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§ 1.1 Noncommercial organisations as subjects of an inconsistency

The legal bodies which main objective of activity is not reception of profit and its distribution between participants (founders) are called as noncommercial. The noncommercial organisations can be created for achievement of the social, charitable, cultural, educational, scientific and administrative purposes, physical training and sports development, for health protection, satisfaction of spiritual and other non-material requirements of citizens, protection of the rights and legitimate interests of citizens and the organisations, the resolution of disputes and conflicts, legal aid rendering, and also in other purposes directed on achievement of public benefits (item 1 of item 50 of the Civil code of the Russian Federation (further - GK); item 2 of the Federal act from January, 12th (further - GK); item 2 of the Federal act from January, 12th, 1996 «About the noncommercial organisations» (further - the Law on the noncommercial organisations)).

Far not always it is possible to tell unequivocally, the theatre, circus, a film society concern what kind of the organisations with the film studio where educational films and preview trailers, private paid school, publishing house of the children's or educational literature etc. Secondly simultaneously act in film, for example, the legislator allows to carry out to all noncommercial legal bodies enterprise activity with a condition, that such activity will serve achievement of the purposes for the sake of which the concrete organisation is created, and to correspond to these purposes (item 3 of item 50 GK). Such position is represented absolutely proved [1] as in modern conditions, probably, any legal body even having the most good intentions and called to solve a certain universal problem, cannot exist long time only on voluntary payments of the founders and the donation of patrons of art. Thirdly, the legislative design of some noncommercial organisations is that, that assumes distribution of the profit received by the legal body, between its participants.

According to article 2 of the Civil code profit extraction represents result of enterprise activity. The legislation of the Russian Federation does not contain other possibility of reception have arrived differently, as as a result of its realisation. Therefore for the commercial organisation enterprise activity should be an activity principal view, for noncommercial - nonbasic.

Thus, the legislator as one of criteria of differentiation of the organisations has selected a parity of extraction of profit with other purposes of these organisations. If profit extraction has paramount value such organisation is commercial. If the organisation is aimed at realisation of profitless activity, it concerns the noncommercial organisations.

Unfortunately, concepts «an activity main objective», «an activity principal view» otsenochny. The legislation does not contain signs with which help it would be possible to separate the core from the nonbasic. However even presence of such signs would not guarantee, in our opinion, possibility of that definition, whether primary activity of the organisation is exclusively enterprise or not enterprise: the same kind of activity can be the activity directed simultaneously on achievement of the purposes of creation of the noncommercial organisation and on extraction of profit. For example, the noncommercial organisation having as the purpose of creation development of physical training and sports, can carry out the activity on a paid, profitable basis.

In this case all activity of the organisation, being as a matter of fact enterprise activity, simultaneously realises socially useful purpose — physical training and sports development. And the purpose of extraction of profit, and socially useful purpose are at least in equal proportions, that is

To allocate, what of these purposes is the basic and what nonbasic, is impossible [2 [3].

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Most visually difficulty of differentiation of socially useful and enterprise activity of the organisations can show on an example of the independent noncommercial organisations. According to point 1 of article 10 of the Federal act «About the noncommercial organisations» cultures, sciences, the rights, physical training and sports and other services can be the purposes of activity of the independent noncommercial organisations granting of services in a sphere of education, public health services. At the same time by means of rendering of services enterprise activity is carried out also. Hence, the legislator gives to the independent noncommercial organisations possibility one kind of activity to carry out both enterprise, and socially useful activity. On the same feature of the independent noncommercial organisations

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Specifies and Olejnik the M. Island Equally though not so visually, such situation can develop and in activity of the noncommercial organisations of other kinds, for example noncommercial partnership.

Enterprise and socially useful activity can coincide not only at rendering of services, but also by manufacture of the goods or performance of works. [4] for example, the religious organisation has the right to organise manufacture of subjects of the cult used at departure of religious practices, for the subsequent sale of these goods by believer. The cultural establishment can carry out restoration works on vozmezdnoj, a profitable basis for itself.

Besides the legislation does not contain an interdiction for combination of the basic and enterprise activity [5 [6]. Moreover, in it the norms testifying to possibility of such combination contain. Besides norms about the noncommercial independent organisations, it is possible to mention, for example, point 1 of article 46 of the Law of the Russian Federation «formation» according to which not state educational institution has the right to levy a payment with trained and pupils for educational services. As an example it is possible to result and point 6 of article 6 of the Law of the Russian Federation from December, 27th 1991 g № 2116-1 «About the profit tax of the enterprises and the organisations» which is provided, that by the profit received from primary activity by the state and municipal museums, libraries, philharmonic collectives, theatres, archival establishments, circuses, zoos, botanical gardens, dendrology parks and national reserves, does not come under to the taxation. Possibility of combination of enterprise and socially useful activity by the commercial organisations does not cause doubts.

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Proceeding from stated, socially useful activity of the noncommercial organisation can be simultaneously and enterprise activity. Similarly the commercial organisations at realisation of enterprise activity have the right to pursue simultaneously socially the useful aims.

If we all the same manage to separate socially useful activity from enterprise, in particular, in a case when this activity does not bring profit, before us there is a problem of a choice of criteria on which the parity of socially useful and enterprise activity with each other will be measured. It is possible to select as such indicator

Volume of the material at its realisation material and non-material actives to consider as such criterion frequency, a system of realisation of this or that kind of activity; it is possible to be guided by any other signs.

We take as such criterion harmony of financing of socially useful and enterprise activity. In this case it will be possible to recognise that a principal view of activity of the organisation that on which realisation it is necessary more than 50 percent from all expenses of the organisation. But such division is very conditional. Socially useful activity of the organisation can actually be big on volume of expenditures of labour of members of the organisation, practically occupy all time of their activity in this organisation, but not require essential financial expenses [7]. For example, the noncommercial organisation pursuing the aim of development of physical training, can spend the material means only for a payment of the trainer. At the same time with a view of research of money resources for purchase of the sports equipment and stock she according to point 2 of article 24 of the Federal act «About the noncommercial organisations» can be engaged in acquisition and realisation of securities, the property and non-property rights. Such activity demands considerable financial investments. The profit on such activity can and to be received. Besides the profit can be received only after the expiration defined, enough the long period of time. Thus, first, financial investments in enterprise activity during any period of activity of the organisation can be more than in socially useful; secondly, even if for an estimation to take long enough period of time, it cannot hectares -

rantirovat return of the enclosed means, reception of profit and their direction on purchase of sports stock and the equipment. Expenses for realisation of enterprise activity can and remain immeasurably big, than on socially useful activity.

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It turns out, that harmony of financing of socially useful and enterprise activity is difficult for defining any uniform for all cases a percentage parity. Validity of use of property in corresponding directions should be defined in each concrete case separately, and inconveniently in advance to offer any criteria with which thus followed be guided [8].

The attention was repeatedly paid to difficulties of definition of the basic or nonbasic character of the purpose of activity and an establishment of an optimum parity of socially useful and enterprise activity of the organisation in the legal literature. In particular, in opinion Rahmilo - vicha Century A, the given sign remains rather uncertain and of little use for otgranichenija the noncommercial organisations from commercial [9]. Suhanov E.A., analyzing questions of realisation by associations (unions) of enterprise activity, comes to conclusion about difficulty to check real observance of restriction of volume of such activity. Besides, mentioning questions of proportions of such activity with other carried out kinds of activity of associations (unions) for the sake of which they are created, Suhanov E.A. specifies and in convention of the restriction of these volumes. « Why, for example, 20-30 percent from the annual sum of charges of association, instead of 40 or 15 percent, and what these sums? »— he asks [10].

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The given positions once again confirm, that such criterion as the activity main objective, cannot be recognised by suitable for differentiation of the commercial and noncommercial organisations. As it has already been noted, socially useful and enterprise activity can coincide and be inseparable from each other. If the profit is necessary, is the essential source of finance of the organisation there are no bases to forbid its reception and at realisation of socially useful activity. The choice of ways of achievement of socially useful purposes is the right of founders and participants of the organisation, the organisation and can be limited only in that degree in what it is necessary for protection of public interests and legitimate rights and interests of other persons. Besides, it is difficult enough to develop criteria for that definition, whether the purpose of activity of the basic or is nonbasic, it will be even more difficult to supervise their observance in practice.

It is represented, that speech should go not about the activity purposes, and about the purposes of creation of the organisation [11]. The purpose of creation of the organisation allows to allocate from a lump of the organisations those from them which satisfy the most significant requirements of a society and the state, requirement which in most cases cannot be realised on the basis of property, a material interest of the organisations. The noncommercial organisations pursue not

The purpose of enrichment of their founders (participants, members), and the social, charitable, cultural, educational, scientific, administrative and other purposes directed on achievement of public benefits (point 2 of article 2 of the Federal act «About the noncommercial organisations»). Though the law does not forbid to profit at realisation of socially useful activity, necessary for maintenance of activity of the noncommercial organisation, profit extraction can be only one of the purposes of its activity, but not the purpose of creation [12].

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The concept «the purpose of creation of the organisation» is applied by point 3 of article 50 of the Civil code of the Russian Federation and point 2 of article 2 of the Federal act «About the noncommercial organisations» along with concept «the activity purpose». Definition of that is the purpose of activity of the noncommercial organisation, in the legislation is absent. It is represented, that the purpose of activity of the noncommercial organisation and the purpose of creation of the noncommercial organisation — concepts inadequate. If to follow other logic, profit extraction could not be present at activity of the noncommercial organisation at all as socially useful purposes can be the purposes of creation of the noncommercial organisation only. However it is impossible to carry out the enterprise activity which right of conducting is given the noncommercial organisations by norms of article 50 of the Civil code of the Russian Federation and Federal act article 24 «About the noncommercial organisations», not having as the purpose of such activity profit extraction. Activity of the noncommercial organisation can be focused and on research of other sources of finance, in particular, attraction of means of sponsors, donations, etc. Realization of all of these, as well as any

Others, activity kinds it is impossible without statement of the corresponding purposes [13].

Unlike it, the commercial organisations are created for profit extraction. But thus founders of the commercial organisation, creating the organisation, have the right to provide, that the profit will be taken by means of realisation of this or that socially useful activity, capable to make profit.

The second criterion of differentiation of the commercial and noncommercial organisations which is used in the legislation of the Russian Federation, the permission is or will lock to mete received as a result of realisation of enterprise activity profit between participants of the organisation. This criterion is applied to classification of the organisations and in the right of the foreign states: the noncommercial organisations, in particular, are understood as the organisations which net profit does not come under to distribution among its members and managing directors [14 [15].

The interdiction of distribution of profit is perceived by the noncommercial organisations as is unique the accurate criterion, allowing to separate the noncommercial organisations from the commercial. As marks Jakobson L.I., noncommercial managing differs in the specific ways balan -

sirovki the rights and duties therefore not so much possibility of reception of means is limited, how many a direction and the form of their use [16]. The interdiction of distribution of profit the noncommercial organisations is an obligatory element of their legal status, called to provide target use of property of these organisations. The noncommercial organisations are obliged all profit to spend only on achievement of the purposes of creation of the organisation. The specified interdiction is directed also on prevention of use of fiscal incentives, privileges on a rent, the financial support, given to the noncommercial organisations, for personal or corporate enrichment.

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Unfortunately, this criterion of differentiation of the noncommercial and commercial organisations is used by the legislator inconsistently, not individual deviations from its uniform application are supposed. It is a question of fastening to the noncommercial organisations of separate organisation-legal forms of the right to some extent to mete the received profit between their participants [17].

First of all it is necessary to note such kind of the noncommercial organisations, as consumer co-operative societies. Point 5 of article 116 of the Civil code of the Russian Federation directly establishes, that the incomes received by consumer co-operative society from enterprise activity, carried out by co-operative society according to the law and the charter, are meted between its members. However, federal acts about separate kinds of consumer co-operative societies soften this categorical position of the Civil code of the Russian Federation a little, limiting the sizes of co-operative payments paid to shareholders, however such wrongful deviation from norms of the Civil code does not remove inconsistency zakonoda -

telja in application of the second criterion of differentiation of the commercial and noncommercial organisations. As notices Suhanov E.A., possibility of distribution of profit of consumer co-operative society contradicts its nature as to the noncommercial organisation.

So, according to article 24 of the Law of the Russian Federation «About consumers' co-operative society (consumer societies, their unions) in the Russian Federation» 1 incomes of a consumer society received from its enterprise activity, after entering of obligatory payments according to the legislation of the Russian Federation go to funds of a consumer society, for realisation of calculations with creditors and (or) co-operative выплат2. The size of co-operative payments defined by general meeting of a consumer society, can reach 20 percent from incomes of a consumer society. At liquidation the property of the consumer society which have remained after satisfaction of requirements of creditors, except for property of indivisible fund of a consumer society, is meted between shareholders if other is not provided by the charter of a consumer society (point 5 of article 30 of the specified Law).

More "commercialised" are the agricultural consumer co-operative societies which legal status is defined by the Federal act from December, 8th, 1995 № 193-FZ «About agricultural koo -

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peratsii ». In spite of the fact that according to article 4 of this Federal act agricultural consumer co-operative societies are named by the noncommercial organisations, article 36 of the specified Federal act not roofing felt -

To provides co-operative payments to members of co-operative society, but also payment of dividends on additional shares and shares of associate members of co-operative society [18 [19]. Dividends can constitute to 30 percent of profit of the co-operative society which is coming under to distribution. Remained after satisfaction of requirements of creditors the property of liquidated co-operative society, except for the objects of a social infrastructure entering into indivisible fund of co-operative society, is transferred to members of co-operative society and meted between them (points 3 and 4 articles 44 of the specified Federal act).

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ABOUT

Possibility of reception by the proprietor of educational institution of a part of the income received by this establishment is provided by point 5 of article 43 of the Law of the Russian Federation «About formation». According to this norm the educational institution has the right to use with the consent of the proprietor the financial assets fixed to it and other objects of the property in the activity carried out by it connected with reception of the income. In this case the proprietor acquires the right to a part of the income of use of the objects of the property fixed to educational institution in the size defined by the contract between the proprietor and this establishment.

Profit by partition of property at liquidation mete also gardening, ogorodnicheskie and country noncommercial associations of citizens. According to article 42 of the Federal act from April, 15th, 1998 № 66-FZ «About gardening, ogorodnicheskih and country noncommercial associations of citizens» [20] members of such associations created both in the form of consumer co-operative society, and in the form of noncommercial association or noncommercial partnership, can receive in equal proportions the means obtained for about -

Data the ground area and the real estate which were in the joint property or the properties of these liquidated associations and has remained after satisfaction of requirements of creditors. As has noticed Chernega O. A, from the legislation of the Russian Federation follows, that the noncommercial organisations can, but are not obliged to carry out enterprise activity [21 [22]. Hence, not all noncommercial organisations profit and according to it mete. In case of failure of justice by the noncommercial organisation of enterprise activity as sources of its financing target receipts on the organisation maintenance, member and entrance fees of founders and participants of the organisation, their share (share, target) contributions, charitable donations and other material receipts which have been not connected with realisation of enterprise activity, doing not constitute profits act.

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Thus, at formation of the second criterion of division of the organisations on commercial and noncommercial there was not considered that circumstance, that the noncommercial organisation, (depending on concrete organizatsionnopravovoj forms), can receive material receipts not only in the form of profit, as result of enterprise activity, but also in the form of other material receipts which are not profit. Possibilities of the order others, except profit, types of income remained not settled. An interdiction of distribution of profit, «defining a mode of those incomes which constitute

The profit of the noncommercial organisations, does not cover their essential howled

Handles ». At the same time receipts can constitute of other sources of finance considerable, and in some cases and all volume of financing of the noncommercial organisation. The interdiction for profit distribution is inadequate to an interdiction for income distribution.

Besides, the noncommercial organisations, for example, can be founders of joint-stock companies. Owning actions, the noncommercial organisation receives dividends. At the same time hardly it is possible to say that possession of actions is an enterprise activity. For the noncommercial organisation dividends and percent are not profit, but the income, a property increment. In this connection at differentiation of the commercial and noncommercial organisations followed speak about a distribution interdiction the noncommercial organisations between the founders (participants) not profits, and the income received by the organisation.

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Proceeding from stated, it is obviously possible to give following definitions of the commercial and noncommercial organisations.

The commercial organisations are the organisations created for extraction of the income.

The noncommercial organisations are the organisations which are created for achievement of educational, charitable, cultural, scientific, administrative both other socially useful purposes and not meting the received income between founders (participants) of the organisation.

According to article 50 of the Civil code of the Russian Federation the legal bodies who are the commercial organisations, can be created only in the form of economic associations and societies, production co-operatives, the state and municipal unitary enterprises. The legal bodies who are the noncommercial organisations, are created in the form of consumer co-operative societies, the public or religious organisations (associations) financed by the proprietor of establishments, charitable and other funds, and also in other forms, statutory. Hence, both for commercial, and for the noncommercial organisations the organisation-legal forms are established only.

Summing up the carried out research of legal regulation of enterprise activity of the noncommercial organisations, it is possible to draw following conclusions:

• the noncommercial organisations differ from commercial first of all that resolved by it the law the enterprise activity which result is profit extraction, should not become their basic authorised activity that should be accurately fixed in charters;

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• the restrictions provided by laws for enterprise activity of the noncommercial organisations should interfere with transformation of the noncommercial organisations in commercial if norms of laws are applied according to establishments containing in them;

• accorded by the law to the noncommercial organisations a right on conducting enterprise activity as additional with corresponding restrictions is fair since this source of formation of property promotes creation material and financial resources which allow them to carry out the basic authorised activity more effectively;

• the norms of laws regulating enterprise activity of the noncommercial organisations, have essential lacks which are expressed both in indistinct formulations, and in absence of due explanations or available obvious blanks. The insufficient readiness of such norms gives an occasion to occurrence of numerous questions that complicates their application; it is necessary to spend at legislative level careful analytical work on research of norms of laws in sphere of enterprise activity of the noncommercial organisations with a view of perfection of these norms and liquidation of blanks available in them.

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A source: LUKJANOVA Svetlana Valerevna. the INCONSISTENCY (BANKRUPTCY) of the NONCOMMERCIAL ORGANIZATIONS. The DISSERTATION on competition of a scientific degree of the master of laws. Ryazan 2006. 2006

More on topic § 1.1 Noncommercial organisations as subjects of an inconsistency:

  1. § 2.1 Supervision as bankruptcy procedure At an inconsistency of the noncommercial organisations
  2. § 1.2 Concepts and signs of an inconsistency (bankruptcy) of the noncommercial organisations
  3. § 2.2 Financial improvement at an inconsistency of the noncommercial organisations
  4. § 2.3. The noncommercial organisations as a kind not state The organisations
  5. Paragraph 2.2 the Legal capacity of the noncommercial organisations.
  6. CHAPTER 1. GENERAL PROVISIONS ON THE INCONSISTENCY (BANKRUPTCY) OF THE NONCOMMERCIAL ORGANIZATIONS
  7. Identification of crises in activity ofthe noncommercial organisations
  8. Factors of occurrence of crisis in the noncommercial organisations
  9. Definition of a problematics and tendencies of strategic development of the noncommercial organisations in the conditions of uncertainty and risk
  10. § 2.3 External management of the noncommercial organisations at bankruptcy
  11. System of indicators of an estimation of activity of the noncommercial organisations in the conditions of realisation of anti-recessionary strategy of development