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Features of structure of the enterprise as element of the mass of the succession

In paragraph 3 of chapter 2 of the present work on the basis of the analysis of norms of the current legislation the enterprise structure as property complex is certain by us as follows: all kinds of property intended for activity of the enterprise, the incorporeal right, debts, and also the rights to the designations individualising the enterprise, its production, works and services (a commercial designation, trade marks, service marks), exclusive property rights on other objects of intellectual property (in a case if the enterprise is used for manufacture of soundtracks, the organisations of a radio and cable announcement or the object of intellectual property was specially created for operation as a part of the enterprise and it is used in a close connection with it).

However for research of essence of the enterprise as object of the mass of the succession and consideration of an order of its inheritance revealing of the specified list is insufficient as item 1112 GK the Russian Federation supposes transition as inheritance far not all kinds of the rights and obligations which can exist as a part of the enterprise. Therefore the present research will not be full without that definition what from listed above elements can be transferred as a part of the enterprise to the successors who have accepted it.

So, the Russian Federation establishes item 1112 GK, that into inheritance structure enter belonging to the estate-leaver at date of thing opening of inheritance, other

Property, including property rights and duties; the right and duty inheritances inseparably linked with the person of the estate-leaver, in particular the right to the alimony, the right to compensation of the harm caused to a life or health of the citizen, and also the right and a duty which transition as inheritance is not supposed by the present Code or other laws are not a part; the inheritance the personal non-property rights and other intangible benefits are not a part.

Comparison of this list to certain elements of structure of the enterprise allows to tell unequivocally, that a part of considered object of the rights of a thing (except for limited in a turn) can follow destiny of the enterprise by its transfer as inheritance. Also it is definitely possible to tell, that the personal non-property rights and the intangible benefits are not elements of the enterprise during lifetime of its proprietor (in view of the reasons stated in paragraph 3 of chapter 2 of the present work), after his death.

Has more difficult put is with inheritance of other rights of requirements and the debts which are a part of the enterprise.

Item 1112 GK establishes the Russian Federation the two sign which presence interferes with a recognition of this or that incorporeal right (debt) coming under to transfer as a part of the enterprise at inheritance of the last: indissoluble communication of the corresponding right or a duty with the person of the estate-leaver; an interdiction for transition of the right or a duty as the inheritance, established by the Civil code of the Russian Federation or other laws.

The stated means, that at definition of structure of the enterprise which are coming under to inheritance, the person who is carrying out inventory of the enterprise and its differentiation with other property of the estate-leaver, the rights and the duties answering to criterion of a close connection with the person died, which should be revealed and separately described

Subsequently come under to an exception the notary defining structure of the inheritance, from the mass of the succession.

The estimation of the second of named above signs primenitelno to all rights potentially a part of the enterprise and obligations is impossible in view of limitation of volumes of the dissertational research, therefore the corresponding question will be considered more low only concerning those objects which question of inheritance can represent certain difficulties.

One of the similar questions, directly not settled current legislation, transition as a part of the enterprise of the rights received by the estate-leaver on the basis of the licence for realisation of activity in which the enterprise was used by the former is

The proprietor.

According to item 2 FZ «About licensing of separate kinds of activity» from 08.08.2001 №128-ФЗ! The licence - the special permission to realisation of a concrete kind of activity at obligatory observance of licence requirements and the conditions, given out

Licensing body to the legal body or the individual businessman. From sense of resulted article follows, that the licence as the permission to realisation of certain activity stands out to the person, wishing to be engaged in corresponding activity. That is why the non-property rights based on the licence, concern a category of the rights closely connected with the person of the estate-leaver, and doing not come under to transfer as inheritance. Stated 3 items 559 GK the Russian Federation by which the interdiction for transfer by the seller is provided at making contract of purchase and sale of the enterprise of the rights received by it on the basis of the licence prove to be true a part.

According to a part 2 items 13 FZ №128-ФЗ from 08.08.2001 the licence loses a validity in case of liquidation of the legal person or

The terminations of its activity as a result of reorganisation, except for its transformation, or cancellation of the certificate on the state registration of the citizen as the individual businessman. Thus a part 3 items 22.3 FZ «About the state registration of legal bodies and individual businessmen» from 08.08.2001г. ЯОІ29-Ф31 it is established, that the death of the citizen is the basis for the state registration of the termination of activity of the physical person as the individual businessman, (which in turn is the precondition to cancellation of the certificate on the state registration of the citizen as the individual businessman).

Hence, with death of the citizen who was carrying out activity as individually businessman, coming under to the licensing, the licence given out to such citizen loses a validity.

In connection with the stated there is a question what to do with the inherited enterprise which was used by its proprietor in the activity which is coming under to licensing, at absence at the successor who has accepted the enterprise, the corresponding licence, and, as consequence, impossibility of continuation by the successor of use of the enterprise for realisation of the same activity in which the estate-leaver was engaged?

In our opinion, in this case the successor has following variants of behaviour: 1) having registered as the individual

The businessman to receive the licence for realisation of a corresponding kind of activity; 2) to reorientate the enterprise under other kind of activity (not demanding licence or activity on which realisation or the legal person the licence is available for the successor-businessman); 3) to refuse independent operation of business,

Having transferred it in rent (at presence at the successor of the status of the individual businessman), confidential management or having brought as the contribution in ustavnyj the capital of the legal person; 4) to transfer the property right to the enterprise to other person by making contract of purchase and sale or donation in an order established by the civil legislation.

Like the rights, the obligations based on the licence as a part of the enterprise also can be two types: non-property (on execution in duty nature on transfer of any property, performance of works, rendering of services) or property (payment of money resources). Thus, as well as in the previous case, if discharge of duty in nature can be made the successor only in the presence of the licence (and that at the successor is absent), and replacement of the obligation with monetary indemnification is impossible (or against it the creditor objects), the corresponding obligation to the successor of the enterprise in structure does not pass and is repaid by death of the estate-leaver as having closely connected with the person of the estate-leaver character. The property debts not possessing corresponding communication and caused by activity of the enterprise, come under to transfer as a part of the last to successors.

In view of absence in the legislation of the Russian Federation of the norms directly regulating possibility of transition by right of succession of exclusive rights to objects of intellectual property, additional research the question on existence of the last as a part of the enterprise transferred as inheritance demands.

According to item 132 GK the Russian Federations in enterprise structure enter the company name, the rights to a trade mark, a service mark.

At the same time, as it was specified above, the formulation of item 132 GK the Russian Federation fixing as an element of the enterprise the company name, is incorrect as the company name is means of an individualization of the proprietor of the enterprise, and, hence, in enterprise structure as property complex, in enterprise structure as object of inheritance it cannot enter. From sense of named article follows, that components of the enterprise the legislator name nevertheless means of an individualization of the enterprise, instead of its proprietor. Correctness of the given conclusion proves to be true the maintenance of item 11 of item 17 FZ «About introduction in action of a part of the fourth Civil code of the Russian Federation» from 18.12.2006 №231-Ф3\

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A source: Smirnova Victoria JUrevna. enterprise Inheritance as property complex in the Russian civil law. The dissertation on competition of a scientific degree of the master of laws. Rostov-on-Don,.

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