8. Entrepreneurial activity. Concept. Legal status of citizens-entrepreneurs.

A citizen has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur.

Entrepreneurial recognized independent activity carried out at one's own risk, aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law (paragraph 3, clause 1, article 2 of the Civil Code). Entrepreneurial activity without the formation of a legal entity involves the participation of a citizen in various contractual relations, the performance of legal actions related to the fulfillment of contractual and other obligations, with the presentation of claims and lawsuits, etc. All legal actions a citizen-entrepreneur performs on his own behalf at his own risk. In cases where persons with partial legal capacity are involved in entrepreneurial activities, such persons perform legal actions with the consent of their legal representatives - parents, adoptive parents, trustee (see paragraph 1, clause 1, article 27 of the Civil Code).

When carrying out entrepreneurial activity in agriculture, the head of a peasant (farm) economy is recognized as an entrepreneur. Such a holding may consist of one person. If able-bodied members of his family, other relatives and other persons participate in the activities of the farm, they are not entrepreneurs. Only the head of the peasant (farm) economy acts as an entrepreneur.

A necessary condition for the participation of a citizen in entrepreneurial activity is his state registration as an individual entrepreneur or as the head of a peasant (farm) economy. The procedure for registration is determined by the law on registration of legal entities. If a citizen carries out entrepreneurial activities without state registration, then the transactions that he makes, the court may apply the provisions established for entrepreneurs. In particular, the rules on the responsibility of an entrepreneur without fault for non-fulfillment or improper fulfillment of his obligations (clause 3 of article 401 of the Civil Code), on the inadmissibility of limiting liability to the consumer (clause 2 of article 400 of the Civil Code) and other rules governing entrepreneurial activity.

Federal Law of October 26, 2002 No. 127-FZ "On Insolvency (Bankruptcy)" provided for three cases of bankruptcy of a citizen:

1) bankruptcy of a citizen who is not an individual entrepreneur;

2) bankruptcy of an individual entrepreneur;

3) bankruptcy of a peasant (farm) economy.

A sign of bankruptcy of a citizen is his inability to satisfy the requirements of creditors for monetary obligations and (or) fulfill the obligation to make mandatory payments. However, in order to declare a citizen bankrupt, two more circumstances must be taken into account: the period during which the citizen was unable to fulfill his obligations, and the amount of his obligations. According to the law, it must be established that the relevant obligations and (or) obligations are not fulfilled by the citizen within three months from the date of their fulfillment and that the amount of his obligations exceeds the value of his property.

Federal Law No. 129-FZ of August 8, 2001 (as amended on May 19, 2010) "On State Registration of Legal Entities and Individual Entrepreneurs"

Article 23. Entrepreneurial activity of a citizen

1. A citizen has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur.

2. The head of a peasant (individual) farm operating without forming a legal entity (Article 257) is recognized as an entrepreneur from the moment of state registration of the peasant (individual) enterprise.

3. Entrepreneurial activities of citizens carried out without forming a legal entity shall be subject to the rules of this Code, which regulate the activities of legal entities that are commercial organizations, unless otherwise follows from the law, other legal acts or the essence of the legal relationship.

4. A citizen who carries out entrepreneurial activities without forming a legal entity in violation of the requirements of paragraph 1 of this article shall not have the right to refer, in relation to transactions concluded by him, to the fact that he is not an entrepreneur. The court may apply to such transactions the rules of this Code on obligations related to the implementation of entrepreneurial activities.

Article 24. Property liability of a citizen

A citizen is liable for his obligations with all his property, with the exception of property, which, in accordance with the law, cannot be levied.

The list of property of citizens, on which execution cannot be levied, is established by civil procedural legislation.

Article 25. Insolvency (bankruptcy) of an individual entrepreneur

1. An individual entrepreneur who is unable to satisfy the claims of creditors related to the implementation of entrepreneurial activities by him may be declared insolvent (bankrupt) by a court decision. From the moment such a decision is made, his registration as an individual entrepreneur becomes invalid.

2. When carrying out the procedure for declaring an individual entrepreneur bankrupt, his creditors for obligations not related to his entrepreneurial activities are also entitled to present their claims. Claims of these creditors, not declared by them in such a manner, remain valid after the completion of the bankruptcy procedure of an individual entrepreneur.

3. Claims of creditors of an individual entrepreneur in the event of declaring him bankrupt shall be satisfied at the expense of his property in the manner and in the order provided for by the law on insolvency (bankruptcy).

(see text in previous edition)

4. After completion of settlements with creditors, an individual entrepreneur declared bankrupt shall be released from the fulfillment of the remaining obligations related to his entrepreneurial activity, and other requirements presented for execution and taken into account when the entrepreneur was declared bankrupt.

The claims of citizens to whom a person declared bankrupt is liable for causing harm to life or health, as well as other claims of a personal nature, remain valid.

5. The grounds and procedure for declaring an individual entrepreneur bankrupt or declaring his bankruptcy by a court shall be established by the insolvency (bankruptcy) law.

In addition, some scholars include the so-called private practitioners (lawyers, detectives, notaries) among entrepreneurs without forming a legal entity, although the current legislation does not consider notarial and advocacy activities as entrepreneurial, which will be discussed below.

However, according to paragraph 2 of Art. 11 of the Tax Code in the context of this Code, individual entrepreneurs are understood not only as individuals registered in the prescribed manner and carrying out entrepreneurial activities without forming a legal entity, but also private notaries, private security guards, private detectives. This wording raises a fair question about the possibility of applying the norms of tax legislation to private practitioners without taking into account the specifics of the nature of advocacy and notarial activities. It was this question that arose in the practice of the Constitutional Court of the Russian Federation on the complaint of citizen G. Yu. Pritula, a notary.

According to the Constitutional Court of the Russian Federation, the analysis of the disputed provision in normative unity with other provisions of Art. 11 of the Tax Code indicates that some intersectoral concepts, including the concept of "individual entrepreneurs", are used in a special meaning exclusively for the purposes of this Code. Moreover, in the group of subjects of tax relations, united by the generic concept "individual entrepreneurs", private notaries are included along with individuals registered in the prescribed manner and carrying out entrepreneurial activities without forming a legal entity. “Therefore, a systematic interpretation of the challenged provision allows us to conclude that the legal status of private notaries is not identified with the legal status of individual entrepreneurs as individuals engaged in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur (Article 23 of the Civil Code).

This is in line with the Fundamentals of Law Russian Federation about the notary, in accordance with Art. 1 of which notarial activity is not an entrepreneurship and does not pursue the goal of making a profit≫.

The following conclusion of the Constitutional Court of the Russian Federation is also interesting: the classification of private notaries as subjects of tax obligations

to one group with individual entrepreneurs follows from the peculiarities of the status characteristics of private notaries.

In particular, in the rulings of the Constitutional Court of the Russian Federation of May 19, 1998 and December 23, 1999, it is noted that the activities of notaries and lawyers engaged in private practice are a special legal activity that is carried out on behalf of the state, which predetermines the special public law status of notaries ( lawyers) 1.

In the light of the foregoing, the following conclusions can be drawn. Entrepreneurship is an economic and legal concept. The economic nature of entrepreneurial activity is complemented by a legal form. From the standpoint of the law, entrepreneurship must comply with the requirements of the law. Otherwise, it (entrepreneurship) is illegal with all the ensuing consequences.

Therefore, when characterizing legitimate entrepreneurship (clause 1, article 2 of the Civil Code), one should highlight two criteria - subjective and subjective. Using the subjective criterion, the legislator directly pointed out the need for state registration of persons engaged in entrepreneurial activities. Without registration (equally without a license), such activities are illegal.

Moreover, a legal entity simply does not exist outside of state registration. There is also no figure of an individual entrepreneur without proper registration.

In relation to illegal entrepreneurship, in our opinion, it is correct to use the phrase "a person carrying out entrepreneurial activities without state registration". The same can be said for an organization without the status of a legal entity. The latter (organization) does not legally exist, but is engaged in entrepreneurial activities.

It is hardly possible to agree with the statement that the activities of private practitioners are entrepreneurial.

Legal capacity of an individual entrepreneur - next important issue. The legal capacity of an individual means to be a subject of law. It is widely believed in the literature that the legal capacity of an individual entrepreneur is universal in nature2. At the same time, scientists who share this point of view refer to Art. 23 and 49 of the Civil Code. By virtue of paragraph 3 of Art. 23 of the Civil Code, the entrepreneurial activities of citizens carried out without forming a legal entity are accordingly subject to the rules of the Code that regulate the activities of legal entities that are commercial organizations, unless otherwise follows from the law, other legal acts or the essence of the legal relationship.

The question of the legal capacity of individual entrepreneurs (as well as legal entities) is not simple.

First, if we compare legal entities with individuals (citizens), then the volume of legal capacity of collective entities is much less than the volume of legal capacity of individuals. Moreover, in this comparative plan, all legal entities must have special legal capacity, since they are created for the implementation of certain goals.

Secondly, comparing the legal capacity of legal entities, one can distinguish between universal and special legal capacity. The Civil Code (Article 49) also distinguishes between general and special legal capacity. As a general rule, commercial organizations have a common legal capacity. The exception is unitary enterprises, as well as other types of organizations provided for by law.

The same conclusions can be extended to the legal capacity of individual entrepreneurs. An individual is a carrier of universal legal capacity. At the same time, individuals engaged in entrepreneurial activities without creating a legal entity are endowed with special legal capacity.

In practice, this means that an individual entrepreneur has the right to engage only in those types of activities that are indicated in the certificate of registration. "The certificate must indicate the full and exact name of the types of activity.

At the same time, we believe that our proposal on the special legal capacity of individual entrepreneurs does not correspond to the rules (norms) of the Civil Code of the Russian Federation and special laws. From the point of view of the Code and certain laws adopted in its development, the legal capacity of persons engaged in entrepreneurial activities without forming a legal entity is of a general (universal) nature, since it is equated with the legal capacity of commercial organizations. In this way, there is a discrepancy between doctrinal opinion and the letter of the law on the issue at hand.

Entrepreneur's right to entrepreneurial activity has limits and restrictions. The limits of such a right should be considered the purpose of its implementation (profit), as well as the validity period licenses(if the legislation does not provide for the unlimited validity of the license) and other permits applied in the field of state regulation of the market (time limits).

Restrictions on the right to entrepreneurial activity exist in the form of various obligations. Among them, one should especially highlight the obligation not to carry out entrepreneurial activities without a license (general prohibition). This prohibition applies to all entrepreneurs who do not have an appropriate license to carry out a type of activity licensed in accordance with the law.

Such a ban restricts the right to entrepreneurial activity in comparison with the content of this right, which is fixed in Part 1 of Art. 8 and part 1 of Art. 34 of the Constitution of the Russian Federation. That is why licensing should be carried out on the basis of federal law (part 3 of article 55 of the Constitution of the Russian Federation).

The legal meaning of the license lies in the fact that it legalizes entrepreneurial activity in the relevant area. Based on paragraph 1 of Art. 49 of the Civil Code, a license should be considered as the basis for the emergence of an abstract opportunity to engage in a licensed type of activity (legal capacity).

9. Restriction of legal capacity of a citizen who abuses alcohol or drugs (grounds for restriction of legal capacity, procedure, legal consequences of such restriction, restoration of legal capacity).

Restriction of legal capacity is possible only in cases and in the manner prescribed by law (clause 1, article 22 of the Civil Code). It lies in the fact that a citizen is deprived of the ability by his actions to acquire such civil rights and create such civil duties that he, by virtue of the law, could already acquire and create. It is, therefore, about reducing the amount of legal capacity that a person had. Limited in legal capacity can be both a person with incomplete (partial) legal capacity, and a person with full legal capacity.

According to paragraph 4 of Art. 26 GKrestriction of legal capacity of minors aged 14 to 18 years allowed only by court order. Restriction of legal capacity may be expressed in the restriction or even deprivation of the minor's right to independently dispose of earnings, scholarships or other income. After the court makes such a decision, the minor will have the opportunity to dispose of earnings, scholarships and other income (in full or in part) only with the consent of the parents, adoptive parents, guardian.

The Civil Code defines the circle of persons who may apply to the court to restrict or deprive a minor of the right to independently dispose of earnings, scholarships or other income: they include parents, adoptive parents or trustees, as well as a guardianship and guardianship authority.

The decision to restrict the legal capacity of a n/year-old aged 14 to 18 years can be taken by the court "if there are sufficient grounds." Such grounds should be recognized as spending money for purposes that are contrary to the law and moral standards (purchasing alcoholic beverages, drugs, gambling, etc.), or their unreasonable spending, without taking into account the needs for food, clothing, etc.

The Civil Code does not directly provide for the possibility of restricting the legal capacity of a minor for a certain period. It seems that the court has the right to establish such a period in its decision. In this case, after the expiration of the period established by the court, the partial legal capacity of the minor must be considered restored to the extent that he had before its restriction. If the period for which the legal capacity of a minor is limited has not been specified, then the restriction is valid until the minor reaches the age of 18 or until the restriction is lifted by the court at the request of those persons who applied for the restriction.

It is impossible to restrict the legal capacity of a minor if he has acquired full legal capacity in connection with marriage before reaching the age of 18 or by way of emancipation. Consequently, in relation to minors aged 14 to 18 years, this means the restriction of their partial legal capacity.

General provisions. Entrepreneurial activity of a citizen - special case entrepreneurial activity in general, included in the subject of civil law regulation and referred to the jurisdiction of civil legislation (paragraph 3, clause 1, article 2 of the Civil Code), and the right to exercise it is one of the elements of the content of a citizen’s legal capacity (Article 18 of the Civil Code) * ( 190). Citizens working for employment contract, are not entrepreneurs, because their activities do not contain the necessary features. There are much more reasons to be considered entrepreneurs and prerequisites for state registration as business entities for those citizens whose activities are based on civil law contracts (in particular, contracts, paid provision services - Ch. 37, 39 GK). Entrepreneurial legal capacity and legal capacity for a citizen arise simultaneously: the right to entrepreneurial activity can only be exercised by him independently, and therefore there are no cases when the capabilities of a legally capable, but not yet capable citizen would be "supplemented" by the capabilities of his legally capable legal representatives. The law does not determine the moment of the emergence of this unified entrepreneurial legal capacity, but quite definitely says that minors can also carry out entrepreneurial activities (and register as an entrepreneur), for which a notarized consent of their parents (adoptive parents) or a trustee or relevant documents confirming their legal capacity that has arisen in full (subclause "h", clause 1, article 22.1 of the already mentioned Law "On State Registration of Legal Entities and Individual Entrepreneurs"). If we also take into account that the entrepreneurial activity of a citizen who has reached the age of 16 is one of the prerequisites for his emancipation, then, without discussing a number of related topical issues now, it should be recognized that the entrepreneurial legal capacity of a citizen arises with the consent of the parents, adoptive parents or guardian with 14 years.

A citizen has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur (clause 1, article 23 of the Civil Code). The head of a peasant (farm) economy is recognized as an entrepreneur from the moment of state registration of the economy (clause 2, article 23 of the Civil Code). To the entrepreneurial activity of a citizen according to general rule the rules of the Civil Code are applied, which regulate the activities of legal entities - commercial organizations (clause 3, article 23, as well as chapter 4).

However, a citizen can also carry out entrepreneurial activities through the creation of a legal entity - a legal entity commercial organization. Regardless of whether he is the only participant in it or unites with other persons, he in any case cannot remain the owner of the property intended for conducting a commercial enterprise (business):

such property should be separated from the property of a citizen and transferred to the ownership of a commercial organization * (191).

The state registration of individual entrepreneurs (hereinafter referred to as citizens-entrepreneurs) and peasant (farm) enterprises is carried out by the authorized federal executive body. Such a body is the Federal Tax Service of the Ministry of Finance of Russia (FTS of Russia) and its territorial bodies (see paragraph 2, clause 1 of the Regulations on the Federal Tax Service * (192)). The state registration of a citizen-entrepreneur is based on his application and the decision of the registering authority and is accompanied by the inclusion of information about the citizen in the Unified State Register of Individual Entrepreneurs, which is maintained on paper and electronic media, contains a list of information established by law and is open and publicly available for review, with the exception of certain information, access to which is limited * (193).

State registration of a citizen-entrepreneur is carried out at the place of his residence within five working days from the date of submission required documents(including an application, a copy of an identity document, a document confirming the payment of the state fee, as well as some other documents if the applicant is a foreigner or a minor). The moment of registration is the making by the registering body of an appropriate entry in the Unified State Register of Individual Entrepreneurs. State registration is also subject to changes in information about a citizen-entrepreneur and the termination of his activities in this capacity. Changing the place of residence of a citizen-entrepreneur requires making appropriate changes to the Unified State Register of Individual Entrepreneurs with the simultaneous transfer by the registration (tax) body of his registration file to the registering body at the new place of residence.

Refusal to a citizen in state registration as an individual entrepreneur is possible if they do not provide the documents necessary for registration or if they apply to an improper registration authority. In addition, an unconditional obstacle to registration are:

not invalidated the fact of state registration of a citizen as an individual entrepreneur (a rule aimed at eliminating double registration);

non-expiration of one year from the date of the decision by the court to recognize the citizen-entrepreneur as insolvent (bankrupt) or the decision to forcibly terminate his activities as an individual entrepreneur;

non-expiration of the period for which this person is deprived of the right to engage in entrepreneurial activity by a court verdict.

The decision to refuse registration may be challenged in court.

The grounds for the termination by a citizen of activity as an individual entrepreneur are:

his personal decision;

a court decision on declaring him insolvent (bankrupt) or forcibly terminating his entrepreneurial activity;

a court verdict that has entered into force, by which he was sentenced to deprivation of the right to engage in entrepreneurial activity for a certain period;

cancellation of a document confirming his right to temporarily or permanently reside in the Russian Federation, or the expiration of such document.

State registration becomes invalid from the moment the corresponding entry is made in the Unified State Register of Individual Entrepreneurs or from another moment (for example, death, a court decision on declaring a citizen-entrepreneur bankrupt or on the forced termination of his entrepreneurial activity, entry into force of a court verdict).

A citizen engaged in entrepreneurship without state registration is not entitled to refer, in relation to transactions concluded by him, to the fact that he is not an entrepreneur. The court may apply to such transactions the rules of the Civil Code on obligations related to the implementation of entrepreneurial activities. In this regard, apparently, we are talking about the possibility of applying not only individual norms of the Civil Code (for example, paragraph 3 of article 401), but also groups of norms of the Civil Code (for example, § 3 chapter 30), as well as the rules of those normative legal acts to which the Civil Code refers. In any case, from the rule of paragraph 4 of Art. 23 of the Civil Code, three important conclusions can be drawn:

since civil law norms addressed to business entities are characterized by increased strictness, there is no doubt that this paragraph formulates a specific sanction against citizens engaged in entrepreneurial activities contrary to the requirements of state registration;

the application of this sanction depends on the discretion of the court;

entrepreneurial activity itself (paragraph 3, paragraph 1, article 2 of the Civil Code) rests not so much on the formal moment (state registration), but on the essential features of the activity itself.

Disputes between citizens-entrepreneurs, as well as between them and legal entities, including disputes involving the heads of peasant (farm) enterprises, with the exception of disputes not related to the implementation of entrepreneurial activities by these citizens (heads), are the competence of arbitration courts. When resolving such disputes, the latter are guided by the rules on legal entities - commercial organizations, unless otherwise follows from the law, legal act or the essence of legal relations. Disputes involving citizens who are not registered as individual entrepreneurs (and therefore do not have a special status), including disputes related to the actual implementation of entrepreneurial activities by them, are the competence of courts of general jurisdiction (see clause 13 of the decision of the Plenum of the Supreme Court of the Russian Federation dated May 4, 1990 N 4).

Peasant (farm) economy. The peasant (farm) economy (hereinafter referred to as the economy) is regulated by the Federal Law of June 11, 2003 N 74-FZ "On the peasant (farm) economy" * (194).

From an organizational and legal point of view, an economy can be of two types:

one-member (i.e. be educated and consist of one citizen);

an association of citizens related by kinship and (or) property, having property in common ownership and jointly carrying out production and other economic activity based on their personal participation.

The members of the household may be: spouses, their parents, children, brothers, sisters, grandchildren, as well as grandparents of each of the spouses (but not more than from three families); other citizens who are not related to the head of the economy (but not more than five people). The farm is created and operates on the basis of an agreement (except when it is one-member), which is signed by all its members and in which all changes are made regarding retired (as a result of exit or due to death) and newly accepted members of the farm, as well as the change of the head economy. The economy is considered to be created from the date of its state registration (which, as mentioned above, is carried out in the manner established for the state registration of citizens as individual entrepreneurs).

The farm is not legal entity. Although it is a contractual, but at the same time non-legal organization, which is perceived in civil circulation through a citizen-entrepreneur - the head of the economy. The head is one of the members of the farm, who, without a power of attorney, acts on behalf of the farm, including representing its interests and making transactions. This circumstance fundamentally distinguishes modern non-legal farms from those legal entities (farms - legal entities) that were created and operated earlier under the conditions of the former Law of the RSFSR of November 22, 1990. And although the latter has become invalid, the farms created in accordance with it have the right to retain the status of a legal entity. persons for the period up to January 1, 2010. Thus, at this transitional stage, the existence of two types of farms is allowed - those that do not have the status of a legal entity and those that are legal entities.

The property status of a modern economy directly depends on its organizational structure. In a single-member farm, the owner of the property is the corresponding person (who is also the head of the farm).

The situation with the property of the economy, which is an association of citizens, is not so unambiguous. Such property belongs to these citizens (members of the farm), as a rule, on the basis of the right of common joint ownership (in this case, the shares of members in the right of common joint ownership are recognized as equal, unless otherwise provided by an agreement between members). At the same time, as an exception, instead of the right of common joint ownership, a law or an agreement may provide for a regime of common shared ownership with a determination of the share of each member. The order of possession, use, and disposal of the property of the farm is determined by the agreement of the members of the farm. The disposal of the property of the farm is carried out in the interests of the farm by its head, and any transaction of the head is considered to be made by him in the interests of the farm, unless otherwise proven. When leaving the farm, a citizen has the right only to monetary compensation commensurate with his share in the right of common ownership of the property of the farm (but not the property itself in kind). The property of the farm is subject to division between its members only upon the withdrawal of all members and the termination of the farm. Each member of the household has the right to the so-called personal income, i.e. part of the income from the activities of the economy in cash and (or) in kind, fruits, products. The amount and form of payment of personal income are determined by agreement between the members of the economy.

Business terminated:

by unanimous decision of its members;

if there is not a single member or their heir left who would like to continue the activity of the economy;

in case of insolvency (bankruptcy) of the economy;

in the event of the creation of a business partnership or production cooperative on the basis of the economy (i.e., upon transition from a non-legal organization to a legal entity);

based on a court decision.

Bankruptcy of an individual entrepreneur. The activity of an individual entrepreneur is associated with risk, which is a specific feature of any entrepreneurial activity (paragraph 3, clause 1, article 2 of the Civil Code). This means that a citizen, carrying out entrepreneurial activities and striving for profit, may not actually receive it, but, on the contrary, may incur losses. Generally speaking, the losses of a citizen from entrepreneurial activity fall on him or on a third party (in particular, on the insurer - subparagraph 3, paragraph 2, article 929, article 933 of the Civil Code). Losses from entrepreneurial activity can significantly exceed the entire property of the entrepreneur (and when insuring entrepreneurial risk, the amount of insurance payments also has a legal limit - clause 2 of article 947 of the Civil Code) and go beyond his property sphere, affecting the interests of third parties. The law regulates such cases especially in view of the need to protect the interests of creditors of a citizen-entrepreneur (Article 25 of the Civil Code).

A citizen-entrepreneur who is unable to satisfy the claims of creditors related to his entrepreneurial activities may be declared insolvent (bankrupt) by a court decision. The grounds and procedure for declaring a citizen-entrepreneur bankrupt or declaring his bankruptcy by a court are established in paragraphs. 1, 5 art. 25 of the Civil Code and the Federal Law of October 26, 2002 N 127-FZ "On Insolvency (Bankruptcy)" * (195) (hereinafter referred to as the Bankruptcy Law).

Bankruptcy cases of individual entrepreneurs are under the jurisdiction of the arbitration court.

The basis for declaring a citizen-entrepreneur bankrupt is his inability to satisfy the claims of creditors for monetary obligations and (or) fulfill the obligation to make mandatory payments. An application for declaring a citizen-entrepreneur as bankrupt may be filed by him/herself, his/her creditor, whose claim is related to the entrepreneurial activity of this citizen, as well as by the authorized body. When applying bankruptcy procedures for a citizen-entrepreneur, his creditors, whose claims are not related to obligations in the course of entrepreneurial activity, as well as creditors whose claims are inextricably linked with the personality of creditors, are also entitled to present their claims (Article 215 of the Bankruptcy Law, paragraph 2 of Art. 25 GK).

Claims of creditors of a citizen-entrepreneur in the event of declaring him bankrupt are satisfied at the expense of his property in the order and priority that are provided for by the Bankruptcy Law (clause 3 of article 25 of the Civil Code).

1. First of all, in an extraordinary manner (that is, until the creditors' claims are satisfied), the expenses associated with the consideration of a bankruptcy case and the execution of a court decision on declaring a citizen-entrepreneur bankrupt and on opening bankruptcy proceedings are covered.

2. After that, the creditors' claims are satisfied in the following sequence:

first of all, the claims of citizens to whom the citizen is liable for causing harm to life or health are satisfied by capitalizing the corresponding time payments, as well as claims for the recovery of alimony;

in the second place, calculations are made for the payment of severance pay and remuneration of persons working under an employment contract, and for the payment of remuneration to the authors of the results of intellectual activity;

in the third place, settlements with other creditors are made (for more details on the procedure for settlements with creditors of different queues, see Articles 135-137 of the Bankruptcy Law). When satisfying the claims of creditors, the law proceeds from two principles - sequence (claims of creditors of each turn are satisfied only after the full satisfaction of the claims of creditors of the previous turn) and proportionality (if funds are insufficient, they are distributed among creditors of the corresponding turn in proportion to the amounts of their claims) (see Art. 211 subject to the rules of Article 202 of the Bankruptcy Law) * (196).

After the completion of settlements with creditors, a citizen-entrepreneur declared bankrupt is released from the fulfillment of the remaining obligations related to his entrepreneurial activity, and other requirements presented for execution and taken into account when declaring him bankrupt. However, those claims of citizens to whom the bankrupt is liable for causing harm to life or health, as well as other claims of a personal nature, remain valid (clause 4, article 25 of the Civil Code). From the moment the court decides to declare a citizen-entrepreneur bankrupt and to open bankruptcy proceedings, his registration as an entrepreneur becomes invalid, the licenses issued to him are annulled, he cannot be registered as an entrepreneur again within one year from the moment he was declared bankrupt. 1, 2, article 216 of the Bankruptcy Law, paragraph 1 of article 25 of the Civil Code).

The legal regulation of the bankruptcy of a peasant (farm) economy has specific features (Articles 217-223 of the Bankruptcy Law). Thus, the rules devoted to this issue provide for specific features in carrying out both anti-crisis measures - financial recovery and external management of the peasant (farm) economy, aimed at preventing its bankruptcy, and the bankruptcy proceedings itself. The bankruptcy estate of the farm is formed only by the property that is in the common ownership of the members of the farm; accordingly, this cannot include the personal property of the head and members of the farm, as well as property acquired with income that is not the common funds of the farm. The bankruptcy estate of the farm is subject to sale at auction, while the priority right to acquire the property of the farm is given to persons engaged in the production of agricultural products and owning land plots directly adjacent to the land plot of the bankrupt farm. Realization of the land plot of the bankrupt economy is possible only in compliance with the land legislation.

Individual entrepreneurial activity of a citizen? Individual entrepreneur? Entrepreneur age? Criteria economic activity citizens? Peasant (farm) economy

Entrepreneurial activity of a citizen without forming a legal entity Individual entrepreneurial activity of a citizen -

it is an independent activity of a citizen carried out at his own risk in an individual form without forming a legal entity or by creating a peasant (farm) economy, with state registration, aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services.

An individual entrepreneur is a duly registered natural person (a citizen of the Russian Federation, a foreign citizen, a stateless person) who carries out entrepreneurial activities directly on his own behalf, without forming a legal entity, at his own risk and at his own discretion.

The right to engage in entrepreneurial activity is one of the main elements of the content of the legal capacity of a citizen (Article 18 of the Civil Code). Legal capacity is understood as the ability to have civil rights and bear obligations. However, in order to engage in entrepreneurship, a citizen must have legal capacity, i.e. ability to exercise civil rights and fulfill duties by their actions. Unlike legal capacity that arises at the time of birth, the acquisition of legal capacity is associated with the presence of a number of conditions for the psychophysical viability of a person. In accordance with the norms of the Civil Code, full legal capacity arises for a citizen upon reaching 18 years of age.

However, the law does not link the possibility of carrying out entrepreneurial activity with the citizen's coming of age and the acquisition of full legal capacity. In this regard, there is no unity in the scientific literature in determining the minimum age from which one can engage in entrepreneurial activity. It is believed that the norms of the Civil Code actually grant the right to carry out entrepreneurial activities to minors who have reached the age of 14. At the same time, the norm of Art. 26 of the Civil Code, which establishes the content of the incomplete legal capacity of persons of the specified age group. Minors have the right to make most transactions only with the written permission of their legal representatives. Therefore, a number of researchers believe that a minor between the ages of 14 and 18 has the right to make transactions as an individual entrepreneur, but at the same time, before emancipation, he does not have full legal capacity.

The purpose of the institution of emancipation is to overcome the limitations in the content of the legal capacity of minors. Emancipation is the basis for recognizing a minor who has reached the age of 16 as fully capable (Article 27 of the Civil Code). To do this, a minor must work under an employment contract or engage in entrepreneurial activities with the consent of legal representatives. The presence of terminological inaccuracies in the wording of Art. 27 of the Civil Code and gave rise to the misconception that a citizen acquires the right to engage in entrepreneurial activity from the age of 14, and upon reaching the age of 16, he has the opportunity to apply to the guardianship authorities or the court with an application for emancipation.

In this regard, another point of view arose, allowing the possibility of acquiring the status of an entrepreneur from the age of 16. State registration should serve as the basis for acquiring legal capacity in full. We believe that the acquisition of full legal capacity at the age of 16 based on the desire to engage in entrepreneurial activity should be considered as an exceptional measure, not appropriate for widespread use. It is no coincidence that in most countries of the world, entrepreneurship is inextricably linked with coming of age.

There is also no unanimity of opinion in resolving the issue of the possibility of carrying out entrepreneurial activities by citizens with limited legal capacity. A number of authors believe that this right can be granted with the consent of the trustee. In our opinion, the opposite position is more convincing and justified, where the possibility of carrying out entrepreneurial activity is associated with the presence of full legal capacity of a citizen.

Citizens have the right in accordance with Art. 18 of the Civil Code to engage in entrepreneurial activities without forming a legal entity only from the moment of state registration in this capacity.

A citizen who actually carries out entrepreneurial activity, but is not registered as such, is not entitled to refer, in relation to transactions concluded by him, to the fact that he is not an entrepreneur. Therefore, the court may apply the rules of the Civil Code on the obligations of the entrepreneur to such transactions. The issue of taxation is solved in a similar way.

In this regard, it is necessary to determine the criteria that allow citizens to apply the norms to the economic activity of citizens.

0 entrepreneurship. Separate cases of the sale of goods, the performance of work, the provision of services by a person not registered as an individual entrepreneur do not constitute an administrative offense if the quantity of goods, their assortment, the volume of work performed, services rendered and other circumstances do not indicate that this activities were aimed at systematic profit.

The Supreme Court of the Russian Federation noted that various financial and economic documents can be evidence confirming the fact of engaging in activities aimed at systematic profit generation, if it follows from them that the funds were received for the sale of goods by these persons (performance of work, provision of services), placement advertising, displaying samples of goods at points of sale, purchasing goods and materials, concluding lease agreements for premises

(Resolution of the Plenum of the Supreme Court of the Russian Federation of October 24, 2006 No. 18 “On some issues that arise with the courts when applying the special part of the Code of Administrative Offenses of the Russian Federation” // Bulletin of the Armed Forces of the Russian Federation. 2006.№ 12). At the same time, it is emphasized that for qualification it is only necessary to prove the purpose of the activity - making a profit. The obligation to make a profit in this case as a result of this activity is not essential.

The legislator has the right to establish additional restrictions on the possibility of obtaining the right to carry out entrepreneurial activities. In particular, the acquisition of the status of an arbitration manager is associated not only with registration as an individual entrepreneur, but also with the presence higher education, seniority leadership work and other additional requirements (Article 22 of the Insolvency Law).

The legal capacity of an individual entrepreneur is basically equal to the legal capacity of commercial organizations. He can acquire the rights and bear the obligations necessary for the implementation of any types of activities not prohibited by law. However, when determining the content of the legal capacity of an entrepreneur, it must be taken into account that, in general, the legal status of an individual entrepreneur is based on his general civil status as an individual: “The legal status of individual entrepreneurs is “located at the junction” of the powers of ordinary citizens and commercial organizations, including to a certain extent both other" .

The status of an individual entrepreneur is lost from the moment of termination of the state registration. After this time, the implementation of entrepreneurial activity becomes an illegal form of doing business. Carrying out entrepreneurial activity without state registration entails administrative (Article 14.1 of the Code of Administrative Offenses of the Russian Federation of December 30, 2001 No. 195-FZ / / SZ RF. 2002. No. 1 (part I). Art. 1) and criminal liability (Criminal Code of the Russian Federation of June 13, 1996 No. 63-FZ / / SZ RF. 1996. No. 25. Art. 2954) .

The individual form of entrepreneurial activity has both a number of advantages and disadvantages. These circumstances must be taken into account when choosing a form of business.

The advantage of individual entrepreneurship is the ability to quickly respond to changes in demand, business conditions. The absence of a system of governing bodies makes it possible to avoid delays in resolving current issues of activity. Individual entrepreneurs have more opportunities to adapt to rapidly changing rules for conducting a particular type of activity. To organize their business, an individual entrepreneur, as a rule, does not require large investments in fixed assets. The state and local authorities (administrations) take special measures, programs aimed at the development and support of small business.

The disadvantages of this form include limited financial and managerial resources; it is noted that entrepreneurial capital in this form is “limited by personal funds and borrowing opportunities” . So, in Art. 3 of the Law on a Peasant (Farmer's) Economy establishes restrictions on the right to create a farm by representatives of no more than three families. The maximum number of citizens who are not related to the head of a peasant farm may not exceed five people. This limits the amount of possible attraction of financial resources through the admission of new members to the economy.

The individual form of doing business is more exposed to the threat from competitors - in comparison with other economic entities (commercial organizations, business associations). An individual entrepreneur, due to a weak resource base and the predominance of personal labor, is significantly dependent on negative trends in the market for goods and services, manifestations various forms unfair competition, monopolization of markets by other entities.

Entrepreneurship is a way of managing, which, as a result of centuries of evolution, has established itself in the economies of developed countries. Initially, entrepreneurs were called enterprising people operating in the market, or simply people who are energetic, reckless, prone to risky operations. In the future, entrepreneurship began to include any activity aimed at increasing profits and not prohibited by law.

Entrepreneurship for modern Russia is a relatively new phenomenon. Legal countdown of the history of the present Russian entrepreneurship begins on January 1, 1991, when the RSFSR Law of December 25, 1990 "On Enterprises and Entrepreneurial Activity" 1 came into force. Earlier, in the Soviet period, the issues of theory and practice of entrepreneurship were not studied. It was officially regarded only critically, referring to the remnants of the past alien to socialism, to the forms of exploitation of man by man. Private enterprise and commercial intermediation, now among the main levers market economy, were under a ban, criminal liability was established for them in the form of a long term of imprisonment.

Entrepreneurial activity of a citizen is regulated by Article 23 of the Civil Code of the Russian Federation:

1. A citizen has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur.

2. The head of a peasant (individual) farm operating without forming a legal entity (Article 257) is recognized as an entrepreneur from the moment of state registration of the peasant (individual) enterprise.

3. Entrepreneurial activities of citizens carried out without forming a legal entity shall be subject to the rules of this Code, which regulate the activities of legal entities that are commercial organizations, unless otherwise follows from the law, other legal acts or the essence of the legal relationship.

4. A citizen who carries out entrepreneurial activities without forming a legal entity in violation of the requirements of paragraph 1 of this article shall not have the right to refer, in relation to transactions concluded by him, to the fact that he is not an entrepreneur. The court may apply to such transactions the rules of this Code on obligations related to the implementation of entrepreneurial activities.

So, entrepreneurial is recognized as an independent production activity, carried out at your own risk and aimed at systematic profit (Article 2 of the Civil Code). Consequently, a citizen working under an employment contract is not an entrepreneur, because. he does not act at his own risk, but carries out the instructions of the employer. A necessary condition for a citizen to engage in entrepreneurial activity is his legal capacity and state registration as an entrepreneur. Until the adoption of a special law, it is carried out on the basis of the Regulations on the procedure for state registration of business entities.

State registration of an entrepreneur is carried out on the basis of his application, which can also be sent by mail. The application indicates the types of activities that the citizen intends to engage in. Registration is made on the day of receipt of documents. The grounds for refusal may be the incapacity of the entrepreneur, the intention to engage in activities prohibited by law, or the lack of a license, if one is needed. The procedure for issuing a license is determined by Decree of the Government of the Russian Federation N 1418. Refusal or evasion of registration may be appealed by the applicant in court. After paying the registration fee, the applicant is issued a certificate, which is the main document certifying his right to entrepreneurial activity. The certificate is issued for a fixed period. It indicates the types of activities that the entrepreneur is entitled to engage in.

A citizen engaged in entrepreneurial activity, but who has not passed state registration, does not acquire the status of an entrepreneur in connection with this. He loses this status and from the moment of termination of the state registration, after the expiration of the established period, cancellation of the state registration, etc. In such cases, according to the Decree of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation N 6/8, disputes involving citizens, including those related to their entrepreneurial activities, in accordance with Article 25 of the Code of Civil Procedure, are subordinate to a court of general jurisdiction. However, when resolving a dispute, the court may apply the provisions of the Civil Code on obligations related to entrepreneurial activity. These provisions are contained in Articles 310, 315, 322, in paragraph 3 of Article 401 of the Civil Code.

To engage in entrepreneurial activity, full legal capacity is required. Consequently, citizens can independently engage in this upon reaching the age of 18 (Article 21 of the Civil Code), if they are not limited in capacity for health reasons (Article 29 of the Civil Code), due to the abuse of alcohol and drugs (Article 30 of the Civil Code). The latter can engage in entrepreneurial activities with the consent of the trustee. A person who has entered into marriage before reaching the age of 18 is recognized as fully capable (Article 21 of the Civil Code) and therefore has the right to independently engage in entrepreneurial activities. The same applies to the emancipated (Article 27 of the Civil Code), who are engaged in entrepreneurial activities, with the exception of those for which federal law an age limit is established (for example, article 13 of the Law on Weapons).

The legal capacity of an individual entrepreneur is practically equal to the legal capacity of legal entities - commercial organizations. He may have the rights and bear the obligations necessary for the implementation of any types of activities not prohibited by law (Article 49 of the Civil Code). The activities of an entrepreneur may be based on hired labor, which follows from Article 3 of the Civil Code. However, he does not have the right to create enterprises, remaining the owner of the property transferred to him, because. after the entry into force of the Civil Code, commercial organizations can be created exclusively in those organizational and legal forms that are provided for by the Civil Code for them in Chapter 4 of the Code (Article 6 of the Introductory Law).

Individual entrepreneurs can conduct production activities collectively on the basis of a simple partnership agreement, by virtue of which two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another goal that does not contradict the law (Article 1041 of the Civil Code ).

Business forms:

• · Private.
• · Collective.
• · General partnership.
• · Fellowship in faith.
• · Limited Liability Company.
• · Company with additional liability.
• · Closed Joint Stock Company.
• · Public corporation.
• · State.

A citizen has the right to engage in entrepreneurial activities without the formation of a legal entity from the moment of the GR as an individual entrepreneur (Article 23). Entrepreneurial recognized as an independent production activity carried out at one's own risk and aimed at systematic profit. A necessary condition for a citizen to engage in entrepreneurial activity is: a) his legal capacity; b) GR as an entrepreneur.

The GR of an entrepreneur is made on the basis of his application, which indicates the types of activities that the citizen intends to engage in. GR is made on the day of receipt of documents. The grounds for refusal may be the incapacity of the entrepreneur, the intention to engage in activities prohibited by law, or the lack of a license, if one is needed. Refusal or evasion of registration may be appealed by the applicant in court. After payment of the registration fee, the applicant is issued a certificate, which indicates the types of activity and the period of its validity.

A citizen engaged in entrepreneurial activity, but who has not passed the GR, does not acquire the status of an entrepreneur in connection with this. He loses this status and from the moment of termination of the GR, after the expiration of the established period, cancellation of the GR, etc. In such cases, according to Decree of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 6/8, disputes involving citizens, including those related to their entrepreneurial activities, are subordinate to a court of general jurisdiction, however, when resolving a dispute, the court may apply the provisions of the Civil Code on obligations related to with business activities.

To engage in entrepreneurial activity, full legal capacity is required. Therefore, it can be carried out by citizens upon reaching the age of 18, if they are not limited in capacity. The latter can engage in entrepreneurial activities with the consent of the trustee. A person who has entered into marriage before reaching the age of 18 is recognized as fully capable (Article 21) and therefore has the right to independently engage in entrepreneurial activities. The same applies to the emancipated (Article 27) (the exception is the PD for the occupation of which the age limit is established by law).

The legal capacity of an individual entrepreneur is practically equal to the legal capacity of legal entities - commercial organizations. He may have the rights and bear the obligations necessary for the implementation of any activities not prohibited by law. However, he does not have the right to create enterprises, remaining the owner of the property transferred to him (I (S) PE, which must be transformed into business partnerships, companies or cooperatives before 07.07.99). Prior to transformation or liquidation, the norms of the Civil Code on unitary enterprises apply to them.

Paragraph 2 of Article 23 recognizes the head of a peasant (farm) economy as an entrepreneur. Such a farm can be created by only one citizen or jointly with family members or partners for the purpose of producing, processing and selling agricultural products. A peasant (farm) economy is not a legal entity. Its head is recognized as an entrepreneur from the moment of the GR of the economy.

Peasant farming is subject to registration with the local self-government body in charge of this land plot. The use of property is carried out by the members of the farm by agreement among themselves, transactions on the disposal of the property of the farm are made by the head of the farm or other persons by his power of attorney.