfill the obligations himself.

11. Joint responsibility- joint responsibility of a group of persons who have assumed obligations.

12. Insurance liability- the obligation of the insurer to pay the insurance indemnity or the sum insured to the insured in the event of an insured event stipulated by the terms of the contract.

13. Subsidiary Liability- 1) additional liability imposed on individual members of the group, who are jointly and severally liable in conditions where the main defendant is unable to pay the debt;

2) the right to recover an unpaid debt from another obligated person if the first person is unable to pay it.

Recognizing the need to include special rules governing economic activity in the legislative aspects, legislators have different approaches to solving the problem of legal regulation of entrepreneurial activity.

In some countries, economic activity is regulated by a special branch of law - the so-called commercial law, which exists in parallel with civil law. Together with the civil law in these countries, there is a special commercial law (code) containing the rules governing entrepreneurial activity. This phenomenon is defined by the term dualism, meaning the simultaneous existence of different modes of production, consumption, labor markets, interfering with each other within the same economic system. These countries include: France, Germany, Spain, Japan.

In other countries, the norms of commercial law have not received a separate codification. But the civil legislation of these countries contains a significant number of rules designed to regulate relations arising in business activities. These are England, USA, Switzerland, Italy. Russia is also acting along this path of regulation.

All branches of Russian legislation are involved in the regulation of relations related to entrepreneurial activity. Relevant provisions are contained in the norms of constitutional, financial, criminal, administrative law, etc.

Tax legislation establishes a special taxation regime, the procedure for tax accounting and reporting for business entities.

The Criminal Code of the Russian Federation and the Code of Administrative Offenses of the RSFSR provide for specific elements of criminal and administrative offenses in which entrepreneurs act as a special subject, or those that have public relations related to entrepreneurial activity as the object of encroachment.

But civil law plays a leading role in regulating relations in entrepreneurial activity. It gives the concept of entrepreneurial activity (Article 2 of the Civil Code of the Russian Federation), determines the legal forms in which it is carried out, regulates property and related personal non-property relations, relations with the participation of entrepreneurs (citizens, organizations) based on equality, autonomy and property liability of their participants.

Legislation defines legal forms of doing business.

The current legislation of Russia defines several forms in which entrepreneurial activity can be carried out.

1. Carrying out entrepreneurial activities without forming a legal entity - an individual entrepreneur. By general rule only fully capable citizens can act as full-fledged subjects of entrepreneurial activity. In accordance with paragraph 1. Art. 23 G.K. A citizen of the Russian Federation has the right to engage in entrepreneurial activities without forming a legal entity after preliminary state regulation as an individual entrepreneur.

2. Implementation of entrepreneurial activity by a legal entity. Under a legal entity in accordance with paragraph 1 of Art. 48 G.K. RF is understood as an organization that owns, manages or operational management separate property and is liable for its obligations with this property, may, on its own behalf, acquire and exercise property and personal non-property rights, bear obligations, be a plaintiff and defendant in court.

To characterize the degree and the very possibility of participation of legal entities in entrepreneurial activity, organizations are divided into commercial and non-commercial.

The application of business rules is subject to general requirements applied to the enforcement process. It should be noted that in the domestic doctrine law enforcement is interpreted in a broad and narrow sense. In the first case, it includes all cases of the implementation of previously established rules of law (objective law), including the addressees of the normative prescription. In the second case, law enforcement is understood only as such an embodiment of law in specific legal relations, which is mediated by acts of the authorities of the state, while the activities of the addressees themselves (in our case, business entities) are considered not as law enforcement, but as the exercise of law by their own actions of the addressees of the norm.

The application of the norms of the legislation on entrepreneurship requires, first of all, the identification of signs that allow us to talk about the possibility of extending the relevant rules to business entities.

To reflect the specifics of the regulation of business relations, the legislator uses at least three approaches.

Firstly, the legislator directly in the Civil Code (other federal laws) highlights the rules addressed directly to entrepreneurs (for example, the norms of paragraph 4 of article 61, paragraph 1 of article 66, paragraph 1 of article 69, paragraph 3 of article 401 and other Civil Codes). The hypotheses of these norms directly indicate that the subjects of relations are entrepreneurs ( commercial organizations). So, in accordance with paragraph 1 of Art. 492 of the Civil Code, one of the parties to the retail sale and purchase agreement is precisely the entrepreneur; in accordance with par. 2 p. 1 art. 907 of the Civil Code, only an organization engaged in entrepreneurial activity can be a custodian in a warehouse storage agreement.

Secondly, in some cases the legislator uses techniques that indirectly indicate that these relations are entrepreneurial. At the same time, both the purpose of the contract and other elements of the contractual structure (subject structure, transferred property, etc.) can be used as a guide (sign). For example, a guarantor bank guarantee(Article 368 of the Civil Code) only a credit institution (bank) can act or Insurance Company, and since these organizations, as a general rule, conduct entrepreneurial activities, operate on the basis of special licenses, then, therefore, at least one of the participants in the bank guarantee relationship is an entrepreneur.

AND, third, if the specifics of legal regulation of activities are not reflected at the level of legislation, then the state tries to fill the gap and take into account the peculiarities of regulating the activities of entrepreneurs at the level of special by-laws. For example, Federal Law of December 10, 2002 No. 172-FZ “On currency regulation and currency control” ( SZ RF. 2003. M 50. Art. 4859) is an act general meaning, extending to relations with the participation of citizens, therefore, a special act is in force to regulate foreign exchange transactions between authorized banks-entrepreneurs (see: Directive of the Central Bank of the Russian Federation of April 28, 2004 No. 1425-U “On the Procedure for Carrying out Foreign Exchange Transactions on Transactions between Authorized Banks” // Bulletin of the Bank of Russia. 2004. No. 33).

There are also features of the application of legislation on entrepreneurship in certain areas.

The relationship of an entrepreneur with the state, its bodies, local self-government bodies are based on the well-known principles of administrative dependence, subordination. But it would be wrong to interpret the relationship of an entrepreneur, for example, regarding obtaining permission from the sanitary and epidemiological service to open a restaurant, as exclusively “vertical”, when such permission may or may not be given only at the behest of this state body. In fact, the law in its broadest sense puts the state (its bodies) and the entrepreneur to a certain extent in an equal (“mutually obligated”) position, since a well-organized economy excludes voluntarism. Therefore, when studying normative acts, one should take into account the limitations

(discreteness) of volitional decisions of the authorities. In particular, as a general rule, an entrepreneur is armed with the right to appeal against decisions made, and finally, he has the right to protect his rights and interests. So, in case of refusal in state registration of an entrepreneur, he has the right to appeal decision to the court (Article 23 of the Law on State Registration of Legal Entities).

The legal regulation of entrepreneurial property relations as a whole is subject to a general legal assessment of such rights (legitimate interests) and, due to the universality of the relevant norms, does not lead to significant differences.

Restrictions on the use, possession, use, disposal of property objects of entrepreneurs can be caused either by the status of a particular business entity (for example, if it unitary enterprise), or the requirements of the founders (owners), or the limits of expression of will formed at the legislative level. In particular, business relations are fully subject to the rules on restrictions on major transactions, transactions with interest and other transactions, where the specifics of corporate relations require taking into account a differentiated procedure for making decisions on the alienation of property.

It should be noted that the concept of "business agreement" itself is absent both in the Civil Code and in other laws. This circumstance is explained in various ways and often provokes criticism. Business contracts and transactions in general contain general properties categories of "agreement", but since they involve entrepreneurs who have special goals and whose activities are subject to a specific regime, that is, differences. They concern the possibility of participation in transactions (contracts), the definition of the rights and obligations of the parties, the qualification of concluded agreements, the responsibility of entrepreneurs (see section 6 of the textbook). So, if an ordinary civil law contract under certain circumstances can be interpreted as gratuitous (having no equivalent fee), then this is impossible if it is defined as entrepreneurial. See, for example: Belykh V.S. Entrepreneurial contract: concept, types and scope of application // Civilistic research. Issue. 1. Sat. scientific, labor memory I.V. Fedorov. M., 2004. S. 123-132; Bogdanov E.V. Business agreement. M., 2003; Ilyushina M.N., Chelyshev M.Yu., Sitdikova R.I. Commercial transactions. M., 2005. S. 4-47.

entrepreneurship civil legal relationship state

Legal and informational regulation of the protection of entrepreneurial activity

Legal basis- a fundamental part of the legal regulation of the protection of entrepreneurship, carried out by state bodies and institutions, public and private organizations, individuals in whose activities there are elements of entrepreneurship. As part of this legal framework, it is possible, with a certain degree of conventionality, to distinguish five groups of legal documents:

  • - the first group - the fundamental and goal-designating fundamental sources of legal regulation of activities in the field of ensuring the security of the individual, society, state;
  • - the second group - legislative acts regulating entrepreneurial activity, determining for it the most general terms and Conditions;
  • - the third group - legislative and other legal documents regulating the protection of entrepreneurship itself;
  • - the fourth group - legislative and other legal acts regulating the activities of state bodies that perform, to one degree or another, the functions of protecting entrepreneurship;
  • - the fifth group - regulatory legal acts regulating the activities of organizations for which the functions of protecting entrepreneurship are concomitant.

The group of fundamental and goal-setting fundamental sources of legal regulation of activities in the field of ensuring the security of the individual, society, state is the Constitution Russian Federation, Civil Code of the Russian Federation. The Constitution of the Russian Federation has the highest legal force, laws and other legal acts adopted in Russia must not contradict the Constitution. The Basic Law has direct effect, is applied throughout Russia and is directly related to the protection of entrepreneurial activity. Thus, Chapter 2 of the Constitution includes the main provisions that form the basis legal status personality in the Russian Federation, fundamental rights and freedoms of man and citizen. In accordance with the first part of Article 46, every citizen is guaranteed judicial protection of his rights and freedoms. These rights and freedoms may be limited only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense of the country and the security of the state (part 3 of article 55 of the Constitution). Among the legislative acts regulating entrepreneurial activity and defining the most general conditions for it, the Civil Code of the Russian Federation (CC RF) is of fundamental importance. This legislative act is rightly regarded as the second most important after the Constitution of the Russian Federation. The Civil Code must comply with all laws and other legal acts containing norms civil law(Article 3 of the Civil Code of the Russian Federation). Article 2 of the Code indicates that civil law defines legal status of all participants in civil circulation, the grounds for the emergence and procedure for exercising the right of ownership, rights to the result of intellectual activity, regulates contractual relations, as well as other property and related personal non-property relations. The action of the Civil Code of the Russian Federation permeates the daily economic and property life of both citizens and social organizations. The norms of the Civil Code of the Russian Federation apply both to citizens and to individuals and legal entities engaged in entrepreneurial activities. An entrepreneur comes into contact with the norms of the Civil Code when creating an enterprise or entrepreneurial business, when registering them, concluding contracts, etc. Deviation from the legally established norms, as a rule, increases the risk for the entrepreneur to be exposed to non-market competition from the criminal world, unscrupulous partners, and the arbitrariness of corrupt officials. In accordance with the second and third parts of Article 4 of the Law "On Security", in order to create and maintain the necessary level of protection of security facilities in the Russian Federation, a system of legal norms regulating relations in the field of security is being developed, the main areas of activity of the bodies are determined state power and management, security bodies and a mechanism for monitoring and supervising their activities are being formed or are being formed. For the direct performance of functions to ensure the security of the individual, society and the state in the system executive power in accordance with the law, state security bodies are formed. The Criminal Code of the Russian Federation contains a definition of the concept of a crime, indicates which socially dangerous acts are criminal, establishes penalties to be applied to persons who have committed crimes. Part of the crimes, and above all economic (Chapter 6), official (Chapter 7), against justice (Chapter 8), against the order of management (Chapter 9), against public safety, public order and public health (Chapter 10), may be directly related to entrepreneurship and, in essence, act as a form of criminal competition.

The Criminal Code provides a description of legislative models of socially dangerous acts - their specific compositions that are important for protecting business. Knowledge of the elements of a crime allows the entrepreneur, on the one hand, to act in accordance with the law himself, and on the other hand, to reasonably apply, in appropriate cases, to law enforcement and other state bodies.

For the sphere of entrepreneurship, the following crimes are important, first of all, which are considered by the Law as criminal and are actually manifestations of criminal competition:

  • - crimes in the field economic activity(first of all, obstruction of legal entrepreneurial activity, illegal entrepreneurship, false entrepreneurship, legalization (laundering) Money or other property acquired illegally, illegal receipt of a loan, malicious evasion of repayment of accounts payable, monopolistic actions and restriction of competition, coercion to make a transaction or to refuse to make it, illegal use trademark, deliberately false advertising, illegal receipt and disclosure of information constituting a commercial or banking secret; fraud of consumers, etc. - Art. 169-183, 185-189, 191-197, 199-200);
  • - crimes against property (theft, fraud, appropriation or embezzlement, robbery, robbery, extortion, deliberate destruction or damage to property, etc. - art. 158-163, 165, 167);
  • - crimes against the interests of service in commercial and other organizations (excess of authority by employees of private security or detective services, commercial bribery, etc. - art. 201-204);
  • - Crimes against life and health (Art. 105, 111-112, 114-117, 119 of the Criminal Code of the Russian Federation);
  • - crimes against freedom, honor and dignity of a person (primarily kidnapping - article 126 of the Criminal Code of the Russian Federation);
  • - crimes against the constitutional rights and freedoms of man and citizen (first of all, violation of the inviolability of the home - art. 139);
  • - crimes in the field of computer information (art. 272-274).

Conclusion: currently in Russia there is a tendency to detail the legislation both in general on entrepreneurial activity and on business protection, it remains confusing and contradictory, therefore, its main shortcomings can be identified: legal acts various levels and legal force. The abundance of such normative acts makes it difficult to navigate the legal framework and its practical use. 2. The regulation of issues specific to the field of business protection is carried out mainly within the framework of departmental regulations, as well as with the help of regulations at the firm level. Legal regulation seems inadequate in this area. 3. The legal basis for the protection of entrepreneurship suffers from incompleteness, contains a number of gaps, a number of legal norms require adjustment. This often allows both the entrepreneur and the official to act at their own discretion, contributes to economic crimes and corruption. 4. There is no legal document that would reflect the fundamental provisions relating to business protection - the basic concepts in this area of ​​legal regulation, objects, means, protection mechanism, rights and obligations of state bodies and market entities to protect business, public policy in this area. 5. In legal relation issues of coordination and interaction of state bodies, business associations, individual business structures in order to protect entrepreneurship have not been regulated. Taking into account the identified shortcomings, we can propose the following areas for improving the legal framework for the protection of entrepreneurship, which, in my opinion, are the most appropriate:

  • 1. Systematization of the most important norms relating to the protection of entrepreneurship.
  • 2. Elimination of existing gaps and inaccuracies in legal regulation.
  • 3. Development of a draft law on the protection of entrepreneurship as a basic specialized normative act devoted entirely to this issue.
  • 4. Development of Regulations on the Commission under the President of the Russian Federation for the Protection of Entrepreneurship.