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2. The characteristic of subject structure legal relation, skladyvajuyoshchihsja between an economic society and its participants, the juridical facts indulging at the heart of their occurrence.

According to the understanding which has as a whole developed in jurisprudence sushchyonosti concepts of legal relation, civil matter consists from otyodelnyh elements, that is has the состав1.

In this connection the civil matter characteristic can be shown to the characteristic otdelyonyh its elements. The civil matter structure traditionally joins subjects which behaviour first of all and is influenced by rules of law, the maintenance (rights and duties of subjects pravoyootnoshenija), object (concerning what there is a legal relation, on what it is directed). However the analysis of legal relation by consideration of its separate elements represents legal relation consideration in a statics condition. That the characteristic of the legal relations, arising intermeal an economic society and its participants, was fuller, neobhoyodimo to consider the specified legal relations also in their dynamics. Dynamics of any civil-law legal relation is connected with approach opreyodelennyh legal фактов2. In this connection, the characteristic pravootnosheyonija is connected with necessity of consideration and those juridical facts, kotoyorye its occurrence underlie. Consideration of questions on concept and soyostave nanosecond civil matter is included into a consideration subject in nayostojashchej to work and deserves separate studying in this connection the resulted understanding of structure of legal relation are accepted as starting positions for the subsequent research. Thus within the limits of the present paragraph rayoboty questions on subject structure of participants are considered pravootno -

1 See; Iof і ^ from O.S.Pravootnoshenie but Soviet іраждинскому to the right. - L; I Publish іьство I LIE, 1949; vr.nus S.N.Prsdmsg and system Soviet і {the Milan right. - m: gosjurizdag, 1963; Krasavchikov O. A. Grazhdanyosky organ_gadnnonno-praoopms О7но:кс »n ^. ’/Антология Urad і» sko іі civil law. 1925-1989 - М:Стотуг.

2001; Alsksssi S.S.mechanism of legal regulation and the socialist state. M: the Legal literature. 1966; Jakovlev V. F. Structure civil іі раіюоітюшеиий.мАнтоло ї pja Ural tsioilie weave. 1925-1989 - M: the Statute, 2001.

2 See, for example: Krasavchikov About And Juridical facts in sojotskom іраждлнеком a price. M: the Science, 1958 With 27.

shspy, developing between an economic society and its participants and also about those juridical facts which underlie their occurrence. The question on object and the maintenance of the legal relations developing between economic societies and their participants, within the limits of the present paragraph is only designated, however detailed consideration of the specified questions proizvoyoditsja in the subsequent sections of the present work devoted to the analysis imuyoshchestvennyh and non-property relations, developing between hozjajstyovennym a society and its participant.

I Trezhde everything, it is necessary to consider the problem on subject structure issleyoduemyh legal relations. The declared theme of the present research in itself assumes, that as subjects of considered relations vyyostupaet, on the one hand, an economic society, and on the other hand, uchastyonik an economic society. Thus, operating domestic zakonodayotelstvo «the participant of a society» (for example, article 48, 67 GK the Russian Federation), also such category as «a member organizayotsii» (for example in item 116, 117 GK the Russian Federation) operates along with concept. Thus last term is applied in GK the Russian Federation with reference to proizvodstyovennym to co-operative societies and the separate noncommercial organisations. Given obyostojatelstvo causes statement of a question on applicability of concept "membership" to relations between economic societies and them uchastnikayomi. The analysis of the modern domestic legislation shows, that zayokonodatel does not use concept "membership" with reference to participants hoyozjajstvennogo association and a society. At the same time, in the relation kooperayotivov (item 107 item 1, the item 1ст. 116 GK the Russian Federation), some kinds of other noncommercial organisations (for example, public organisations) in the law (for example, and. 1 item 116 GK of the Russian Federation) is underlined, that danyonoe association of citizens is based on membership. In the relation hozjajstvenyonyh societies and associations the concept "participant" is used.

The German legislation concerning economic obshches tv also uses concept "participant", and the term "member" - with reference to kooperati -

vu. In the modern corporations created according to rules of law of the USA, the concept "member" is not a synonym of concept "shareholder". As predyostavljaetsja, the specified terminology used by the legislator, reflects historically developed specificity of the relations arising in organizatsiyojah, based on membership. So, historically the concept of "membership" developed in Russia with reference to rural societies. Feature of member relations within the limits of rural societies was the close interrelation ground, labour, administrative and property relations. For example, if at the peasant the right to an allotment, owing to the law prekrashchayolos its right of membership in a rural society stopped. « Cooperation, except sushchestvenyonogo economic value, had also the social party, that nanosecond less important. In the co-operative organisations the habit to sovmestnoyomu to work was developed, the basis for a mutual exchange of opinions was created, sights, at last, here there was a possibility for development of solidarity and obshchinposti »1. poyonjatie"membership"developed in indissoluble communication with kooperat ivnymi forms of command of the economy, based on personal labour participation of members. In usloyovijah the modern legislation of the Russian Federation comparison customs and duties of members of the organisations based on membership, with the rights and duties of participants of economic societies, show following specific lines of member relations:

1. In legal bodies where membership admits, has the jural significance personal participation of a member in organisation activity (for example, personal labour or other participation of a member of production co-operative). Member otnosheyonijam within the limits of the specified organisations indissoluble communication trudoyovyh, property and administrative relations is peculiar. Within the limits of economic societies the jural significance has only property participation uchastniyokov in a society.

2. In the organisations based by a pas membership (industrial and potrebitelyoskie co-operative societies, the unions, public associations), it is provided
Acceptance procedure in members of the organisation and an exception of structure of members oryoganizatsii. Thus acceptance in members of the organisation (an exception of structure of members) is made by general meeting of members of the organisation. Specified osoyobennost inseparably linked with the first feature also it is caused by that znacheyoniem which is given to the person of a member of the organisation. Unlike organizayotsy, based on membership, in economic societies of nanosecond are provided procedures of acceptance of participants in structure of participants of a society (and exceptions of structure of participants). Each participant societies (shareholder) has the right rasporjayoditsja a share of participation belonging to it in the capital of a society (actions) and in sidu the specified fact under condition of observance statutory proyotsedur (including taking into account compulsion of observance of a rule about the right preyoimushchestvennoj purchases of a share of participation (the action)), the person gets the status uchayostnika (shareholder).

3. Presence of first two features of relations of membership causes that owing to legislative interdictions, the organisations based on membership, nanosecond can consist of one person. So. According to item 3 of item 108 GK of the Russian Federation, the number of members of production co-operative should not be meyonee five. Membership relations is always relations of several persons with orgayonizatsiej. Creation of economic societies is the tool oboyosoblenija property of the participant (association of property by several uchastniyokami) with a view of realisation by a society of enterprise activity. Necessity lichnoju associations of separate persons, personal labour and inoyogo participations of participants in activity of an economic society primenitelyono to institute of economic societies is absent, therefore dejst vujushchim zayokonodatelstvom the admission є the gay possibility of existence of societies with one participant.

In this connection predstavlja є the gay, that membership relations - suz special otyonoshenija, arising between the legal body and its participant in sluchayojah, statutory when personal communication of the person with the organisation has essential value. In economic societies the person of the participant not
Has essential value, and association of participants an essence property association.

The specified distinctions in a context of a considered theme matter in connection with distribution to the scientific literature of the point of view about sushchestvovayonii «member relations», arising between an economic society and its participant owing to direct the fact of participation in the organisation [19]. In ramyokah the present параірафа works should be noticed, that, taking into account noted distinctions between concepts «a member of the organisation» and «the participant of the organisation», osyonovannyh on positions of the operating Russian legislation, isyopolzovanie concepts «member relations» with reference to the relations arising between an economic society and its participant nedostatochyono it is correct at least terminologically.

The analysis of subject structure of investigated legal relations also trebuyoet establishments of a parity of such concepts, as «the founder of the legal person"and"the participant of the legal person». The ego is caused by that in dejstvujuyoshchem the Russian legislation terms "founder" and "participant" of the legal person which are not identical on the soderzhayoniju are used. As a rule, the legislator uses the specified concepts the following obyorazom: « The founder (participant) », thus positions of the law and its equitable construction allow to draw a conclusion that the founder of an economic society is the person making actions, necessary for establishment of the legal person, as that decision-making on organisation creation, prinjayotie (statement) of constituent instruments, entering property vklayoda in ustavnyj the society capital. Concept differentiation« the founder "and" uchayostnik »is made by the legislator, in particular, in item 2 of item 7 Federal zayokona from 08.02.1998 Xй 14-FZ« About societies with limited otvetstvennoyostju »[20] that« the society can be founded one person is specified, to -
toroe becomes its unique participant ». Direct differentiation ponjayoty« the participant "and" the founder »is made in the norms of the Civil code devoted to the general partnership. A hook, it agree and. 2 items 75 of the Civil code of the Russian Federation,« uchdet/shk the general partnership, not javljajuyoshchijsja its founder, answer on a level with other participants on objazatelyostvam, arisen to it vs tuplenija in association ».

Positions of the Russian civil legislation allow sdeyolat a conclusion that after creation of the legal person (that is after gosuyodarstvennoj registration of the fact of its creation) the person, being it uchrediteyolem, gets the status of the participant of an economic society, not losing thus the status of its founder. So, according to paragraph 2 of item 1 of item 66 of the Civil code of the Russian Federation, «in the cases provided by the present code, hoyozjajstvennoe the society can be created one person who becomes its unique participant». Thus after the state registration again sozdannoju the legal person there can be only its new uchastyoniki, io nanosecond the founders which structure is invariable. With reference to konkretyonomu to the legal body the structure of its founders can be defined by an establishment of the circle of persons, specified as founders in constituent instruments at its establishment.

The specified distinction between concepts «the participant of a society» and «uchrediyotel societies» with reference to declared geme researches has great value. According to paragraph 1 of item 2 with t. 48 GK the Russian Federation, «in connection with participation in formation of property of the legal person its founders (uchayostniki) can have liability laws concerning it juridicheskoyogo persons or real rights on its property». In this case the legislator specifies that relations of obligations character arise intermeal a society and it «founders (participants). In abz 2 items 2 of item 48 GK of Rosyosijsky Federation the legislator specifies already that obligations vozyonikajut between the participant of a society and a society. ІЗ and. 3 items 48 GK of the Russian Federation are fixed that« to legal bodies, in their which relation

Founders (participants) have no property rights, concern obshchestvenyonye and the religious organisations (association), charitable and other funds, associations of legal bodies (associations and the unions).

System-logic interpretation of these positions GK Russian FedeYOratsii »taking into account the conclusions stated above in the present paragraph of work as it is represented, can lead to an establishment of a following parity used in the text of the law of concepts:« The founder »- an ego the person who has made actions on establishment of the organisation. The status of the founder"in the pure state"suyoshchestvuet till the moment of the state registration of the legal person. That is, using concept"founder", the legislator, obviously, should podrayozumevat the person founding the legal body, having to such statue to goyosudarstvennoj to registration of creation of the organisation. The term"participant", ocheyovidno, should include on the volume as the founders who have become uchastniyokami after creation of the legal person, and other participants, not javljavshihyosja founders. Taking into account it it is represented to the most proved foryomulirovka the legislator, used in paragraph 2 of item 48 GK Russian FedeYOratsii according to which concerning the legal person participants have liability laws. Other formulation specified above according to which relations arise between the legal body and its founders (participants) allows to assume, that existence otnosheyony between the legal body and the founder till the creation moment juridicheyoskogo persons is possible, that, obviously, it is impossible, owing to absence of the second participant of relations (the legal person). It was specified In it still by pre-revolutionary scientists, in particular, G.F.Shershensvichem writing, that while operate uchyorediteli, the legal person still is not present. When there is a legal body, founders already are not present, as they turn to its participants. The author ukayozyval that norm of item 21 74 ch. 1 t. X Code of laws contained obvious logiyocheskuju an error, declaring, that - each company at first copes uchrediteyoljami, and then - правлением1. In the course of establishment of the legal person pra -

воотноінения Arise only between founders of a society. І _rsdstailjaet - sja disputable enough conclusions of some researchers about existence of any relations between founders of a society and not registered juriyodicheskim the person. So, according to N.V.Kozlovoj, «in relations between uchreyoditeljami and not registered legal body the special case of spontaneous agency, and not only in interests buduyoshchego the legal person, but also in interests of its founders takes place, dejstvujuyoshchih with necessary on circumstances has put care and osmotritelnoyostju, proceeding from obvious benefit or advantage of these actions (and. 1 et. 980 GK the Russian Federation)» [21]. However for application of the norms fixed in item 50 GK of the Russian Federation, presence of the interested person in which interests actions without the commission of this person are made is necessary. To gosuyodarstvennoj registration of the organisation in the course of establishment of the legal person, such person (subject of law) still simply do not exist. As it was specified, legal relations in the course of establishment of the legal person can sushchestvoyovat only between founders of a society, in this connection these legal relations to the greatest degree correspond to signs of the legal relations arising on the basis of the contract of the special partnership (the contract about joint dejatelnoyosti) [22].

Besides, it is necessary to notice, that by the legislator are established ogranicheyonija for certain categories subz.ektov in the form of an interdiction for participation in hozjajyostvennom a society and an interdiction for establishment of societies in this connection razgraniyochenie concepts "participant" and «found tel» also is of great importance.

So, according to item 6 item 1 «the Federal act from 14.11.2002 years № 161-FZ« About the state and municipal unitary enterprises »[23], the unitary enterprises can be participants (members) commercial oryoganizatsy, and also the noncommercial organisations, in which according to

The federal act supposes participation of legal lindens exclusively with the consent of the proprietor of the property fixed to the unitary enterprise on the right of economic conducting.

Thus also it is fixed, that the unitary enterprises have not the right vyyostupat founders (participants) of the credit organisations. In connection with isyopolzuemoj in resulted article ambiguities of following character can arise terminology. In the first paragraph of item 1 of item 6 FZ «About the state and municipal unitary enterprises» to be said that the consent sobyostvennika the property fixed to the unitary enterprise, is required that the unitary enterprise became the participant of the legal person, thus in this paragraph not to be spoken about the consent of the proprietor to that the unitary enterprise became the founder of the legal person. In the second abyozatse it is spoken about an interdiction for the unitary enterprises to be both participants, and founders in the commercial organisations. Only scoping of concepts "participant" and "founder" of the legal person, resulted above according to which any founder after establishment legal the linden gets the status of the participant, allows to draw a conclusion that neobhodiyomost receptions of the consent of the proprietor of the property fixed for unitaryonym by the enterprise, is required not only at entering unitary predprijatiyoem the contribution in ustavnyj the capital of already created legal person, but also for toyogo that the unitary enterprise could represent itself as the founder juriyodicheskoju the person at its creation. However thus it is represented neobhodiyomym to recommend to the legislator to observe sequence in ispolzoyovanii terms "participant" and "founder". So with a view of a designation of all soyovokupnosti participants of the legal person - including participants imejuyoshchih the status of founders - predsgavljaetsja proved to use the term «the participant (founder)». In case of need instructions in the law on the persons who were taking part in establishment of the legal person, or a pas of the persons who have become by participants of the organisation and nanosecond taking part in primary formirova -

nii its charter capital, "founder" and "participant" accordingly is represented proved to use ponjayotija.

In GK the Russian Federation variety of other restrictions on subject structure of participants (founders) of economic societies, nayoprimer contains:

- The state bodies and body і »! Local government have not the right to act as participants of economic societies and investors in tovayorishchestvah on belief if other is not statutory (item 4 of item 66 GK of Rosyosijsky Federation). Thus the law establishes variety sluyochaev when public formations, operating through bodies, mogud to represent itself as the founder of the legal person. Namely, according to norms of item 25 of the Federal act from 21.12.2001 He 178 FZ« About privatisation of the state and municipal property »[24]. The Russian Federation, the subject of the Russian Federation, and also munitsiyopalnoe formation the Governments of the Russian Federation, enforcement authority of the subject Russian FederaYOtsii or local government can act as the founder opened aktsioneryonogo societies under the decision accordingly and to bring state (muyonitsipalnoe) property as the contribution in ustavnyj the capital ukazannoyogo societies. The given norm korrespondiruet with positions, zakreplenyonymi in item 10 of the Federal act of the Russian Federation «On joint-stock companies», according to which the joint-stock companies as which founder in sluchayojah, statutory, the Russian Federation acts, the subject of the Russian Federation or municipal union (except for the societies formed in the course of privatisation state and muyonitsipalnyh of the enterprises), can be only opened.

- Establishments financed by proprietors can be participants of economic societies and investors in associations from the permission

The proprietor, if other is not statutory (and. 4 items 66 GrazhdanskoYOgo of the code Russian Fedratsii);

- The society with limited liability cannot have other economic society consisting of one person as the unique participant (and. 2 items 88 GK of the Russian Federation).

Besides, since the pre-revolutionary legislation, (in particular, according to the law from December, 03rd, 1884) restrictions on participation in hoyozjajstvennyh societies were established concerning the persons consisting on vysyoshih posts and ranks of public service, posts of first three - classes and corresponding court chips, was forbidden to act uchreyoditeljami joint-stock associations and to occupy in them posts of members pravyolenija '. In the modern legislation also are established a similar sort of restriction for the persons displacing posts state and munitsipalyonoj of the service. So, according to subitem Z item 1 of item 14 of the Federal act 25 FZ from 02.03.2007 years «About municipal service in the Russian Federation» 1 [25], is established an interdiction for municipal serving to be engaged predprinimayotelskoj in activity. The resulted position of the law usually is treated as forbidding municipal serving to found commercial organiyozatsii and uchast vovat in them. According to item 1 of item 17 of the Federal act from 27.07.2004 years № 79-FZ «About the state civil service of the Russian Federation» ’, it is forbidden to the persons displacing posts on the state civil service also to carry out enterprise activity and to get in the cases established by the federal act, securities on which the income can be received.

Besides, it is necessary to notice, that in some cases transactions from a name juriyodicheskogo the persons directed on participation p other legal body sovershayojutsja by the supreme body of management of the organisation. So, according to podi. 18 items 1 of item 48 of the Federal act «On joint-stock companies», joint-stock

The society has the right to act as the founder (participant) of association kommercheyoskih the organisations only on the basis of the decision of general meeting of shareholders.

There is a number of other restrictions established in Russian zakonoyodatelstve, connected with possibility of participation foreign іражлан (organiyozatsy) in the charter capital of the Russian economic societies.

So, according to item 5 of the Federal act from 27.11.1992 № 4015-1 «About the organisation of insurance business in the Russian Federation» 1 similar ograniyochenija are established concerning participation of foreign investors in charter capitals of the insurance organisations operating in territory of the Russian Federation and created according to the legislation of Russia. In chastnoyosti, according to the specified positions of the law in case the size (quota) of participation of the foreign capital in charter capitals insurance orgayonizatsii exceeds 25 percent, the body of insurance supervision ceases vydayochu licences for realisation of insurance activity insurance organizatsiyojam, being the associated companies in relation to foreign inveyostoram (to the basic organisations) or having a share foreign investoyorov in the charter capital more than 49 percent. Besides, insurance oryoganizatsija is obliged to receive prior permission of body of insurance supervision on increase in the size of the charter capital at the expense of means inoyostrannyh investors and-or their affiliated obshchest in, on from chuzhdenie in advantage inoyostrannogo the investor (including on sale to foreign investors) the actions (shares in the charter capital), and the Russian shareholders (participants) - on alienation of actions belonging to them (a share in the charter capital) the insurance organisation in favour of foreign investors and/iln their affiliated obshchest century the Insurance organisations which are the associated companies in relation to foreign investors (the basic organisations) or having a share inoyostrannyh investors in the charter capital more than 49 percent, can otyokryvat the branches in territory of the Russian Federation participate in
The affiliated insurance organisations after reception on that of prior permission of body of insurance supervision. In specified preliminary razreyoshenii refuses, if the size (quota) of participation foreign kayopitala «the insurance organisations of the Russian Federation is exceeded.

Serious enough restrictions of possibilities of participation of foreign investors in the Russian economic societies which are the credit organisations, are established according to item 18 Federalnoju of the law «About Banks and bank activity» from 02.12.1990 X »395-1.1 In particular nayozvannym the federal act provides an establishment of the size (quota) of participation of the foreign capital in bank system of the Russian Federation which is established by the federal act under the offer of the Government of the Russian Federation, adjusted with Bank of Russia. The specified quota rasyoschityvaetsja as the relation of the total capital belonging nerezidenyotam in charter capitals of the credit organisations with foreign investiyotsijami, and the capital of branches of foreign banks to cumulative authorised kayopitalu credit the organisations, registered in territory of the Russian Federation. The bank of Russia ceases delivery of licences for realisation banyokovskih operations to banks with foreign investments, to branches inostranyonyh banks at dost izhenii the established quota. Besides, the law preduyosmotreno, that the credit organisation is obliged to receive preliminary razyoreshenie Bank of Russia on increase in the charter capital at the expense of means of non-residents, for alienation (including sale) the actions (shares) in favour of non-residents, and participants of the credit organisation - residents - on otyochuzhdenie actions (shares) of the credit organisation belonging to them in favour of non-residents. The specified transactions on alienation of actions (shares) to the non-residents, the Russia made without the permission of Bank, admit dejst vujushchim zakonoyodatelstvom void.

The bank of Russia has the right to impose a ban for increase authorised kapiyotala the credit organisation at the expense of means of non-residents and for alienation akyotsy (share) in favour of non-residents, if result of the specified action javyoljaetsja excess of a quota of participation of the foreign capital in bank sisteyome the Russian Federation.

The bank of Russia has the right in coordination with the Government Russian FedeYOratsii to establish for the credit organisations with foreign investitsijayomi and branches of foreign banks of restriction on realisation of bank operations, if in the corresponding foreign states concerning banks with the Russian investments and branches of the Russian banks primenjayojutsja restrictions in their creation and activity.

The bank of Russia has the right to establish in an order established FedeYOralnym by the law from 10.07.2002 N 86-FZ "About the Central bank of the Russian Federation (Bank of Russia)" 1, additional requirements to credit organiyozatsijam with foreign investments and to branches of foreign banks otnoyositelno obligatory specifications, an order of representation of the reporting, utveryozhdenija structure of a management and the list of carried out bank operations, and also concerning the minimum size of the capital of again registered branches of foreign banks.

Differentiation of concepts «the founder of a society» and «the participant of a society» is important also because character of the legal bond of the founder of a society and obyoshchestva, the nanosecond its being founder, and a society possesses specificity in comparison with the legal bond arising between the participant of a society. The specified specificity is caused by positions operating zakonodatelyostva and consists in the following:

First, and conformity from item 2 of item 11 FZ «About societies with limited liability», founders of a society bear a joint liability under the obligations connected with establishment of a society and arisen to it is

sudarstvennoj registration. A society of pesetas responsibility io objazatelstyovam founders of the society, connected with its establishment, only in a case poyosledujushchego approval of their actions by general meeting of participants of a society. The similar norm contains in item 3 of item 10 of the Federal act from 26.12.1995 № 208-FZ «On joint-stock companies» [26]. From the specified positions of the law as predstavlja є the gay, follows, that the founder of a society owing to the participation fact in sozyodanii an economic society becomes the party of the obligations which have arisen in the course of creation of a society before registration of last in quality juridicheyoskogo of the person. Thus the exit of the founder of a society from structure of participants obshcheyostva after with і ї) creation does not cease the duties of the founder which has arisen owing to the fact of participation in creation of a society.

Secondly, the system analysis of positions of the Federal act «About obshcheyostvah with limited liability», the Federal act «About aktsioneryonyh societies», the Federal act from 08.08.2001 № 129-FZ «About gosudarstyovennoj registration of legal bodies and individual businessmen» [27] with the account privedennoju above differentiation of concepts «the founder of a society» and «the participant of a society», testifies that, even losing the status uchastyonika an economic society, the person keeps the status of the founder of a society up to the moment of an exception of a society from the uniform state register of legal bodies. The structure of participants of a society mozheg to vary, but the structure uchyoreditelej societies remains invariable. Thus the founder of a society as it is specified above, and after the termination of participation in an economic society not preyokrashchaet to be the party in the obligations which have arisen in connection with creation obshcheyostva. Thus, the status of the founder of a society, unlike the status uchastyonika societies, arises at the person in connection with its participation in establishment of a society and exists without dependence from the fact of the termination of participation in authorised kapiyotale societies.

Thirdly, according to positions of item 16 of the Federal act «About societies with limited liability», Federal act item 34 «On joint-stock companies», at founders of a society arises a duty opyolatit ustavnyj the society capital in statutory terms. VoznikYOnovenie the specified duty at the founder it is based directly on the fact of creation of a society and does not demand approach any others juridicheyoskih the facts. Thus under the general rule owing to the fact of participation of the person in hozjajyostvennom a society of the right and a duty of the participant сущсствуюі in a kind abstyoraktn і, ї h legal possibilities and the duties existing out of frameworks otyonositelnyh of legal relations of the participant and a society. A duty uchrediyotelja to pay ustavnyj the society capital arises imperatively (the law usyotanavlivaetsja an interdiction for clearing of the founder from execution of the specified duty - and. 1 items 16 of the Federal act «About societies with оіраниченной responsibility», the item 2 items 99 of the Civil code of the Russian Federation) in the form of a subjective duty within the limits of the obligation on charter capital payment.

Considering a question on subject structure of legal relations, skladyvajuyoshchihsja between economic societies and their participants, it is obviously necessary to estimate validity of introduction in a scientific turn of concept "corporation".

Throughout the development the maintenance of concept "corporation" preyoterpevalo essential changes. To the Roman Law was not known ukazanyonyj the term in value of the union of persons. Possessing corporate franchises, but in works of classical lawyers clearly trace aspiration to allocate the special organisation («corpus») which is completely isolated from the persons entering into it состав1. As specifies II.С. Suvorov, «jurisprudence up to present (19 century - Century D) centuries continued to bring any juridical personality under the general category of corporations, that is the concept of legal bodies scientifically developed only in the relation« universitates per -

sonarum ». [28] Thus among signs of the corporate device usually vyyodeljalis the following: property isolation, independent otvetyostvennost on the debts, organisation possibility to enter in pravootnoyoshenija with the participants, and also the right to represent itself as the claimant and otyovetchika in court. In allocation of several categories of legal bodies the Russian scientist N.S.Suvorov attributed a merit Gsjze which, in particular, has spent distinction between corporations and institutes (establishments) [29 [30]. RazgraYOnichenie corporations and institutes (establishments) has received the development in rayobotah F.K.Savini. In due course the system of criteria, pozvoyoljajushchih разіраиичивать corporations and institutes (establishments) ' has been developed. I.Tarasov subdivided legal bodies into corporations, or establishments, societies and associations. As criterion of classification the legal nature of communications between participants of the organisation acted. In corporation or establishment such communication is minimum, on the contrary, associations, according to I.T.Tarasova, have «deeper and difficult communication between the members, expressed in imushchestyovennoj, and sometimes even in personal mutual responsibility...» [31]. Thereupon And. G.TaraYosov allocated joint-stock corporations, joint-stock companies in the true sense this word and joint-stock associations [32]. As an example aktsioyonernoj corporations it resulted English joint-stock university, aktsioyonernogo associations-joint-stock kommandita [33]. In the literature also vydeljayolis so-called Roman and German corporations. Their distinction, io mneyoniju. Girke. Consists but internal organizational structure. Between uchayostnikami (members) of the Roman corporation of nanosecond exists any legal svjayozi, distinct from that which can be established between subjects, not oryoganizovannymi in a single whole. On the contrary, in the German corporation between uchayostnikami (members) there are the special legal bonds, caused learning -
Let's melt (membership) in corporation [34]. The modern foreign legislation does not use the unified definition of corporation [35]. Such concept and of the modern domestic legislation (for iskljucheyoniem item 7.1 is not used. The Federal act from 12.01.1996 № 7-FZ «About the noncommercial organisations» [36] [37], in which as a version noncommercial organizayotsii the state corporation) is specified in this connection as it is represented, the term "corporation" can be used exclusively as ekonomicheyoskaja the category meaning integrated formations with formation or without formation of the legal person-1. On other as it is represented, it is possible to tell, that "corporationism" defines economic essence juridicheyoskogo persons. That is the legal body, from the point of view of the economic theory, narrow association of persons and their capitals, representing itself as samostojatelyonogo the subject of the public relations, having internal struktuyoru, that the linden is display of "corporationism" legal. However in doktrinalnoj to the literature attempts of a substantiation of possibility of existence of "corporation" as subject of law take place. So, according to 11.11. PahoYOmovoj «corporate association can be recognised and the subject ekonoyomicheskogo a turn, and the independent subject of law. To put it briefly, koryoporatsii"are born"отличБіьім from a natural birth way - by the certificate of the state registration» [38]. And further the author writes: « The organizational form of corporate relations mediating association of property uchayostnikov pli association of their activity (or both that and another) can be oboyoznachena as corporate association. In cases, statutory if corporate association possesses the signs established in zayokone, behind it the state registering body fixes the corporation status. The corporation is a public status of corporate association,
Based on the law, arising of the fact of the state registration and meaning, that corporate association is the subject ekonomicheyoskogo a turn go the subject of customs »[39]. According to T.V.Kashaninoj,« korporayotsija is the organisation recognised as the legal body in which sobstvenyonost it is separated from the management, based on incorporated capitals (dobroyovolnyh payments) for realisation any socially useful dejatelyonosti »[40]. But the main question which arises in connection with the analysis privedenyonyh definitions of concept"corporation"consists in definition of that, than vyyoznana necessity of introduction of the specified concept (as concept juridiyocheskogo) in the presence of the settled concept"legal body"and zakreplenyonyh the legislator of organisation-legal forms of legal lindens. As it is represented, such necessity (and the bases) are absent. It obstojayotelstvo is one of certificates of absence of the bases for allocation of "corporate" relations as a special kind of relations, skladyvajuyoshchihsja between an economic society and its participants. The specified position finds the development in the subsequent sections of the present work.

Considering those juridical facts which underlie vozyoniknovenija an economic society and relations between an economic society n its participants, it is necessary to notice, that the majority of them have character of the transaction.

For creation of the legal person in the form of an economic society neyoobhodimy following juridical facts: decision-making of founders (founder) on society creation, the conclusion of articles of incorporation (at creation of a society with the limited and additional responsibility with chisyolom participants more than one person), making contract about creation aktsioyonernogo societies (at creation of joint-stock company with number of participants more than one), the statement of the charter of a society, the state registration of the legal person [41].

As it is represented, the specified juridical facts, except for the certificate of the state registration of the legal person at its creation, possess the signs of the transaction fixed in item 153 GK, that is are the actions directly directed on an establishment civil customs and objazanyonostej.

The decision on creation of an economic society represents or the unilateral contract - in case of society establishment one person, - or the transaction multilateral - in case of establishment of a society several persons. Basic value has that circumstance, that the specified transaction zayokljuchaetsja between the founders entering legal relations, connected with formation of the legal person. Other qualification of these relations, namely definition as the subject of the legal relations connected with sozdayoniem of the legal person, the most legal a dyne, or «kvazijuridichesko - go persons» are represented disputable enough ’. The approach according to which legal relation can arise only in the presence of corresponding subjects of law - carriers subektivyonyh the rights and duties, including in the presence of the "third" person in which advantage the transaction is made is represented unique.

As it is represented, there are no good causes to call in question the most widespread in modern otechestvenyonoj to the literature and pravoprimenitelnoj to practice the approach in definition pravoyovoj the nature of articles of incorporation and the contract on creation of the joint-stock

Societies as versions of the contract of the special partnership (the contract about soyovmestnoj activity).

Thus, as it is represented, similar qualification of actions uchrediyotelej hozjajstvennoju a society does not exclude that fulfilment of the specified transactions japljastsja the juridical facts entering into legal structure, underlying occurrence of legal relations between a society and uchastyonikami. In the scientific literature as it is represented, it is absolutely proved that accumulation of legal structure - the phenomenon which scientific research inseparably linked with imeyonem professor O.L.Krasavchikova "in this case takes place is underlined to a pas. So, E.G. The orphan specifies that« uchyoreditelnyj the contract as the juridical fact forms the basis vozniknoveyonija debt relationship between founders on creation of the legal person, but at the same time enters into the legal structure forming the basis of occurrence of other legal relation corporate. Thus corporate relations arise at the moment of accumulation of all juridiyocheskih the facts entering into legal structure. O.A.Krasavchikov, as a whole otyoritsaja possibility of approach of legal effects on a basis nezavershenyonogo legal structure, nevertheless, did not exclude possibility, at kotoyoroj the same juridical fact forms the occurrence basis one -

1 See: item 6 of the Decision of Plenum VLS the Russian Federation from IS November, 2003 To 19 «About some questions of application FZ« About joint-stock obikhtmh »//13ссгиик YOU of 2004 L '? 1; Mamaj 0. The contract on joint cooperation an outcome - to us nenova formations structure at predatelej.//the Economy and the right. 1997. Jfe 7. With. 136-140; Mslgu V.PraYovovoe regulation joint economic деяісльносг і ї'УХозяйсгьо and the right is new. 1999. № 10; I eat V.S.Kozlova with N.V.contract simple товаришсства'Ззконолатсльово.2000. К* 1. With. 17-18; Zaharov V. A legal rs_uliroia - nis creations of legal bodies. The dissertation on competition of a scientific degree of the master of laws, EkaYOterinburg, 2001. With. 66, Stepans D.I.feature of the contract of founders on creation joint-stock obshchssg - va ’/Хозийство ch нрапо.2000. № 2: Prohorenko V.V. Obnzata§etpa, voenikijushie sh participations I formation of property legal pina (partisipagivnms obligations}.? Problems of the theory of civil law, vyyopusk 2. M: The statute, 2006. With. 121. Though the similar approach is not the only thing n to the scientific literature. So. On.mneniju V.A.Gorlova, the articles of incorporation the contract on joint cooperation, and represents the transaction about property alienation. (Gorlov N.L.legal status of societies with limited otvetevtenno - stju. A bottom...-kaid. jurndnch. Sciences. Ехатеріигбург, 199$. With - 90).

? See: Krasavchikov O. A. Juridical facts in the Soviet civil customs. M. 1958. With. 54.; Orphan E.G.AkYoty nolnormativnogo regulations of corporate relations and economic societies: Dis.... kzid. jurti, sciences. Ekaterinburg, 2991. With. 104.; Prohorenko V.V. Objazatelstva arising from participation in formation of property of the legal person (partisipativnys oSjazagslstvau/Problsmy civil law theories, vyyopusk 2. M: the Statute, 2906. With. 122.

go legal relations and simultaneously enters into the legal structure forming the basis of occurrence of other legal relation »[42].

Following logic of a recognition of the specified juridical facts in quality sdeyolok, widespread way of protection broken customs in modern aryobitrazhno-judiciary practice are the reference with the requirement about a recognition void separate position or as a whole constituent dogoyovora, the charter, on the bases established § 2 gl. 9 GK. (For example: postayonovlenie Plenum of the Supreme Arbitration Court of the Russian Federation from November, 18th, 2003 N 19 "About some questions of application of the Federal act" On joint-stock companies "[43], the Decision Federal arbitration suyoda the East-Siberian district or on December, 1st, 2004 NA58-2547/2003-02-4921/04-С2 [44], etc.) Thus, transactions are included into the legal structure underlying occurrence of legal relations between economic obyoshchestvami and their participants. Thus, scientific views on the legal nature of the charter of an economic society are far ambiguous. So, in opinion otyodelnyh scientists, the charter represents a contract version. On mneyoniju G.F.Shershsnevicha, «the charter validity consists in it dogovoryonom character which is got by it from the moment of the taken place subscription» [45]. The position about the contractual nature of the charter of an economic society is supported also by L.Epnekpsrusom [46]. 1 Go to opinion of other researchers, the charter - unilateral (at one participant) or the multilateral corporate transaction which is not the contract [47 [48]. Besides, in the scientific literature are presented the point of view that the society charter is the local normative act ', and also that the charter - an ego «the certificate local nodnormativnogo regulations, which contains obligatory rules of local character (reguljayo
tivnaja which force operates only within the limits of the organisation), coming under neyoodnokratnomu to application... »[49]. It is represented, that actions of founders io to the charter statement represent the transaction (unilateral, in a case utyoverzhdenija the charter the unique participant or multilateral, in case of the statement of the charter several founders), thus the charter possesses other nature, rather than the transaction. It is represented, that as it is proved marks E.G '. The orphan, discriminating feature of the charter is that the charter soderyozhit in itself obligatory rules of local character which, analoyogichno to rules of law, come under to numerous application. In force ukazanyonoj features, it is represented, that definition pravoyovoj the charter nature as certificate podnormativnogo local regulation is quite proved.

It is represented, that the nanosecond can serve as a refutation objazatelstvenyonoj the nature of property relations between an economic society and its participant that circumstance, that one of the juridical facts entering into the set of facts, underlying their occurrence, is nenormayotivnyj the public authority legal act (the decision about gosudarstvenyonoj society registration at its creation). Disputable V.V. Prohorenko's statement that registration legal the linden «is a serious obstacle on a way of reference of relations between the founder (participant) and an economic society to debt relationships» [50] Thereupon is represented. Really, state registration juridicheyoskogo persons at its creation is necessary and "finishing" juridiyocheskim the fact after which approach there are relations between sozyodannym an economic society and its participant. However, as predstavljayoetsja, having got tired and articles of incorporation define the maintenance otnosheyony between a society and its participant. The Certificate - of the state registration of the legal person has lravoporozhdajushchy character, as a result of it nayostuplenija the new subject - of the right - the legal body (is considered created hundred -
Fate of investigated relations). However society legal relations n it uchastyonika (in particular, property legal relations), having lasting hayorakter, (exist throughout all period of existence of a society) have as the direct basis the articles of incorporation (transaction) and the charter (the certificate local podnormalivnoju regulations). Similarly necessity of the state registration of some the transactions made in otyonoshenii of objects of real estate, is not the basis somneyovatsja in obligations character of the legal relations arising on osnoyovanii of the contract, coming under to the state registration. The decision about gosuyodarstvennoj registration of an economic society underlies vozniknoyovenija legal relations between a society and its participants so far as, poyoskolku is the basis for occurrence of the legal person - uchastyonika these legal relations. But after creation of an economic society osnoyovaniem legal relations the articles of incorporation and the charter (or only the charter) are.

As it has been specified above, a question on object and the maintenance pravootnosheyony, arising between an economic society and its participants, rasyosmatrivaetsja in the subsequent sections of work devoted to the analysis otdelyonyh of property and non-property "intraeconomic" relations. The similar logic of a statement of a material is based on otstaivaemom in the present work the thesis according to which there are no bases for the statement about existence of the uniform legal relation developing between a society and its participant. The legal bond of the participant of a society with a society can be presented in the form of set of separate legal relations imushchestvennoyogo and the non-property character, having the maintenance both the object and carrying out the certain function.

Conclusions which it is possible to bring the works following within the limits of the present section:

I. In the course of creation economic obshchest va there are civil matters between founders of a society. The specified legal relations
Are based on a number of the transactions made by founders. Thus the same transactions vhodjag in the legal structure underlying occurrence pravootnosheyony between the created society and its participants. That circumstance, that at the heart of occurrence of the specified relations transactions lay is one of the bases for an establishment of the obligations nature imushchestyovennyh legal relations between a society and its participants. Thus that obyostojatelstvo, that in legal structure, along with transactions, enters also the public authority certificate (the decision on the state registration hoyozjajstvennogo societies) nanosecond is an obstacle for reference imushchestvenyonyh the legal relations developing between obshchest vom and its participants, to obligations.

2. There are no scientifically proved arguments that rasyosmatrivat in kachest ve the subject of law "corporation".

3. Relations of participants of an economic society and a society are deprived obligatory signs of "member" relations.

4. It is necessary to consider distinctions in volume of concepts «the participant of a society» and «the founder of a society», and also distinctions in a legal status of the specified subjects.

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A source: Davidov Vasily Aleksandrovich. The legal nature of the relationship between economic societies and their participants. Thesis for the degree of candidate of legal sciences. Ekaterinburg - 2008. 2008

More on topic 2. The characteristic of subject structure legal relation, skladyvajuyoshchihsja between an economic society and its participants, the juridical facts indulging at the heart of their occurrence.:

  1. § 1. A general characteristic of non-property legal relations, skladyyovajushchihsja between an economic society and its participants.
  2. 1. The general the characteristic of property legal relations, skladyyovajushchihsja between an economic society and its participants.
  3. § 3. Structure of theoretical model of interrelation of the rule of law, legal relation and the juridical fact
  4. Chapter 2. Structure of marriage legal relation and the basis of its occurrence, change or the termination.
  5. 2.2. Forms of influence of a judgement on legal relation: - Occurrence of rights and duties; - Legal relation change; - The legal relation termination
  6. § 4. The General characteristic of the legal bond of the participant economic obyoshchestva with a society, arising in force directly fakti participations in a society.
  7. 1.2. Kinds of juridical facts in civil legal proceedings
  8. § 3. The legal nature of classification of juridical facts in the criminally-executive right
  9. RE-STRUCTURING IT IS SUBJECT - OBJECTIVE STRUCTURE OF MANAGEMENT gosobstvennnostyo AND THE ECONOMIC RIGHTS OF THE SUBJECT OF THE RUSSIAN FEDERATION.
  10. Chapter 3. Juridical facts - the events which are coming under to registration in bodies of civil registration, as the bases of occurrence, changes and the terminations of civil matters
  11. Chapter 2. Juridical facts — the actions which are coming under to registration In bodies of civil registration, As the bases of occurrence, change and the termination Civil matters
  12. POLISCHUK NIKOLAY IVANOVICH. EVOLUTION And the CONDITION of theoretical model INTERRELATIONS of the RULE OF LAW, LEGAL RELATION And the JURIDICAL FACT. The DISSERTATION on competition of a scientific degree of the doctor of juridical science. St.-Petersburg - 2008, 2008
  13. § 2. An establishment of juridical facts in special proceeding