Summing up to the spent research, we come to conclusion about estimated character of concept źan activity main objective╗ and źan activity principal view╗ which the legislator has selected as one of criteria of differentiation of the organisations.

The legislation as 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 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. On the basis of the positions of the legislation considered in work the author of dissertation comes to conclusion, that socially useful activity of the noncommercial organisation can be simultaneously and enterprise activity. The given conclusion finds the continuation at studying of criteria of harmony of financing of socially useful and enterprise activity, analyzed with a view of their parity with each other.

On the basis of the spent analysis, us it is offered to use such criterion as the purpose of creation of the organisation. 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 aim of enrichment of their founders (participants, members), and the social, charitable, cultural, educational, scientific, administrative and other purposes directed on achievement of public benefits. The law does not forbid at

Realisation of socially useful activity to profit, necessary for maintenance of activity of the noncommercial organisation, profit extraction can be only one of the purposes of its activity, but not the creation purpose. 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. It has been revealed, that 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. It is necessary to notice, that 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 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. On the basis of the considered criteria following definitions of the commercial and noncommercial organisations have been formulated.

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.

In the dissertation the list of subjects of the civil circulation to which the legislation on bankruptcy can be applied has been resulted. In our opinion, a circle of such subjects which are engaged in business, and by bankrupts are recognised cannot be, it is necessary to reduce. The conclusion has been received, that application of the legislation on bankruptcy does not mean obligatory liquidation, but allows to carry out

Regenerative procedures in relation to the subject. In the dissertation necessity of introduction for the law on bankruptcy of the norms supposing application of the legislation on an inconsistency to such organisation-legal form of the noncommercial organisation as is proved

Political party.

By consideration of approaches by we to definition of criteria of bankruptcy, receive following results. The first approach objective: the debtor admits the bankrupt if has no means to pay off with creditors about what the conclusion from default under the threat of bankruptcy of obligations on the determinate sum during certain time becomes. The given criterion has received the name of criterion of insolvency or a stream of money resources.

The second approach consists that by the bankrupt the debtor which cost of property less the than general size of its obligations can be recognised. Thus has no value, how much the debts sum exceeds the statutory minimum size for a bankruptcy recognition, these debts in comparison with the established minimum term of delay are how much delayed. It has received the criterion name neoplatnosti or balance structures. There was a substantiated conclusion that concerning the noncommercial organisation it is necessary to use criterion neoplatnosti. Refusal of this position in a law in force in practice has shown an inefficiency of use of criterion of insolvency when the debtor - the noncommercial organisation can be declared the bankrupt even in the presence of a property considerable quantity at the expense of which cost it is possible to satisfy requirements of creditors.

The analysis of the problems arising at a stage of supervision, financial improvement and external management, has led to following conclusions. Supervision procedure as institute of the Russian legislation on an inconsistency (bankruptcy) has appeared for the first time with acceptance in 1998 of the Law on bankruptcy. It was not applied in the Russian pre-revolutionary bankruptcy and has not been statutory about bankruptcy of 1992. The analysis of practice of application of the Law on bankruptcy of 1992 has shown, that absence of the given procedure led to infringement of balance of interests of the debtor and creditors.

Supervision procedure is entered by results of consideration by arbitration court of validity of requirements of the applicant. In a case when business about bankruptcy is initiated on the basis of the statement of the debtor, supervision is entered from the date of acceptance by arbitration court of the statement of the debtor to manufacture.

Supervision is a procedure which has put about bankruptcy does not come to an end. Its purpose in creation of conditions for the further application of procedures of bankruptcy by maintenance to creditors of possibility to make the decision on a kind of the following procedure and finding of fact of presence of property as of the basis for fuller further arbitration management within the limits of other procedures.

The supervision period comes to an end with removal by arbitration court of the decision or definition which establish the further destiny of the debtor. The arbitration court on the basis of the decision of the first meeting of creditors takes out definition about introduction of financial improvement or external management, or the bankrupt and the decision on a recognition of the debtor makes on bankruptcy proceedings opening, or approves the agreement of lawsuit and ceases manufacture on business about bankruptcy.

The question on introduction of financial improvement dares at the first session of arbitration court on business about the bankruptcy spent upon termination of supervision. Analyzing the general orientation of a legal regulation of the given relations, it is possible to come to conclusion: other procedures can and should be entered, only if it is impossible to resort to financial improvement. At introduction of procedure of financial improvement the arbitration court estimates the given maintenance, including dogovory and others obespechitelnye transactions from the point of view of their conformity to the Law on bankruptcy. The basic documents on which basis the debtor operates within the limits of financial improvement, the plan of financial improvement and the schedule of repayment of debts are.

Under the general rule at introduction of procedure of financial improvement the statement of the plan of financial improvement and in all cases of the schedule of repayment of debts which are the basic documents for the debtor within the limits of action of the given procedure is provided. The maintenance of the plan of financial improvement should correspond to the schedule of repayment of debts which defines concrete volumes and terms of payments.

Introduction of financial improvement involves certain consequences for the debtor - the noncommercial organisation. So, within the limits of financial improvement the head and controls of the debtor are not discharged, but function with some restrictions.

Allocate three categories of restrictions: the first is connected with necessity for the debtor to receive the consent to certain actions of the administrative managing director, the second - meeting (committee) of creditors, the third - meeting (committee) and the persons who have given maintenance of execution of the schedule of repayment of debts. A following consequence of introduction of financial improvement possible discharge of the head of the debtor from a post. Compulsory condition of application of this consequence is the unfair behaviour of the head expressed in default of the plan of financial improvement, infringement of the rights and interests of creditors or the persons who have given maintenance. Petition for discharge of the head the meeting of creditors or the administrative managing director can.

End of financial improvement is possible its termination or the termination.

External management of property of the debtor - rehabilitation procedure which is entered with a view of restoration of solvency for rescue of the debtor - the noncommercial organisation from liquidation. The specified procedure can be entered at presence at the debtor - the noncommercial organisation of real prospects of restoration of solvency that is found out at a stage of supervision or financial improvement. Initiate external management the meeting of creditors can only.

External management is entered for the term of 18 months which can be if necessary extended arbitration court for 6 months.

As a rule, external management is entered after supervision, but it can be entered and after financial improvement, however cumulative term of the given procedures cannot be more than 2 years; besides, external management cannot be entered, if financial improvement was spent more than 18 months.

Introduction of external management attracts approach for the debtor - the noncommercial organisation of some serious consequences (all these consequences represent the features dictated by that during external management the debtor functions, using the special mode given to it).

One of the major consequences of appointment of external management consists in an establishment of the moratorium on satisfaction of requirements of creditors. The essence of the given measure consists that during all term of external management the debtor does not have necessity to direct money resources available for it on calculations with creditors. The law in detail explains an order of imposing of the moratorium on satisfaction of requirements of creditors which follow from liabilities and the obligatory payments which times of performance have come before introduction of external management. Besides the specified obligations the moratorium also extends on requirements of creditors about the indemnification, caused by refusal of the external managing director of execution of contracts of the debtor provided that the time of performance of such obligations has come before introduction of external management.

We had been studied concept of bankruptcy proceedings, terms and legal effects of its introduction, the questions connected with formation of the bankrupt's estate and realisation of property of the noncommercial organisation, etc. are considered

The law on bankruptcy establishes the same duration of the specified liquidating procedure, as well as external management: one year with prolongation possibility for six months. Sale of property of the debtor, a presentation of claims about a recognition void the transactions made by the debtor, execution of decisions under the specified claims, search and return of property of the debtor - all it can be the basis for bankruptcy proceedings prolongation. Under such circumstances under the petition of meeting of creditors or the competitive managing director (by analogy to item 5 of item 68 of the Law) the arbitration court takes out definition about prolongation of the specified term. The made definition without appeal. If necessary, in unusual cases, for example, at return of property and the money resources of the debtor which are abroad, the arbitration court has the right to extend term of bankruptcy proceedings over 18 months. In this case the arbitration court takes out definition about

Prolongation of bankruptcy proceedings which can be appealed.

Certainly, the current legislation about an inconsistency (bankruptcy) of the noncommercial organisations has reached enough a high level of development, however with reference to some aspects its perfection which should be carried out within the limits of the general legal reform is necessary.

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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 THE CONCLUSION:

  1. the Conclusion
  3. the Conclusion
  4. the Conclusion
  6. the Pathomorphologic conclusion