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§ 2. The commercial organisations of legal mechanisms of realisation of cumulative enterprise interest

Before the beginning of research of the legal personality of associations of the commercial organisations it is necessary for feature of application otmstit the following. During the analysis of sources on a considered theme objective complexity of an estimation of features of the legal personality of enterprise associations by means of application of the legal methodological device has come to light.
The majority of lawyers recognises, that holdings, concerns, trusts and other associations is, first of all, economic категории52. The purposes which were pursued at their creation, represent increase of received profits and a control establishment over competitors and commodity markets of the goods. In this connection some conclusions concerning possibility of participation in enterprise legal relations of associations of the commercial organisations will be formulated not only with application of achievements of jurisprudence, but also taking into account economic knowledge in the given area. In the civil law theory the legal personality is understood as ability of the person to have and carry out directly or through the representative legal customs and legal obligations, that is to be the subject of law. The legal personality — the term designating synthesis of the legal capacity and capacity. As a whole this position is uncharacteristic for subjects of civil matters, as the legal capacity though also inseparably linked with capacity, corresponds with it as cause and effect. We will explain the given statement. As is known, set of some the circumstances which presence is necessary zlechet a certain consequence, is called as full (unlike specific) причиной53. Despite determinancy of a consequence the reasons, both full, and specific, from the point of view of dialectics it not uniform categories. In an objective reality of cause and effect can exist as the independent phenomena. And only under certain conditions, they become interconnected and generate the new phenomenon. In our case norms of the law which connect such characteristics of the subject as age, a state of health and others with possibility to be the subject legal relation will be the external factor of influence. Thus, that the legal capacity and capacity at full age citizens synchronise, merging together, it is impossible to recognise M.J.Tikhomirov's statement справедливым54. Cash existence, first, the most physical лица55, in - the second, an accessory of its person of some properties which are reached after the lapse of time (approach of certain age), or thanks to actions of the subject (the introduction into marriage, employment by enterprise activity, work under the employment contract) naturally determine approach of capacity at the person. Differently the question with the legal personality of legal bodies is. Articles 49 and 51 GK the Russian Federation connect occurrence of the legal personality of the organisation with the moment of its state registration. GK the Russian Federation names the legal capacity of the subject ability to have the right and to perform duties. However as the organisation is created for a specific goal defining its status as registration generates both the legal capacity, and capacity of the legal person.
Therefore to divide capacity and the legal capacity of legal bodies, in the standard opinion, it is inexpedient. It is necessary to notice, that there are also other points of view on the permission of a question on capacity of legal bodies. So, V.L.Tarhov divided the legal capacity and capacity of the organisation. Under its statement, it is possible to agree with a popular belief that the legal body is always capable. However the scientist recommended to remember, that the legal body operates through the bodies. In a case if bodies are generated and operate not according to the established order, the organisation should be recognised недееспособной56. It is possible to consider such sight justified if to consider the legal body from positions of the organic theory. Really, presence at the person of a brain or a head does not mean, that it is capable. Similar it is possible to tell and about the organisation if to identify se with a live organism according to positions of the organic theory of essence of the legal person offered O f. I irke and G f. Бссслером57. Nevertheless it is impossible to forget, that creation of the legal person is public procedure, and the bodies which are carrying out the state registration of the organisations participate in it. In this connection, the federal act «About the state registration of legal bodies» demands granting in registering body of data on founders of the organisation and to - py constituent instruments '. Therefore we believe, that registering bodies supervise correctness of creation of controls of the organisation, and it gives certain guarantees of acquisition due obema to the legal capacity at a creation stage. If infringement of a mode of capacity of the legal person is expressed in actions as V.L.Tarhov marked, for example, in fulfilment of the transactions which are falling outside the limits the legal capacity of the legal person they admit insignificant or osporimymi, but do not attract the termination most организации58. Thus, we believe, that for a designation of possibility of participation of the legal person in legal relations it is necessary to use the term "legal personality". In our opinion, the given offer it is necessary to recognise correct because the legal personality as was marked, is complex concept. It includes not only static, not demanding acts of will from the person the characteristic "legal capacity", but also dynamical, assuming activity, property of capacity. However, not denying the official concept of unity the right - and capacity of the organisations, we will add, that the civil legal capacity does not include in the maintenance sdelkosiosobnost and deliktosposobnost. Besides, the organisations, depending on their status (commercial and noncommercial), possess unequal possibilities on acquisition of the rights and duties. Further more detailed research of kinds of the legal capacity of subjects of legal relations is carried out. According to norms of the Law «About the noncommercial organisations» the associations of legal bodies created in the form of associations or a soya - call, do not admit independent subjects of enterprise legal relations, that is cannot carry out independent commercial activity. In the same way and founders of associations of legal bodies cannot carry out commercial activity through created by them корпорации59. In case of need realisation of enterprise activity of association of the commercial organisations should be transformed to economic associations or societies, that is to become the isolated legal bodies. The position of the legislator establishing such order of functioning of associations of legal bodies, is represented to us quite clear. To Raisa during research of separate forms of existence of associations of the commercial organisations we analyzed the purposes of their creation. Therefore were convinced, that the majority suppressing them is created with a view of the control over the smaller organisations on capacity, expansions of commodity markets of production, advancement of the goods, works and services at the expense of activity, monopolistically on the character. Therefore creation of the new commercial organisation on the basis of the several consolidated will inevitably lead to monopolisation of the given segment of the market. However practice shows, that is far not all enterprise associations do not participate in commercial activity in connection with absence at them legitimately recognised enterprise legal personality. A number of researchers of the legal personality of associations commercial организаций60 notice, that the specified corporations are subjects of enterprise relations. As a sign confirming a given conclusion scientists mention necessity of the state data recording of associations. In this connection from among enterprise associations it is authorised to them to be engaged in commercial activity, it is necessary to exclude holdings and the associations created under the contract simple товарищества61. However we believe, that others should be put in a basis of the independent legal personality not only a sign of the state registration, but also ability of fulfilment of transactions on its own behalf, independent responsibility but to the obligations, oral argument on its own behalf, that is konstitutivnye signs of the legal personality of the legal person. Therefore it is necessary to consider separately the named signs by means of their display in participation of the organisation in investment activity, and also soveeshennja of some enterprise transactions. To open the maintenance of the legal personality of associations of the commercial organisations researchers tried and try by means of division of legal relations in which associations of the commercial organisations participate, on carried out in interests of all association carried out in personal целях62. Such legal relations are called as communications and are subdivided on vertical and horizontal. When associations of the organisations contact to other subjects of civil matters, doing it on behalf of associations entering into it, there are vertical communications. Horizontal communications appear when association directing bodies speak on behalf own name and in the interests. We divide the point of view And. V.Laptev according to the specified communications also we consider, that the similar differentiation does not answer objects in view by definition of the legal personality of associations of the commercial organisations. Vertical and horizontal communications — a consequence, instead of the reason of the investigated phenomenon. That is possibility of participation in legal relations on its own behalf, but not in interests of founders is represented to us to one of the basic displays of the legal personality as assumes presence of own will and ability it to express at investigated associations of legal bodies, but it does not bring clearness in a question on its presence and occurrence in investigated subjects. We believe, that for definition of possibility of participation of associations of the commercial organisations in enterprise relations other methodological reception, than division of a circle of legal relations in which enterprise associations as the organisations possessing the legal personality participate is required. Me can be applied, our way to opinion, and a method offered by K.J.Portnoj, at the analysis of the status of such associations of the commercial organisations, as holdings. Having made a number of conclusions, for example, that holdings are participants of the civil circulation, not acting thus the subject of civil-law relations. Holdings participate in the civil circulation to? To «a certain complete formation, as the uniform managing subject, possessing thus the partial legal capacity» 63. In this connection the Tailor To. JA suggests to consider holdings kvazisubektami grazhdansko - legal отношений64. In our opinion, the given term will not help with the decision of a scientific problem as the author offers division of legal relations in which holdings participate, on vertical and horizontal. However she understands vertical position and horizontal position in traditional economic-legal контексте65. Horizontal it is relations between the commercial organisations in the course of enterprise activity as subjects equal in rights. Vertical relations, in turn, arise at regu - lirovanii them from public authority bodies. The legal status of holdings of K.J.Portnoj defines within the limits of civil law, as subjects civil legal relation. At the same time it uses the method of division of relations accepted in the enterprise right in which subjects of commercial activity participate, on vertical and horizontal. Therefore also there is such name, as "kvazisubekty" civil правоотношений66 as the legal status of holdings, as well as of some other enterprise associations, cannot be completely identified with a legal status of the legal person. Nevertheless judiciary practice goes on a way of a recognition of holdings, financial and industrial groups and their versions as independent subjects of property relations. In the disputes considered by arbitration courts, holding and financial and industrial groups operate as the high-grade organisations. So, from a name fpnansovo - industrial groups represent itself as the subject of legal relations, both material, and remedial, head организации67. Holdings as created on a contractual basis, and according to «participation system», in connection with more tssnym association of participants act as independent, uniform subjects-1 The opinion that so-called kzazisub - ekty, that is defective subjects, participate in high-grade civil matters is represented disputable. Not absolutely clearly, whether mogug they to get and osushche - stvljat all kinds of the rights and the duties necessary for realisation of commercial activity. In connection with this point of view there is an insuperable dualism. On the one hand, associations of the commercial organisations, in this case — holdings, can be the full subject of enterprise legal relations. On the other hand, they cannot be high-grade participants of legal relations civil. The specified dualism leads to rupture enterprise and civil law, that, in our opinion, is невозможным68. Thus attempt to solve the newly arisen scientific problem the means, the methodological approach which has not justified is available. In particular, by mixture of civil-law scientific methodology and full negation of presence economic-legal. We suggest to abstract from exclusive grazhdansko - a legal problematics of definition of the legal personality of enterprise associations and to investigate it with attraction of other relations in which she participates. For the decision of this problem we will take advantage of the concept of the economic system offered by V.V. Лаптевым69. Economic system, according to V.V. Laptev, it is set of the enterprises, production associations and other economic bodies, entering as a subsystem in uniform system national хозяйства70. For the given sort of systems that it includes independent economic bodies — legal bodies is characteristic, production associations, bodies of an economic management. That is that in the present vre - mja in the civil law doctrine is called as association of the commercial organisations. Though it is conventional, that the enterprise right is direct "descendant" economic права71, to apply its categories and methodology it is necessary taking into account features of a modern market commercial turn. Nevertheless we consider proved application of positions of the theory of economic system in modern civil law. For the explanatory of our present and subsequent conclusions it is necessary to state V.V. theory is short. Laptev about economic systems. In its opinion, the variety of economic relations causes of giving of the legal form all to new and new kinds economic, first of all industrial, relations. Precisely also require a legal designation and participants organizational-relations of production. One of the institutes, allowing to explain such feature as association of the organisations with the isolated controls which carry out as management of the organisations which have created it and independently participate in economic activities on its own behalf, to V.V. Laptev names economic system. In it economic integration of links constituting it not so is great, that the system as a whole admitted the independent subject of law, for example, economic body. According to the author, «in new conditions of development of economy the legal status of industrial-economic complexes does not reveal completely concepts« the subject "and not" the subject of law ». The similar scheme does not express all complexity of the economic events connected with creation of economic systems» 72. At first sight, refusing the basic legal categories, such as "subject of law", and including in an object of research economic categories, the author is beyond a subject of a civil-law science. Thus legal terms and categories are replaced economic, that, from the point of view of legal methodology is inadmissible. However it is necessary to remember the following. The majority of researchers to some extent recognise presence of such legal phenomenon, as enterprise (economic) право73. Its main feature is that, remaining civil law, represents itself as "special" civil права74. This special character is caused by necessity of regulation of quickly changing trade turnover. Therefore, remaining podotraslju civil law, the enterprise right, owing to features of adjustable relations, uses the methods opposite on the character, — imperative and optional. Thus, a number of institutes of the enterprise right cannot be comprehended traditional methods of a civil-law science, and demands attraction of new, complex ways of knowledge. Besides, the subject structure of enterprise relations can and should possess a number of features which distinguish the subject of enterprise activity from the subject of civil-law property relations. Difference, ka the first sight, obviously. Civil matters are wider, than enterprise. This results from the fact that commercial relations cover only a property segment fazhdanskih legal relations. For the decision of the given problem we believe necessary to clear up in terminology. First of all, to establish a parity between categories "status" and "special franchise" of the commercial organisations. In works of lawyers-theorists the concept "legal personality" is defined through a category "status". For example, V.S.Afanasev and N JL the Pomegranate notices, that «the legal personality of bodies of the state possessing imperious powers, the legal personality of the organisations and the individual subjects carrying out industrial, commercial both other economic activities and registered when due hereunder, — the status of the legal person is defined by their competence, and. The volume of the competence and the legal status depends first of all on the purposes of creation and activity of the state body or the legal person» 75. And further: «differs three kinds of the legal personality (it is allocated by us. — a bus) : The general (ability, but an essence of the matter abstract to be the subject of law in general); branch (ability to be the subject of law of corresponding legal branch) and special (ability to be the subject of certain group of public relations within the limits of concrete branch of law) »2. Thus, the status corresponds with the legal personality as the maintenance and the form. Namely, ability to make any legally and economically significant actions any legally fills with itself the certain form, that which was selected by founders of the organisation for achievement of objects in view. Hence, two categories inseparably linked among themselves also cannot be studied in a separation from each other. Within the limits of our research about associations of the commercial organisations as subjects of enterprise relations we assume admissible and expedient use of the economic-legal terms designating subjects of economic legal relations, such as economic system, and their extrapolation on enterprise terminology. The economic system possesses a number of signs which open its essence as the participant property the relation. The first sign defining a legal status of system, the purpose for which achievement it was created is. So, in the conditions of a planned economy and the features caused by it and economic activities by feature of a special-purpose designation of economic system production or realisation of other activity directed on satisfaction of needs of a national economy and the population was industrial. For achievement of the laid down prime aims presence at economic system ie only the industrial links which are carrying out manufacturing of production, but also bodies of uniform management to which the management and representation of interests of association is assigned is necessary. Following, the second, a sign of economic system — presence in its structure of economic bodies. Each of bodies entering into system is the independent legal body having possibility of realisation of individual commercial activity. One of legal bodies constituting system is allocated with the rights of the managing director over other constituting organisations. The third sign of economic system named V.V. Laptev, this presence at its links of the economic competence, allowing to carry out economic activities and to supervise sju. The rights and the duties constituting the competence, have character economic and concern sphere of economic legal relations, belong to system links, but not to system as a whole. In interests of system in its centre — the body carrying out an economic management and heading system economic-legal relations acts. Presence of steady, constant economic relations between links of economic system constitute fourth sign of studied association. The communications developing in system, on V.V. To Laptev, share on subordinatsionnye and coordination. subordinatsionnye relations arise between the centre and local elements of system and osushche - stvljajutsja a method of obligatory instructions. In modern conditions it is possible to name an example of economic system of the top echelon the organisations created by the state, consolidated for achievement of the uniform purpose and rukovodimye any body of public authority, for example, corporation ' GVEL, engaged in manufacture of nuclear fuel. The atomic engineering is is state adjustable branch. Therefore the enterprises which are carrying out extraction of raw materials, its processing and the subsequent burial place of a waste, are created at the expense of the state investments. At the same time participation of ruling structures in functioning of enterprise associations not always is the favorable factor for the last. Confirming to this thesis we will give an example. In the beginning of 2005 the noncommercial partnership "Group Guta" and the government of Moscow had been created holding «Incorporated confectioners», consisting of the several enterprises of the food-processing industry. Government Moskzy as it was found out during the check spent by Office of Public Prosecutor, concluding the contract on holding creation, intended to get the ground areas on which there were capacities of confectionery factories. Further liquidation of economic objects, and the released territories — under transfer to rent were planned. And the profit on earth use on which lessors counted, would constitute the sum, 10 times bigger, than cost of food manufacture. Having received wide publicity in mass media, and also original "support" from arbitration court, the holding «Incorporated confectioners» has not undergone to disorder, and vss producing units entering into it have continued dejatelnoeg on manufacture of products питания76. Economic systems of an average link include the industrial enterprises, production associations, research, design and other organisations. Coordination relations connect links of one level and are carried out by the coordination. It is necessary to recognise as fifth sign of economic system presence at bore material resources which belong to the centre of economic system and its local links. An order of use of property the following: the objects belonging to the centre of system, are used in interests of all system, and the property fixed to separate links, — in interests of a corresponding link. Thus interests, both systems as a whole, and its separate elements should be combined. Last, the sixth, a sign of system which names V.V. Laptev, — possibility and expediency of activity of system on a basis хозрасчета77. Self-financing as one of planned economy overall objectives, represents based on soizmerenii expenses of the enterprise for production with results it is industrial-economic activities, the reimbursement incomes, maintenance of profitability of manufacture. At the detailed analysis of structure of communications of intraeconomic system there is not absolutely clear their difference from horizontal and vertical relations in which associations act as subjects of law. Division of relations into the vertical and horizontal occurs in that case when controls speak on behalf the name in interests of association it is vertical relations which association will admit the subject of customs. If association management enters legal relations in the interests, instead of in interests of association the controls of the given association will be the subject of law. Difference, according to V.V. theory. Laptev, consists that the economic system is qualitatively new subject of economic relations which as we remember, represent not only legal relations Therefore its essence as it was mentioned, does not reveal ponja - tijami "subject" or "nesubekt" права78. System functioning is provided, according to the specified author, just at the expense of independence of links constituting it. However a direction of this functioning — at the expense of a directing management of the centre of economic system. Thus, mnogoaspektnost economic relations causes specificity of a legal status of subjects, in them participating. In our opinion, it is necessary to state a critical estimation of the resulted theory to establish degree of its applicability to modern commercial relations for definition of the status of their subjects acting in the form of enterprise associations. Universality and applicability of the above-stated theory to a modern situation consists that its author, in the conditions of domination of a planned economy and, accordingly, outwardly adjustable economic relations, has managed to construct system model, planned character of economy practically has not found reflexion in defining which signs. A unique sign of economic system in which properties of a planned economy were embodied, it is necessary to recognise hozraschetnost, that is autonomy of material resources, neubytochnost economic system for the state. We are inclined to apply the concept offered by V.V. Laptev, and to modern associations of legal bodies. In our opinion, the majority of the enterprise associations functioning in modern Russia, answer the specified signs. Above we have shown, that main objectives of creation of associations of the commercial organisations are unification industrial or a commercial policy, protection of the rights of the businessmen who have consolidated in system. Thus, it is possible to approve, that a creation main objective practically all versions of associations of the commercial organisations — it is operated - chssko-enterprise деятельность79. However it is necessary to remember, that now in connection with development of enterprise relations activity of associations of the commercial organisations is not reduced exclusively to marketing and innovative деятельности80 as we observed it, analyzing activity of economic systems. Today there is a set of the enterprise associations created with a view of aktsionirovanija of the organisations, engaged in kinds of activity interesting the organisation. In some cases (for example, at creation of associations or the unions), their purposes will be completely independent of needs of consumers, entirely meeting requirements of the consolidated businessmen for protection of interests or representation of the organisations in the course of their interaction with public authority bodies. Therefore we believe, that at definition of the legal personality of associations of the commercial organisations, it is necessary to pay attention to the purposes of their creation — commercial or remedial (representation). Second sign of economic system as it was mentioned, this presence in its structure of independent managing bodies. We are inclined to understand the commercial organisations forming association as them. It is obvious, that association is impossible without subjects of enterprise relations constituting it — both the organisations, and citizens - of businessmen. However it is again necessary to consider the purpose from which businessmen were consolidated, — commercial or other activity. Third sign of economic system — possibility of its elements to carry out independent commercial activity. As it was marked in a nerve the work section, some forms of associations, at occurrence in their structure of new members, deprive of their right of employment by independent enterprise activity (syndicates, partly holding and franchajzy). The example illustrating display of fourth sign of economic system, has been resulted by us выше81. However it is necessary to consider, that presence subordinatsionnyh communications in the conditions of market economy will be considered, more likely, as an exception, than as a rule as the industries which enterprise activity is completely supervised by the state, units are. Fifth sign assumes presence at economic system of the separate property both at operating bodies, and at its separate links. Operating законодательство82 names some the basic organisation-legal forms of associations of businessmen and the commercial organisations. Further we will list them. GK the Russian Federation and the Federal act «About the noncommercial organisations» specify, that the commercial organisations can be consolidated in the form of such noncommercial organisations, as associations and the unions. The basic tsslyo these associations activity on coordination of their enterprise activity, and also representation and protection of the general valuable interests should be. The status of the commercial organisations does not allow them to be engaged in the activity directed on reception of profit and its distribution between участниками83. However the law resolves employment to the noncommercial organisations business if it serves achievement of the purposes for which the organisation создавалась84. Teorstiki-tsivilisty suggest to consider possible employment by enterprise activity for the noncommercial organisations if it does not contradict their status. That is within the limits of achievement of the purposes put before the noncommercial organisations if for their achievement commercial activity noncommercial corporations should be equated to коммерческим85 is required. Examples of the unions and associations were resulted by us in the first section of work (the Union of businessmen and industrialists of Russia (RSPP) which has the coordination councils in many regions of our country, including in the Volgograd area, and also «the Union of businessmen KBR»). It is remarkable, that the associations of the commercial organisations created in the form of associations or the unions, according to item 3 of the Law of the Russian Federation «About the noncommercial organisations» can have on the property right the separate property and answer in case of need under the obligations with this property. Obviously, as legal bodies entering into association also possess the separate property. Law positions «About the noncommercial organisations» do not settle all variety of forms of associations of the commercial organisations. So, the purpose of activity of associations of the commercial organisations can be not only remedial and representation activity, but also business. Functioning of the given organisations is regulated by the Federal act «About financial and industrial groups». The financial and industrial group is understood as set of the legal bodies operating as basic and the affiliated society or in full or in part consolidated material and non-material actives on the basis of the contract on creation financial and industrial grup - iy with a view of technological or economic integration for realisation of investment and other projects and the programs directed on increase of competitiveness and expansion of a commodity market of the goods and services, production efficiency increase, creation of new workplaces. Despite complexity of legal definition of financial and industrial group, it is obviously possible to establish, that the purpose of its activity is business. V.F.Popondopulo, analyzing legal regulation of separate kinds of enterprise activity, named among them: activity on realisations of the goods, investment activity, activity on manufacture of works, innovative деятельность5. Hence, to enterprise activity, in a modern context, concerns not only торговля86, but also any socially useful activity of the person, the purpose and which result is profit. Therefore it is necessary to distinguish associations of the commercial organisations, such as the unions and associations from other enterprise associations. It is important, as activity of the unions and associations GK of the Russian Federation and the Law «About noncommercial orga - nnzatsjah» has defined as remedial and representation. While activity FPG, holdings, concerns and associations similar to them laws «About FPG», «About a competition» have established as enterprise, but not always the trading. polag aem, that this kind of activity as follows from legalnego organisation definitions, just and is carried out by financial and industrial groups. From the point of view of possibility of a recognition financial and industrial ipynn the legal body it is necessary to note the following. According to the settled concept of the legal personality of the legal person the organisation to be the participant civil pravootno - shsny, should possess a number of signs. Them concern: organizational unity, property independence, presence of a complex of the rights and duties, ability to bear independent property responsibility zg the activity and, at last, oral argument possibility on its own behalf and judicial protection of the rights. According to N.I.Mihajlova, «. . In a context of the current legislation and pravoprimenitelnoj practice of creation FPG it is necessary to underline, that at association of independent enterprise structures in such group there are no legislatively provided possibilities for maintenance of rigid organizational and their property unity, and also all complex of the rights required in such cases and duties, characteristic for the subject of enterprise activity with full responsibility for the received results and possibility to protect the broken rights, including judicially. Hence, any attempts to use for FPG as kompleksnopo one of forms of the commercial organisations with giving to such association of the status of the legal person are necessary for considering formations as contradicting the current legislation »87. We support the given point of view as the considered law does not contain mentions of independent participation FPG in civil matters as the special organisation-legal form of the legal person. Opponents of the given position believe, that creation FPG by «participation systems» gives them similarity to the general partnership. «The participation system» represents a way of formation of group by association of material and non-material actives of participants on the basis of the contract on creation FPG. «Participation System» identify with the contract about joint деятельности88. As a whole cardinal distinction me - I wait two given organizational contracts to see enough сложно89, but nevertheless the dissimilarity is available. From the general partnership «the participation system», as well as the special partnership contract, differs that the purpose of the conclusion of the first is creation of the commercial organisation which main objective of activity — profit reception. In the beginning of the given section we mentioned, that names of associations of the commercial organisations are borrowed from the economic theory Therefore we actually we come to conclusion, that financial and industrial groups, holdings, concerns, syndicates are not organisation-legal forms of legal bodies, acting thus subjects of enterprise activity. Let's analyse following association of the commercial organisations — holdings. In connection with absence of the special law about holding associations for definition of features of a legal status of the given corporations with a view of an establishment of legislative definition of holding we will take advantage of the Law «About banks and bank activity». Standard akg regulates activity of bank holdings. According to its positions bank holding as association of the credit organisations, is not neither the credit organisation, nor the legal body. The structure of bank holding represents association in which the parent organisation which is both credit, and the commercial organisation, renders a sou - shchestvsnnoe influence on decisions made by the affiliated organisations. Nevertheless the bank holding is not the legal body, hence, can not have the separate property. At the same time bank holding not a unique version of these organisations. To a science of the enterprise right, as well as a modern commercial turn of modern Russia, other kinds of holdings are known also. Researchers of a problem of a legal status of associations of the commercial organisations name following versions of holdings: financial holding and the managing director холдинг90. The financial holding is understood as set of the legal bodies definitely connected among themselves — subjects of enterprise activity. The operating holding is the company defining the decisions of affiliated and dependent societies. In connection with absence of other legal definition of holding the most correspond to the validity should recognise the concept similar to bank holding. That is holding as not the legal body, operates through parent organisation association of commercial corporations that allows to name the given organisation operating holding. Be formal holding cannot the subject of civil-law relations in their enterprise segment. However a number of the signs containing in the legislation, regulating a legal status of holdings, allows to draw other conclusion. Financial and industrial groups and holding are inherently so-called "groups of persons". According to the Law «About a competition and restriction of monopolistically activity in the commodity markets» 91 (further — the Law on a competition) a group of persons priznaetsja'obedinenie legal bodies who have possibility to dispose of voices aktsio - nerov to define the decisions accepted by under control persons, and to appoint controls dependent организаций92. These signs possess, as it was marked, and holdings, and FPG. Groups of persons the legislator, judicial практика93 and исследователи94 carry to subjects of the civil matters which are not thus the legal body. The scientific literature on an investigated problematics contain?, In our opinion, proved enough point of view that Law positions about FPG, concerning definitions of structure of the given organisation, extend and on other known forms of association of the commercial organisations, for example, concerns, consortia and already mentioned holding. In the previous section of work we mentioned enough considerable quantity of forms of associations of the commercial organisations. Also we have revealed set of blanks in legal regulation of activity of the given associations, first of all, uncertainty of the legal personality of the specified enterprise associations. In the countries with the developed market economy for a long time there are various forms of associations of businessmen. The analysis of the legal personality of syndicates, cartels, trusts and other unions of the commercial organisations was spent in works of classics of domestic civil law '. However rossy - missing a bit the legislative doctrine on a problem of the legal personality of associations commercial the organisations and is not developed. The analysis of foreign practice shows, that the unions of the commercial organisations are created, as a rule, in the form of concerns and консорциумов95. In the Russian legislation, in N.I.Mihajlova's proved opinion, concepts of concerns and consortia are not defined. Nevertheless the signs inherent in given corporations, are traced in a legal design of financial and industrial group. The analysis of essence of the given kind of associations is resulted in the first paragraph of work. It is necessary to notice, that the Law «About FPG», containing in item 2 concept definition «the financial and industrial group» allows founders of the given association, depending on the purposes for which the group was created, to choose for itself three basic models of association. The first of them — holding. At such way association of the organisations and the subsequent establishment of the control over them can not depend on will of the last. The second — on a contractual basis with application of "participation system». The third model of formation of financial and industrial group — mixed, that is combining and a holding way and договорный96. Concerns get to the third category as are contractual association, but with possibility of the rigid control of the head company over affiliated, up to definition of its industrial and financial activity. Consortia should be carried to the second category. They, as is known, represent the time associations constructed on the basis of the target agreement for joint placing and development of capital investments at realisation of the uniform investment project. Into structure of consortia enter cha - shche all banks, the insurance, investment companies, transport and other corporations. Therefore segments of their enterprise activity are various, but the uniform purpose pursued by a consortium, does not allow to establish the relation of industrial "dictatorship". Thus, it is represented proved a conclusion that most often meeting associations of the commercial organisations (the unions, associations, holdings, and also financial and industrial groups in their various forms — concerns, consortia) are not legal bodies as do not possess a number of essential signs, first of all, separate property presence. Nevertheless the specified associations, except for the unions and associations, can carry out enterprise activity as are the complex formations created for the purpose of integration industrial, investment, torgo - in-sbytov:h, transport, labour and other resources for which the law does not provide the status of the legal person. In the scientifically-methodical purposes the given subjects it is possible to call «economic system» and to apply to them positions of the concept offered by V.V. Laptev.
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A source: Vijakova Nadezhda Alekseevna. of ASSOCIATION of the COMMERCIAL ORGANIZATIONS PARTICIPATING In ENTERPRISE ACTIVITY / the Dissertation. 2007

More on topic § 2. The commercial organisations of legal mechanisms of realisation of cumulative enterprise interest:

  1. § 2. Features of application by the commercial organisations of legal mechanisms of realisation of cumulative enterprise interest
  2. § 1. The characteristic of civil-law forms of association of capitals the commercial organisations in legal mechanisms of management of them in the enterprise purposes
  3. CHAPTER 1 the LEGAL NATURE And CONCEPT of LEGAL FORMS of ASSOCIATION by the COMMERCIAL ORGANIZATIONS of CAPITALS, INDUSTRIAL POTENTIAL And MECHANISMS of MANAGEMENT of THEM In ENTERPRISE (ECONOMIC) ACTIVITY
  4. CHAPTER 1 the LEGAL NATURE And CONCEPT of LEGAL FORMS of ASSOCIATION by the COMMERCIAL ORGANIZATIONS of CAPITALS, INDUSTRIAL POTENTIAL And MECHANISMS of MANAGEMENT of THEM In ENTERPRISE (ECONOMIC) ACTIVITY
  5. essence of commercial concession as way of realisation of enterprise activity
  6. § 2. Perfection of a legal status of the commercial organisations
  7. 2.3 Disputes of the organisations with the bodies allocated gosudarstvennovlastnymi with powers, not connected with realisation of enterprise and other economic activities
  8. 2.4. Disputes of the organisations with the bodies allocated gosudarstvennovlastnymi with powers, in connection with realisation of enterprise and other economic activities
  9. 3.2. Competitiveness of the businessman as a part of the cumulative worker of the enterprise of sphere of services
  10. 2.1. Essence of the human factor and the form of its existence as cumulative worker of the enterprise of sphere of services
  11. § 2.2. The commercial organisations as a kind of not state organisations
  12. the Appendix 80 Indicators of a cumulative estimation of development of non-material sphere of organizational culture of the organisations of system Belgorod oblpotrebsojuza
  13. § 1. Features of realisation of enterprise activity by the state corporation Foreign trade and investment bank and international organisations MBES And MIB