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Lecture notes, cheat sheets
Economic law. Cheat sheet: briefly, the most important
Directory / Lecture notes, cheat sheets Table of contents
1. CONCEPT, SUBJECT OF ECONOMIC LAW. REGULATION METHODS There are several approaches to the concept of "economic law" (CP). 1. HP is not a branch of law, but complex legislation, including civil and administrative law. 2. HP (business law) - an independent branch of law, which has its subject of regulation of legal relations with the participation professional entrepreneur. 3. HP is a complex industry, the subject which are a variety of relations arising in the course of economic activity (property, the status of commercial legal entities, contracts), state management of economic activity, financial and tax relations, as well as the procedure for resolving disputes in the course of economic activity (issues of civil procedure). Economic activity, management - "one of the types of economic activity carried out in accordance with the rules established by state authorities and administration, as well as economic entities" (E.P. Gubin, P.G. Lakhno). Entrepreneurial activity - type of economic, economic activity. According to Art. 2 of the Civil Code, 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. Its features are: 1) professional character; 2) target character (goal - constant profit); 3) risky nature; 4) independence; 5) legality. Basic principles of entrepreneurial activity: a) freedom (freedom in the choice of forms of activity, guaranteed by the state of its implementation); b) legality (implementation in the prescribed manner); c) state regulation; d) freedom of contract; e) protection of the entrepreneur's rights. Thus, economic law is a certain set of norms and institutions of various branches of law that functionally interact in the regulation of economic activity. Legal regulation method - a set of methods and techniques of legal influence on social relations in order to achieve the desired result. Methods of legal regulation of economic relations: 1) administrative-legal: mandatory prescriptions imperative rules of law establish the rights and obligations of subjects of business relations. This method is typical for direct state regulation of entrepreneurial activity; 2) civil law: the parties are given the opportunity by law to choose a variant of behavior in certain economic situations. Some authors (E.P. Gubin, P.G. Lakhno) distinguish autonomous decision method to regulate relations entered into in the process of entrepreneurial activity by legally equal, independent commodity producers. 2. SOURCES OF LEGAL REGULATION OF ECONOMIC ACTIVITIES (HD) The basis of the legal regulation of the CD is The Constitution of the Russian Federation 1993: it contains sectoral principles, as well as guarantees of entrepreneurship, constitutional restrictions. The main beginnings of economic activity are enshrined in Civil Code of the Russian Federation, in the same place - the rules on the status of business companies and partnerships and all the main agreements in the field of entrepreneurship. Intellectual property relations are regulated by separate laws. The general provisions of civil law fully apply to relations with the participation of entrepreneurs. For some property relations with their participation in the Civil Code, special rules: increased responsibility of entrepreneurs, norms on business customs, on the inadmissibility of using civil rights in order to restrict competition, as well as the inadmissibility of abuse of a dominant position in the market, on the supply of goods, etc. Laws, containing general for entrepreneurship norms: on JSC, LLC, on mortgage, on bankruptcy, on advertising, on privatization of state and municipal property, on the securities market, on licensing, on competition in commodity markets, on currency regulation, on consumer rights protection, etc. Laws of a special nature: about banks, about investment activity in the form of capital investments, about state regulation of tariffs for electric and thermal energy in the Russian Federation. To legislation on state entrepreneurship refers to the law on the supply of products for state needs. Basic guarantees rights of foreign investors to invest and the income and profits received from them, the conditions for the business activities of foreign investors in the territory of the Russian Federation determine the laws on foreign investment in the Russian Federation, on production sharing agreements (adopted as a development of the legislation of the Russian Federation in the field of subsoil use and investment activities, establishes the legal framework for relations arising in the process implementation of Russian and foreign investments in the search, exploration and production of mineral raw materials on the territory of the Russian Federation). By-laws play an important role in establishing the legal framework for the single market. In particular - decrees of the President of the Russian Federation, resolutions of the Government of the Russian Federation. Other sources: 1) legal acts of ministries, departments, regulations of federal commissions and the Central Bank of the Russian Federation. The departmental regulations of the Ministry of Economic Development and Trade of the Russian Federation, the Ministry of Finance of the Russian Federation, the Federal Agency for Agriculture, the Federal Service for Environmental, Technological and Nuclear Supervision, the Federal Antimonopoly Service are of the greatest importance for entrepreneurial activity; 2) norms of international law and business practices. are not considered sources. but are used in law enforcement practice: norms of morality and ethics; judicial practice and its generalizations made by the highest judicial bodies. 3. CONSTITUTIONAL BASES OF ENTREPRENEURSHIP. INTERNATIONAL LAW. BUSINESS USERS The basis of the legal regulation of entrepreneurial activity - the Constitution of the Russian Federation - the basis for all current legislation. She has supreme legal force, direct action and is applied throughout the territory of the Russian Federation. Laws and other legal acts adopted in Russia must not contradict the Constitution. In the Constitution guarantees are established freedom of economic activity, the mechanism of market relations is fixed. The creation and functioning of a single all-Russian market, the free movement of goods, services and financial resources throughout Russia, the support and development of fair competition, and the prevention of economic activity aimed at creating monopolization and unfair competition are guaranteed. The Constitution proclaims the principle of freedom of labor: only the citizens themselves have the exclusive right to dispose of their abilities for productive and creative work. By exercising this right, a citizen can choose one or another type of activity and occupation (for example, provide himself with work as an entrepreneur, engage in self-employment, etc.). Rights are inseparable from duties: The Constitution of the Russian Federation establishes the obligation of everyone to pay taxes. Guaranteed legal equality of forms of ownership, their equal recognition and protection means equal recognition and equal protection by all permitted means and methods of any forms of management that do not contradict the law and property rights recognized by law. In the Russian Federation, the subjects of jurisdiction and powers are delineated between the state authorities of the Federation and the state authorities of its subjects. The constituent entities of the Russian Federation are granted the entirety of state power outside the jurisdiction of the Federation and the joint jurisdiction of the Federation and its subjects. The norms of international law and international treaties are applied indirectly and directly. In the first case, only principles and provisions borrowed from international law and international treaties apply. In the second, international treaties are applied to civil law relations both with the participation of foreign entities (if they define the rights and obligations of such individuals and legal entities to property located in the Russian Federation, the procedure for concluding and processing transactions, liability for harm caused to foreign entities, and etc. e), and in relations, the participants of which are only Russian citizens (for example, in relations related to the international transportation of goods, passengers and luggage). Also, entrepreneurial activity is regulated and business practices, i.e. rules of conduct that have developed and are widely used in any area of business activity, which are not provided for by law, regardless of whether it is recorded in any document. Customs apply: 1) when there is a gap in the law that has not been settled by the parties; 2) if the procedure for their application is provided for by the Civil Code of the Russian Federation and the Merchant Shipping Code of the Russian Federation. 4. CORRELATION OF ENTREPRENEURIAL ACTIVITIES AND ECONOMIC ACTIVITIES Economic activity, management - "one of the types of economic activity carried out in accordance with the rules established by state authorities and administration, as well as economic entities" (E.P. Gubin, P.G. Lakhno). Economic activity mediates a variety of relations both in the sphere of private (civil, etc.) and in the sphere of public (tax, administrative, etc.) law. Economic activity can also be expressed in actions of an organizational-property, non-commercial nature (creation of enterprises, obtaining licenses, certificates), i.e., it does not have its immediate goal of making a profit (property), but creates the necessary conditions for future entrepreneurial activity, almost always a necessary condition, a prerequisite for its implementation. Entrepreneurship - a system of management, in which the main subject is the entrepreneur as a driving force and intermediary. The entrepreneur organizes the process of reproduction and manages it, taking into account entrepreneurial risk, economic responsibility for the final result - making a profit. Entrepreneurship is much wider than commerce (trade), since profit can be received not only from the sale of goods, but also from the performance of work, the provision of services. Entrepreneurial activity (almost the same as entrepreneurship) - a type of economic, economic activity. The definition of entrepreneurial activity is contained in the law - Art. 2 of the Civil Code of the Russian Federation, according to which this is an independent activity carried out at one's own risk, aimed at systematically making a 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. Significant features of entrepreneurial activity: 1) professionalism of activity; 2) personal property liability of the entrepreneur; 3) as a rule, the innovative, innovative nature of entrepreneurial activity. 5. LEGAL PERSONNESS OF INDIVIDUALS Subjects of economic legal relations - their members. Subject types: individuals (citizens of the Russian Federation, foreign citizens, stateless persons); legal entities; state. Participants in legal relations are divided into authorized persons (having the right to demand) and obligated persons. Individuals as subjects of legal relations should: a) be individual; b) have legal capacity и capacity (legal personality). A. Means of individualization of a citizen: his appearance, name (full name) and his location (a place where a citizen predominantly or permanently resides). Under his own name, a citizen enters into transactions, and the place of residence is important for determining the jurisdiction of civil cases. In the event of an unknown absence of a citizen at the place of residence for one year, the court may recognize him missing without a trace. The consequences of such recognition: the property of this citizen is transferred by a court decision to trust management a person appointed by the body of guardianship and guardianship; the maintenance of his dependents is allocated from the property of this person; his dependents are assigned a pension in connection with the loss of a breadwinner; the spouse has the right to dissolve the marriage in a simplified manner, etc. If a citizen is absent from his place of residence for five years, the court may declare him dead. This period may be reduced to six months if the citizen disappeared under circumstances that threatened him with death, or to two months if the person disappeared in connection with hostilities. In the event of the appearance of a citizen, the court cancels its decision and the citizen has the right to return the property that belonged to him, which turned out to be in the possession of other persons. A number of legal facts (acts of civil status), relating to a citizen is subject to state registration in the civil registry offices (birth, death, marriage, adoption, etc.). B. To participate in civil circulation, a citizen must have legal capacity (the ability of a person to have civil rights and obligations; arises with birth and ceases with death) and legal capacity (the ability of a citizen to acquire and exercise civil rights and obligations by his actions; it arises in full only from the moment of reaching the age of majority). Types of capacity: from six to 14 years - legal capacity of minors; from 14 to 18 years old - partial legal capacity; from the age of 18 - full legal capacity. The difference in the capacity of a citizen: the differentiation of the types of transactions that he can make in each of the above periods. Ability can be improved by emancipation a citizen, i.e., recognizing him as an adult in the event of marriage registration at 16 years of age. Emancipation is carried out: by decision of the guardianship and guardianship authorities - with the consent of both parents, adoptive parents or guardian, or by a court decision - in the absence of the consent of the parents, adoptive parents or guardian. Parents, adoptive parents and a guardian shall not be liable for the obligations of an emancipated minor, including for obligations arising as a result of causing harm to them. 6. LIMITATION OF CITIZENS' CAPABILITY Legal capacity can be reduced by recognition by the court of a citizen partially incapacitated or incompetent. A citizen who, due to a mental disorder, cannot understand the meaning of his actions or manage them, at the request of interested persons, may be recognized by the court as incompetent. He is not entitled to make any transactions, including small household ones, and does not bear any responsibility for them, as well as for causing harm. On his behalf, all transactions are made by his guardian. A citizen who, due to the abuse of alcohol or drugs, puts his family in a difficult financial situation, at the request of the interested parties, may be limited by the court in his legal capacity. He is not entitled, without the consent of the trustee, to make any transactions, except for small household ones, however, he bears full property liability for them, as well as for causing harm. The institution of guardianship and guardianship was introduced to protect the rights and interests of incapacitated or not fully capable citizens. Guardianship established over incompetent citizens, guardianship - over partially capable. Guardians (trustees) are the legal representatives of their wards, their representation does not require the issuance of a power of attorney with the designation of their powers in it. The document certifying the powers of the guardian (custodian) is the guardian's certificate, and in its absence - the decision of the guardianship body on the appointment of the person as the guardian (trustee). Guardianship (trusteeship) is established by the guardianship and guardianship body, which is the local self-government body, within one month from the date of receipt of the message from interested persons (court decision) on the need to establish guardianship (guardianship). Patronage - a form of guardianship over capable citizens when, for health reasons, they cannot independently exercise and protect their rights and fulfill their duties. The trustee (assistant) in this case is appointed only with the consent of the ward. The trustee has the right to make transactions for the maintenance of the ward with his consent. The disposal of the property of the ward is carried out by the custodian on the basis of a contract of commission or trust management concluded with the ward. Patronage is terminated at the request of the ward. 7. ENTREPRENEUR WITHOUT A LEGAL ENTITY A citizen has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as individual entrepreneur. The rules governing the activities of commercial organizations apply to this activity, unless otherwise follows from the law, other legal acts or the essence of the legal relationship. Separately, the Civil Code of the Russian Federation singled out such a subject of business law as the head peasant (farm) economy, carrying out activities without forming a legal entity, which is recognized as an entrepreneur from the moment of state registration of a peasant (farm) economy. The 2003 Law "On a Peasant (Farmer's) Economy" defines the concept of a peasant (farmer's) economy, regulates the procedure for its creation and termination, and establishes the rights and obligations of members of the economy. Separate chapters of the Law are devoted to the property base of a given business entity, the conditions and procedure for acquiring land plots. Like the Civil Code, the Law does not recognize the status of a legal entity for a peasant (farm) enterprise. And those of the farms that, on the basis of the previous legislation, were created in the form of a legal entity, have the right to carry out their activities in this capacity until January 1, 2010. PBOYUL has the right to: independently form a production program, choose suppliers and consumers of their products, set prices for them within the limits determined by the legislation of the Russian Federation and agreements, challenge in court in accordance with the procedure established by law the actions of citizens, legal entities, government bodies. Businessman must: carry out its activities in accordance with applicable law, fulfill obligations properly; file income tax returns in a timely manner and pay legally established taxes. Entrepreneur bears a responsibility: for improper execution of concluded contracts, violation of property rights of other entities, environmental pollution, violation of antimonopoly legislation, sale of products harmful to health to consumers. PBOYuL is liable for its obligations with all its property, with the exception of property, which, in accordance with the law, cannot be levied; the activities of an entrepreneur who violates the rules of entrepreneurial activity, as a result of which harm is caused to the rights and interests of citizens and the state protected by law, or a threat of causing such harm is created, may be suspended in the manner prescribed by the legislation of the Russian Federation until the violations are eliminated; an entrepreneur may be deprived of a special permit (license) to carry out certain types of entrepreneurial activity for violation of the conditions contained in the license, in the manner prescribed by the legislation of the Russian Federation. For improper exercise of their rights and performance of duties, an entrepreneur may be held civil, administrative, and criminally liable. 8. CONCEPT, LEGAL PERSON AND SIGNS OF A LEGAL ENTITY Under legal entity (LE) understand an organization that has the following features: the presence of separate property on the right of ownership or economic management, or on the right of operational management; property liability for its obligations; independent performance in civil circulation (acquisition and exercise of property and personal non-property rights and obligations on its own behalf); ability to be a plaintiff and defendant in court. The legal entity must have an independent balance sheet or estimate and be registered as YL. A legal entity has legal capacity and legal capacity, which arise at the same time and terminate at the moment of its liquidation. Legal capacity it can be general (for commercial organizations, with the exception of unitary enterprises) and special (for non-profit and unitary organizations). General legal capacity means the ability of a legal entity to engage in any type of activity not prohibited by law. Special legal capacity - this is a restriction of activities (possible activities are listed in the constituent documents of a legal entity), for this the legal entity must have a license. A legal entity may have separate subdivisions located outside the location: branches (carry out all the functions of a legal entity or part of them) and representations (represent the interests of the legal entity and carry out its protection). The legal capacity of a legal entity is carried out with the help of its bodies: individual (director, manager, chairman, president) and collegiate (directorate, board of leaders, general meeting of the labor collective). Legal entity individualization carried out with the help of the name of the enterprise, as well as with the help of trademarks, service marks, names of places of origin of goods, which are the intellectual property of legal entities. Location The legal entity is determined by the place of its state registration, unless otherwise provided in the constituent documents. A commercial legal entity must have a company name. The legal entity may have commercial or official secret. The legal entity has a business reputation. Classification of legal entities. According to the degree of participation of labor and capital - association of persons (business partnerships) and pooling of capital (business companies). In order to create a property base - Corporation (voluntary associations) and institutions (subsidiaries). According to the form of ownership of their property - state, municipal и private. Depending on the legal form - business partnerships и societies, cooperatives, unitary enterprisesi (state and municipal), institutions financed by the owner non-profit organizations. Depending on the purpose - commercial (the main purpose of their creation is to make a profit) and non-commercial (the main purpose of their creation is the performance of certain socially useful functions that are not related to making a profit). The latter type of classification is the most common in modern civil law. 9. ORIGINATION OF A LEGAL ENTITY Creation of a legal entity - this is the creation and its state registration. Ways to create a legal entity 1. Administrative order. A legal entity arises on the basis of an order of a public law body (state or municipality), as a result of which state registration is not required for it to acquire legal capacity. The administrative procedure was used in the USSR for the formation of state legal entities. Currently not applicable in Russia, as it contradicts the requirement of the law on mandatory state registration of legal entities. 2. Permissive order. To form a legal entity, permission from the competent state authority and subsequent state registration are required. The administrative procedure was used in the USSR for the formation of non-state legal entities. Currently in Russia applied as an exception from the general rule for the formation of certain types of legal entities: credit and insurance organizations, unions and associations, etc. 3. Regulatory and secret order. It is assumed that there are special normative acts regulating the procedure for the emergence and operation of certain types of legal entities. Fulfillment of the requirements provided for in such acts gives the right to recognize the organization as a property of a legal entity, certified by the fact of its state registration. Regulatory order at the present time most common in Russia and other countries. 4. Private order (contractual legal). Legal entities are created as a result of the intention of the participants expressed outside to act as a legal entity in the absence of the fact of its state registration. Now does not apply in Russia. It is used to a limited extent abroad (associations in France, non-profit organizations in Switzerland, de facto commercial corporations in the USA, etc.). The termination of the organization's activities occurs as a result of its reorganization (except for separation) or liquidation and is final (termination of legal capacity). If during the reorganization all the rights and obligations of the organization are transferred to other subjects of law (there is a universal succession), then when it is liquidated, the termination of activities occurs without such a transition. 10. TERMINATION OF A LEGAL ENTITY Termination of a legal entity carried out in an orderly and voluntary manner. Depending on the legal consequences of termination, a distinction is made between reorganization (the rights and obligations of a terminated person are transferred to another person) and liquidation (termination of a person without transferring his rights and obligations to anyone). Reorganization It is carried out in five ways: merging, joining, splitting, isolating and transforming. Each of these methods corresponds to a certain amount of transferable rights and obligations (succession). Since the reorganization significantly affects the interests of the creditors of the legal entity, its obligatory condition is the prior notification of the creditors, who are entitled to demand termination or early performance of obligations and compensation for losses. Depending on the method of reorganization, it is drawn up either by a deed of transfer (in the event of a merger, accession, transformation), or a dividing balance sheet (in the event of division, separation). The reorganization is considered completed at the time of state registration of newly created legal entities (in case of merger - at the time of deletion of the merged legal entity from the register). Liquidation of a legal entity in connection with its bankruptcy takes place in accordance with the grounds, procedure and consequences for establishing bankruptcy, contained in the Civil Code (Article 65 of the Civil Code) and the Federal Law "On Insolvency (Bankruptcy)" of 2002. At the same time, it is necessary to understand the differences in the procedure for establishing bankruptcy of a legal entity and a citizen, including an individual entrepreneur. Creditors' claims are satisfied in order (Article 64 of the Civil Code): - first of all, the claims of citizens for causing harm to life or health are satisfied; - in the second place, payments are made to employees of the liquidated legal entity; - in the third - the claims of creditors for obligations secured by the pledge of property of the liquidated legal entity are satisfied; - in the fourth - the debt on obligatory payments to the budget and extra-budgetary funds is repaid; - fifth, settlements are made with other creditors. At the same time, the the following rules: - the claims of each next creditor are satisfied after the full satisfaction of the requirements of the previous one; - if the property of the liquidated legal entity is insufficient, it is distributed among the remaining creditors in proportion to the amounts of claims to be satisfied; - claims of creditors not satisfied due to the insufficiency of the property of the liquidated legal entity shall be considered extinguished. The order of satisfaction of creditors of a legal entity, liquidated as a result of bankruptcy, has been somewhat changed: first of all, debts that have arisen in connection with the costs of the bankruptcy procedure are paid, and then the sequence indicated above is observed (clause 1, article 64 of the Civil Code of the Russian Federation). 11. TYPES OF LEGAL ENTITIES. ORGANIZATIONAL AND LEGAL FORMS Classification of legal entities: 1) according to the degree of participation of labor and capital, they are divided into association of persons (business partnerships) and pooling of capital (business companies); 2) in the order of creation of the property base, they are divided into Corporation (voluntary associations) and institutions (subsidiaries); 3) according to the form of ownership of their property, they are divided into state, municipal и private; 4) depending on the ratio of the rights of the founders and the legal entity itself to the property of the latter legal entity, they are divided into those in respect of which the founders have rights of obligation, those whose founders have the right of ownership or real rights to the property of legal entities, and those in respect of which their founders do not have property rights; 5) depending on the organizational and legal form, legal entities are divided into business partnerships и societies, cooperatives, unitary enterprises (state and municipal), institutions financed by the owner non-profit organizations; 6) depending on the purpose of the activity, legal entities are divided into commercial и non-commercial. The last type of classification is the most common. Between commercial и non-commercial organizations are the following differences: 1) the main goal of commercial organizations is to make a profit, while non-commercial organizations can engage in entrepreneurial activities only because it serves to achieve the goals for which they were created and corresponds to them; 2) the profit of commercial organizations is divided among their participants, and non-profit organizations are used to achieve the goals for which they were created, that is, to achieve their statutory goals; 3) commercial organizations have general legal capacity, and non-commercial organizations - special; 4) commercial organizations can only be created in the form of economic partnerships and companies, production cooperatives, state and municipal unitary enterprises, and non-profit organizations - in the forms provided for by the Civil Code of the Russian Federation and other laws. Types of commercial organizations, formed for business activities: 1) business companies: closed and open joint-stock companies, limited liability companies, additional liability companies; 2) partnerships: full, on faith (limited); 3) others: unitary enterprises, production cooperatives. Among non-profit organizations, a special group of organizations should be singled out, called special subjects of the commodity market. The purpose of their activities is not to make transactions, but to create conditions and opportunities for other persons to carry out trading operations (commodity exchanges, wholesale fairs, wholesale markets, sales exhibitions, etc.). The choice of the organizational and legal form of economic activity is influenced by many factors, for example, taxation; the limits of liability of the founders in connection with the activities of the enterprise being created. 12. ECONOMIC PARTNERSHIPS Business partnerships - legal entities, the common feature of which is that their property is conditionally divided into shares, in which the obligations of the participants in relation to the legal entity are expressed: to receive a share from the distribution of profits; to receive a share of the value of property when a participant leaves a legal entity; to receive a share of the liquidation balance; to participate in the management of a legal entity. Full partnership - a business partnership, the participants of which jointly and severally bear subsidiary liability for its obligations with all their property. Limited partnership (limited partnership) - a 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 - investors (limited partners) who bear the risk of losses associated with the activities of the partnership, within amounts of contributions made by them and do not take part in the implementation of entrepreneurial activities by the partnership. All differences legal status partnerships and societies stem from the concept that a partnership is an association of persons, and a society is an association of capitals. Other differences. 1. Despite having legal personality, the partnership is considered as a contractual, not a statutory association. The founding document of a partnership is the memorandum of association. 2. Since the partnership is created for the joint conduct of entrepreneurial activities, only entrepreneurs and commercial organizations can be its full members, such restrictions are not provided for companies. 3. General partners bear unlimited joint and several liability for the obligations of the partnership, unlike other partners who bear limited liability; in connection with this, a person can be a general partner in only one partnership. 4. In order to protect the interests of creditors of business companies, the participants of which bear limited liability, the law more strictly regulates the issues of formation of the authorized capital of the company, its change, maintenance of the company's assets at a level not less than the authorized capital. 5. The number of participants in a partnership, as a rule, is small, and their relations are of a personal-confidential nature: decisions are made on the basis of mutual consent, there is no system of governing bodies, and the partnership’s affairs (representative functions) are conducted by the participants themselves. The company has a system of governing bodies established by its constituent documents on the basis of the law: the decision-making and conduct of the affairs of the company is carried out by its management bodies on the basis of the powers granted to them by law and the constituent documents of the company. 6. In the legal regulation of societies, the weight of imperative norms is quite high; partnerships are governed mainly by dispositive norms. 13. CONCEPT AND LEGAL STATUS OF A LIMITED LIABILITY COMPANY AND WITH ADDITIONAL LIABILITY Limited Liability Company - a company founded by one or more persons, the authorized capital of which is divided into shares, the size of which is determined by the constituent documents. Its participants are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their contributions (clause 1, article 87 of the Civil Code of the Russian Federation). In Russia, the most common form of a limited liability company. It is based on the investment of personal funds in entrepreneurial activities in the absence of the actual responsibility of the founders. In case of bankruptcy of such a company, the founders bear the risk of losses only in the amount of contributions to the authorized capital. At the same time, the founder has the opportunity to participate in the management of the company, that is, to influence the use of invested funds. This form is most suitable for creating small firms in the trading sector with a gradual increase in capital. Additional liability company - a company founded by one or more persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents. The participants in such a company jointly and severally bear subsidiary liability for its obligations with their property in the same multiple for all of the value of their contributions, determined by the constituent documents of the company (Article 95 of the Civil Code of the Russian Federation). The norms of the Civil Code on limited liability companies (Article 95 of the Civil Code) apply to a company with additional liability. An additional liability company differs from a limited liability company only in that the participants in such a company jointly and severally bear subsidiary liability in the amount of a multiple of their contribution, as a rule, increased (additional). This type of society is not widespread in practice. 14. CONCEPT AND TYPES OF JOINT STOCK COMPANY Joint-stock company - a company whose authorized capital is divided into a certain number of shares. Shareholders are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their shares (Article 96 of the Civil Code). Shares certify the share of the shareholder in the authorized capital. Ordinary shares give the right to participate in the management of the company. The privileged ones do not give the right to participate in the management of the company, but give the right to preferential receipt of dividends in a fixed amount, as well as to the preferential receipt of a part of the property of the joint-stock company remaining after the liquidation of the company. The supreme body of JSC is the general meeting of shareholders. Current management is carried out by an elected executive body. In a company with more than 50 shareholders, the creation of a supervisory board (board of directors) is mandatory. A joint-stock company may, by decision of the general meeting of shareholders, be transformed into a limited liability company or a production cooperative. Differences between open and closed joint stock companies: - a closed company cannot make an open issue of shares; - in a closed company, shareholders have a pre-emptive right to purchase company shares; - the number of shareholders of a closed company cannot be more than 50; - the minimum amount of the authorized capital of an open joint-stock company is 1000 minimum wages, and of a closed joint-stock company - 100; - an open joint stock company is obliged to publish its annual report for review. Any joint stock company is required to maintain a register of shareholders. A joint-stock company is liquidated if at the end of the financial year the value of the company's net assets becomes less than the established minimum authorized capital. A closed joint stock company (CJSC) is created by closed subscription for shares between the founders. In its essence, it is close to LLC, however, the activities of the CJSC are more reliable, since in the event of the withdrawal of a member of the CJSC, the property of the company does not decrease. An open joint stock company provides for the concentration of initial capital in order to create a large-scale production or a large trading or intermediary firm. The underdevelopment of the Russian securities market hinders the wide entry of open joint-stock companies into our market. 15. THE CONCEPT AND FEATURES OF THE LEGAL STATUS OF STATE AND MUNICIPAL UNITARY ENTERPRISES The state, its subjects and municipal formations create commercial organizations in the form of unitary enterprises based on the right of economic management and operational management of property. Unitary enterprise - a commercial organization that is not endowed with the right of ownership of the property assigned to it by the owner. The property of a unitary enterprise is indivisible and cannot be distributed among contributions (shares, shares), including among employees of the enterprise. Feature unitary enterprises is a special (statutory) legal capacity. The constituent documents of such enterprises should contain information about the subject and goals of their activities. The charter of a unitary enterprise must contain, in addition to the information that is mandatory for the charters of all legal entities, also information about the subject and goals of the enterprise, the amount of the authorized fund of the unitary enterprise, the procedure and sources for its formation. Only state and municipal enterprises can be created in the form of a unitary enterprise. The property of a unitary enterprise is, respectively, in state or municipal ownership, belongs to such an enterprise on the basis of the right of economic management or operational management, and cannot be distributed by contributions (shares, shares) among its employees. The firm name of a unitary enterprise must contain an indication of the owner of its property. The body of a unitary enterprise is the head, who is appointed by the owner or a body authorized by the owner and is accountable to him. A unitary enterprise is liable for its obligations with all its property. A unitary enterprise is not liable for the obligations of the owner of its property. 16. LEGAL STATUS OF THE PRODUCTION AND CONSUMER COOPERATIVE Production cooperative (artel) a voluntary association of citizens is recognized on the basis of membership for joint production or other economic activities (production, processing, marketing of industrial, agricultural and other products, performance of work, trade, consumer services, provision of other services), based on their personal labor and other participation and association its members (participants) of property share contributions. The law and constituent documents of a production cooperative may provide for the participation of legal entities in its activities. A production cooperative is a commercial organization. The legal status of production cooperatives and the rights and obligations of their members are determined in accordance with the Civil Code and the laws "On Production Cooperatives" and "On Agricultural Production Cooperatives". The founding document of a production cooperative is its charter, approved by the general meeting of its members. Like partnerships, members of a cooperative have subsidiary liability on its debts in the amount and in the manner prescribed by law and the charter of the cooperative, in connection with which the law does not provide for a minimum level of authorized capital for the cooperative. The number of cooperators must be at least 5 persons, and they are not required to be entrepreneurs. The number of members of a cooperative who do not take personal labor participation in its activities should be no more than 25% of the total number of working cooperators. The property of the cooperative consists of share contributions of its members (share fund), as well as property constituting an indivisible fund used for statutory purposes. By the time of registration of the cooperative, at least 10% of the share fund must be paid, the rest - within one year from the date of registration. The distribution of profits and liquidation balance between cooperators is usually made in accordance with their labor participation. supreme governing body a cooperative is a general meeting of its members, which forms executive bodies from its members, and, if necessary, a supervisory board. Each cooperator at the meeting has 1 vote. When leaving the cooperative, its member has the right to pay him a share, which, in the presence of an indivisible fund, does not coincide with the share in the property of the cooperative. He has the right to transfer his share to another cooperator. The transfer of a share to a third party means his acceptance as a member of the cooperative and is possible only by decision of the general meeting. Exclusion from members of the cooperative is possible as a sanction for improper performance of membership duties; made by decision of the general meeting. Main feature production cooperatives is the obligation of the members of the cooperative to take part in its activities labor participation. 17. CONSUMER COOPERATIVE Consumer cooperatives - the most common form of non-profit organizations. Consumer cooperatives include: housing and housing construction, garage, dacha cooperatives, horticultural associations. A consumer cooperative is a voluntary association of citizens and legal entities on the basis of membership in order to meet the material and other needs of the participants, carried out by combining property shares by its members. The name of a consumer cooperative must contain an indication of the main purpose of its activity, as well as either the word "cooperative", or the words "consumer union" or "consumer society". A consumer cooperative can be created by both citizens and legal entities, in contrast to production cooperatives, in which, as a general rule, the participation of legal entities is not allowed. The legislation does not establish any minimum or maximum quantitative restrictions for members of a cooperative and does not restrict the simultaneous participation of members of a cooperative in other consumer cooperatives (even in homogeneous ones). A consumer cooperative has its own property, which belongs to it by right of ownership. Members of a consumer cooperative have rights of claim proportional to their shares (contributions), as well as some other rights arising from membership in it, and not property rights in relation to a consumer cooperative and its property. But unlike other types of legal entities, in the process of existence of a consumer cooperative with the participation of citizens (housing, country, garage, etc.), according to the Civil Code of the Russian Federation, the full payment of a share contribution for an apartment, cottage, garage, other premises provided to these persons by the cooperative, entails the emergence of their ownership of the said property and, accordingly, the loss of ownership of them by the cooperative itself. The basis of property isolation consumer cooperative is the presence of a mutual fund, which is formed from the contributions of members of the cooperative. The obligation to make property contributions exhausts the obligations of a member of a cooperative in relation to the cooperative. The procedure for managing a cooperative determined by its charter and other internal documents. Like any non-profit organization, a consumer cooperative has the right to engage in entrepreneurial (commercial) activities. At the same time, the income received by the consumer cooperative from entrepreneurial activities carried out by the cooperative in accordance with the law and the charter is distributed among its members. But unlike production cooperatives, the distribution of profits is a right, not an obligation, of a consumer cooperative, and the procedure and grounds for the distribution of profits (personal labor participation, the amount of a share contribution made, etc.) are determined only by the charter of the cooperative or its internal documents. 18. CONCEPT AND LEGAL STATUS OF SUBSIDIARY AND ASSOCIATED COMPANIES, BRANCHES AND REPRESENTATIVE OFFICES Subsidiary - an enterprise established as a legal entity by another enterprise (founder) by transferring to it a part of its property for full economic management. The founder of a subsidiary approves the charter of the subsidiary, appoints its head and exercises other rights of the owner in relation to the subsidiary, provided for by legislative acts on the enterprise. A company is recognized as a subsidiary if another (main) business company or partnership, by virtue of its predominant participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise, has the ability to determine decisions made by such a company. A subsidiary company is not liable for the debts of the main economic company (partnership). The main economic company (partnership), which has the right to give instructions to the subsidiary that are obligatory for it, is jointly and severally liable with the subsidiary for transactions concluded by the latter in pursuance of such instructions. In case of insolvency (bankruptcy) of a subsidiary due to the fault of the main economic company (partnership), the latter bears subsidiary liability for its debts in case of insufficiency of the property of the subsidiary. Participants in a subsidiary company have the right to demand compensation from the parent company (partnership) for losses caused through its fault to the subsidiary company. The economic society is recognized dependent, if another (predominant, participating) company has more than 20% of the voting shares of the joint-stock company or 20% of the charter capital of a limited liability company. A business company that has acquired more than 20% of the voting shares of a joint-stock company or 20% of the charter capital of a limited liability company is obliged to immediately publish information about this in the manner determined by the federal executive body for the securities market and the federal antimonopoly body. The limits of mutual participation of economic companies in each other's charter capitals and the number of votes that one of such companies can use at a general meeting of participants or shareholders of another company are determined by law. "The dominant company does not have the rights that the main company has in relation to the subsidiary, and therefore does not bear any responsibility for the debts (obligations) of the dependent. Its capabilities are determined by the fact that it, being the owner of a significant block of shares and having the appropriate number of votes, can influence the decision-making of the dependent company, but is not entitled to give it mandatory instructions "(Comment to the Civil Code of the Russian Federation, edited by O.N. Sadikov). 19. EXCHANGE Commodity exchange - the highest form of mediation, mediation in its purest form. The exchange is a concentration of supply and demand, and therefore the price of the goods is adequately determined here. Bulk trades performed simultaneously on the exchange eliminate the impact on prices from individual transactions concluded outside the walls of the exchange. The organization and functioning of commodity exchanges are regulated by the law on commodity exchanges. The essence of the exchange lies in the fact that this is a special type of market where trade is carried out replaceable values moreover, these values and payment for them are not presented. Trading on the stock exchange is not about a certain physically present product, for example, a bag of rye, but simply about rye, that is, about a "type of commodity" when one bag of rye can be replaced by another of equal quality. Securities or goods not only should not be available at the time of purchase, but they should not even be at the disposal of the owner. These transactions form the basis of stock market speculation, which is based on the fact that each purchase can be compensated by a sale and each sale by a purchase. The second distinguishing feature of the exchange is organization. The exchange is an organized market, that is, it has bodies for certain functions related to management, maintaining order, normalizing exchange transactions, etc. Each exchange has its own organizational structure, but everywhere there is at least an exchange committee - the main and supreme body of the stock exchange. The main functions of the exchange. 1. Organization of the market using the exchange mechanism: a) first of all, the exchange provides demand, which is not directly related to its use. Specifically, exchange demand and supply are carried out by the figures of the exchange - exchange speculators; b) it is not the commodity itself that circulates on the exchange, but the title to it or the contract for the supply of the commodity. The modern commodity exchange is a market for contracts for the supply of goods with a relatively small amount of its real supply. The exchange, without linking the movement of large masses of goods, equalizes supply and demand. 2. Price stabilization: a) exchange speculation is not a mechanism for inflating prices, but for stabilizing them; b) important factors for price stabilization are the transparency of the transaction, the public setting of prices at the beginning and end of the exchange day (exchange quotation), the limitation of daily price fluctuations by the limits established by the exchange rules. The information activity of exchanges is connected with this. 3. Development of commodity standards, the establishment of varieties acceptable to consumers and therefore possessing relative liquidity, the registration of brands of firms admitted to exchange trading. 4. Commodity distribution function, because of which they originally arose - the purchase and sale of real goods. 5. The exchange is one of the most important areas for the application of loan capital, because it provides reliable collateral for loans and minimizes risk. 6. Settlement of all kinds of disputes and disagreements between the parties - arbitration activity. 7. Information support of the market (mandatory presentation by the exchange of information on the results of trading). 8. Price setting for goods listed on the stock exchange (quotation). 20. LEGAL STATUS OF THE EXCHANGE AND PARTICIPANTS (MEMBERS) OF THE EXCHANGE Exchanges are established in the manner prescribed by the Law of the Russian Federation "On Commodity Exchanges and Exchange Trade". The Exchange can be established by any legal and (or) natural persons, except for: higher and local bodies of state power and administration; banks, credit institutions that have received in the prescribed manner a license for banking operations; insurance and investment companies and funds; individuals who, by virtue of the law, cannot carry out entrepreneurial activities. For exchange trading, in addition to state registration as a legal entity, the exchange must obtain a license to organize exchange trading. As the exchange founders persons (legal and physical) participating in its organization (institution) act. After the creation of the exchange, the founders automatically become its members and acquire the full range of membership rights provided for by the charter of the exchange. Exchange members (subject to the restrictions provided by the Law) there may be legal entities and (or) individuals who: a) participate in the formation of the authorized capital of the exchange or are its founders; b) pay membership fees, i.e. members of the exchange in the direct, immediate sense, arising from the wording of the Law, are not the founders of the exchange; c) make other targeted contributions to the property of the exchange and become its members in the manner prescribed by the constituent documents of the exchange. Obtaining the legal status of a member of the exchange gives certain rights which are not possessed by participants in exchange trading who are not members of the exchange: 1) participate in decision-making at general meetings of members of the exchange, as well as in the work of other management bodies of the exchange in accordance with the provisions established in the constituent documents and other rules in force at the exchange; 2) receive dividends, if they are provided for by the constituent documents of the exchange, and enjoy other rights provided for by its constituent documents. Members of the exchange have the right to lease (assign for a period specified by the agreement) their right to participate in exchange trading, but only to one legal entity or individual. Such an agreement is subject to registration on the stock exchange. At the same time, sublease (assignment) of the right to participate in exchange trading is not allowed. 21. LEGAL STATUS OF BANKS The totality of all credit institutions providing banking services, headed by the national bank - the Central Bank of the Russian Federation (Bank of Russia) - constitutes the banking system. The banking system that has developed in Russia is a two-tier one. To the bottom level include commercial banks and non-bank credit institutions, the main difference between which is that banks are universal: they have the right to perform all types of banking operations, while non-bank credit institutions are specialized, they have the right to perform only certain types of banking operations, the permissible combination of which is established by the Bank Russia (Article 1 of the law on banks). Top level banking system consists of one entity - the Central Bank of Russia (Bank of Russia), the specifics of the legal status of which are defined in the federal law on it. On the one hand, the Bank of Russia is a body with state powers, as well as a rule-making body that regulates the activities of credit institutions. On the other hand, the Bank of Russia simultaneously has the right to carry out banking operations and receive profit from them, although making a profit is not the goal of the Bank of Russia. The Bank of Russia regulates the banking services market not only by issuing regulations: in some cases, it directly or indirectly participates in this market itself. The law classifies the following transactions as banking operations (Article 5 of the Banking Law): 1) attracting funds from individuals and legal entities in deposits; 2) placement of attracted funds on its own behalf and at its own expense; 3) opening and maintaining bank accounts of individuals and legal entities; 4) making settlements on behalf of individuals and legal entities on their bank accounts; 5) collection of funds, bills of exchange, payment and settlement documents and cash services for individuals and legal entities; 6) purchase and sale of foreign currency in cash and non-cash forms; 7) attraction to deposits and placement of precious metals; 8) issuance of bank guarantees; 9) implementation of money transfers on behalf of individuals without opening bank accounts. In addition to these banking operations, the following banking transactions may constitute the subject of banking activities: 1) issuance of guarantees for third parties, providing for the fulfillment of obligations in cash; 2) acquisition of the right to demand from third parties the fulfillment of obligations in cash; 3) trust management of funds and other property under an agreement with individuals and legal entities; 4) carrying out transactions with precious metals and precious stones in accordance with the law; and etc. 22. THE STATE AND MUNICIPALITIES AS BUSINESS SUBJECTS The structure of the Russian state (state) is the Russian Federation, which includes the subjects of the Russian Federation - republics, territories, regions, cities of federal significance, autonomous regions, autonomous districts and municipalities - urban, rural settlements, etc. State as a subject of civil legal relations (signs): organizational unity, separate property, liability for its obligations, the ability for subjects of the Russian Federation and municipalities to act on their own behalf when acquiring property and personal non-property rights in court. The principle of equality with other subjects applies to the state, despite the fact that the state has power. The state exercises its rights and obligations at the federal level with the help of the Federal Assembly, the President, the Government, ministries and departments, etc. Legislative assemblies, regional dumas, presidents, governments, ministries and departments, etc., can act on behalf of the constituent entities of the Russian Federation. On behalf of the municipalities, the right to speak is granted to the representative bodies of local self-government. On behalf of the state, legal entities and citizens can act on special instructions from the state. Scope of participation The Russian Federation, its constituent entities, municipalities is determined by the legal capacity of the latter, which is reflected in the law and is special. Features of responsibility state-va on their obligations: a) The Russian Federation, its constituent entities, municipalities bear independent property liability, i.e. they are not liable for the obligations of each other, as well as legal entities created by them. However, they may be held responsible for the insolvency of the enterprises of which they are the founder, which arose as a result of the execution of incompetent instructions of the founder; b) the state bears subsidiary liability for the obligations of the institutions it has created if the latter lack their own funds, if the state is the owner of the property assigned to them; at) The Russian Federation bears subsidiary liability for the obligations of a state-owned enterprise in case of insufficiency of its property; d) The Russian Federation, its constituent entities and municipalities are liable for non-contractual obligations in cases of loss caused by illegal actions of their bodies; d) objects with which the state can be responsible for its obligations are limited (it is impossible to answer with property assigned to legal entities created by it on the basis of the right of economic management or the right of operational management). The state has judicial immunity: liability in relations with foreign partners is limited: the latter cannot bring a lawsuit against him for improper performance of obligations without the prior consent of the competent authorities of the state, reflected in the international treaty. The rules governing the participation of legal entities in relations regulated by civil law apply to the state, unless otherwise follows from the law or its features. 23. CONCEPT AND FORMS OF STATE REGULATION OF ECONOMIC ACTIVITIES Entrepreneurs are interested in a clear relationship with authorities and management, therefore, the role of legal regulation of both entrepreneurial activity itself and the control functions of the state is increasing. In the sphere of a market economy, two most significant groups of relations are distinguished, heterogeneous in essence, but closely related to each other: commodity-money (property) and managerial relations. For entrepreneurs, it is important managerial relations with state bodies for the regulation of entrepreneurial activity. They are characterized by the obligatory nature of administrative acts addressed to entrepreneurs. These relations do not fall under the regulation of civil law, since it is associated only with the process of commodity exchange and regulates consumer turnover. Therefore, management relations, being essentially administrative and legal, are used in the field of regulation of business relations exclusively in conjunction with property, civil law. From public law relations it is necessary to allocate: state registration of legal entities and individual entrepreneurs as the initial stage of their creation, as well as the most important condition for their existence. One of the ways of state regulation of entrepreneurial activity is establishing the procedure for licensing certain types of business activities and direct licensing. State regulation of entrepreneurial activity is carried out through taxation. The state carries out legal regulation of nature management; state control in the sphere of trade and services; legal regulation of banking, taxation, accounting, reporting and auditing, legal regulation in the field of privatization, legal regulation of monopolistic activities; regulation of foreign economic activity. State regulation of entrepreneurial activity is clothed in the legal form of an act. State regulation act - this is an instruction of the competent state body, dressed in the established form, addressed to business entities or a specific entity and containing a requirement to conduct business in a certain way or to bring it into a certain state. These can be normative acts addressed to an indefinite circle of persons, or acts of specific regulation containing an indication to a specific subject and being a legal fact. The legislation provides for acts-orders (for example, on the termination of violations of antimonopoly legislation), planning acts (plan-order in relation to a state-owned enterprise), etc. 24. LICENSING. PROHIBITED ACTIVITIES Along with state registration, licensing - a form of legitimation of entrepreneurship. It consists in establishing a legal regime for the implementation of certain types of activities only if there are special permits (licenses) issued by authorized public authorities under certain conditions. Licensing is one of the means of state regulation of the market - a unified system for assessing the conditions, content and results of entrepreneurial activity. In paragraph 2 of Art. 74 of the Constitution of the Russian Federation states that "restrictions on the movement of goods and services may be introduced in accordance with federal law, if these measures are necessary to ensure security, protect life and health of people, protect nature and cultural values." The need for the participation of the constituent entities of the Russian Federation in the regulation of relations in this area will take place in case of occurrence on the territory of the subject of the Russian Federation epidemics, epizootics, natural disasters and other emergency situations. Federal laws provide for various kinds of restrictions on the movement of goods and services in some other cases as well. These include: the introduction of martial law (the Law "On Defense"); introduction of quarantine and other restrictions in certain territories aimed at preventing the spread and elimination of foci of contagious and mass non-contagious animal diseases (Law of the Russian Federation "On Veterinary Medicine"); carrying out complex measures in order to prevent the occurrence and spread, as well as the elimination of infectious and mass non-infectious diseases and poisoning of people (Federal Law "On the sanitary and epidemiological well-being of the population"); border regime (Law of the Russian Federation "On the State Border of the Russian Federation"). Special restrictions are established for the circulation of service and civilian weapons (FZ "On Weapons"). These cases of restriction of freedom of economic activity are consistent with the provisions of the Constitution of the Russian Federation that "the rights and freedoms of a person and citizen may be limited by federal law only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legal interests of other persons, ensuring the defense of the country and the security of the state" State requirements for the safety of goods are developed and established; conducting an independent examination of the quality and safety of goods; certification, standardization. Established special rules for the sale of individual goods. For example, an excise tax stamp and a special brand of alcoholic products are state reporting documents certifying the legality of the production and circulation of excisable alcoholic products on the territory of the Russian Federation. 25. LEGAL STATUS OF THE SUBJECT HOLDING A DOMINANT POSITION ON THE MARKET Support for competition and freedom of economic activity are guaranteed in the Russian Federation; economic activity aimed at monopolization and unfair competition is not allowed (Articles 8, 34 of the Constitution of the Russian Federation). The Law of the Russian Federation "On Competition and Restriction of Monopolistic Activity in Commodity Markets" provides for a set of rules that support competition as the main driving force of the market and suppress monopolistic tendencies in the struggle for profit, bypassing the normal market relations of the parties. Competition - competitiveness of economic entities, when their independent actions effectively limit the ability of each of them to unilaterally influence the general conditions for the circulation of goods in the relevant commodity market. Dominant position in the commodity market - the exclusive position of an economic entity (several economic entities) in the market for goods that do not have a substitute or interchangeable goods, which gives him (them) the opportunity to exert a decisive influence on the general conditions for the circulation of goods in the relevant commodity market or hinder access to the market for other economic entities. Monopoly - the dominant position of one or more business entities (groups of persons) in the relevant market. Symptoms: 1. The exclusivity of the position of an economic entity is that it concentrates in its hands a significant part of the production and marketing of a certain product. 2. The special behavior of the subject dominating the market and the use of a dominant position in their own interests: the appointment of prices by the seller-monopolist, based on their own production costs, outlined by the ratio of profit and demand. 3. A phenomenon that contributes to the unfair redistribution of income from consumers to a monopoly firm through the establishment of monopoly prices. 4. Exclusive right. It can be provided by the state to one or more subjects for the implementation of certain activities. A monopoly can arise in the market due to various circumstances. Based on this, there are three main types of monopolies: 1) at temporary monopoly one business entity for a certain period becomes the sole supplier of goods (an enterprise that first offered the consumer a completely new product); 2) state monopoly protected from competition by legal restrictions and mainly of a fiscal nature (for example, a state monopoly on the import or export of certain types of goods); 3) natural monopoly exists when economies of scale are so great that one economic entity can supply the entire market, having lower costs than would be the costs of a number of economic entities competing with it (electricity, water and gas supply enterprises, telephone service). 26. UNFAIR COMPETITION. LIABILITY FOR VIOLATION OF ANTI-MONOPOLY LAWS Unfair competition in commodity markets - any actions of economic entities aimed at acquiring advantages in entrepreneurial activity that are contrary to the provisions of the current legislation, business customs, the requirements of integrity, reasonableness and fairness and may cause or have caused losses to other competing economic entities or damage their business reputation. Subjects of regulation are persons participating in the process of monopolization in the market or having a direct impact on monopolization: economic entities (group of persons) occupying a dominant position in the market (or owning a share of more than 35%), participating in agreements (agreed actions) to limit, prevent or eliminate competition; federal executive authorities of the Russian Federation; executive authorities of the constituent entities of the Russian Federation; local governments; officials of public authorities and administration. Actions (inaction) are prohibited of an economic entity (group of persons) occupying a dominant position, which have or may result in the prevention, restriction, elimination of competition and (or) infringement of the interests of other economic entities, including: - withdrawal of goods from circulation, the purpose or result of which is the creation or maintenance of a shortage in the market or an increase in prices; - imposing on the counterparty the terms of the contract that are not beneficial for him or not related to the subject of the contract; - creation of conditions that put one or more economic entities in an unequal position compared to another or other economic entities (discriminatory conditions); - creation of obstacles to market access (exit from the market) to other economic entities; - violation of the pricing procedure established by regulatory enactments; - establishment, maintenance of monopolistically high (low) prices; etc. No agreement allowed or the implementation of concerted actions by economic entities operating in the market of one product (interchangeable goods), which lead or may lead to: a) establishment (maintenance) of prices (tariffs), discounts, allowances (surcharges), margins; b) increase, decrease or maintenance of prices at auctions and auctions; c) dividing the market according to the territorial principle, according to the volume of sales or purchases, according to the range of goods sold or according to the circle of sellers or buyers (customers); and etc. Regulatory entities bear civil, criminal and administrative liability for violations of antimonopoly legislation. 27. CONCEPT AND TYPES OF OBJECTS OF ECONOMIC ACTIVITY Object of economic activity - that good, about which a legal relationship arises and in relation to which there is a subjective right and a corresponding obligation. Types of objects: things (including money and securities), property (including property rights); works and services; results of creative activity (intellectual property); intangible benefits; information. Concept "property" used to refer to things, including money and securities, as well as property rights (Article 128 of the Civil Code of the Russian Federation). Making a profit from the use of property is one of the forms of doing business (Article 2 of the Civil Code of the Russian Federation), i.e. property - means for carrying out entrepreneurial activity. At the same time, the possession of property is a necessary condition for engaging in entrepreneurial activity (lack of the necessary property may prevent an entrepreneur from obtaining a license to conduct certain types of activities, for example, to provide transport services). Legal regime of property - a set of rights and obligations of a person in relation to the property belonging to him. Types of property. 1. For legal reasons: movable and immovable property; tradable, limited tradable and withdrawn from circulation. 2. For economic reasons: fixed and current assets - based on the degree of participation of property in the production process, cost and duration of use; tangible and intangible assets - based on the presence or absence of a materialized form of property, etc. Under property right the right of a person to demand the transfer of property or other property benefits. Property rights may be the subject of transactions, including purchase and sale. Work or услуга - actions of the obligated person. The work aims to create a materialized object (to build a house). As a result of the service, there is no materialized result (medical, cultural, domestic, tourist, financial and other services). The result of creative activity (intellectual property): works of literature, art, science; inventions, utility models, industrial designs, trademarks, service marks, know-how; performing activities of actors, creating phonograms, staging cable and on-air broadcasting. intangible benefits - non-property benefits. They are devoid of economic content, that is, they have no value expression. These include: name, life and health, personal dignity, personal integrity, honor, business reputation, privacy, the right to free movement and choice of place of residence and stay, etc. Information - information that has actual or potential value in civil trade, as it is unknown to third parties and is protected by its owners. Information is a kind of intangible benefits (official and commercial secrets). 28. MONEY, CURRENCY VALUES Money are a special subject of civil law. They may be the subject of some civil law transactions: loan agreements, gift agreements, loan agreements. Most often they are legal tender in reimbursable contracts. Money is movable property and belongs to the category of divisible things. According to the Constitution and the law on the Central Bank of Russia ruble - the official monetary unit (currency) of the Russian Federation. The introduction of other monetary units on the territory of Russia and the issuance of monetary surrogates are prohibited. The Bank of Russia issues cash monopoly. The Civil Code of the Russian Federation provides two types of cash payments. When calculating by way of cash means of payment are real banknotes that are transferred by one entity to another for goods, works, services or in other cases established by law (for example, fines). At non-cash payments digital records of the circulating money supply are used. In this case, a certain amount of money is debited from the account of one entity and credited to the account of another. Other forms of non-cash payments are also possible. The state is pursuing a policy aimed at expanding non-cash payments. The cases and procedure for the use of foreign currency as a means of payment are determined by the laws on the Central Bank and on currency regulation, as well as regulations issued in accordance with them. According to these acts, settlements in foreign currency on the territory of the Russian Federation are allowed only in a non-cash manner and in strictly limited cases. Currently, the Regulations of 2002 of the Central Bank of Russia "On non-cash payments in the Russian Federation" are in force. According to the Federal Law of 2003 "On currency regulation and currency control" currency values - foreign currency and foreign securities. Иforeign currency - this: a) banknotes in the form of banknotes, treasury bills, coins that are in circulation and are legal means of cash payment on the territory of the relevant foreign state (group of foreign states), as well as the indicated banknotes withdrawn or withdrawn from circulation, but subject to exchange; b) funds in bank accounts and bank deposits in monetary units of foreign states and international monetary or accounting units; External securities - securities, including those in non-documentary form, which, in accordance with the Federal Law on currency regulation, do not qualify as domestic securities. Domestic securities - this: a) issuance securities, the nominal value of which is indicated in the currency of the Russian Federation and the issue of which is registered in the Russian Federation; b) other securities certifying the right to receive the currency of the Russian Federation, issued in the territory of the Russian Federation. 29. SECURITIES AS SPECIAL OBJECTS OF LAW Securities is a document certifying, in compliance with the established form and mandatory details, property rights, the exercise or transfer of which is possible only upon its presentation. With the transfer of a security, all the rights certified by it are transferred in aggregate. In cases stipulated by law or in the manner prescribed by it, for the exercise and transfer of rights certified by a security, evidence of their consolidation is sufficient in a special register (normal or computerized). Types of securities: government bond, bond, promissory note, check, certificate of deposit and savings, bank savings book to bearer, bill of lading, share, privatization securities and other documents that are classified as securities by securities laws or in the manner prescribed by them. The rights certified by a security may belong to: 1) to the bearer of a security (bearer security); 2) the person named in the security (registered security); 3) the person named in the security, which can itself exercise these rights or appoint by its order (order) another authorized person (order security). The person who issued the security and all persons endorsing it shall be jointly and severally liable to its rightful owner. In order to transfer to another person the rights certified by a bearer security, it is sufficient to hand over the security to this person. The person transferring the right under a security shall be liable for the invalidity of the corresponding requirement, but not for its non-performance. The rights under an order security are transferred by making an endorsement on this paper - endorsement. The endorser is responsible not only for the existence of the right, but also for its implementation. An endorsement made on a security transfers all the rights certified by the security to the person to whom or to whose order the rights under the security are transferred - endorsee. Types of endorsement: blank (without specifying the person to whom the execution is to be made) or order (indicating the person to whom or whose order the execution should be carried out). Undocumented securities. Securities can exist both in the form of a written document (a record made on paper in the form specified by law and containing the necessary details), and in non-documentary form. The non-documentary form of securities implies the absence of the issue of the securities themselves on paper. Rights to non-documentary securities are fixed by entering data on their owners and on the number, nominal value and category of securities belonging to them in special lists (registers). However, such a method of fixing the rights certified by a security is allowed only in cases expressly provided for by law or in the manner prescribed by it. 30. FEATURES OF THE LEGAL PROTECTION OF INDUSTRIAL PROPERTY. PATENT LAW industrial property - these are exclusive rights to ideal objects that are used in business activities. Such exclusive rights, in particular, are: 1) the right to use the means of individualization of the manufacturer and products: the right to a trade name and (or) commercial designation, the right to a trademark, service mark; 2) rights to intellectual property protected by a patent or owned by a person by right of prior use (invention, utility model, industrial design), as well as non-exclusive rights to protected commercial information (know-how) and rights of prior use. When transferring these rights, the parties must be guided by the norms of the law on intellectual property, in particular, on license agreements and a commercial concession agreement. Industrial property is protected by patent law. Patent law in an objective sense - this is a set of rules governing property, as well as personal non-property relations related to them, arising in connection with the creation and use of three objects: inventions, utility models and industrial designs. This is a legal institution that, along with copyright and related law, is included in a sub-branch of civil law called "intellectual property law". Objects protected by patent law, are the result of intellectual creativity. This is the solution of technical or artistic-constructive problems, expressed in an ideal form, only after being put into practice, they acquire a materialized form. Patent law in the subjective sense - rights and obligations of persons who have created inventions, utility models and industrial designs. Sources of patent law: 1. Patent Law of the Russian Federation of 1992 2. Acts adopted by the Government of the Russian Federation and the Patent Office (Rospatent), for example: Regulations on the Russian Agency for Patents and Trademarks (Rospatent), approved by the Decree of the Government of the Russian Federation in 1997 Rules for the preparation, filing and consideration of applications for the issuance of titles of protection for inventions, utility models and industrial, etc. 3. International treaties and agreements: the Paris Convention of 1965 "On the Protection of Industrial Property", the Eurasian Patent Convention of 1994, adopted by the CIS countries. Correlation between copyright and patent law. Copyright is aimed at protecting the form of the object (work), and patent protects the content of the work. For the protection of inventions, utility models, industrial designs, trade names, trademarks, service marks, their registration is required according to a certain procedure with the relevant authorities, and for copyright objects, the author only needs to express his work in any objective form. 31. CONCEPT AND TYPES OF TERMS Period - a kind of legal facts (event), a certain moment or period of time, with the onset or expiration of which the legislation connects the emergence, change or termination of civil legal relations (with the expiration of which certain legal consequences occur). The term can be determined by a calendar date, the expiration of a period of time, an indication of an event that must inevitably occur. Terms calculation rules: - terms can be calculated in minutes, hours, days, weeks, months, years; - the period begins on the next day after the calendar date or event with which its beginning is connected; - the rules for determining the expiration of the term depend on the unit by which the term is measured: - the term, calculated in days, expires at 24.00 of the last day of the term (if the urgent action is performed in the organization - at the moment of termination of the relevant operations); - a period calculated in weeks expires on the corresponding day of the last week of the period; - a period calculated in half a month expires on the fifteenth day from the beginning of the calculation; - a term calculated in months expires on the corresponding day of the last month of the term, and in its absence, on the last day of this month; - a period calculated in quarters expires similarly to months, counting a quarter in 3 months (the quarters start from the beginning of the year); - a term calculated in years expires on the corresponding day and month of the last year of the term. If the last day of the term is a non-working day, the expiry day of the term shall be the next business day. Types of terms varied, they are classified according to the following criteria: - according to the subject of establishment, the terms differ as legal, contractual, judicial; - according to the legal consequences, the terms are divided into law-forming, law-changing and law-terminating; - according to the degree of obligation for the parties to a civil legal relationship, the terms are divided into imperative (unchangable) and diapositive (changeable); - according to the degree of prevalence, the terms are divided into general and special; - according to the degree of certainty, the terms are divided into absolutely certain, relatively certain and indefinite; - by appointment, the terms are divided into the terms for the exercise of civil rights, the terms for the performance of duties and the terms for the protection of civil rights; - the terms for exercising civil rights are divided into the terms for the existence of civil rights, preclusive terms, claim periods, warranty periods, expiration dates, service periods, terms for the sale of goods, periods for storing goods; - terms of performance of duties are divided into general and intermediate. Terms of protection of civil rights - the terms established by law for the requirement from the competent authorities to enforce the violated right of the subject. 32. LIMITATION, TYPES. START OF THE LIMITATION PERIOD Limitation period (ID) - term for the protection of the right on the claim of the person whose right has been violated. During the period of ID, state bodies, in particular the court, must contribute to the restoration of the violated right of the subject by satisfying the requirement specified in his claim. The expiration of the statute of limitations extinguishes the right of the plaintiff to the protection of his interests in a compulsory jurisdictional procedure. ID term value: this institution stimulates the timely exercise by the participants of civil turnover of their rights and thereby serves to streamline and strengthen economic turnover. Rules regarding the term of ID: 1) the requirement to protect the violated right is accepted for consideration by the court, regardless of the expiration of the ID; 2) The ID is applied at the request of the party to the dispute; 3) a statement on the application of the ID must be made before the court makes a decision on the case; 4) expiration of the ID - the basis for the defendant to reject the claim of the plaintiff; 5) in the absence of the defendant's statement about the expiration of the term of the ID in court, the claim is subject to satisfaction, despite the fact that the term of the ID on demand has expired. The ID is associated with: the right to claim in a material sense (the right to seek compulsory protection from the court) and right to sue in a procedural sense (right to sue). Types of ID terms: general term - three years; special terms - modified in relation to the general term (for claims for the application of the consequences of the invalidity of void transactions - ten years; for claims of creditors who have not received notification of the sale of the enterprise, as well as for the recognition of the agreement on the sale of the enterprise as invalid - 1 year). The terms of ID and the procedure for their calculation cannot be changed by agreement of the parties. The ID rules apply to all civil legal relations. ID does not apply on: claims arising from violation of personal non-property rights and personal non-property benefits; requirements of depositors to the bank for the issuance of deposits; claims for compensation for harm caused to the life and health of citizens; claims of the owner or other owner to eliminate violations of his rights. These claims may be granted by the court at any time. Beginning of the ID period. As a general rule - from the day when the person knew or should have known about the violation of his right. Exceptions established by law. 1. For obligations with a certain period of performance - at the end of the period for the performance of the obligation. 2. For obligations with an indefinite period of performance or if the period is determined by the moment of demand - from the moment the creditor has the right to present his claim to the debtor for the performance of the obligation. 3. When granting a grace period to the debtor to fulfill the creditor's claim - after the expiration of the grace period. 4. When delivering goods of inadequate quality - from the date of drawing up the relevant act on these shortcomings. 5. According to the requirements of the senders of goods to the carriers - from the moment of receipt of a response to the claim or after the expiration of the period established for the response to the claim. 33. BREAK, SUSPENSION, RESTORE OF THE LIMITATION PERIOD In the event of circumstances preventing the filing of a claim, suspension, interruption and restoration of the limitation period are possible. The limitation period is suspended: - if the filing of a claim was prevented by an extraordinary and unavoidable circumstance - force majeure; - if one of the parties to the obligation is part of the Armed Forces, transferred to martial law; - if the Government of the Russian Federation establishes a delay in the fulfillment of this obligation - a moratorium; - by virtue of the suspension of the normative act regulating the relevant relations. The above obstacles to filing a claim are taken into account by the court only if they arose in the last six months of the limitation period, and if the limitation period is six months, then during the entire limitation period. After the termination of the circumstance that served as the reason for the suspension of the limitation period, the period continues. In this case, the remaining part of the limitation period is extended to six months, and if the limitation period is six months, then until the end of this period. RџSЂRё statute of limitations the time that has elapsed before the occurrence of the circumstance that served as the basis for the break shall not be included in the limitation period. It begins to flow anew and continues for the time prescribed by law. The grounds for interrupting the limitation period are the following two circumstances: - filing a claim by the creditor in court; - recognition of the debt by the debtor. The missed limitation period may be restored by the court if the reason for missing the limitation period is recognized by the court as valid. Restoration of the missed statute of limitations is an exceptional measure and is applied only under the following conditions: - the delay was related to the personality of the debtor; - the circumstances that caused the lapse of the limitation period arose in the last six months of the limitation period, and if this period was equal to six months, then during the entire period. A debtor who has performed an obligation after the expiration of the limitation period shall not be entitled to claim back the performance. Upon the expiration of the limitation period for a claim related to the main obligation, the term for the claim also expires for an additional obligation ensuring the fulfillment of the main obligation. If the claim is left by the court without consideration, then the limitation period that has begun until the claim is filed continues in the general manner. 34. CONCEPT AND CONTENT OF OWNERSHIP Property - This is an economic category that reflects the relationship between people about things. Ownership features: it is a social, property, volitional relation. The concept of "ownership" is considered in two senses: objective and subjective. AT objective sense - a set of legal norms that regulate relations between people about things. These norms form a sub-branch of civil law. AT subjective sense - the opportunity assigned to the owner to exercise his powers in his own interests, without contradicting the law. The concept of "the content of the right of ownership" refers to the right of ownership in the subjective sense. Contents of ownership - these are the three powers of the owner: - possession - the actual possession of a thing (distinguish between legal and illegal possession, title possession, bona fide and bad faith possession); - use - the right to extract its useful properties from a thing in the process of personal or industrial consumption; - disposition - the right to determine the legal fate of a thing. Obligations of the owner in the exercise of his rights: - take measures to prevent damage to the life and health of citizens and the environment; - refrain from behavior that disturbs his neighbors and others; - refrain from actions performed solely with the intent to cause harm to others; - in cases specified by law, allow limited use of their property by other persons. The right of ownership may be limited only by federal laws 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. The concept of "form of ownership" is used both in the Constitution of the Russian Federation and in other legislative acts. However, there is no definition of this concept in the legislation. Form of ownership - a feature of the legal regime of the object in relation to certain types of subjects of civil law. Forms of ownership: - private (it is subdivided into the property of citizens and a legal entity); - state (public) (its subjects are the Russian Federation, its subjects, as well as the federal cities of Moscow and St. Petersburg); - municipal (its subjects are municipalities in which there are self-government bodies: cities, towns, etc.). Along with the concept of "form of ownership" there is the concept of "type of ownership". There is also no definition of this concept in the legislation. 35. GROUNDS FOR ACQUISITION AND TERMINATION OF PROPERTY RIGHTS Grounds for the emergence of ownership (titles of ownership) - certain legal facts, which are divided into: initial - not dependent on the rights of the previous owner to this thing and derivatives - in which the right of ownership is based on the right of the previous owner (most often under an agreement with him). Initial grounds for the emergence of ownership: making a new thing; processing, specification; conversion to the ownership of public things; acquisition of ownership of ownerless property; finding a thing; detention of neglected animals and their maintenance; treasure discovery; acquisitive prescription. Derivative grounds for the emergence of ownership: nationalization; privatization; acquisition of the right of ownership to the property of a legal entity during its reorganization and liquidation; foreclosure on the owner's property for obligations; requisition; confiscation, etc. The right of ownership of the acquirer of the thing under the contract arises from the moment of its transfer (generally). The transfer of a thing is carried out in the following ways: by handing over the thing itself or by symbolically transferring it (for example, handing over the keys to an apartment to its buyer); delivery of things to the post office for its dispatch (for example, when sending a parcel, parcels); handing over things to a transport organization for delivery to another person. If the alienation of property is subject to state registration, then the right of ownership arises from the moment of such registration. In the process of transferring a thing, the risk of accidental loss or accidental damage to property is borne by its owner, unless otherwise provided by law or contract (the owner is the one who owned it at the time of its death). The owner bears the burden of maintaining the property belonging to him, unless otherwise provided by law or contract. Ownership terminates: in case of alienation by the owner of his property to other persons, refusal of the owner from the right of ownership, loss or destruction of property, in case of loss of the right of ownership to property in other cases provided by law. Compulsory seizure of property from the owner it is not allowed, except for a number of cases provided for by law (foreclosure on property for obligations; alienation of real estate in connection with the seizure of a site; requisition; confiscation). 36. TYPES OF PROPERTY RIGHTS. COMMON PROPERTY RIGHT (CONCEPT, GROUNDS FOR ORIGIN, TYPES) Common property - belonging of the same property to several persons (co-owners) at the same time. Common property object - an individually defined thing (house), a set of things (hereditary mass) or a property complex (enterprise). Common property arises when two or more persons receive property that cannot be divided without changing its purpose (indivisible things) or is not subject to division by virtue of law. Common ownership of divisible property arises in cases stipulated by law or by agreement. By agreement of the participants in joint ownership, and in case of failure to reach an agreement, by a court decision, shared ownership of these persons may be established on the common property. Types of common property: - share - common property in which each co-owner owns a certain share; - joint - common property in which the shares of its co-owners are not predetermined, but can be allocated during its division. Common property is shared, unless otherwise provided by law. Thus, the law establishes joint ownership of the common property of spouses, as well as members of a peasant (farm) economy. The transfer of property from the regime of joint ownership to the regime of shared ownership is allowed at the discretion of the co-owners, and vice versa - only in cases provided for by law. Legal nature of the share in common property consists in the fact that the participant owns a share in the right to common property, and not a share of the property (real share) or a share in the value of the property (ideal share). Type of ownership - an indication of how many subjects own the same object. So, if a thing is owned by one subject, then this will be the right of personal ownership, and if this thing is owned by several subjects, then this will be the right of common ownership. The right of common ownership, in turn, is divided into two varieties: the right of joint ownership and the right of shared ownership. 37. ENTERPRISE AS OBJECT AND SUBJECT OF LAW In the Civil Code, the concept of "enterprise" is used in two meanings: 1) as a legal entity - subject civil law (state or municipal); 2) an enterprise as a special type of real estate with a special legal regime (features related to the certification of the composition of the enterprise, its transfer, ensuring the rights of creditors, etc.). Enterprise as an object civil rights are characterized by the following features (see Commentary to Article 132 of the Civil Code under the general editorship of O.N. Sadikov. M., 2006). 1. This is a single property complex, including all types of property intended for the implementation of activities - land plots, buildings, structures, equipment, inventory, raw materials, products, claims, debts, as well as rights to a company name, trademarks and service marks and other exclusive rights. 2. This is only such a property complex, which is used for business activities. It may be state or municipal property or belong to a commercial organization established in the form of a business company or partnership, a production cooperative, or a non-profit organization that carries out entrepreneurial activities in accordance with the law and its charter (for example, property used by a garage cooperative for car repairs, its rights and responsibilities associated with this activity). A property complex owned by an individual entrepreneur or members of a peasant (farm) economy can also act as an enterprise. 3. Making transactions with an enterprise (for example, selling, etc.) does not entail the termination of production or other entrepreneurial activities that were carried out by the previous owner, i.e. the object is a property complex "on the go". 4. When making transactions with the property complex of a legal entity, it does not terminate its activities as a subject of civil law. If a legal entity is liquidated as a subject of civil law, the enterprise is no longer a single property complex, but only separate types of property. In addition, it does not include the debts of a legal entity. The enterprise may be object of various transactions: sale, purchase, pledge, lease, inheritance, etc., both in general and in part. However, according to the Civil Code, an enterprise cannot be the subject of a gift in relations between commercial organizations. 38. CONCEPT AND TYPES OF PROPERTY RIGHTS Real right - the right that ensures the satisfaction of the interests of the authorized person by directly influencing the thing in his possession, without the assistance of other persons. With the help of rights in rem, property relations are realized. There are two groups of property rights: the rights of owners; rights of non-owners. Signs of property rights: 1. They are absolute; the bearer of the absolute right is opposed by an indefinite number of obligated persons, which means: the owner can demand from any person that he does not take actions that prevent him from exercising the powers of the owner. 2. The objects of real rights are things. 3. To protect all rights in rem, regardless of which group they are in, the same methods of protection are used. Real rights differ in the scope of powers: the owners have the most complete powers - they can perform any actions that do not contradict the norms. The rights of subjects of other property rights are limited by law. Real rights are perpetual. The meaning of property law consists in the fact that it fixes the relation of a person to a thing, allowing the bearer of a property right to satisfy his interests with the help of this thing. Contents of ownership - these are the three powers of the owner: proficiency - actual possession of a thing (distinguish between legal and illegal possession, title possession, good faith and bad faith possession); - use - the right to extract its useful properties from a thing in the process of personal or industrial consumption; - order - the right to determine the legal fate of a thing. Real rights of persons who are not owners, have the same characteristics as the right of ownership. At the same time, they have their own characteristics: these rights are enshrined in law with the right to follow in the transfer of ownership of property to another person; types of rights in rem can be established only by law. Rights of non-owners: the right of lifetime inheritable possession of a land plot; - the right to permanent (unlimited) use of the land plot; - the right of economic management of property; - the right to operational management of property; - servitude rights (servitudes). Since this list is not closed, other rights may be included in it. There is only one requirement for them: they must be specified in the law. Other real rights of persons who are not owners: the right of pledge; - the right to use housing by members of the owner's family living in the residential premises belonging to him; - the right of the actual owner, who, not being the owner of the property, in good faith, openly and continuously owns this property; - the right of an institution to independently dispose of income and property received as a result of economic activities permitted to it; - the right to lifelong residence in a dwelling owned by another person in accordance with a testamentary refusal. 39. RIGHT OF ECONOMIC MANAGEMENT (ХВ) AND OPERATIONAL MANAGEMENT (ОУ) OF PROPERTY Right HV and OU - these are real rights of legal entities to use someone else's property. The relations that arise in this case involve: the user of someone else's property (legal entity) and the owner, who assigned his property to the user. Purpose of these rights in rem - formalize the property status of legal entities that are not owners in order to create an opportunity for their independent participation in civil circulation. Subjects (carriers) of these rights are only legal entities existing in the form of an enterprise and an institution. Subjects of law XV - state and municipal enterprises, and the subjects of the right of operational management - state-owned enterprises and institutions. Differences between XB law and OU law: in the content and scope of the powers that their holders receive from the owner on the property assigned to them. Right XV - this is the right to own, use and dispose of the owner's property within the limits established by law or other legal acts. A unitary enterprise on the right of XV cannot independently dispose of its real estate, but at the same time it can independently dispose of movable property. With this right, the owner of the property (the founder of the enterprise), who has assigned his property to the enterprise, retains the right to create, reorganize and liquidate the enterprise, the right to exercise control over the property, the right to receive part of the profit. right oh - this is the right to own, use and dispose of the property of the owner only within the limits established by law, in accordance with the goals of their activities, the tasks of the owner and the purpose of the property. The owner (founder of the enterprise) has the right to withdraw from the subject of the right of the OS his property assigned to him, and dispose of it at his own discretion, if the property: is used for other purposes; turned out to be redundant. Features of the authority to dispose of property the subjects of this right are different. A state-owned enterprise does not have the right to dispose of any property assigned to it (movable and immovable) without the consent of the owner. The owner of a state-owned enterprise independently establishes the procedure for disposing of the income of a state-owned enterprise. The institution does not have the right to dispose of the property assigned to it. For him, at his request, this is done by the owner of the institution. The right of XV and OS of the property of the owner arise for the enterprise and institution only from the moment of the actual transfer of property. This moment is determined by the date of approval of the balance sheet of the enterprise or the date of receipt of property according to the estimate. The right of XB and OU is retained by their owners in the event of a change of ownership, i.e., the right of succession is in effect. 40. CONCEPT AND TYPES OF TRANSACTIONS Dealings - actions of subjects of civil legal relations aimed at establishing, changing or terminating civil rights and obligations. Transactions are the most common legal facts, which are actions aimed at achieving a certain legal result. A transaction is a lawful action that must comply with the requirements of the law, in contrast to illegal actions (torts) and unjust enrichment. The range of transactions is not limited to those specified in the legislation. It is allowed to make other transactions that do not contradict the law, as well as combining elements of various transactions. Transactions are made freely, but the law may provide for compulsion to make certain transactions. Types of transactions. one. Depending on the number of parties involved in the transaction, transactions are divided into unilateral, bilateral and multilateral. One-sided: for its commission, the expression of the will of one party is sufficient (issuance of a power of attorney, drawing up a will). Obligations arise only from the person who has made the transaction, and the other person participating in the transaction has only rights. AT bilateral: each of the parties must express its will in the form of an agreement upon its conclusion (purchase and sale). AT multilateral: the number of persons involved must be at least three (joint activity of several persons). Transactions involving two or more parties are called contracts. 2. Does the transaction provide for the moment of its execution or not: urgent (the due date is specified in the contract) and perpetual (the deadline for which is not specified in the contract must be performed within a reasonable time). 3. Transactions in which the occurrence of legal consequences is made dependent on the occurrence of certain circumstances (conditions) are divided into conditional и unconditional (execution is not made dependent on the occurrence of certain circumstances (conditions), such transactions are in the majority). Conditional transactions - execution depends on whether a certain circumstance occurs or not, and the parties do not know for sure at the time of the transaction. Conditional transactions, in turn, are divided into two types: transactions with suspensive conditions and deals with derogatory terms. 4. Depending on the connection of the transaction with the legal basis: causal (related to the legal basis, such as a loan agreement) and abstract (in which there are no legal grounds, for example, issuance of a bill of lading, bill of exchange). Most transactions are causal. 5. Depending on the moment of occurrence of legal relations under the transaction: consensual (the rights and obligations of the parties arise from the moment an agreement is reached) and real (the rights and obligations of the parties for which arise from the moment the thing is transferred - loan, storage). 6. Trust (fiduciary) - transactions of a fiduciary nature (order, commission, trust management). In fiduciary transactions, a change in the nature of the relationship between the parties, the loss of their fiduciary nature, can lead to the termination of relations unilaterally. 41. CONDITIONS FOR THE VALIDITY OF TRANSACTIONS. VOID TRANSACTIONS Invalid deal - a transaction in which at least one of the following features is defective. Conditions for the validity of transactions: - the object of the transaction should not be withdrawn from civil circulation; - the subjects of the transaction must be capable; - the form of the transaction must comply with the law; - the will of the parties must be genuine; - the content and legal result of the transaction must not contradict the law. Consequences of declaring a transaction invalid: such a transaction does not give rise to legal consequences. Sometimes not the whole transaction is invalid, but some of its conditions. In this case, the invalidity of a part of the transaction does not discredit the entire transaction as a whole, if it can be assumed that it would have been made without its invalid part. That is, the recognition of the invalid part of the transaction does not entail the invalidity of its other parts. In the general case, the main consequence is the restoration of the original property status of the parties, which is achieved by bilateral restitution, - the return by the parties to each other of everything received under the transaction in kind or in money. In some cases it is possible unilateral restitution - return to the original state only of the innocent party, and the return to the guilty party is collected in the state revenue, as well as non-restitution - recovery of the state income received by both parties under the transaction. A party that deliberately made a knowingly invalid transaction, along with the obligation to return to the counterparty received from him under the transaction, is subject to a number of civil law sanctions: 1) for transactions made with incapacitated or partially incapacitated citizens, the guilty capable party (who knew about their incapacity) is obliged to compensate the victim for the actual damage incurred by the execution of the transaction; 2) for transactions made under the influence of a delusion, the party guilty of the occurrence of the delusion compensates the other party for the real damage suffered by that party from the consequences of this delusion: the execution of the transaction or from its recognition as invalid; 3) for transactions made under the influence of deceit, violence, threat, malicious agreement of the representative with the other party, a combination of difficult circumstances - the guilty party is obliged to compensate the victim for the real damage incurred by the execution of the transaction; the property due under the transaction to the injured party from the guilty party is transferred to the income of the Russian Federation; 4) for transactions made with a purpose contrary to the foundations of law and order or morality, the property due under the transaction to the guilty party (or both guilty parties) turns into the income of the Russian Federation. 42. TYPES OF VOID TRANSACTIONS Void deal void due to non-compliance with the law at the time of its commission without a special decision on this matter. It does not have to be executed, but in exceptional cases the court may recognize it as valid. Challengeable deal gives rise to legal consequences at the time of its commission, but these consequences can be annulled by the court at the request of a certain circle of persons and on the grounds provided for by law. According to the general rule all invalid transactions are void, and contestable - only in cases provided for by law. If the law does not specifically indicate whether this transaction is voidable, one should pay attention to whether there is an indication of the law to recognize the transaction as invalid by the court. In its absence, the transaction is void. Proving in court is subject to basically the correct reflection of the will in the will of the parties to the transaction or the presence or absence of the consent of the legal representative of one of the parties to the transaction. If a claim for recognition of a voidable transaction as invalid is not filed with the court within the established limitation period, the transaction is considered valid. Regardless of whether the transaction is voidable or void, if it is executed, the interested parties may apply to the court with a claim to apply the consequences of its invalidity to the transaction. In addition, in some cases, the law provides for the possibility of "reanimating" a void transaction, i.e., recognizing it as valid (transactions made by incapacitated citizens for their benefit; transactions that have not passed state registration or not clothed in a notarial form due to evasion of this procedures of one of the parties). Statute of limitations for voidable transactions - one year, and for void transactions - three years. The beginning of the running of the limitation period for voidable transactions made under the influence of violence (threat) is the day the violence (threat) ceases; for other voidable transactions - from the day when the interested person found out (should have known) about the circumstances that are the basis for the invalidity of the transaction; for void transactions - from the date of commencement of their execution. 43. CONCEPT AND SIGNIFICANCE OF REPRESENTATION Representation - transactions and other legal actions by one person (representative), by virtue of his authority on behalf and in the interests of another person (represented), as a result of which civil rights and obligations are created, changed and terminated for the represented. In order to protect the interests of the represented representative, it is prohibited to make transactions on his behalf in relation to himself personally, as well as in relation to another person, whose representative he is at the same time (except in cases of commercial representation). It is not allowed to make a transaction through a representative, which, by its nature, can only be made personally, as well as transactions specified in the law (testament, annuity). The institution of representation already existed in ancient Rome. It arose due to the fact that the subjects of civil legal relations could not always participate in them personally. The subject of representation is legal actions, in particular transactions. Represented can be any subjects of civil law: individuals, legal entities, the Russian Federation, subjects of the Russian Federation and municipalities. Representatives persons who carry out representative activities are called. They can be only two types of subjects of civil relations: citizens and legal entities. To do this, citizens must be legally capable, and legal entities exercising representation must not go beyond their statutory legal capacity. Participants in transactions (they can be any subjects of civil legal relations) must check the proper execution of the powers of representatives through whom they carry out transactions. The powers of a representative should be distinguished from the powers of a person who also acts in someone else's interest, but on his own behalf. Such persons include: - commercial intermediary - a person who facilitates the transaction, but does not complete it; - bankruptcy trustee - a person who disposes of the debtor's property in case of its bankruptcy; - executor - a person who performs actions for the execution of a will in the interests of the heirs; - a person authorized to enter into negotiations on possible future transactions; - messenger - a person transmitting someone else's will; - Applicant - a person who signs a transaction for a subject who is not able to sign with his own hand; - commission agent - a person who undertakes, on behalf of the other party (principal) for a fee, to make one or more transactions on his own behalf, but at the expense of the principal; - third party under an agreement in favor of a third party - a person who has the right to demand from the debtor the performance of an obligation in his favor. 44. GROUNDS FOR ORIGIN AND TYPES OF REPRESENTATION. COMMERCIAL REPRESENTATION Grounds for the emergence representations: - the will of the person represented (it can be reflected either in the power of attorney or in the contract); - legal facts specified in the law (for example, parents are the legal representatives of their children without special powers under the Family Code of the Russian Federation); - an act of an authorized body that allows a person to act as a representative; - the presence of a person in a certain place (for example, the presence of a store cashier in the cash register). Depending on the presence or absence of the will of the represented, two types of representation are distinguished: - legal representation - representation arising by virtue of the instructions of the law and independent of the will of the represented (for example, trade unions are representatives of the interests of workers); - voluntary representation - representation carried out in accordance with the will of the person represented (for example, a lawyer-attorney represents on the basis of an agreement with a specific person and a warrant). Evidence of the authority of a voluntary representation is that the representative has power of attorney. The authority of a representative may be apparent from the environment in which he acts. This applies to employees (salespeople, cashiers, etc.) who make a limited range of transactions on behalf of the organization in a specific location. A type of voluntary representation is commercial representation. This is a new institution in Russian law, its peculiarity is that this person constantly and independently represents on behalf of entrepreneurs when they conclude contracts in the field of entrepreneurial activity, and simultaneous representation of different parties in the same transaction is allowed. This institution is paid. The form of the conclusion of the contract must be in writing. The commercial representative is obliged to fulfill orders and keep secret the information that became known to him in the course of making trade transactions, both during the execution of the order and after its execution. As a rule, commercial representatives conclude transactions on behalf of entrepreneurs in a certain area in which they have more qualified knowledge, special information, business connections, etc. In addition, the conclusion of transactions of certain categories or in relation to certain property is possible only by persons with special status or licensed to carry out such activities. Commercial representatives may include brokerage firms and independent brokers that have the status of participants in exchange trading and have the right to make transactions on commodity exchanges, including in the interests of others (Article 10 of the law on stock exchanges). Brokerage activities of professional participants in the securities market are also recognized as commercial representation. Commercial representatives include insurance agents - individuals or legal entities acting on behalf of and on behalf of the insurer. 45. CONCEPT, GROUNDS FOR OBLIGATIONS Commitment - a civil legal relationship, by virtue of which one person (debtor) is obliged to perform a certain action in favor of another person (creditor) or refrain from a certain action, and the creditor has the right to demand that the debtor fulfill his obligation Relations between the debtor and the creditor are regulated by the law of obligations. This is the most common and diverse type of civil legal relations. Features of legal obligations (OP). one. OP formalize the process of commodity exchange, so they are relations of economic turnover. For example, under a sale and purchase agreement, the subject of sale is transferred from the seller to the buyer, under a construction contract, the result of the contractor's activities is transferred to the customer, etc. 2. OP relate to property legal relations. 3. OP can be aimed at organizing the exchange of goods, i.e., at creating conditions for the transfer of property benefits in the future (for example, a preliminary donation agreement). 4. OP is a relative legal relationship: it has specific participants who are obliged to certain behavior pursuing a property interest (as opposed to an absolute relationship in which an authorized person opposes an indefinite number of persons, for example, in legal relations of ownership, operational management, copyright). 5. OP is closely related to the legal relationship of ownership: the implementation by the owner of the right to dispose (for example, the sale of a thing) leads to the emergence of an obligation legal relationship (for example, when selling a thing, the seller has an obligation to transfer it to the buyer, and the latter has an obligation to pay the seller money), and the implementation of certain obligations aimed at the emergence of ownership (for example, in contracts of sale, donation, supply). Commitment - this is a relative legal relationship that mediates the movement of material goods, in which one person (debtor), at the request of another person (creditor), is obliged to take an action to provide him with material goods. The second definition, being doctrinal, complements the legal definition, since it reflects the significance of the obligation in civil trade. Depending on the from the basis of obligations obligations are divided into two types: contractual (which are based on a contract, for example, supply, contract) and non-contractual (they are based on tort, unjust enrichment or other legal facts). Each of the above types of obligations is divided into groups. Contractual obligations Depending on the nature of the movement of material goods mediated by them, they are divided into obligations: for the transfer of property into ownership; on granting property for use; for the performance of work; for transportation; for the provision of services; on settlements and crediting; for insurance, etc. Non-contractual obligations are divided into: obligations from unilateral transactions; protective obligations. 46. CONCEPT, METHODS AND SIGNIFICANCE OF TERMINATION OF LIABILITIES Termination of obligations - repayment of the rights and obligations that make up the content of the obligations of its participants. Method (grounds) for terminating an obligation - legal facts, with the occurrence of which the law or the contract connects the termination of the obligation. Some of these legal facts are transactions. Ways to terminate obligations: execution of obligations; set-off of a counterclaim; by agreement of the parties; on the initiative of one party; in connection with the impossibility of execution; with the coincidence in one person of the debtor and the creditor; with the death of a citizen or the liquidation of a legal entity; with the publication of an act of a state or municipal authority. Fulfillment of an obligation - commission by its parties of certain actions constituting the content of their rights and obligations, or refraining from such actions; the most desirable way to terminate obligations. Principles for the fulfillment of an obligation: 1) obligations must be performed properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, business practices in strict accordance with the subject of the obligation and the manner, place and terms determined by law or the obligation itself; 2) payment of penalties in case of improper performance of an obligation does not relieve the debtor from the performance of the obligation in kind; 3) each of the parties to the obligation assists in its execution; 4) the efficiency of the obligated person taking actions to fulfill the obligation. Subject of fulfillment of the obligation - actions stipulated by the obligation (transfer of a thing (money), performance of work, services). Way of fulfilling the obligation - the procedure for the debtor to perform actions to fulfill the obligation: presenting the subject of the obligation in full or in parts directly to the creditor or through another person, by sending the subject by mail or by handing it in person. Place of performance is either determined in the contract or follows from the law: execution for the transfer of real estate is carried out at its location, for the carriage of goods - at the place of its delivery to the creditor, for a monetary obligation - at the place of residence of the plaintiff. Deadline for performance of the obligation is determined either by a calendar date, or by the expiration of a period of time, or by the occurrence of a certain event; "within a reasonable time" - if the obligation is concluded with an indefinite period of its execution. Subjects of obligation fulfillment - the debtor or a third party authorized by him. Set-off of a counterclaim - repayment in full or in part of mutual claims, provided that the claims are homogeneous, and the due date has either already come by the time of offset, or has been determined on demand. Not eligible for credit: obligations for which the limitation period has expired; claims for compensation for harm caused to the life and health of citizens, for the recovery of alimony, etc. 47. FEATURES OF INDIVIDUAL WAYS OF TERMINATION OF OBLIGATIONS Termination of obligations by agreement of the parties carried out with the help of compensation, innovation, debt forgiveness. Termination of obligations on the initiative of one party possible when such waiver is permitted by law or contract. It can occur by a court decision in case of a material violation of the terms of the contract by the other party (causing damage, as a result of which the other party is deprived of what it expected at the conclusion of the contract) and without court intervention. As a general rule, unilateral refusal to fulfill obligations is not allowed. Termination of obligations by the impossibility of performance - the impossibility of performance caused by circumstances for which neither party is responsible. It can be: - economic and technical factors that determine the impossibility of manufacturing and supplying the subject of the obligation; - legal factors that determine the impossibility of the debtor to act legally, expediently, morally; - phenomena of force majeure (extraordinary and irremovable). A variation of this method of termination of obligations is termination of obligations by the issuance of an act by a state or municipal authority. If the act does not comply with the law, the court may declare it invalid. The burden of proving the impossibility of fulfilling the obligation lies with the debtor. In order to release the entrepreneur from liability due to the impossibility of fulfilling obligations, the latter must prove that this happened due to force majeure. The remaining factors are not recognized as grounds for releasing the entrepreneur from liability for failure to fulfill the obligation. Termination of obligations by coincidence in the same person of the debtor and creditor perhaps because in such cases there is a succession, as a result of which the obligations of these persons are annulled. Termination of an obligation by the death of a citizen possible in exceptional cases, when obligations are associated with the personality of either the debtor or the creditor. As a rule, obligations are not terminated by the death of a citizen, but are inherited by the legal successors of the deceased person. Termination of obligations by liquidation of a legal entity occurs, as a rule, because the liquidation of a legal entity does not result in succession. An exception is obligations under claims for compensation for harm caused to the life and health of citizens who have received injuries or occupational diseases while working in a liquidated legal entity. According to such obligations, the liquidated legal entity is obliged to transfer money to social insurance bodies for payments to affected citizens. 48. STRUCTURE OF COMMITMENT. CHANGE OF PERSONS IN OBLIGATION Commitment Structure - a set of elements included in it. Commitment elements: - subjects of legal obligations; - objects of legal obligations; - the content of legal obligations. Subjects of legal obligations - debtor and creditor. Debtor - obligated party (he must perform a certain action or refrain from a certain action). His duty is called duty. Creditor - a party authorized to require the debtor to perform a certain action or to refrain from a certain action. The creditor's right is called the right to claim. In cases where there are several entities on the side of the obligation, the obligation is called multi-person commitment. During the period of the obligation, it is possible face swap, acting as parties. Changing a lender is called assignment of a claim (cession), and replacement of the debtor - debt transfer. Such a replacement is an additional contract, drawn up in the same way as the main one. Objects of legal obligations - certain actions of the debtor (to transfer money, property, things, perform work, services) or refrain from certain actions (the object should not be confused with the subject of obligations, the latter is understood as something in relation to which actions are performed - money, things, etc. d.). The content of the legal relationship - the rights and obligations of the creditor and the debtor to fulfill the obligation. The rights and obligations of the parties to an obligation are called subjective right of obligation. The implementation of the subjective right of obligation by the creditor is possible only if the debtor performs actions constituting his obligation. The basis for the emergence of legal obligations are legal facts or their combination (legal compositions). The types of foundations are varied: - deals unilateral, bilateral and multilateral (treaties); - individual acts of state bodies and local governments, for example, a warrant for the right to move into a dwelling; - causing harm to a citizen or legal entity - illegal actions (torts) or inaction. Obligations arising from illegal actions are called tort; - unjust enrichment - acquisition of property at the expense of another person; - other actions of citizens and legal entities, for example, preventing harm to the person or property of another; - developments - give rise to an obligation only in conjunction with other legal facts. For example, a will (unilateral transaction) gives rise to legal consequences only from the moment of death of the testator (event). 49. ENFORCEMENT. PENALTY Ensuring fulfillment of obligations - these are measures designed to protect the interests of the creditor from improper performance of the obligation by the debtor and induce the debtor to fulfill the obligation by joining by force of law or contract to the main (main) obligation of an additional one. Ways to ensure the fulfillment of obligations historically arose as a natural need for increased guarantees of the rights and interests of participants in legal obligations. The main ways to ensure are: penalty; pledge; retention; guarantee; bank guarantee; deposit. Ways to ensure the fulfillment of obligations are always property-based. Ensuring the fulfillment of an obligation is an additional obligation in relation to the main one and therefore depends on it: in the event of the termination of the main obligation, the additional obligation also ceases. The Importance of Enforcement is that it stimulates the debtor to fulfill his obligation to the creditor. Penalty - the amount of money that the debtor is obliged to pay to the creditor in case of non-performance or improper performance of the obligation by him in addition to the principal amount of the debt. Types of penalty differ on the following grounds: - on the subject of establishing a penalty. There are legal (provided by law) and contractual (established by the parties to the contract) penalties; - according to the method of calculating the amount of the penalty, the latter are divided into a penalty (determined as a percentage for each overdue day of fulfillment of the obligation) and a fine (a certain amount of money); - Depending on the ratio of the creditor's right to recover a penalty and his right to compensation for damages, four types of penalty are distinguished: a) offset (losses not covered by the penalty are recovered); b) exceptional (only a penalty is collected, but not losses); c) penalty (damages may be recovered in excess of the penalty); d) alternative (the creditor has the right to recover either a penalty or damages). A penalty is the most common way to ensure the fulfillment of an obligation in practice and performs two functions - measures to ensure the fulfillment of an obligation and sanctions for its improper fulfillment, that is, measures of property liability. 50. BANK GUARANTEE. DEPOSIT Bank guarantee - a guarantee in which a credit institution (guarantor) acts as a guarantor. The creditor in a bank guarantee is called the beneficiary, and the debtor is called the principal. The basis for the emergence of banking guarantees are two legal facts: an agreement between the principal and the guarantor on the provision of a bank guarantee, as well as the issuance of guarantees for a certain period in writing (this is a one-sided transaction). There are two types of bank guarantees: conditional bank guarantees, giving the right to the beneficiary to satisfy the claim only if the latter provides a court decision on the principal's failure to fulfill his obligation; and unconditional bank guarantees, in the presence of which the guarantor is obliged to fulfill the requirements of the beneficiary without providing the latter with evidence of improper performance by the principal of his obligations. Features of the bank guarantee: does not depend on the main obligation; - the beneficiary's right to claim is not transferred; - the limits of the guarantor's liability to the beneficiary are determined by the amount of money indicated in the bank guarantee; - if the guarantor fails to fulfill the obligation to pay the principal's debt, the guarantor may be held liable for misconduct and may be liable for a larger amount of money than indicated in the bank guarantee; - the guarantor who satisfied the claim of the beneficiary has the right of recourse action against the principal. Deposit - an amount of money issued by one of the parties to the other party as proof of the conclusion of the contract and ensuring its execution. The subject of the deposit it can only be money. The form of the deposit agreement must be in writing. Deposit features: - the party that gave the deposit, if it fails to fulfill the contract, loses it, and the party that received the deposit and did not fulfill the obligation must pay a double amount if it is responsible for the failure to fulfill the obligation; - the deposit is returned in the amount of the amount of money received in two cases: upon termination of the obligation before the start of its execution by agreement of the parties; if it is impossible to fulfill the obligation; - the monetary amount of the deposit is issued against future payments under the main contract, therefore, when it is executed, the deposit is withheld. The difference between a deposit and an advance: the party that issued the advance has the right to demand its return in all cases of non-performance or improper performance, except as provided by law or the contract. Therefore, when concluding an agreement, which assumes a preliminary payment on account of the main payment under the agreement, it is necessary to immediately indicate what, in advance or as a deposit, this payment is. Otherwise, such an amount will automatically be considered an advance payment. 51. Pledge, retention, surety Bail - a way to ensure the fulfillment of an obligation, allowing the pledgee to receive satisfaction at the expense of the pledged property preferentially over other creditors of this debtor. Pledge is regulated by the Civil Code of the Russian Federation, laws: "On Pledge" and "On Mortgage (Pledge of Real Estate)". Subject of pledge - things and claims. The parties to the pledge are the pledgor and the pledgee. The form of the pledge agreement must be in writing, and in relation to a mortgage - notarized and registered. Types of collateral are distinguished on the following grounds: - at the location of the pledged property: a solid pledge - without the transfer of property, a type of a solid pledge is a pledge of goods in circulation; pledge - with the transfer of pledged property, a type of pledge is a pledge in a pawnshop; - on the subject of pledge (pledge of property and pledge of rights); - according to the degree of connection of the pledged property with the land - a pledge of movable property and a pledge of immovable property (mortgage). Grounds for Foreclosure on Mortgaged Property - non-fulfillment or improper fulfillment by the debtor of the main obligation. Foreclosure procedure - the claim of the pledgee (creditor) is satisfied from the sale price of the pledged immovable property either by a court decision or on the basis of a notarized agreement, and movable property - without going to court. This means that the property received as a pledge cannot be converted by the pledgee directly to his own benefit in the event that the pledger fails to fulfill the main obligation, but must be sold at public auction. Retention - the opportunity provided by law for the creditor not to transfer to the debtor a thing belonging to him, in case of default by him of the obligation until the moment of its execution. Hold Features: applies in the case when the main obligation is associated with the thing held or with compensation for losses associated with it (for example, in storage, transportation, work contracts); - for the application of retention by the creditor, it is not necessary to provide for a condition on retention in the contract; - applies in case of violation of the rights of the creditor only; - applied by the creditor without going to court; - the creditor shall collect the retained thing by selling it at a public auction. Surety - an agreement by virtue of which the guarantor undertakes to the creditor of another person (debtor) to be responsible for the fulfillment by the latter of his obligations. The form of the contract is written. Guarantee features: may provide an obligation that will arise in the future; - the guarantor is jointly and severally liable with the debtor, i.e. the creditor has the right to decide for himself which of them to submit a claim to; - the amount of liability of the guarantor may not coincide with the amount of debt under the main obligation; - the guarantor, who has fulfilled the obligation instead of the debtor, has the right to a recourse (subsequent) claim against the debtor to recover from him the funds paid to the creditor. 52. CONCEPT AND SIGNIFICANCE OF THE CONTRACT. Contract - agreement between two or more persons on the establishment, change or termination of civil rights and obligations. A contract is a legal fact, which is a transaction in which two or more parties participate. The concept of a transaction is broader than the concept of an agreement, since a transaction can also be unilateral. The contract is the most common transaction in civil circulation. All rules relating to transactions, obligations and contracts apply simultaneously to it. Thus, from the rules on transactions, the rules on the forms of a transaction, on the conditions for the validity and invalidity of transactions, and on the consequences of declaring transactions invalid, apply to contracts. Of the rules on obligations, contracts are subject to provisions on the structure of the legal relationship of obligations, the rules on securing, fulfilling, terminating obligations, and the rules of responsibility for the fulfillment of obligations. At the same time, there are rules relating only to contracts: rules for concluding contracts, rules for amending and terminating contracts, provisions on the content and classification of contracts. Most of the contracts give rise to consequences of a property nature (for example, contracts of sale, donation). But some of them give rise to obligations of a non-property nature (for example, constituent agreements on the creation of partnerships, organizational agreements on transportation, preliminary agreements for the conclusion of contracts in the future on the terms of this agreement). The concept of "agreement" is also used in other senses: for the name of a contractual legal relationship, for the name of a document indicating that the parties have reached an agreement. The contract is used not only in the sphere of civil circulation, but also in labor relations, economics, politics, international relations, the social sphere, and the sphere of culture. The meaning of a civil law contract: - a contract is a unique means of ensuring order and stability in economic turnover (the possibility of concluding a contract creates confidence among the subjects of civil legal relations that their interests can be implemented, realized and protected, and the changes that have arisen can be taken into account in its execution); - this is a form of observance of the interests of subjects of civil legal relations and the main form of entrepreneurial activity, which ensures the sale of products and the exchange of material benefits in entrepreneurial activity; - the study of contractual practice allows you to quickly identify trends and respond in a timely manner to emerging needs for certain goods and services in order to successfully meet them. 53. CONTENT AND FORM OF THE CONTRACT. CONCLUSION OF THE AGREEMENT Content of the contract - a set of its conditions on which an agreement has been reached between the parties. The conditions include: subject, object, price of the contract, time and place of performance, liability for non-performance or improper performance of the contract. The conditions may be determined by the parties, the law or the customs of business. Types of contract terms: - essential - the conditions on which the parties need to reach an agreement (otherwise the contract will be considered invalid); - ordinary, not requiring the consent of the parties; - random - conditions that are not typical for a contract of this type. Essential conditions: - conditions on the subject of the contract (the subject of the contract is what the contract is aimed at. For example, in a contract of sale, the subject of the contract will be the thing being sold); - conditions specified in the law; - conditions under which an agreement of the parties must be reached upon the application of one of them. Each type of contract has its own combination of essential conditions. For example, in a work contract, such conditions include the subject, price of the contract and the deadline for delivery of the subject of the contract. Contract form: - the contract may be concluded in any form established for transactions, unless the law has established a specific form for this type of contract; - if the parties have agreed to conclude an agreement in a certain form, compliance with this form is mandatory; - an agreement in writing can be concluded by drawing up one document, as well as by exchanging documents; - the written form of the contract is considered to be complied with if, in response to the written proposal to conclude the offeror's contract, the acceptor has performed the actions stipulated by the contract; - the transfer of property provided for by the contract must be executed in compliance with the form specified in the contract; - contracts can be recorded on standard forms in order to reduce the time for their execution; - part of the agreements made in written or notarial form is subject to mandatory state registration (for example, transactions for the sale of real estate). Conclusion of the contract - this is the process of preparing, agreeing and consolidating the terms of the contract, in which there are three stages: preparatory (during this period, a reliable partner is being searched, the persons who will negotiate with him, as well as the time and place of negotiations are determined); - Negotiation between the parties (regarding the possibility of concluding an agreement and its terms); - decor reached agreements. 54. CONCEPT AND TYPES OF EXTRA-CONTRACTUAL OBLIGATIONS Non-contractual obligations - obligations arising against the will of their participants, due to legal facts specified in the law. Most often they arise from unlawful actions, but lawful actions can also be the basis for their occurrence, if they are committed erroneously (E.A. Sukhanov). Types of non-contractual obligations: a) obligations as a result of causing harm (tort obligations). These obligations, along with contractual obligations, occupy the main place in the system of civil law obligations. The content of tort obligations is the responsibility of the harm-doer. Therefore, the concepts of "tort obligation" and "responsibility for harm" (ie, tort liability) are used as unambiguous; b) obligations due to unjust enrichment, i.e. the acquisition or saving of property by one person at the expense of another without the necessary legal grounds. Tort Liabilities: their subjects - the creditor (injured) and the debtor (the tortfeasor) - are not in a contractual relationship. For the onset of tort liability, it is necessary to have a corpus delicti (delict), including: a) the occurrence of harm; b) the wrongfulness of the behavior of the tortfeasor; c) a causal relationship between the first two elements; d) the fault of the tortfeasor. The listed grounds are recognized as general, since their presence is required in all cases, unless otherwise provided by law. When the law changes the circle of these circumstances, they speak of special conditions of liability. These, for example, include cases of harm caused by a source of increased danger, the owner of which is liable regardless of fault. Unjust enrichment - the acquisition or saving of property without the grounds established by law, other legal acts or a transaction by one person (acquirer) at the expense of another person (victim). 55. CONCLUSION OF THE CONTRACT MANDATORY The principles of freedom of contract and equality of subjects of private law are limited when concluding a public contract and an accession contract. public is recognized contract, subject to the conclusion of a commercial organization or an individual entrepreneur due to the nature of their activities with anyone who applies for receiving the goods alienated by them, the work performed or the services provided. In this agreement, a professional entrepreneur acts as a service provider, engaged in such activities that he must carry out in relation to any persons who apply to him (contracts for retail purchase and sale, energy supply, rental and household contracts). An entrepreneur (service provider), as a party to a public contract, is obliged to conclude it with any person who applies to him for this and is not entitled to give preference to anyone (unless otherwise provided by law or other legal acts, for example, for war veterans, disabled people or other categories of citizens) . The price and other terms of such contracts should be the same for all consumers (with similar exceptions). The Government of the Russian Federation has the right to issue rules binding on the parties for the conclusion and execution of public contracts (standard contracts, provisions, etc.), i.e., determine their content regardless of the will of the parties. The consumer can force the entrepreneur through the court to conclude such an agreement or change a number of its conditions. In this way, the interests of mass consumers are protected, primarily citizens, who are usually in a weaker position in relation to professional entrepreneurs. This is also the reason for the terms of the Civil Code on the accession agreement. accession agreement a contract is recognized, the terms of which are determined only by one of the parties, and in such a way (in a form, standard form or other standard form) that the other party is deprived of the opportunity to participate in their formation and can accept them only by joining the contract as a whole. Such contracts are concluded in the field of consumer services for the population (an application for opening a bank account, an insurance policy, etc.). The acceding party acquires the right to demand a change or termination of such an agreement, even if its content is formally legal, in the following cases: 1) if it is deprived of the rights usually granted under similar agreements; 2) if the other party excludes or limits its liability under the contract; 3) if the contract contains other conditions that are clearly burdensome for the acceding party. These consequences do not apply in contracts between entrepreneurs, since a professional entrepreneur, as an acceding party, is usually aware (or should be aware) on what conditions he concludes an agreement, and at this stage he can resort to a qualified defense of his interests. 56. CONCEPT, TYPES AND GROUNDS OF LEGAL RESPONSIBILITY OF BUSINESS ENTITIES Responsibility - a necessary element of the system of means of legal regulation of the activities of economic entities, ensuring their compliance with the rule of law. Responsibility in the field of entrepreneurship is a set of measures of state coercion provided for by the rules of law and entailing negative consequences for the entrepreneur in the form of deprivation of rights due to his violation of the rule of law or the legitimate rights and interests of other persons in the course of entrepreneurial activity. Grounds for liability. As a rule, liability arises in the presence of a set of legal facts, without which no one can be held liable. Such set of legal facts is a composition of the offense, including: 1) illegality (illegality) of the behavior of the entrepreneur; 2) violation of public interests in the form of legal requirements or legal rights and interests of individuals; 3) a causal relationship between the first two elements; 4) the guilt of the offender. The peculiarity of the fault of the entrepreneur. His criminal and administrative liability occurs only in the case of guilt (intention, negligence). For private law relations the following is typical. Tort (non-contractual) obligations arise if the harm to life or health is caused through the fault of the person who caused the harm and he does not prove the opposite; however, the law may provide for compensation for harm even in the absence of the fault of the tortfeasor. В contractual obligations The responsibility of the entrepreneur comes regardless of fault. In this case, the entrepreneur can avoid liability if he proves that the proper performance of the obligation was impossible due to force majeure, i.e. extraordinary and unavoidable circumstances. Such circumstances are not a breach of obligations by the debtor's counterparties, the absence of the goods required for execution on the market, or the infringer's lack of the necessary funds. The Civil Code in some cases allows limiting the liability of entrepreneurs in the course of their activities. For example, it is possible for the court to reduce the penalty if it is disproportionate to the consequences of the breach of obligation, or to reduce the liability of the debtor if the creditor contributed to the increase in losses. Limitations of liability are also provided in the relations of transportation, storage, trust management. This specificity of the civil liability of an entrepreneur is due to the fact that he is a professional participant in economic relations. It follows that he must always exercise the utmost care and diligence for the proper performance of his obligations. 57. CIVIL LEGAL WAYS TO PROTECT PROPERTY RIGHTS. VINDICATOR AND NEGATIVE CLAIMS Civil law form of protection of property rights - a set of means provided for this by civil legislation. Civil law protection system: 1) property-law methods of protection (vindication and negatory claims); 2) legal obligations protection methods (protection methods based on the protection of the rights of participants in a civil transaction, as well as methods used to compensate for damage caused to the owner, return unjustifiably acquired or saved property by filing claims); 3) ways to protect the rights of the owner, arising from the general norms of civil law (lawsuits for the recognition of property rights); lawsuits against state authorities and administration; claims for invalidation of an act that violates the right of ownership; claims for wrongful termination of ownership, etc. Vindication claim - a claim for the recovery of property by its owner from someone else's illegal possession; non-contractual (the parties to the dispute are not bound by an obligation regarding the disputed thing) demand of the non-possessing owner to the actual owner of the property for the return of the latter in kind. Conditions for filing a vindication claim. The subject of the claim is an individually defined thing, ancestral property must be individualized; the item claimed must not have been altered; the thing must be in the possession of another person. The plaintiff is not only the owner of the thing, but also its title owner; the plaintiff must prove his ownership of the claimed thing. Defendant - the illegal owner who has the thing. Conditions for satisfaction of a vindication claim: a thing can always be withdrawn from someone else's illegal bad faith possession; a thing may be seized in the following cases: a) if the thing was acquired by the bona fide owner for compensation and at the same time left the owner's possession against his will; b) if the possessor in good faith acquired the thing free of charge from a person who did not have the right to alienate it. Money and bearer securities cannot be withdrawn from a bona fide purchaser. The owner of a thing in bad faith is obliged to return (reimburse) to the owner all the income received by him during the time of using it, the owner in good faith - to compensate only those income that he received from the moment he learned about the illegality of his possession. The illegal possessor of a thing, who has incurred expenses for its improvement, has the right to demand compensation from the owner, irrespective of whether he or she is the possessor of the thing in good faith or in bad faith. A conscientious owner of a thing who has improved it has the right to retain such an improvement. negatory lawsuit - this is a claim by the owner (title owner) of a thing with a demand to remove obstacles in the exercise of ownership rights, which, although not depriving the owner of possession of the thing, however, prevent him from exercising the powers of the owner of the thing. 58. CONCEPT AND TYPES OF ECONOMIC DISPUTES. Jurisdiction and jurisdiction in the system of courts of general jurisdiction and arbitration courts Economic dispute - a dispute arising from civil and other legal relations related to the implementation of entrepreneurial and other economic activities by legal entities and individual entrepreneurs, and in cases provided for by law, by other organizations and citizens. In accordance with the Arbitration Procedure Code of the Russian Federation, the arbitration court has jurisdiction over cases on economic disputes and other cases related to the implementation of entrepreneurial and other economic activities. Arbitration courts resolve economic disputes and consider other cases with the participation of organizations that are legal entities, citizens engaged in entrepreneurial activities without forming a legal entity and having the status of an individual entrepreneur. The arbitral tribunals are in charge of: - contesting regulatory legal acts affecting the rights and legitimate interests of the applicant in the field of entrepreneurial and other economic activities; - contesting non-normative acts not only of state bodies, local governments and other bodies, but also of state authorities; decisions not only of these bodies, but also of officials, including their actions or inaction; - cases of administrative offenses, including cases of bringing legal entities and individual entrepreneurs to administrative responsibility, the consideration of which, in accordance with the Code of Administrative Offenses of the Russian Federation, is referred to the jurisdiction of arbitration courts. In particular, the arbitration court brings to administrative responsibility: - for carrying out entrepreneurial activities without state registration or license; - for illegal use of a trademark; - for fictitious, intentional bankruptcy; - for violation of the mandatory requirements of state standards, mandatory certification rules, requirements for ensuring the uniformity of measurements. Courts of general jurisdiction consider cases to protect the rights and interests of entrepreneurs if the case did not arise in connection with their entrepreneurial activities or if at least one of the parties to the dispute is a citizen who does not have the status of an entrepreneur. The legal basis for the consideration (initiation) of cases in an arbitration court is statement of claim. 59. BODIES CONSIDERING ECONOMIC DISPUTES. ICAC The bulk of economic disputes are considered arbitration courts. According to the Arbitration Procedure Code of the Russian Federation of 2002, the arbitration court jurisdiction over economic disputes and other cases related to the implementation of entrepreneurial and other economic activities. The jurisdiction of arbitration courts includes the consideration of cases on contesting decisions of administrative bodies on bringing to administrative responsibility. To the exclusive jurisdiction of arbitration courts cases of insolvency (bankruptcy) are referred; on disputes on the creation, reorganization and liquidation of organizations; on disputes on refusal of state registration, evasion of state registration of legal entities, individual entrepreneurs; on disputes between a shareholder and a joint-stock company; on disputes of other business partnerships and companies arising from their activities, with the exception of labor disputes; on the protection of business reputation in the field of entrepreneurial and other economic activities. By agreement of the parties in arbitration court any dispute arising from civil legal relations may be referred, unless otherwise provided by federal law (Law "On Arbitration Courts in the Russian Federation" 2002). Permanent arbitration courts and arbitration courts may be formed in the Russian Federation to resolve a particular dispute. Arbitration courts are not included in the judicial system of the Russian Federation. Permanent Arbitration Courts are formed by chambers of commerce, stock exchanges, public associations of entrepreneurs and consumers, other organizations - legal entities established in accordance with the legislation of the Russian Federation, and their associations (associations, unions), and operate under these organizations - legal entities. The dispute may be referred to arbitration if there is an arbitration agreement concluded between the parties. An arbitrator is elected (appointed) by an individual who is able to ensure an impartial resolution of the dispute, who is not directly or indirectly interested in the outcome of the case, who is independent of the parties and who agreed to perform the duties of an arbitrator. Arbitration court does not consider disputes arising from public law relations (for example, contesting the decision of the tax authorities). International Commercial Arbitration Court (ICAC) is a type of arbitration. Consideration of a dispute in the ICAC is possible only if there is a written agreement on this between the parties or by virtue of an international treaty. The parties involved in the disputes themselves elect arbitrators who will consider their dispute. Russian law is applied to the proceedings in the ICAC. The ICAC operates in accordance with the Law of the Russian Federation "On International Commercial Arbitration" of 1993, which is based on the UNCITRAL Model Law on International Commercial Arbitration. 60. CLAIMS PROCEDURE FOR RESOLUTION OF DISPUTES Pre-trial (claim) dispute settlement procedure is allowed only in cases where expressly provided for by federal law or treaty. In particular, the Civil Code of the Russian Federation assigned the determination of the procedure for filing a claim with the carrier to the competence of the relevant transport charters and codes. All transport charters and codes determine the moment from which the right to file a claim against the carrier arises. Claims against the carrier for shortage, damage (spoilage) of cargo, as well as delay in its delivery can be made from the day of delivery of the cargo (in air transport - from the day following the day of delivery of the cargo); about the loss of cargo - after 30 days (for air transport - 10 days) from the date of expiration of the delivery period; a claim for the loss of cargo transported in direct mixed traffic may be submitted after 4 months from the day the cargo was accepted for transportation. In all other cases - from the day of the occurrence of the event that served as the basis for filing a claim. The Civil Code of the Russian Federation does not name the period during which the sender or recipient can apply to the carrier with a claim. Such a period for domestic transportation is established by the Charter of Road Transport, the Air Code - 6 months for filing claims for loss, shortage, damage (spoilage) of cargo. The claim must be made in writing accompanied by a consignment note (bill of lading). Transport charters and codes contain an indication that a commercial act or other document established by the charter or code should also be attached to the claim in case of shortage or damage (spoilage) of the cargo. The carrier is obliged to accept for consideration a claim without a commercial act, if the refusal to draw it up was appealed. The claim must also be accompanied by a document certifying the quantity and value of the shipped cargo. The absence of the latter does not deprive the right to file a claim, but may make it difficult for the carrier to make a decision to satisfy the claim. Right to claim belongs to the recipient or sender, subject to the presentation of the relevant transport document, to the recipient - in case of delay in the delivery of the goods. Within a month, the carrier is obliged to consider the claim and either satisfy it, or give a reasoned answer to refuse to satisfy the claim in whole or in part. In case of full or partial refusal to satisfy the claim, as well as non-receipt of a response to the claim at the end of the monthly period, the consignor and consignee may file a claim against the carrier. The carrier's response to recognize the claim in whole or in part is the basis for collecting the recognized amount (if the carrier did not transfer it voluntarily) in an indisputable manner on the basis of a notary's executive inscription. Limitation of actions for claims arising from the carriage of goods, is set at 1 year. The determination of the moment from which the limitation period should begin was assigned by the Civil Code of the Russian Federation to the jurisdiction of transport charters and codes.
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