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§ 2. Enterprise activity of subjects bankovskoi the infrastructures, providing functioning bankovskoi systems

As features of realisation of enterprise activity of the noncommercial organisations follow, first of all, from their legal status so far as it is logical to pay attention in the beginning to specificity of a legal status of subjects of an infrastructure of bank system – ASV, bank associations and unions, and then directly to analyse their enterprise activity.

As it was specified earlier, according to item 1 of item 2 of the Law on the noncommercial organisations that is the organisation which does not have extraction of profit as a main objective of the activity and not meting received profit between participants.

The noncommercial organisation can carry out enterprise and other activity bringing in the income only so far as as it serves achievement of the purposes for the sake of which it is created and corresponds to the specified purposes provided that such activity is specified in constituent instruments. Such activity acquisition and realisation of securities, the property and non-property rights, participation in economic societies and participation in the limited partnerships as the investor (item 2 of item 24 of the Law on the noncommercial organisations) admit manufacture of the goods making profit and the services answering to the purposes of creation of the noncommercial organisation, and also.

The specified list of kinds of activity in which the noncommercial organisation can be engaged, under the proved statement of some scientists is примерным1. Sense of this transfer not in defining all kinds of activity in which the noncommercial organisations can be engaged. It is represented, that this transfer was necessary for the legislator to open or at least to designate the mechanism of occurrence of profit at noncommercial организаций2. It is thought, as the term "incomes" should be interpreted broadly, and in particular, but it is not exclusive, as profit, percent, dividends, a royalty, compensations.

The agency on insurance of contributions operates in the status of the state corporation, i.e. admits the noncommercial organisation not having membership founded by the Russian Federation on the basis of a property payment. The status, the purposes, functions and powers of Agency are regulated by several federal acts, in a kind of that carrying out of the complex analysis of the legislation is obviously necessary.

The basic norms fixing the status of Agency are concentrated in chapter 3 of the Law on insurance of contributions. Besides, according to item 2 of item 14 of the Law on insurance of contributions, the direct relation to legal status ASV have the Law on the noncommercial organisations, the Law on banks and the Law on bankruptcy of the credit organisations. On December, 28th, 2013 in the given norm have been brought изменения3 according to which status ASV can be regulated and other federal acts, in particular the Law on sanitation and the Federal act from December, 28th, 2013 № 422-FZ «About

1 Kashkovsky of enterprise activity of the noncommercial organisations. - Diss.

kand. jurid. Sciences. M, 2000, With. 140; Ivkova O.V.Uchastie of the noncommercial organisations in enterprise activity. – Diss. kand. jurid. Sciences. – SPb., 2004, with. 60.

2 In spite of the fact that this point of view has been stated K.K.Lebedev with reference to signs of the general concept enterprise activity, we consider possible to extrapolate it and on

Enterprise activity of the noncommercial organisations. - Lebedev K.K.enterprise and the commercial law see. - SPb. 2002. With. 85.

3 Federal act from 28.12.2013г. № 410-FZ «About modification of the Federal act« About not state pension funds »and separate acts of the Russian Federation»//SZ

The Russian Federation. 2013. № 52. Item 6975.

Warranting of the rights of insured persons in system of obligatory pension insurance of the Russian Federation at formation and investment of means of pension accumulation, an establishment and realisation of payments at the expense of means of pension accumulation »1.

Name in a kind that fact, that enterprise activity of Agency

Should serve the purposes of its creation, logically define them. From the analysis of the listed laws follows, that the purposes of creation and Agency activity on insurance of contributions are:

- Maintenance of functioning of system of insurance of contributions (item 1 of item 1 of the Law on insurance of contributions);

- Maintenance of stability of bank system and protection of legitimate interests of investors and creditors of banks (item 1 of the Law on sanitation);

- The account of the rights and legitimate interests of creditors of the credit organisation, society and the state (item 2 of item 50.21 of the Law on bankruptcy of the credit organisations, item 23.2 of the Law on banks).

Competence ASV is the mixed, combining function of the subject of an infrastructure of bank system and enterprise activity, and last powers are less expressed.

As the subject of an infrastructure of bank system ASV carries out three significant functions:

First, it provides functioning of system of compulsory insurance of contributions of physical persons in banks;

Secondly, carries out functions of competitive operating (liquidator) of the credit organisations;

Thirdly, carries out actions for the prevention of bankruptcy of the credit organisations and power of an acting administration within the limits of the Law on sanitation.

The designated kinds of activity ASV calls the target.

1 SZ the Russian Federation. 2013. № 52 (a part I). Item 6987.

Under general rule ASV is on self-financing. So, according to item 40 of the Law on insurance of contributions expenses of Agency on carrying out of the actions connected with activity on compulsory insurance of contributions, and also with realisation of other functions provided by federal acts, are financed at the expense of Agency property.

With a view of financial maintenance of activity on realisation of the assigned functions money resources in the form of a property payment have been transferred Agency. According to item 50 of the Law on insurance of contributions the property payment of the Russian Federation in property ASV is carried out by transfer to it the state corporation «Agency on re-structuring of the credit organisations» 3 billion roubles. From the specified sum of 2 billion roubles went to fund of compulsory insurance of contributions and 1 billion roubles - for formation of sources of expenses ASV on the organisation of the actions entering into its competence.

The fund of compulsory insurance of contributions (further also – FOSV) belongs to Agency on the property right and is intended for financing of payment of compensation under contributions, and also the expenses connected with realisation of functions on compulsory insurance of contributions, and other purposes according to federal acts. Thus, means FOSV have a narrow orientation. On fund of compulsory insurance of contributions the isolated account is led.

Means for maintenance of activity of Agency are intended for payments of wages to the personnel, acquisition of office equipment, furniture, carrying out of actions, statutory contributions about insurance, the Law on banks, the Law on bankruptcy of the credit organisations, etc. not limiting concrete directions of use of this property, the Law during too time orders to Agency to use the property for performance fixed for ASV functions (item 3 of item 16 of the Law on insurance of contributions).

Besides, a source of replenishment of property ASV which is distinct from FOSV and means for activity maintenance are means of the federal budget which, as a rule, have a special-purpose designation. For example, according to ch. 5 items 10 of the Law on sanitation assignment of the federal budget for realisation of actions for the prevention of bankruptcy of banks with Agency participation are carried out by entering of a property payment of the Russian Federation into Agency property (means for realisation of sanitation of banks).

On the basis of item 2 of item 7.1 of the Law on the noncommercial organisations Agency as the state corporation can carry out the enterprise activity corresponding to the purposes of its creation. As noncommercial organisation ASV receives, but does not profit from realisation of enterprise activity.

To principal views of enterprise activity ASV it is possible

To carry:

- Investment is temporary available assets;

- Fulfilment of transactions REPO with Bank of Russia;

- Property realisation (pledge subject), execution of obligations of the credit organisations being maintenance - counterparts of Bank of Russia under credits;

- Realisation of property within the limits of procedures under the prevention of bankruptcy of the credit organisations;

- Release of issue securities.

It is necessary to notice, that the list of directions of enterprise activity ASV is opened as the Agency has the right to have

«Other lawful receipts» (item 1 of item 16 of the Law on insurance of contributions).

Let's add, that itself ASV realisation of the activity directed on reception of profit, by placing (investment) of temporarily free money resources and other activity bringing in the income, qualifies as commercial, instead of enterprise

деятельности1. Really, for the characteristic of private-law relations in sphere of economy of concept "economic", "commercial", enterprise "," investment activity »are quite often used in equal степени2. However, in a kind of absence of a legal definition of commercial activity, and also investment of the state corporations with the right to carry out enterprise activity, it is represented reasonable not to bring mess in terminology.

Primary kind of enterprise activity ASV is activity investment, i.e. acquisition of various actives for the purpose of reception дохода3.

Investment is temporary Agency available assets agrees item 3.2 of item 7.1 of the Law on the noncommercial organisations is carried out on principles of a reflexivity, profitableness and liquidity of actives got by it (objects of investment). To place temporarily available assets probably in deposits of Bank of Russia and other resolved objects of investment according to «investment Rules it is temporary available assets of the state corporation, the state company» 4. We will add, that the Agency invests not only is temporary available assets of Fund of compulsory insurance of contributions, but also means of fund of warranting of pension accumulation (item 3 of item 8 of the Federal act from 28.12.2013 № 422-FZ «About warranting of the rights insured

Persons in system of obligatory pension insurance of the Russian Federation at formation and investment of means of pension accumulation, an establishment and realisation of payments at the expense of means of pension accumulation »).

1 item 4 of the Order of financing of expenses and use of profit of the State corporation See

«Agency on insurance of contributions»//an access Mode: www.asv.org.ru/documents _ and _ analytik/documents/search/286198/(reference Date: 05.12.2013).

2 Garmash A.Investor and the businessman in one sheaf//the EZH-LAWYER. 2012. № 25. With. 10.

3 Items 1.3 Position about investment of temporarily free money resources of the State corporation «Agency on insurance of contributions»//an access Mode: www.asv.org.ru/documents _ and _ analytik/documents/search/286246/(reference Date: 05.12.2013).

4 Utv. The Governmental order of the Russian Federation from 21.12.2011г. № 1080//SZ the Russian Federation. 2012. № 1. Item 125.

Besides investment activity the Agency is engaged also in realisation of the actives got at realisation of measures under the prevention of bankruptcy.

To other admissible law sources of reception of profit can carry the incomes received from alienation of property, being properties ASV, from its delivery in rent.

Results of enterprise activity ASV are reflected in annual reports. So, in 2012 the Agency receives net profit of 14,2 billion rbl., in 2011 6,023 billion rbl. From the report also it is visible, that primary income ASV receives from investment activity: placings of free money resources in financial инструменты1. Relative density of other incomes is low.

From told it is possible to draw a conclusion, that enterprise activity of the state corporation the Agency on insurance of contributions is the activity directed on regular reception of profit for the purpose of maintenance of stability of bank system, maintenance of functioning of system of insurance of contributions and protection of the rights and legitimate interests of investors, creditors of the credit organisation, a society, carried out by investment of temporarily free money resources and other kinds of activity.

Enterprise activity ASV is an example reasonable participation of the state corporation in economy. Intensively the Agency is engaged basically in placing of free money resources, i.e. limits volumes of participation in enterprise activity. This fact is especially pleasant, that the legal design of the state corporation allows to carry out a wide spectrum of kinds of enterprise activity.

1 Report of the state corporation «Agency on insurance of contributions» for 2012. An access mode: www.asv.org.ru/agency/annual/2012/2012.docx (reference Date: 06.12.2013).

Enterprise activity of the unions and associations of the credit organisations

According to item 123.8 GK the Russian Federation association (union) admits

Association of legal bodies and (or) the citizens, based on voluntary or in statutory cases on obligatory membership and created for representation and protection of the general, including professional, interests, for achievement socially useful, and also others not contradicting the law and the purposes having noncommercial character.

The association (union) is the noncommercial organisation which can have the civil rights and perform the civil duties corresponding to the purposes of its creation and activity, provided in the charter. Hence, special franchise of the unions and associations consists in possibility to have the right and to perform the duties corresponding to the purposes and a subject of their activity, provided in the charter.

It is necessary to tell, that in the literature there is also an opposite point of view. So, M.J.Tikhomirov considers, that the unions and associations have the right to carry out only those kinds of activity which are directly specified in them уставе1. Shares this opinion and T.V.Sojfer, saying to that associations and the unions are supposed to realisation of enterprise activity provided that such activity is specified in their constituent документах2. The given position follows from interpretation of item 2 of item 24 of the Law on the noncommercial organisations which, establishes, that the noncommercial organisation can carry out enterprise and other activity bringing in the income provided that such activity is specified in constituent instruments. It would Seem, that this norm can be accepted safely to a management, however, in our opinion, all not so

1 Tikhomirov M. JU. Associations and the unions: a new legal status, features of management, the right and a duty of members. M: Tikhomirov M. JU's Publishing house, 2014//Union of Right Forces ConsultantPlus.

2 Sojfer T.V.association of legal bodies: problems of a legal status and a way of their permission//the Legislation and economy. 2011. № 2. With. 9 - 15.

Categorically. The matter is that general provisions on activity of the noncommercial organisations are established as well GK the Russian Federation and they look differently. So, according to item 4 of item 52 GK the Russian Federations in charters of the noncommercial organisations should be defined a subject and the activity purposes. Thus, norms GK the Russian Federation fix "traditional" special franchise for all noncommercial organisations, limiting it only the purposes and an activity subject. At the same time, concerning some kinds of the noncommercial organisations the code does the reservation, supposing to establish features of their legal status other standard legal acts.

The Russian Federations as well position of item 123.9 GK the Russian Federation, and also item 3 of item 14 of the Law on the noncommercial organisations which establish will be adjusted with given norms GK, that charters of associations and the unions should contain data on a subject and the activity purposes. Thus, GK the Russian Federation, norms of the Law on the noncommercial organisations, regulating the maintenance of their constituent instruments do not establish necessity of fastening of the exhaustive list of kinds of enterprise activity concerning all without an exception of the noncommercial organisations. On the contrary, such requirement is reserved especially only with reference to the charter of budgetary or state establishment (ch. 5 items 3 of item 14 of the Law on the noncommercial organisations).

At the same time it is impossible to tell, as the norm of item 2 of item 24 of the Law on the noncommercial organisations completely contradicts GK the Russian Federation, most likely, it is simply imperfect from the point of view of legal technics. The matter is that speech in it goes not only about enterprise, but about other activity bringing in the income. And so, it makes sense to recollect, that its initial edition completely corresponded GK the Russian Federation as regulated only enterprise activity of the noncommercial organisations. Subsequently the legislator has made to this article of addition which have allowed the noncommercial organisations to be engaged not only

Enterprise, but also other activity bringing in the income, simultaneously having entered position that such activity should be specified in constituent instruments. On an exit, however, article has got that sense, as enterprise activity of the noncommercial organisations should be specified in their constituent instruments. In this connection we believe, that the norm of item 2 of item 24 of the Law on the noncommercial organisations is stated incorrectly as imposes additional legal incapacity – the exhaustive list of kinds of activity on all noncommercial organisations, that contradicts the legislation.

In a kind of presence of the special rules of law devoted to the unions and associations of the credit organisations, and also their importance in bank system of Russia (but also considering prospect of transformation of the unions and associations of subjects of a bank infrastructure in SRO), further we will afford will concentrate on their analysis.

Features of a legal status of the unions and associations of the credit organisations are statutory about banks. So, in item 3 of the given law the legislator has fixed wider list of the purposes of creation of associations and the unions of the credit organisations: 1) protection and representation of interests of members of the specified associations; 2) coordination of their activity; 3) development inter-regional and international contacts; 4) satisfaction of scientific, information and professional interests; 5) development of recommendations about realisation of bank activity, 6) the joint decision of a various sort of the problems facing to the credit organisations.

The law on banks establishes restriction of special franchise of the unions and associations of the credit organisations: an interdiction for realisation of bank operations.

It is necessary to mention, that unlike the majority of the noncommercial organisations enterprise activity of the unions and associations long time had the limited character. So in conformity ch. 2 items 1 of item 121 GK operating till February, 12th, 2013, if under the decision of participants on

Association (union) conducting enterprise activity was assigned, such association (union) should be transformed to an economic society or association or should create an economic society for realisation of enterprise activity or participate in such society. The given interdiction was proved by that the purpose of associations (unions) should be – realisation of the purposes of their founders (perfection of administrative activity, coordination of activity of the participants who have consolidated for this purpose the payments) while other noncommercial organisations pursue own цели1. According to M.A.Egorovoj, O.V.Ivkovoj, L.A.Jurevoj the quoted norm showed the express prohibition on direct realisation by the unions and associations enterprise деятельности2. Agreeing with this statement, we consider important to add, that in the presence of an interdiction for direct realisation of enterprise activity, the unions and associations kept the right to its realisation oposredovanno by creation or participation in an economic society.

Now norm ch. 2 items 1 of item 121 GK has lost силу3. We believe,

That liberalisation of conditions of realisation of enterprise activity of associations and the unions should be estimated positively. It will help to lower costs and derivation of resources on creation of the commercial organisations leading enterprise activity for maintenance of target activity of associations and the unions, will deduce their direct illegal business from a shade, harmonises the legislation on the noncommercial organisations. As a whole this short story

1 antipov A.A.feature of association (union) as noncommercial organisation//Actual problems of the Russian right. 2007. № 2. With. 141.

2 See for example: Ivkova O.V.Ukaz. soch. With. 128; the Comment to the Civil code of the Russian Federation, a part of the first (article by article) / G.E.Avilov, V.V. Bezbah, M.I.Braginsky, etc.; under the editorship of Island N.

Sadikova. 3 izd., ispr., the reslave. And dop. M: the CONTRACT, INFRA TH, 2005//Union of Right Forces ConsultantPlus;

Egorov M. A. The Commercial law: the textbook for high schools. M: RANHiGS at the President of the Russian Federation, the Statute, 2013//Union of Right Forces ConsultantPlus; JUreva L.A.contract of management of an apartment house: the monography / under the editorship of I.D.Kuzminoj. M: JUstitsinform, 2011//Union of Right Forces ConsultantPlus.

3 Federal act from 11.02.2013 № 8-FZ «About modification of a part the first the Civil code

The Russian Federation and the Federal act «About the noncommercial organisations»//SZ the Russian Federation. 2013. № 7. Item 609.

Corresponds to foreign experience as in many democratic countries the noncommercial organisations of a similar kind have the right of realisation of enterprise activity with a view of performance facing to them задач1.

At the present stage in Russia is more than 18 unions and

Associations of the credit organisations (mainly regional or regional) 2. Considering that enterprise activity of the unions and associations should correspond to the purposes of their creation and a subject of the activity, established in constituent instruments, it is logical to address to their research. In this connection we will consider the purposes and a subject of activity of the largest bank associations – Associations of the Russian banks (further also – ARB) and Associations of regional banks.

So, according to item 1 of item 3 of Charter ARB, main objectives of activity of this association are:

- Protection of the rights and legitimate interests of the members, rendering of the help by it with a view of increase of efficiency of their activity;

- The decision of the specific targets facing to bank community;

- Assistance to creation of conditions for effective functioning of bank system of Russia and maintenance of its stability;

- Participation when due hereunder in preparation of decisions of standard character concerning regulation of bank activity;

- Participation in working out of government programs of development of bank system, and also uniform state monetary and credit policy.

The association of regional banks of Russia is created with a view of coordination of activity of its members, maintenance of protection of their rights and representation of common interests in state and other bodies, developments inter-regional and

1 For example, in the Great Britain charitable societies can be engaged in the business which has been not connected with their main objectives; thus such business should not exceed 10 % of all volume of activity of a charitable society. – their role in enterprise activity see antipov A.A.legal regulation of associations and the unions. Diss. kand. jurid. Sciences. – M, 2009. With. 149.

2 Kopytova A.I.role of bank associations and the unions in a national economy//Bulletin TGPU. 2011. № 12. With. 32.

International contacts, satisfactions of information requirements and professional interests.

Association of efforts of members on perfection of bank system, participation in formation of legislative and standard base of development of a banking, maintenance of economic and legal guarantees of activity of banks, assistance to their independent development – the Association of regional banks of Russia fixes as the problems (item 1, 11 Charters of Association of regional banks of Russia).

Characterising the purposes of activity ARB and Associations of regional banks of Russia, it is possible to tell, that whole associations see the mission a little bit more widely put in pawn in the Law on banks of approximate frameworks. Besides traditional for associations and the activity unions (coordination and the help to the members) the named associations apply for participation in preparation of decisions normotvorcheskogo character, in working out of government programs of development and, as a whole, on assistance to creation of conditions for effective functioning of bank system of Russia and maintenance of its stability.

Subject of activity ARB, according to item 3.2 of its charter, is:

- Representation and protection of interests of members in Bank of Russia and public authorities;

- Rendering to members of organizational, information-analytical, methodical, legal and other help;

- Increase of prestige, reliability and mutual trust of members, maintenance of observance with members of the Code of ethical principles of a banking, expansion of business partnership between members, and also contacts between their heads and experts;

- Expansion of cooperation of members with foreign banks, their unions and associations, the international financial organisations;

- Assistance to the credit organisations in consolidation of their resources for realisation of large economic programs;

- Banking development to Russia, participation in the actions spent by Bank of Russia and public authorities on development of the Russian bank system.

The subject of activity of Association of regional banks of Russia is more concrete, and includes, for example, such kinds of activity as: the organisation of vocational training and improvement of professional skill of workers of banks, and also training of experts in the country and abroad, the organisation of logistics of members of association production and the goods according to the declared requirement; the edition of periodic magazine, the help in development of information systems on the basis of use of modern technics, foreign trade activities realisation (item 12 of the Charter of Association of Regional banks of Russia).

Concerning possibility of realisation of enterprise activity of association "have expressed" in the charters differently. ARB has directly specified as priority publishing and investment activity (item 8 of Charter ARB); the Association of regional banks of Russia, on the contrary, was limited to the general words about possibility of reception of incomes of realisation of the goods, performance of works and rendering of services reception of other lawful receipts (item 26 of the Charter of Association of regional banks of Russia) 1.

It is difficult enough to foresee (especially in the absence of the judicial

Experts) as the formulation of the purposes and a subject of their activity in constituent instruments can particularly be reflected in volume of the legal capacity of the unions and associations of the credit organisations. For example, we take such subject of activity ARB as assistance to the credit organisations in consolidation of their resources for realisation large economic

1 the Charter of Association of regional banks of Russia//an access Mode See: www.asros.ru/ru/about/charter/general_provisions/(reference Date: 10.12.2013г.); the Charter of Association of the Russian banks//an access Mode: arb.ru/site/docs/ARB-USTAV-2011 doc. (Reference Date: 10.12.2013г.).

Programs. In our opinion, it supposes intermediary activity similar to those, that credit brokers carry out. Considering, the large size of the syndicated credits, specificity of borrowers, this activity can well be paid. Accordingly, ARB, the activity which has fixed this as a subject of activity of association, can carry out it without any obstacles. Other situation develops concerning Association of regional banks, in whose charter of particularly such subject of activity is not fixed, but fixed, that the association renders the practical help to banks in the organisation of their work, to the financial questions arising in their activity. Whether it is possible to bring activity of the credit broker under the practical help to banks in their work or under coordination of activity of its members? In our opinion, this kind of enterprise activity will correspond to the purposes and a subject of activity of Association of regional banks as it can be considered as coordination of activity of members in the decision of their practical problems. In this connection, it is possible to assume, that having approximately identical set of the purposes of the activity, based on norms of the current legislation, bank associations and the unions have potential possibility of equal volume of participation in enterprise activity. Concrete degree of participation of the bank union or association depends on resources and association problems. For example, financial position ARB allows it to represent itself as the active subject of enterprise activity. ARB enters into number souchreditelej the Moscow interbank currency stock exchange, the Moscow clearing centre, Fund

«The interbank centre of problems of management», the International Moscow financially-bank school, Institute of banking ARB, the Center of a supply with information of bank activity and business INION the Russian Academy of Sciences, not State pension fund

"Blessing", Club of heads of bank services of public relations

And advertising. Besides, the Association owns Open Society actions «National bureau of credit histories» (the largest bureau in the market of credit histories in the Russian Federation); is the founder of Noncommercial partnership «the National bank club», (organizujushchego business meetings, gala-actions with participation of the Russian and foreign elite, sports tournaments, the VIP-tourism, and also services of service of personal assistants), souchreditelem Groups of companies "Amulets" – complex safety (the consolidating 10 companies in a complex representing a wide spectrum of services in sphere of safety), etc.

ARB lets out two periodic magazines «Bulletin ARB» and

«National bank magazine» 1. Enterprise activity ARB under the edition of a printed matter represents itself as the major means for creation and maintenance of contact to the members. During too time of edition ARB are calculated on the mass reader and are offered on a foreign market for defined плату2.

Summing up we will draw a conclusion, that the unions and associations of the credit

The organisations can carry out directed on profit reception the enterprise activity corresponding to their purposes and a subject, provided in constituent instruments. Investment, publishing and consulting activity concerns principal views of enterprise activity of the unions and associations of the credit organisations. Enterprise activity of the unions and associations is realised mainly by creation or participation in economic societies that is a consequence of restriction operating long time on realisation by the unions and associations of other kinds of enterprise activity. Enterprise activity of the unions and associations of the credit organisations is limited by a special interdiction for realisation of bank operations.

1 Mode of access: http://arb.ru/arb/projects/(reference Date: 11.12.2013).

2 For example, the magazine «Bulletin ARB» is offered at the price of 1180 rbl. 15 copeck//an access Mode: www.mega - press.ru/item.261197.other.html (Date of the reference 11.12. 2013).

Nothing prevents to finish to us on it the paragraph as last subject identified by us as an infrastructure of bank system – the self-adjustable organisations of credit co-operative societies and the microfinancial organisations – on law express indication have not the right to carry out enterprise activity (item 1 of item 14 of the Law on the self-adjustable organisations). But after all and the separate line in the law on the federal budget for financing SRO is not provided. In that case at the expense of what primary activity SRO is carried out? Having asked this question, we have gone deep into research of legal status SRO and have found out curious details which, we believe, have the direct relation to a subject of our work.

In the legal literature of last years research SRO takes a visible place. The greatest interest causes J.G.Leskovoj's work. Analyzing status SRO, the scientist comes, as it seems to us, to polar conclusions:

- Proves, that legal capacity SRO is exclusive, isolating it among other noncommercial organisations as

"Regulators" of enterprise relations it is forbidden to them to be engaged in enterprise activity;

- Recognises, that actually SRO can be engaged in the exhaustive list of kinds of enterprise activity, thus, noticing, that such sign judiciary practice designs the maintenance special правоспособности1.

In our opinion, similar conclusions are generated by full disorganisation

Legislations concerning enterprise activity of the noncommercial organisations of different kinds. The key contradiction to rather settled norms is put in pawn in item 14 of the Law on the self-adjustable organisations, in a kind of that we will quote it literally:

1 Leskova JU.G.conceptual and legal bases of self-regulation of enterprise relations. M: the Statute, 2013//Union of Right Forces ConsultantPlus.

1. The self-adjustable organisation has not the right to carry out enterprise activity.

2. The self-adjustable organisation has not the right to found economic associations and the societies which are carrying out enterprise activity, being a subject of self-regulation for this self-adjustable organisation, and to become the participant of such economic associations and societies.

3. The self-adjustable organisation has not the right to carry out following actions and to make following transactions if other is not provided by federal acts:

1) to give property belonging to it as a deposit in maintenance of execution of obligations of other persons;

2) to give out guarantees for other persons, except for the workers;

3) to get actions, bonds and other securities which have been let out by its members, except for cases if such securities address at the organised auctions;

4) to provide execution of the obligations by the lien of the members, with the guarantees given out by them and guarantees;

5) to mediate (the commission agent, the agent) on realisation made by members of the self-adjustable organisation of the goods (works, services);

6) to make other transactions in the cases provided by other federal acts.

Close interpretation of this article leads to a conclusion, that enterprise activity for SRO is not activity investment, trading, intermediary, rendering of paid services, and is concrete:

1) establishment of the economic societies which are not carrying out enterprise activity, being a subject

Self-regulation SRO, and participation in such economic societies is equal;

2) acquisition of actions, bonds and other securities let out by members SRO and addressing at the organised auctions;

3) realisation of the transactions listed in item 1-6 ch. 3 made comments articles if it is provided by federal acts;

4) investment of means of indemnification fund SRO;

5) rendering of services in the information granting, which disclosing can be carried out on a paid basis;

6) rendering of the educational services connected with enterprise activity, commercial or professional interests of members of the self-adjustable organisation;

7) sale of the information materials connected with enterprise activity, commercial or professional interests of members of the self-adjustable organisation;

8) placing of money resources on bank deposits, etc.

In our opinion, abundantly clear, that norm ch. 1 item 14 of the Law on the self-adjustable organisations conceptually contradicts ch. 2 and ch. 3 same articles; to the majority of points of item 12 of the named law (sources of formation of property SRO), and the most important thing to legislation general provisions, and, in particular, item 2 of item 24 of the Law on the noncommercial organisations which establishes, that enterprise and other activity of the noncommercial organisations bringing in the income admits manufacture of the goods making profit and services, and also acquisition and realisation of securities, the property and non-property rights, participation in economic societies and participation in the limited partnerships in quality

The investor. It is necessary to tell, that inquisitive mind can find out and in this norm variability as starting with logic of the legislator, the listed kinds of activity can be both enterprise, and others bringing in the income. And, really, if «to look on the parties» it is found out, that:

- Funds have the right to be engaged in enterprise activity by means of creation or participation in economic societies (item 2 of item 7 of the Law on the noncommercial organisations);

The-budgetary establishment has the right to carry out other kinds of activity which are not principal views of activity (item 4 of item 9.2 of the Law on the noncommercial organisations);

The state corporations, the state companies, noncommercial partnership, the independent noncommercial organisations, have the right to carry out enterprise activity (item 7.1 item 2; item 8 item 2; item 7.2 item 5; item 2 of item 10 of the Law on the noncommercial organisations);

The independent noncommercial organisation is allocated with the right to be engaged in enterprise activity, creating economic societies or participating in them (item 123.24 GK the Russian Federation).

Taking into account such disorder the same kinds of activity (for example, participation in economic societies, operations with financial tools, property delivery in rent, granting in using of the rights to means of intellectual activity) can admit both enterprise, and other activity bringing in the income that can be hardly regarded as adequate legal regulation. Having refracted item 2 of item 24 of the Law on the noncommercial organisations through a prism of general provisions of the enterprise legislation, it is visible, that the legislator has resulted in it only examples of enterprise activity. Additional argument in favour of this statement can that fact serves, that in initial edition of item 2 of item 24 of the Law on the noncommercial organisations the legislator fixed conducting possibility

The noncommercial organisations of exclusively enterprise activity, resulting identical toolkit (manufacture of the goods making profit and services, acquisition and realisation of securities, the property and non-property rights, participation in economic societies and participation in the limited partnerships as the investor) 1. Subsequently the given norm has been added by a phrase that the noncommercial organisations have the right to be engaged and «other activity bringing in the income», and regarding examples enterprise and other activity bringing in the income the norm of article of changes has not undergone. Kollizionnost the legislation has not forced to wait for occurrence of polar views long. The thought stated Gorodilovoj that is interesting

In case of acquisition and realisation of securities, and also participations in economic societies enterprise activity are carried out not by the noncommercial organisation, and other legal body – the commercial organisation owing to what the specified kinds of activity do not possess signs предпринимательской2. We think, that the given statement is disputable, as its logician can be extended and to other kinds of activity certainly concerning the enterprise. So, following judgements of the author, it is possible to conclude, that in case of acquisition and realisation of the goods enterprise activity is carried out also by other legal body – that has created the goods. Besides, to carry out issue of bonds and other issue securities can in statutory cases and the noncommercial organisations. In

To such situation of the logician of judgements of J.L.Gorodilovoj will lead to thought, that in case of acquisition and realisation of securities enterprise activity is carried out by other legal body – the noncommercial organisation. At the same time, subjecting to criticism opinion of the author, in our opinion,

1 Federal act from 12.01.1996г. № 7-FZ (red. From 22.07.2010) «About the noncommercial organisations»//SZ the Russian Federation. 1996. № 3. Item 145.

2 Gorodilova JU.L.legal regulation of activity state and municipal authorities. Diss. kand. jurid. Sciences. - M,–2012. With. 100.

It is necessary to notice nevertheless, that the specified kinds of activity, no less than real estate delivery in rent, placing of means on bank deposits, really possess certain features. It is caught also by the legislator, for example, in the Tax code, in item 248 NK the Russian Federation incomes are subdivided into incomes of realisation and extra-realizational incomes which including incomes of individual share in other organisations, from property delivery in rent, in the form of the percent received under contracts of the bank contribution, and also on securities and so forth However concern, these incomes are not contrasted each other, and, on the contrary, are consolidated by the general patrimonial concept "profit" (item 247 NK the Russian Federation). With reference to enterprise activity, also, in our opinion, is admissible to speak about participation in it directly and oposredovanno. Actually, such thought already met in the literature. For example, characterising the state corporations, Century And. Laptev says, that they «carry out enterprise activity: oposredovanno through attraction

Investments and it is direct by performance of works and rendering of services »1.

We consider correct to support the given position for realisation of the right to realisation of enterprise activity by own actions can be carried out as directly, and oposredovanno - actions of the intermediaries, the authorised persons, representatives and so forth

So, we believe, that SRO actually are engaged in enterprise activity. According to the current legislation of Russian Federation SRO, as well as other noncommercial organisations possess special franchise. However precisely enough to reveal features of enterprise activity of the named organisations, to show their difference from other noncommercial organisations it is necessary to pay attention to volume of legal capacity SRO.

1 Laptev V. A. A role of the enterprise right for business in Russia//the Enterprise right. The appendix «Business and the right in Russia and abroad». 2012. № 2. With. 45 - 50.

According to the definition given in ch. 1 items 3 of the Law about SRO, the self-adjustable organisations admit the noncommercial organisations created with a view of working out and an establishment of standards and rules of enterprise activity, and also the control over observance of requirements of the specified standards and rules. From the given definition follows, that the legislator has defined, that the self-adjustable organisation is the organisation which does not have extraction of profit as the purpose of activity and not meting received profit between participants, and has accurately designated the purposes of creation of the self-adjustable organisation.

Concerning separate kinds SRO of the purpose of their activity can be defined in the laws regulating their special status. So, the purpose of activity SRO of credit co-operative societies defines the Law on credit cooperation as regulation and the control of activity of the credit co-operative societies which are their members, and also representation and protection of interests of members of the self-adjustable organisations (item 35). In a considered case of the purpose of activity SRO of credit co-operative societies are interfaced to an establishment of rules of behaviour for their members that is reflexion of concept of self-regulation, but it is filled with the additional purpose: protection of interests of members SRO.

Considering positions of articles 12, 14 Laws about SRO, and also the enterprise practice generalised in letter Minregiona of Russia from 27.04.2012г. № 11331-08/ДШ-ОГ «About the resolved kinds of activity of the self-adjustable organisations» 1 we believe, that it is necessary to carry to number of primary kinds of enterprise activity SRO:

- Rendering of services in the information granting, which disclosing can be carried out on a paid basis;

1 Rationing in building and housing and communal services. 2012. № 6.

- Rendering of the educational services connected with enterprise activity, commercial or professional interests of members of the self-adjustable organisation;

- Sale of the information materials connected with enterprise activity, commercial or professional interests of members of the self-adjustable organisation;

- Placing of money resources on bank deposits.

Here we can observe bright discriminating feature of restriction of enterprise activity SRO: in some cases its obligatory communication with a subject of enterprise activity or professional and commercial interests of its members is required.

It is obviously important to add, that special franchise

SRO it is not designed by the exhaustive list of kinds of activity, as item 7 ch. 1 item 12 of the Law about SRO allows them to have others «the sources of incomes not forbidden by the law». A.N.Kajl, A.A.Batjaev among not named by the Law about SRO sources of incomes SRO, but being those, dividends (carry percent, incomes), received under actions, bonds and another valuable бумагам1. According to A.N. Borisov it is necessary to carry to number of sources of incomes SRO and the incomes received from property SRO: the given position fixed by the Law on the noncommercial organisations, on not to quite clear reason in Law SRO is not reproduced. As the scientist, to the incomes received from property SRO considers, it is possible to carry, in particular, following incomes: in the form of rent or other payment for delivery in time possession and using or in time using of property SRO; The means received from assignation, being in property SRO, on the security, in confidential management, etc.

1 Kajl A.N., Batjaev A.A.comment to the Federal act from December, 1st, 2007 № 315-FZ «About the self-adjustable organisations» (article by article)//Union of Right Forces ConsultantPlus.

The self-adjustable organisations can act as the founder or the participant in other commercial organisations. However, here the legislator has established one restriction: the self-adjustable organisation has not the right to found economic associations and the societies which are carrying out enterprise activity, being a subject of self-regulation for this self-adjustable organisation, and to become the participant of such economic associations and societies. Earlier we have noted also other restrictions of activity SRO which should be regarded as restriction of enterprise activity of the self-adjustable organisations. It is necessary to add, that the specified restrictions can be cancelled by other federal acts or on the contrary be supplemented, for the purpose of elimination of the circumstances involving occurrence of the conflict of interests.

In practice frequently self-adjustable organisations try to ignore the established restrictions, for example, fixing in the constituent instruments the right to create and enter any commercial and noncommercial организации1. The separate self-adjustable organisations go further away, declaring, that they have the right

«To carry out enterprise activity by creation of economic associations, societies and other economic organisations, together with without these with a view of performance of authorised problems» 2. Even in courts of justice SRO try to insist, that kinds of activity carried out by them should be carried to economic (enterprise) activity bringing in the income in this connection, to consider disputes following from such activity it is necessary to consider in arbitration судах3.

1 See for example: Appeal definition of the Moscow city court from 02.04.2013г. On business № 11 10362\13. The document has not been published//Union of Right Forces ConsultantPlus.

2 the Noncommercial partnership «Self-regulated the organisations of association of the Russian masters of an estimation» »//an access Mode See: http://arb.ru/org/samoreguliruemaya-organizatsiya-assotsiatsii-rossiyskikh-magistrov - otsenki-np-armo (reference Date: 20.01.2014).

3 Decision FAS of Far East district from 07.02.2013г. № Ф03-52/2013. The document is published not

There was//Union of Right Forces a ConsultantPlus.

Summing up, the author of dissertation comes to a following conclusion.

The self-adjustable organisations de facto carry out enterprise activity. As well as the majority and other kinds of the noncommercial organisations, SRO have special franchise which allows them to carry out taking into account the established restrictions directed on reception there have arrived activity, with a view of working out, establishments of standards and rules of enterprise activity, the control over their observance, and also in other purposes provided by federal acts.

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A source: Tarasenko Olga Aleksandrovna. ENTERPRISE dejatelnos SUBJECTS of BANK SYSTEM of Russia (LEGAL ASPECT). The dissertation on competition of a scientific degree of the doctor legal naukjuju Moscow 2014. 2014

More on topic § 2. Enterprise activity of subjects bankovskoi the infrastructures, providing functioning bankovskoi systems:

  1. § 3. Enterprise activity of subjects bankovskoi the infrastructures, providing effective realisation bank operations
  2. § 1. Concept bankovskoi infrastructures. Classification of subjects bankovskoi infrastructures
  3. § 2. Subjects bankovskoi systems as subjects predprinimatelskoi activity
  4. § 1. Concept, structure and signs bankovskoi systems of Russia
  5. the Chapter II. Powers of the subjects providing legality in activity of local governments
  6. § 3. Subjects predprinimatelskoi activity in bank systems of foreign countries
  7. § 2. Subjects of restrictions of enterprise activity inost rannyh persons.
  8. § 3. A modern condition of legal regulation of enterprise activity of managing subjects in business relations
  9. CHAPTER 4. ENTERPRISE ACTIVITY OF SUBJECTS OF THE BANK INFRASTRUCTURE
  10. CHAPTER 1. BANK SYSTEM OF RUSSIA AND ITS SUBJECTS OF ENTERPRISE ACTIVITY
  11. CHAPTER 2. ENTERPRISE ACTIVITY OF SUBJECTS OF BANK SYSTEM OF RUSSIA
  12. CHAPTER 2. OBJECTS And SUBJECTS of RESTRICTIONS of ENTERPRISE ACTIVITY of FOREIGN PERSONS
  13. § 3. The subjects providing realisation of the rights of citizens