Control Individual entrepreneurs as subjects of entrepreneurial activity. The procedure for registering business activities without forming a legal entity, the procedure and consequences of its termination. Individual entrepreneur Individual

An individual entrepreneur (merchant, trader) is the most ancient of all subjects of trade turnover. An entrepreneur has a special legal status, which is located at the intersection of the powers of ordinary citizens and commercial organizations. An entrepreneur, like any citizen, may be subject to restrictions and deprivation of legal capacity, recognition as missing or dead. An entrepreneur may die, and then his property passes to other persons by inheritance, including property previously involved in his entrepreneurial activity.

The provisions of the legislation on commercial organizations apply to the activities of an individual entrepreneur. The formal condition for an individual entrepreneur to carry out commercial activities is state registration.

At the same time, a citizen who has not undergone state registration does not have the right to refer to the transactions he has concluded to the fact that he is not an entrepreneur. This is the requirement of paragraph 4 of Art. 23 of the Civil Code of the Russian Federation is not consistent with the norm of Art. 171 of the Criminal Code of the Russian Federation "Illegal entrepreneurship". According to this article, entrepreneurial activity without state registration, associated with the extraction of income on a large or especially large scale, may entail punishment in the form of imprisonment.

Thus, from the position of civil law, the court has the right to apply rules on the implementation entrepreneurial activity to transactions of a citizen, even if the latter has not been registered as an entrepreneur. From the point of view of criminal law, such transactions of a citizen constitute a criminal offense.

State registration of an entrepreneur is carried out within five working days in accordance with Federal Law of August 8, 2001 N 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”. Registration is carried out by the tax authorities at the place of residence of the entrepreneur, who submits an application and a copy of his passport for this purpose. In some cases, registration also requires a birth certificate, consent of the parents of a minor citizen, and a document confirming the residence address.

Citizens planning to engage in commerce often wonder what is more profitable: registering as a private entrepreneur or creating a legal entity, being its sole founder?

A. From the point of view of taxation, there may not be a difference, since an individual entrepreneur and, for example, a business company with small income from sales and the number of employees can operate under a simplified taxation system.

B. It should be borne in mind that a citizen cannot create a legal entity while remaining the owner of the property transferred to him. The only exception is an institution, but this form legal entity not originally intended for commercial activities. According to Art. 120 Civil Code of the Russian Federation, Art. 9 of the Federal Law of January 12, 1996 N 7-FZ “On Non-Profit Organizations”, a citizen can create a private institution to carry out managerial, socio-cultural and other functions.

Under previous legislation, citizens could create commercial organizations while retaining ownership of the property transferred to them. This form of business organization was called an individual (private) family enterprise. An individual enterprise (like state-owned factories at present) had the right of operational management of its property. Currently, this organizational and legal form of a commercial organization is not provided for in the Civil Code of the Russian Federation.

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At the same time, the scope of the legal personality of an individual registered as an individual entrepreneur is greater than the scope of the legal personality of an ordinary individual, since it includes an additional element - entrepreneurial legal personality, that is, the ability to be a participant in entrepreneurial relations. In accordance with the norm of paragraph 3 of Art. 22 of the Civil Code, an individual carrying out entrepreneurial activities without forming a legal entity in violation of state registration requirements does not have the right to refer in relation to transactions concluded by him to the fact that he is not an individual entrepreneur. The rules established by the rules of law for entrepreneurial activity apply to such transactions. This rule is an exception to the general rule noted above regarding the discrepancy between the legal personality of an individual registered as an individual entrepreneur and an individual who does not have such status.

1. The rules of the Civil Code, which regulate the activities of commercial organizations, apply to the entrepreneurial activities of individuals carried out without forming a legal entity, unless otherwise follows from the rules of law or the essence of the legal relationship (clause 2 of Article 22 of the Civil Code). From January 1, 2008, the activities of an individual entrepreneur can only be carried out with the involvement of family members and close relatives (spouse, parents, children, adoptive parents, adopted children, siblings, grandparents, grandchildren)). Individual entrepreneurs those wishing to use hired labor of persons who are not family members or close relatives are required to create a commercial organization in the form of a private unitary enterprise in accordance with the provisions of the Regulations on the procedure for the creation by an individual entrepreneur of a private unitary enterprise and its activities, approved by the Decree of the President of the Republic of Belarus of June 28, 2007 city ​​No. 302.

2. To use for the production and (or) sale of goods, as well as the performance of work, the provision of services simultaneously in the aggregate no more than four retail facilities (trading places in retail facilities that are independent retail facilities), retail places in markets, facilities in which individual entrepreneurs provide services (perform work) to consumers, including vehicles used for transporting passengers and cargo on the basis of a special permit (license) (hereinafter referred to as service facilities), other facilities used for business activities (for storing goods, processing them, etc. .). At the same time, the ban on the use of more than four objects is supplemented by the obligation to conclude civil contracts in writing in the case of individual entrepreneurs using the premises (areas) of other organizations and individuals, as well as transferring goods for storage to other organizations and individuals.

3. Entrepreneurial activities carried out in violation of the specified conditions, in accordance with the norm of Part 2, Clause 2 of Decree No. 285, are prohibited and entail the application of liability measures provided for in Part 2 of Art. 12.7 Code of Administrative Offences.

Like commercial organizations, individual entrepreneurs have special legal capacity. Before starting to carry out activities that do not require a license, they are required to notify in writing the relevant registering (at the place of state registration) and tax (at the place of registration as a payer) authorities about the types of activities that they intend to carry out. Notification of the implementation of the types of activities specified in the application for state registration, a certificate of state registration is not required (clause 11 of the Registration Regulations). It should be borne in mind that certain types of activities can only be carried out by organizations with the status of a legal entity, but not individual entrepreneurs (in particular, banking activities, activities of investment funds, activities in the production, export, import, storage (as a type of business activity) of alcohol, non-food alcohol-containing products and non-food ethyl alcohol, wholesale and (or) retail trade them, tour operator activities, etc.).

Individual entrepreneurs are not subjects of accounting. They maintain only tax accounting, which involves recording income, expenses and business transactions in accounting documents (account books).

Taxation of individual entrepreneurial activity is also characterized by certain specifics. Individual entrepreneurs have the right to pay tax in accordance with the generally established procedure, single tax or execute tax liability through the use of a simplified taxation system, subject to meeting certain criteria.

In cases provided for by the norms of legislative acts, the entrepreneurial activity of a citizen (individual entrepreneur, founder, participant, owner of property or head of an organization with the status of a legal entity, etc.) may be limited in court for a period of up to three years (Article 31 of the Civil Code).

The property of an individual entrepreneur is not separated on the balance sheet, i.e. he is liable for his obligations with all the property belonging to him, with the exception of property that cannot be foreclosed on in accordance with the law. The list of such property is fixed in Appendix No. 1 to the Code of Civil Procedure. In this way, the responsibility of an individual entrepreneur differs from the responsibility of an individual acting as a founder (participant) of a commercial organization, because as a result of acquiring the status of a legal entity, the property of the organization is separated from the property of the founders (participants), and the risk of their liability is limited to the amount of the contribution made, with the exception of the case of bankruptcy of a commercial organization (clause 3 of article 52 of the Civil Code). By property owned by an individual - an individual entrepreneur, we mean both his personal property and his share in common property that does not take part in civil circulation.

The activities of an individual entrepreneur may be terminated on appropriate grounds and in the manner established for the liquidation of a commercial organization. In addition, the activities of an individual entrepreneur may be suspended if the individual entrepreneur receives a sentence related to the restriction of the right to engage in entrepreneurial activities (clause 36, clause 39 of the Registration Regulations).

The norms of current law (Civil Code and the Insolvency Law) provide for the possibility of declaring an individual entrepreneur who is unable to satisfy the demands of creditors related to his business activities as economically insolvent (bankrupt). The procedure for recognizing an individual entrepreneur as economically insolvent can be carried out in court (clause 1 of Article 24 of the Civil Code) or an individual entrepreneur can declare bankruptcy (clause 5 of Article 24 of the Civil Code). In the process of carrying out this procedure, creditors of an individual entrepreneur for obligations related to his entrepreneurial activities are required to present their claims. Creditors for obligations not related to the individual's business activities may present their claims both during the bankruptcy procedure and after its completion. A bankrupt individual entrepreneur, after completing settlements with creditors, is released from fulfilling the remaining obligations related to his business activities. From the moment a court decision is made to open liquidation proceedings against an individual entrepreneur, the registration of an individual as an individual entrepreneur (Part 3 of Article 46 of the Insolvency Law) becomes invalid.

2. Lease agreement: general characteristics

Under a lease (property lease) agreement, the lessor (lessor) undertakes to provide the lessee (tenant) with property for a fee for temporary possession and use or for temporary use (Part 1 of Article 577 of the Civil Code).

Often, it is not economically profitable for an organization or a citizen to buy an item, and perhaps even burdensome, since the item is needed only for a certain time. In order to satisfy the needs for this kind of thing, the lease agreement serves.

In accordance with current legislation, a lease agreement is also applied when a separate property does not currently take part in economic life or is not used in production. Such property under a lease agreement can be transferred to another organization. In other words, the lease agreement creates opportunities for the most economical use of the property. It has become widespread in various areas of the country’s economic and cultural life and is used between organizations, between organizations and citizens, and also between citizens.

Unlike contracts such as purchase and sale, barter, donation, under which property is transferred from one person to another into ownership, under a lease agreement (property lease) only the right to own and use property is transferred for a certain period.

General rules governing the rental of property are placed in Chapter. 34 Civil Code. Special norms include: Law of the Republic of Belarus dated December 12, 1990 No. 460-HP “On Lease”, as amended. and additional etc.

The lease agreement is bilateral, paid, nonsense.

The parties to a lease agreement are the lessor (lessor) and the lessee (tenant). The law makes a fairly clear distinction between the parties in rental relations. Yes, Art. 579 of the Civil Code secures the right to lease property to its owner. As for lessors in general, they can be persons authorized by law or the owner to rent out property.

According to paragraph 3 of Art. 276 of the Civil Code, a unitary enterprise does not have the right to lease real estate owned by it under the right of economic management. In other words, if the property is under the jurisdiction of state enterprises, associations, organizations and institutions, then leasing it is permitted with the consent of government agency, authorized to manage this property. Currently, the functions of managing property that is republican property, in particular regarding the issue of leasing it, mainly belong to ministries and other republican bodies that directly perform the functions of managing enterprises, associations, organizations and institutions.

The second party is the tenant. They can be an individual or legal entity that meets the requirements.

The property under the agreement in question passes from the lessor (tenant) to the lessee (tenant) not into ownership, but into temporary possession and (or) temporary use. In some cases, the use of property by the tenant may be carried out on the condition that the property remains in the possession of the lessor. For example, the tenant uses machinery and equipment located in the lessor’s workshops, or the tenant uses a piano that is located in the playing room directly in the studio (rental point, rental).

Lease objects can be land plots and other isolated natural objects, enterprises and other property complexes, buildings, structures, equipment, vehicles and other things.

Since we are talking about the transfer of property for temporary use, the object of a lease agreement (property lease) can only be individually defined and non-consumable things, because the use of consumable things means the cessation of their existence. An item taken for temporary use must be returned to the lessor at the end of the contract. It follows from this that ownership of the subject of the property lease agreement does not pass from the lessor to the lessee.

It should be emphasized here that the object of the lease agreement is not any things, but only those that are not withdrawn from civil circulation.

In relation to certain types of property, legislative acts may establish exemptions relating to property, the rental of which is not permitted or limited.

Legislation may establish specifics for leasing land plots and other isolated natural objects. In particular, according to Art. 47 of the Land Code of the Republic of Belarus, owners of land plots acquired for personal subsidiary farming, construction and maintenance of a residential building, collective gardening and dacha construction may lease them to citizens of the Republic of Belarus, provided that the intended purpose of the land plots is preserved, and also taking into account that that residential buildings, dachas and garden houses can only be leased together with land plot in the amounts established by the relevant articles of the Code. When inheriting the same land plots by minor heirs, it is allowed to transfer the plots for rent to other citizens by the legal representatives of the heirs under the control of the relevant executive and administrative bodies until the heirs acquire full legal capacity.

Taking into account the properties of things being leased and their increased value, the legislator places high demands on their clear definition and indication of quality characteristics. Thus, the lease agreement must contain data that makes it possible to definitely establish the property to be transferred to the lessee as the leased object. In the absence of this data in the contract, the condition regarding the object to be leased is considered not agreed upon by the parties, and the corresponding contract is not considered concluded (clause 3 of Article 578 of the Civil Code).

The property provided to the tenant must comply with the terms of the lease agreement and the purpose of the property.

The cost of rent (rent) is determined in the contract based on the assessment of this property at the time of leasing it, taking into account actual wear and tear.

The procedure, conditions and terms for paying rent are determined by the lease agreement. If these elements are not reflected in the agreement, then it is considered that the procedure, conditions and terms usually applied when renting similar property under comparable circumstances have been established (clause 1 of Article 585 of the Civil Code).

The law provides the opportunity to set rent for all leased property as a whole or separately for each of its component parts in the form of: 1) payments determined in a fixed amount, made periodically or simultaneously; the established share of products, fruits or income received as a result of the use of leased property; provision of certain services by the tenant; transfer by the lessee to the lessor of the thing stipulated by the contract for ownership or lease; imposing on the lessee the costs stipulated by the contract for improving the leased property.

In addition to these, the parties may provide for other forms of rent. They can change the amount of rent within the terms specified in the contract, but not more than once a year. For certain types of lease, as well as for the lease of certain types of property, the legislation may provide for other minimum rental periods.

If the conditions of use provided for in the lease agreement or the condition of the property have significantly deteriorated due to circumstances for which the tenant is not responsible, he has the right to demand a corresponding reduction in the rent, unless otherwise provided by law.

The requirement for early payment of rent, unless otherwise provided by the contract, is not allowed. The legislator provided this opportunity to the landlord only in the event of a significant violation by the tenant of the deadlines for paying rent. In this case, the lessor has no right to demand early payment of rent for more than two consecutive terms (Article 585 of the Civil Code).

The tenant is given the right to purchase the leased property. This may be provided for by law or the lease agreement. The transfer of property into the ownership of the tenant occurs upon the expiration of the lease term or before its expiration, subject to the payment by the tenant of the entire redemption price stipulated by the agreement. The absence of a clause on the purchase of leased property in the contract can be filled in additional agreement parties who have the right to agree to include previously paid rent in the redemption price.

Legislation may establish cases of prohibition of the repurchase of leased property (Article 595 of the Civil Code).

The term of the lease (property rental) agreement is determined by agreement of the parties.

If the contract does not specify a period, the contract is considered concluded for an indefinite period, and each of the parties has the right to cancel the contract at any time by notifying the Other Party one month in advance, and when renting real estate - three months in advance. Legislation or an agreement may also establish a different period for warning of termination of a lease agreement* concluded on indefinite period(Clause 2 of Article 581 of the Civil Code).

Current legislation allows for the possibility of establishing maximum (limit) contract terms for certain types of leases, as well as for the lease of certain types of property. This, in particular, follows from Art. 45 of the Land Code of the Republic of Belarus, according to which the lease period for land plots should not exceed 99 years, and the lease of land plots for agricultural use cannot be less than five years. In this case, if neither party refused before the expiration of the deadline established by law, the contract is terminated upon expiration of this period.

A lease agreement concluded for a period exceeding the deadline established by law is considered concluded for a period equal to the maximum (Article 581 of the Civil Code).

The form of the lease agreement depends on the period for which it is concluded, the subject composition and whether the property is movable or immovable.

A lease agreement for a period of more than one year, and if at least one of the parties to the agreement is a legal entity, then, regardless of the term, must be concluded in writing (Article 580 of the Civil Code).

When concluding a lease agreement real estate, unless otherwise established by law, it is subject to state registration (clause 2 of Article 580 of the Civil Code).

A lease agreement for real estate, providing for the subsequent transfer of ownership of this property to the lessee, is concluded in the form provided for the purchase and sale agreement for such property.

From an analysis of current legislation it follows that a lease is a contract-based, usually fixed-term, paid possession and use of land, other natural resources, enterprises and other property complexes, as well as the property necessary for the tenant to independently carry out economic or other activities.

So, lease can be used in accordance with current legislation in all sectors of the national economy in relation to property of all forms and types of property.

Each party to the lease agreement has rights and obligations. Moreover, if one party has rights, then the other party has corresponding responsibilities.

The lessor (tenant) has the following responsibilities:

1) provide the property in a condition consistent with the terms of the contract and the purpose of the property. The transferred property must be provided with relevant documents ( technical passport, quality certificate, etc.), unless otherwise provided by the contract. If such documents and accessories were not transferred and the tenant without them cannot use the property in accordance with its purpose or is significantly deprived of what he had the right to count on when concluding the agreement, he may demand that the lessor provide him with such accessories and documents upon termination of the agreement , as well as compensation for losses (clauses 1, 2 of Article 582 of the Civil Code);

2) transfer the property to the tenant (tenant) for use and possession and do this in a timely manner (on time). Otherwise, the tenant has the right to demand this property from him, demand compensation for losses caused by the delay in execution,

3) or demand termination of the contract and compensation for losses caused by its non-fulfillment (clause 3 of Article 582 of the Civil Code); carry out major repairs of the rented property at your own expense.

Under a lease (tenancy agreement), the responsibility for major repairs lies with the lessor (tenant). But sometimes another rule is established. Thus, when renting small houses owned by local councils to individual citizens, the tenant assumes the responsibility to promptly carry out all necessary major repairs, i.e. such an obligation is established unless otherwise provided by law or contract.

If the landlord does not fulfill his obligation to carry out major repairs, the tenant (tenant) has the right to carry out major repairs provided for in the contract or caused by urgent need, and recover the cost of repairs from the landlord or offset it against the rent, demand a corresponding reduction in the rent or termination of the contract and compensation for losses (clause 1 of Article 587 of the Civil Code); transfer property for rent, usually free from the rights of third parties. If the property being leased is encumbered by the rights of third parties (easement, right of lien, etc.), the lessor must warn the tenant about the existence of such rights. Failure of the landlord to fulfill this obligation gives the tenant the right to demand a reduction in rent or termination of the contract and compensation for losses (Article 584 of the Civil Code). The lessor (lessor) must refrain from any actions that may interfere with the lessee (lessee) possession and use of the leased property. The law provides the tenant with an effective means of protection against any violators of his right of use and ownership, including against the owner. In other words, the protection of the right of ownership and right of use is absolute.

The tenant (tenant) is obliged:

1) use the property in accordance with the terms of the lease agreement, and if they are not defined in the agreement - in accordance with the purpose of the property (clause 1 of Article 586 of the Civil Code);

2) maintain the property received into possession and (or) use in good condition, carry out current repairs at your own expense and bear the costs of maintaining the property, unless otherwise established by law or the lease agreement (clause 2 of Article 587 of the Civil Code);

3) upon termination of the contract in question, return the property in the condition stipulated by the contract.

Failure to return or untimely return of the rented property gives the lessor the right to demand payment of rent for the entire period of delay, and if it does not cover the losses caused to the lessor, he may demand compensation for them.

For untimely return of leased property, a fine may be provided (Article 593 of the Civil Code).

4) make timely payments for the use of property (rent) (clause 1 of Article 585 of the Civil Code), which is usually expressed in periodic payments (per month, quarter, year). Rent is paid regardless of the actual use of the property. However, if, due to circumstances for which the tenant (tenant) is not responsible, the property has changed significantly, the tenant (tenant) has the right to demand a reduction in payment (for example, the building was so dilapidated that it became unusable during operation).

During the use of the property, the tenant can make improvements to the leased property. The law establishes that if improvements are made with the consent of the lessor, the lessee has the right to reimbursement of expenses incurred for these purposes. Improvements made by the tenant without the permission of the other party and not separable without harm to the property cannot be withdrawn by the tenant. Improvements to leased property, both separable and inseparable, made at the expense of depreciation deductions from this property are the property of the lessor (Article 594 of the Civil Code).

At the request of the lessor, this agreement may be terminated early if the lessee: uses the property with significant violations of the terms of the agreement or the purpose of the property or with repeated violations; significantly deteriorates the property; does not pay rent more than twice in a row from the date of payment expiration; does not carry out major repairs in a timely manner in cases where the responsibility is assigned to him.

In cases established by law, the landlord has the right to demand early termination of the contract after sending the tenant a written warning about the need to fulfill his obligations within a reasonable time (Article 590 of the Civil Code).

In turn, the tenant has the right in court, economic court and arbitration court to present a demand for early termination of the rental agreement in the following cases: the lessor does not provide the property for use by the tenant or creates obstacles to the use of the property in accordance with the terms of the agreement or the purpose of the property; the transferred property has defects that impede use, which were not specified by the lessor at the conclusion of the contract, were not known to the lessee in advance and could not be discovered by him during an inspection of the property or checking its serviceability; the lessor does not carry out capital repairs within the established time limits, which are part of his duties; the property, due to circumstances for which the tenant is not responsible, has become unusable and cannot be used in the future (Article 591 of the Civil Code).

The specified list of grounds for termination of a lease agreement is not exhaustive. The agreement may also provide for other grounds for early termination on the part of the tenant, in particular in the event of a significant violation of the agreement by the other party.

Early termination of the lease agreement simultaneously entails termination of the sublease agreement. However, the subtenant in this case has the right to conclude a lease agreement with him for the property in his use in accordance with the sublease agreement, within the remaining term of the sublease on conditions corresponding to the conditions for termination of the lease agreement (clause 1 of Article 589 of the Civil Code).

A common reason for terminating a lease, like any other agreement, is the expiration of its term. As for the tenant, the legislator gave him the pre-emptive right to conclude a lease agreement for new term. The procedure for regulating this type of relationship is set out in Art. 592 of the Civil Code: unless otherwise provided by law or the lease agreement, the tenant who has properly performed his duties, upon expiration of the contract, has, other things being equal, a preferential right over other persons to conclude a lease agreement for a new term. To do this, the tenant is obliged to notify the lessor in writing of his desire to conclude such an agreement within the period specified in the lease agreement, and if such a period is not specified in the agreement - within a reasonable time before the end of the agreement.

If the lessor refuses to enter into an agreement for a new term with the lessee, but within a year from the date of expiration of the agreement with him has concluded a lease agreement with another person, the lessee has the right, at his own discretion, to demand in court the transfer of rights and obligations under the concluded agreement and compensation for losses, caused by the refusal to renew the lease agreement with him, or only compensation for such losses.

If the tenant continues to use the property after the expiration of the contract in the absence of objections from the lessor, the contract is considered renewed on the same terms for an indefinite period.

In general early termination contract by one party may occur if the other party fails to fulfill its obligations.

In addition to the general grounds for termination of a lease agreement (property lease) specified in the legislation, there are additional grounds arising from the specifics of the subject of the lease and provided for in the relevant regulatory legal acts. Thus, a lease agreement for non-residential premises can be terminated early in the event of a state need for a building or premises leased under the agreement.

The legislation (Article 596 of the Civil Code) includes rental, lease vehicles(with and without crew), rental of buildings or structures, rental of an enterprise, financial lease (leasing). It is also determined that the provisions provided for in the lease agreement apply to these types of agreements, unless otherwise provided by law. Consequently, they are an independent object of study.

Task

An individual entrepreneur sold textile products at the clothing market. During the raid, the inspectors found that the hygiene certificate for the products being sold had expired, so an act of economic offense was drawn up against the entrepreneur, which was expressed in the sale of goods without documents confirming the quality of the goods.

1. What liability measures should be taken to an individual entrepreneur.

2. What is the procedure for obtaining a hygiene certificate.

Answer:

In accordance with the Resolution of the Ministry of Health of the Republic of Belarus dated September 29, 2008 No. 152 “On approval of the Regulations on the Ministry of Health of the Republic of Belarus”, state hygienic regulation and registration of chemical and biological substances, materials and products made from them, products for industrial and technical purposes, goods for personal ( household) needs, food raw materials and food products, as well as materials and products used for production, packaging, storage, transportation, sale, and other methods of disposal of food raw materials and food products and their use are carried out by the Ministry of Health.

To carry out state hygienic regulation and registration, it is necessary to provide: an application for state hygienic regulation and registration; list of products subject to state hygienic regulation and registration; technical regulatory legal acts(technical regulations, standards, technical conditions and others) in accordance with which products are manufactured; a list of materials or initial components used in the production of products, indicating technical regulatory legal acts and the enterprises producing them; documents certifying the quality and safety of materials or initial components for human health used in the production of products; instructions (recommendations, regulations) for the use (operation) of products; manufacturer's document on product quality and safety; sanitary and hygienic conclusion issued by the territorial center of hygiene and epidemiology at the location of production (in the absence of complete information in technical regulatory legal acts) indicating recommendations for use, contraindications, results of clinical trials (if necessary); draft label for dietary supplement; hygienic examination certificate issued in an accredited laboratory after laboratory research

The period for state hygienic registration is no more than 30 days.

In accordance with Part 1 of Art. 12.17 of the Administrative Code, violation of the rules of trade and provision of services to the population - entails a fine in the amount of two to ten basic units.

Part 4 of the Code of Administrative Offenses states that the acquisition, storage, use in production, transportation, sale of goods in violation of the procedure established by law (without the availability of documents required in cases provided for by law confirming the quality of goods, accompanying documents, documents confirming the acquisition (receipt) or release of goods for sale, or in the presence of documents that do not correspond to reality), as well as the sale of goods (performance of work, provision of services) in violation of the prohibition of the Committee bodies state control Republic of Belarus - entails a fine on an individual entrepreneur in the amount of thirty to fifty basic units with confiscation of goods, regardless of whose ownership they are, proceeds received from the sale of goods.

Legal acts

1. The Constitution of the Republic of Belarus of 1994 (with amendments and additions adopted at the republican referendums on November 24, 1996 and October 17, 2004) // [Electronic resource] / LLC "YurSpektr", National. legal information center Rep. Belarus. Mn., 2009

2. Civil Code of the Republic of Belarus: Law of the Republic of Belarus of December 7, 1998 (as amended and supplemented) // [Electronic resource] / LLC "YurSpektr", National. legal information center Rep. Belarus. Mn., 2009

3. Code of the Republic of Belarus on Administrative Offenses dated April 21, 2003 No. 194-Z (as amended and additionally) // [Electronic resource] / LLC "YurSpektr", National. legal information center Rep. Belarus. Mn., 2009

4. Code of the Republic of Belarus on Land: Law of the Republic of Belarus of 1999 (with amendments and additions) // [Electronic resource] / LLC "YurSpektr", National. legal information center Rep. Belarus. Mn., 2009

5. On streamlining state registration and liquidation (termination of activities) of business entities: Decree of the President of the Republic of Belarus dated March 16, 1999 No. 11 (as amended and supplemented) 302 // [Electronic resource] / LLC "YurSpectr", National. legal information center Rep. Belarus. Mn., 2009

6. On some issues related to the implementation of craft activities by individuals: Decree of the President of the Republic of Belarus, May 16, 2005 No. 225 // [Electronic resource] / LLC "YurSpectr", National. legal information center Rep. Belarus. Mn., 2009

7. On measures to develop agroecotourism in the Republic of Belarus: Decree of the President of the Republic of Belarus, June 2, 2006 No. 372// [Electronic resource] / LLC "YurSpectr", National. legal information center Rep. Belarus. Mn., 2009

8. On some measures to regulate business activities: Decree of the President of the Republic of Belarus, June 18, 2005 No. 285 // [Electronic resource] / LLC "YurSpectr", National. legal information center Rep. Belarus. Mn., 2009

9. On approval of the Regulations on the procedure for the creation by an individual entrepreneur of a private unitary enterprise and its activities,” a simplified procedure for the transition to economic activity within a legal entity (unitary enterprise) was approved: Decree of the President of the Republic of Belarus dated June 28, 2007 No. 302 // [Electronic resource ] / LLC "YurSpektr", Nat. legal information center Rep. Belarus. Mn., 2009

10. On approval of the Regulations on the Ministry of Health of the Republic of Belarus: Resolution of the Ministry of Health of the Republic of Belarus dated September 29, 2008 No. 152 // [Electronic resource] / LLC "YurSpectr", National. legal information center Rep. Belarus. Mn., 2000

Textbooks and additional literature

11. Vabishchevich S.S., Mankovsky I.A. Economic law: legal regulation of economic activity. Mn., 2008.

12. Kolbasin D.A. Civil law. A special part. Mn., 2003.

On some issues related to the implementation of craft activities by individuals: Decree of the President of the Republic of Belarus, May 16, 2005 No. 225 // [Electronic resource] / LLC "YurSpektr", National. legal information center Rep. Belarus. Mn., 2009

On measures to develop agroecotourism in the Republic of Belarus: Decree of the President of the Republic of Belarus, June 2, 2006 No. 372 // [Electronic resource] / LLC "YurSpektr", National. legal information center Rep. Belarus. Mn., 2009

On some measures to regulate business activities: Decree of the President of the Republic of Belarus, June 18, 2005 No. 285 // [Electronic resource] / LLC "YurSpektr", National. legal information center Rep. Belarus. Mn., 2009

Vabishchevich S.S., Mankovsky I.A. Economic law: legal regulation of economic activity. Mn., 2008. P. 63

“On approval of the Regulations on the procedure for the creation by an individual entrepreneur of a private unitary enterprise and its activities,” a simplified procedure for the transition to economic activity within a legal entity (unitary enterprise) was approved: Decree of the President of the Republic of Belarus dated June 28, 2007 No. 302 // [Electronic resource] / LLC "YurSpektr", Nat. legal information center Rep. Belarus. Mn., 2009

Kolbasin D.A. Civil law. A special part. Mn., 2003. P 125

On approval of the Regulations on the Ministry of Health of the Republic of Belarus: Resolution of the Ministry of Health of the Republic of Belarus dated September 29, 2008 No. 152 // [Electronic resource] / LLC "YurSpectr", National. legal information center Rep. Belarus. Mn., 2009

Federal Agency for Education

Ministry of Education and Science of the Russian Federation

Novosibirsk State University

Faculty of Law

INDIVIDUAL ENTREPRENEUR AS

SUBJECT OF CIVIL LAW

(course work)

completed by: student of group 5920

Vernadubova E.I.

checked:

Professor, Doctor of Law

Tsikhotsky A.V.

Grade__________________

Novosibirsk - 2007

Introduction 3

1. Theoretical and methodological foundations of the study of the subject of law 5

1.1 Retrospective literature review 5

1.2. General theoretical information about the subject of civil law 7

2. Individual entrepreneur as a subject of civil law 17

2.1. The concept of an individual entrepreneur 17

2.2. The emergence and essence of the legal status of an individual

entrepreneur 19

2.3. Termination of the legal status of an individual entrepreneur 27

3. The head of a peasant (farm) enterprise as a subject of civil

4. Judicial practice in cases involving individual

Entrepreneurs 37

Conclusion 45

Bibliography 47

INTRODUCTION

Currently, there is a widespread development of market relations, their increasing introduction into various spheres of society. The market economy has led to the emergence of new social connections that require legal regulation. Civil law acts as a regulator of these social relations.

Thus, these social connections are civil legal relations. As you know, any legal relationship consists of elements, which are the subjects and objects of legal relations and the content of the legal relationship as a set of subjective rights and legal obligations that belong to these subjects. Accordingly, qualitatively new legal relations can be created between categories of subjects that already exist in law, and they can also determine the emergence of new ones.

In other words, in our opinion, the development of a market economy leads to the emergence of such civil law relations that create a new category of subjects of civil law - individual entrepreneurs.

The problems of the formation and development of the legal status of an individual entrepreneur are quite widely discussed in modern literature, different points of view are expressed on the issue of the possibility of positioning him as an independent subject of civil law. These are the contents of the works of S. Grigorenko, E. Nikitin, V.V. Lapteva, S.I. Arkhipova, D.V. Pyatkova, S.E. Zhilinsky and many others. However, the doctrine has not formed a unified point of view on this matter. At present, the question of the legal personality of an individual entrepreneur remains open and remains relevant.

The novelty of the research we propose is that, based on an analysis of the existing views in the doctrine, as well as the norms of the current legislation, we will try to formulate an answer to the open question in science about the legal status of an individual entrepreneur as a subject of civil law.

In the process of studying this issue, using logical methods such as analysis, synthesis, comparison, as well as by studying the phenomenon within the framework of the historical conditions of its development, we will come to a solution to the question posed to us.

THEORETICAL AND METHODOLOGICAL FOUNDATIONS OF THE RESEARCH

SUBJECT OF LEGAL

1.1. Retrospective literature review

A huge number of works by civilists of the pre-revolutionary, Soviet, post-Soviet and modern periods are devoted to issues related to the subject of law. The problem of the existence of subject and object has been and continues to be the focus of attention not only in civil law, but also in philosophy.

Among the outstanding works of the pre-revolutionary period devoted to issues of the subject of civil law, affecting the problems of formation of the subject of trade law, the works of the classic of Russian civil law G.F. Shershenevich stand out. In his works, he lays the foundation for considering the problem of an individual as a subject of civil law, points out problematic issues of the emergence and termination of the legal personality of an individual. Shershenevich introduces the concept of “merchant”, which, in our opinion, is the prototype of the concept of “individual entrepreneur”. A merchant is someone who carries out trade transactions in the form of a trade on his own behalf. One can also note the works of Windscheid and R. Ihering. In their works they considered the basis for the classification of subjects of civil law. Windshade distinguished two categories of subjects: natural (human) and “artificially created” (fictitious person). Iering identified a larger number of subjects, which were: individuals, state, church, unions, society. Thus, discussions were conducted regarding the philosophical aspects of the origin of various groups of subjects, their inner essence.

However, not a single researcher notes the ability of an individual to act in civil legal relations as various independent entities. However, the prerequisites for this, in view of Shershenevich’s definition of the concept of merchant, existed.

Among the outstanding civilists Soviet period we can highlight Ioffe O.S., Bratusya S.N. In their works, these researchers carried out enormous theoretical work to identify and consolidate the foundations for studying the civil legal status of individuals and legal entities as subjects of civil law. However, in Soviet literature, even in the 70s, we do not find any mention of the individual entrepreneur as a subject of civil law, since activities aimed at extracting unearned income (speculation, exploitation of other people’s labor, etc.) are incompatible with the civil legal capacity of a Soviet citizen. .d) . In Soviet literature, two groups of subjects of civil law were clearly distinguished: individuals and legal entities.

The problems of the civil legal status of an individual entrepreneur in modern literature began to be actively discussed in the mid-90s, which was due to the transition to a market economy, the emergence of new types of social relations, which could not but be reflected in scientific thought. The adoption of the Civil Code of the Russian Federation in 1994 significantly changed the legal status of certain categories of entities, for example, peasant (farm) farming.

The problems of formation and development of the legal status of an individual entrepreneur are reflected in the works of S. Grigorenko, E. Nikitin, V.V. Lapteva, S.I. Arkhipova, D.V. Pyatkova, S.E. Zhilinsky and many others. Among them, however, there is no consensus on whether it is possible to single out an individual entrepreneur as separate subject civil law or not. Some believe that this is inappropriate, due to the fact that the right to engage in entrepreneurial activity is an integral element of the general legal capacity of individuals. Others consider the right to engage in entrepreneurial activity within the framework of general legal capacity as a foreign body, proposing to carry out research on entrepreneurial legal capacity as a separate phenomenon within an independent branch of business law.

Despite the lively discussions existing in the doctrine, there is still no single point of view either in science or in the current legislation.

1.2. General theoretical information about the subject of civil law.

Traditionally, in legal literature, when considering the issues of the subject of law, reasoning is structured as follows. Initially, the concept of a subject of law, classification is determined, due to the fact that each of the types has its own legal regime, the moment of the emergence of the subject, then its characteristics and the moment of the end of existence. It seems most appropriate to approach the study of this issue from these positions.

The subject of law is usually understood as a participant in legal relations, endowed with a set of rights and obligations. The above definition represents the most common designation of a subject in the literature. Shershenevich G.F. indicates that the subject of law can be a person capable of entering into legal relations, i.e. have the right of ownership, acquire the right of claim, undertake certain actions. At the same time, it defines the concepts of legal capacity and legal capacity of a person. Legal capacity is understood as the ability to have and acquire rights, while the ability to independently establish relationships through legal actions is called legal capacity.

Alekseev S.S. defines the subject of law as an individual or organization that, in accordance with the rules of law, is endowed with a set of rights and obligations. This definition specifies the source of the rights and obligations of the subject of law, which is the rule of law, and in some way indicates the types of subjects: the individual and the organization.

The literature presents various classifications of subjects of law. The most frequently used division of subjects of law into individuals (individuals, people) and legal entities. In connection with this classification, it is important to pay attention to the foundations on which it rests. This issue has been studied quite widely both in pre-revolutionary, Soviet, and modern literature. The most indicative in this regard is the position of Windscheid, who believed that “the natural and closest legal subject is a person; for the main task of the legal order is to draw boundaries between the spheres of domination of separate clashing human individuals.” The second subject is an “artificially created person”, which, in his opinion, bears the unfortunate name of a legal entity (the best name, according to Windscheid, is a fictitious person, the worst is a moral person, as well as a mystical person).

For Windscheid, as for many other jurists, a natural person in law is not an abstraction, but a very specific material, “natural” person, which is opposed by an artificial, fictitious, imaginary person - a legal entity. At the same time, he ignores the fact that one subject (individual) is an embodiment, part of the material world, while another person (legal) is a product of consciousness, spirit. Both data subjects find themselves in the same structure and coexist in it. Thus, the main basis for the classification of subjects of law into individuals and legal entities, according to Windscheid, is their natural or artificial (rational) character, their natural or artificial nature.

In Russian jurisprudence of the same period (XIX – early XX centuries), a position was formed and gained a significant number of supporters, according to which a person as a subject of law and a real “living” person are not the same thing. So, for example, E.N. Trubetskoy, agreeing in principle with the division of subjects of law into individuals and legal entities, denied the criterion of the natural - artificial nature of subjects of law formulated by Windscheid and other authors, proposing instead a different (which can conventionally be called “individual-collective”) criterion for dividing subjects of law. In accordance with this criterion, individuals are in one group due to the fact that they are recognized as single (individual) entities, and legal entities are in another group due to the fact that they are recognized as collective entities.

In addition to the grounds discussed above for the classification of subjects of law, one can highlight the basis proposed by I. A. Pokrovsky.

An important point for establishing the basis for his classification of subjects of law is his definition of a legal entity as a derivative personality. He believes that in legal entities the individual personality finds a natural continuation and completion: “... a legal entity is nothing more than a continuation and product of individual personalities, and respect for these latter requires recognition of what constitutes their legal emanation.” A legal entity has the same nature as another subject of law - an individual; it is not fiction and is not a physical reality. It, like an individual subject of law, is a legal reality and forms a new legal center, isolated from the individual legal entities that created it. I.A. himself Pokrovsky does not clearly define the criteria that he was guided by when distinguishing between individuals and legal entities as subjects of law, but in any case, it can be noted that one of the significant moments for him in contrasting an individual, a person as a subject of law, with a legal entity is the moment derivativeness, conditionality of a legal entity from a person.

One of the very common criteria that guides representatives of many directions and movements in the theory of legal personality is the criterion of dividing individuals and legal entities by quantity, the number of individuals forming the legal personality (by human substratum). Essentially, this is the same natural criterion proposed by the authors of the theory of fictions, but presented in quantitative terms. However, already in Russian pre-revolutionary law the possibility of the existence of a “collective substrate” within the framework of one individual was recognized. So, on the one hand, we have a whole variety of legal entities consisting of one person, and on the other hand, a whole group of individuals comprising a “collective substrate”. If we are strictly guided by the above criterion, then companies and corporations of one person should be considered individuals, and minors, together with their parents, adoptive parents, and guardians, should be considered legal entities.

There are other criteria for classifying subjects of law that are not associated with distinguishing only individuals and legal entities. Thus, R. Iering identified five subjects of law: individuals, state, church, unions, society. As a basis, he set a target criterion for himself: “They are the target centers of all law.”

In Soviet land and collective farm law, the collective farm yard was identified as a special subject of law, the creation of which was considered as the creation of a legal entity. Currently, the Civil Code of the Russian Federation enshrines the provision according to which a peasant (farm) enterprise can carry out activities without forming a legal entity, while the head of the enterprise is recognized as an entrepreneur from the moment of state registration of the peasant (farm) enterprise.

There is a point of view that the desire to expand the circle of subjects of law by giving the status of an independent subject to civil servants, deputies, individual entrepreneurs, heads of peasant (farm) households, students, pupils, members of labor collectives, foreigners, stateless persons, etc. d. leads to the fact that the legal personality is torn apart by branch sciences and branch legislation. In this sense, the legal alienation of the individual no longer only covers his connections, relations with the state, with the authorities, but also extends to the individual himself and threatens his integrity. We will return to discussing this point of view later.

Returning to the classification of legal entities, summarizing all of the above, we should cite Arkhipov’s statement that legal entities are divided into individuals and legal entities not according to the flesh, not according to a collective or individual substrate and similar grounds. The so-called substrate that lawyers actually share is the legal personality of a person. From this personality, everything “private”, “individual”, special is cut off and packaged into the form of a so-called natural person and everything general, placed in the structure of a legal entity, including its special varieties - the state, other public legal entities. Different sides, aspects of one common legal whole are divided. This point of view is the embodiment of the idea of ​​“personocentrism”, where the dominant, central role in social relations is played by the legal personality of a person.

So, in accordance with the plan we defined above for considering the issues of the subject of law, let’s move on to the moment when various types subjects.

The starting point from which the existence of a legal entity begins is traditionally recognized as the moment of a person’s birth. Nevertheless, it should be recognized that legal capacity does not arise earlier than from the moment of birth of a living being. Birth is so necessary condition for legal capacity, that the appearance of a dead child is devoid of legal significance, and the embryo is considered as if it had never existed. This issue has been discussed quite actively in the literature. Should we consider the beginning of physical personality to be the moment of birth of a baby or should we attribute the beginning of personality to the moment of conception? It must be taken into account that the child may be stillborn; if the beginning of the physical personality is attributed to the moment of conception, then, for example, the order of inheritance can be determined completely differently than in the case when the beginning of the physical personality is recognized as the moment of birth. By the act of birth a person enters into the society of people; This act must be recognized as the beginning of legal capacity. Thus, we have determined that the legal capacity of an individual arises at the moment of the actual birth of a living person.

The moment of emergence of a legal entity as a subject of law is directly defined in the law. The legal capacity of a legal entity arises at the moment of its creation and terminates at the moment of making an entry about its exclusion from the unified state register of legal entities. In this case, a legal entity is considered created from the date of making the corresponding entry in a single state register legal entities. It should also be noted that for a legal entity, unlike a physical person, legal capacity and legal capacity arise simultaneously, from the moment of state registration of the legal entity. Whereas for individuals, legal capacity and legal capacity arise in different periods of time. In accordance with the law, as a general rule, full legal capacity occurs upon reaching the age of eighteen.

The subject of law is endowed with certain legal properties, among which it is customary to distinguish such properties as legal capacity and legal capacity. It should be said that in the literature there are judgments that such properties as transaction capacity and delict capacity can also be attributed to these properties. However, in our opinion, separating these properties into a separate group is not advisable, since they are fully covered by legal capacity. Above we have already touched upon the definition of these properties of the subject in some way.

It is important to note that the ability of a legal entity to have rights and bear obligations is of two types: general and special. Within the framework of general legal capacity, a legal entity may have rights and bear obligations that are consistent with the purposes of the legal entity; commercial organizations can carry out any actions, any transactions, except for those expressly prohibited by law. Special legal capacity characterizes the limited capacity of a legal entity to participate in civil transactions. Within the framework of special legal capacity, a legal entity can carry out only those transactions that are provided for by its constituent documents. In turn, the legal capacity of individuals has no such boundaries. In other words, the legal capacity of individuals is a kind of legal potency, i.e. the ability provided by law to have rights and the ability to bear responsibilities. The legal capacity of a citizen is predetermined by the maturity of his will, which is directly dependent on the age at which a person acquires the ability through his actions to acquire and exercise rights for himself, to create and fulfill responsibilities. As for legal entities, as we have already noted, both of these properties arise simultaneously and are made dependent on the goals of the activities they carry out.

Legal science has developed its own criteria for determining the subject of law, which include, firstly, the sign of a person’s isolation from others, his autonomy, secondly, identifiability, individualization, and thirdly, volition. The fourth sign of a subject of law, the manifestation of oneself externally as a participant in legal relations, legal communication, presupposes the recognition of a person as a party to legal relations. The fifth sign involves the expression of an attitude towards a person as the most important social and legal value.

If the moment of a person's birth marks the emergence of a legal personality, then the death of a person, as is usually considered, ceases the existence of a legal personality. At the same time, the termination of a person’s legal personality and the termination of legal capacity are usually considered as identical concepts. Arkhipov S.I. in this regard, notes that legal capacity as the ability of a person to be a subject of law actually ceases with the death of a person, but only for the future, as the ability to accept legal decisions, perform legal actions in the future. As for the legal will expressed before the death of a person, it retains a connection with the legal order system, is supported and ensured by it. Indeed, one can agree with this, since this can be evidenced, for example, by the institution of inheritance by will. Thus, different views are highlighted on the moment of termination of the existence of a subject of law of an individual. At the same time, the law establishes that a citizen’s legal capacity is terminated by death. At the same time, protection of the honor and dignity of a citizen is permitted at the request of interested parties even after his death. Accordingly, such a citizen continues to have the right to the protection of intangible benefits: honor and dignity.

The legal capacity of a legal entity, as noted earlier, terminates from the moment an entry is made about its exclusion from the unified state register of legal entities.

A subject of law is an individual or organization that has a set of rights and obligations enshrined in law and is capable of entering into legal relations.

The most frequently used division of subjects of law into individuals (individuals, people) and legal entities. In this case, the following division criteria are distinguished:

Natural or artificial (rational) character, their natural or artificial nature;

- “individual-collective” criterion for dividing subjects of law;

Criterion of primacy and derivativeness;

A criterion for dividing individuals and legal entities by quantity, the number of individuals forming the legal personality (according to the human substrate).

At the same time, the separation of other subjects of law besides a legal entity and an individual is noted as inappropriate, leading to the fact that the legal personality is torn apart by industry legislation.

At the same time, it seems to us most appropriate to distinguish individuals and legal entities depending on their natural or artificial nature. Citizens (individuals) are natural subjects of law, they arose and exist regardless of belonging to certain forms political societies. In contrast to this category of subjects are legal entities (organizations), which are artificial subjects and can only exist where law exists. This is also confirmed by the moment of emergence of these two categories of subjects and the moment of termination of their legal capacity.

The subject of law has its own legal properties and characteristics. The most important properties of a subject of law are legal capacity and capacity.

In support of the above arguments, it should be noted once again that the termination of the existence of a natural person is associated with natural processes; the moment of termination of a legal entity is regulated by law.

Thus, at this stage we have come to the conclusion that law distinguishes between natural and artificial subjects: individuals and legal entities, respectively.

INDIVIDUAL ENTREPRENEUR AS A SUBJECT OF CIVIL LAW

2.1. The concept of an individual entrepreneur

Based on the above-mentioned system of studying the subject of civil law, consideration of the issue of an individual entrepreneur as a subject of civil law should begin with the definition of this concept.

Individual entrepreneurs are citizens engaged in entrepreneurial activities and registered in the prescribed manner.

Danilina I.E. gives a broader definition of an individual entrepreneur, which is understood as a capable citizen who independently carries out business activities at his own peril and risk and under his personal property responsibility and is registered for these purposes in the prescribed manner. This definition is closely related to the definition of entrepreneurial activity contained in Article 2 of the Civil Code of the Russian Federation.

Turning to earlier sources, we can conclude that one of the broadest definitions was the definition contained in the RSFSR Law on Enterprises and Entrepreneurial Activities of December 25, 1990. Citizens of the Russian Federation, foreign citizens, and stateless persons engaged in such activities were recognized as individual entrepreneurs. They operate using property that belongs to them by right of ownership or by the right of economic management (at that time it was allowed to use the right of economic management in relation to the property of not only enterprises, but also citizens). The director of an enterprise was interpreted in the law in question not as an entrepreneur, but as an official heading the enterprise.

In modern literature, when defining the concept of an individual entrepreneur, it is indicated that in order to disclose it it is necessary to understand the essence of the concept of “subject of civil law”. This issue was raised by us in previous discussions. In this case, an individual entrepreneur is defined as a business entity. The study of a business entity presupposes preliminary knowledge of the status of a subject of civil law, the legal regime of which fully applies to the business entity. In other words, before becoming a subject of entrepreneurial activity, a person is a subject of civil law. Zhilinsky S.E. a business entity, which is an individual entrepreneur, means a subject of civil law who, at his own risk, carries out independent activities aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services, and who is registered in this capacity in the prescribed manner law order .

GK specific definition does not provide an individual entrepreneur, limiting itself to the definition of entrepreneurial activity. Thus, the definitions existing in the doctrine are, one way or another, related to the definition of of this kind activities.

In our opinion, it would be advisable to introduce an article into the Civil Code containing, if not the definition of an individual entrepreneur, then at least its characteristics, similar to Article 48 of the Civil Code of the Russian Federation, which reflects the characteristics of a legal entity.

2.2. The emergence and essence of the legal status of an individual entrepreneur

The starting point from which the activity of an individual entrepreneur begins is considered to be the moment of state registration as an individual entrepreneur.

The procedure for state registration of an individual entrepreneur as a business entity, which, as we established above, is primarily a subject of civil law, has a constitutive significance. In other words, the status of an individual entrepreneur arises only after registration. However, the constitutionality of registration was somewhat shaken with the adoption of the first part of the Civil Code, according to paragraph 4 of Article 23 of which an individual entrepreneur does not have the right to refer in relation to transactions concluded by him to the fact that he is not an entrepreneur, since he has not passed state registration. The court may apply to such transactions the rules on obligations associated with carrying out business activities.

Currently, federal legislation on state registration consists of the Civil Code of the Russian Federation, Federal Law of August 8, 2001 No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs” and other regulatory legal acts of the Russian Federation issued in accordance with them. Subjects of the Federation do not have the right to adopt legal acts in order to regulate relations related to state registration.

In accordance with the above legislation, state registration of individual entrepreneurs is carried out by the Federal Tax Service of the Russian Federation and its territorial bodies. Registration is carried out within no more than five working days from the date of submission of documents to the registration authority. State registration of an individual entrepreneur is carried out at his place of residence. Currently, the main factor that makes it possible to establish a citizen’s place of residence for the purposes of state registration is a formal sign - registration of a citizen at the place of residence (registration at the place of residence in this sense does not matter). Please note that the law does not link the act of state registration of an individual entrepreneur with the place where business activities will actually be carried out. Therefore, if a citizen has a place of residence in one locality, and intends to conduct entrepreneurial activity in another, he is subject to state registration at the place of residence, and not at the place of possible implementation of entrepreneurial activity.

When state registration of an individual entrepreneur, the applicant can only be an individual applying for state registration or registered as an individual entrepreneur. In other words, a citizen does not have the right to authorize another person to submit on his behalf to the registration authority the documents necessary for state registration.

The list of documents provided to the registration authority during the state registration of an individual as an individual entrepreneur is provided for in Part 1 of Article 22.1 of the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs”.

After the registration authority makes a decision on state registration and no later than one working day from the moment the corresponding entry is made in the state register, the applicant is issued a certificate confirming the fact of making an entry in the state register.

It does not seem appropriate to dwell in more detail on the procedure for state registration of an individual entrepreneur when studying its legal status as a subject of civil law.

It is enough to conclude that, as such, the legal capacity of an individual entrepreneur begins from the moment of state registration of an individual in this capacity. Above, we have already considered the issue of the moment of emergence of the legal capacity of a legal entity and concluded that it also arises from the moment of state registration, while the legal capacity of an individual, as a subject of civil law, arises from the moment of the birth of a living person. However, based on the meaning of the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs” that we considered, an individual entrepreneur is, first of all, an individual. The doctrine widely addresses the issue related to the duality of the legal status of an individual entrepreneur and the problem of drawing a water level line. This duality of the legal status of an individual entrepreneur creates difficulties in its analysis. This is also due to the enshrinement in the Civil Code of the Russian Federation of the rule that the rules that regulate the activities of commercial organizations are applied to the entrepreneurial activities of citizens carried out without forming a legal entity. This duality is observed in almost all aspects of the civil legal status of an individual entrepreneur. Thus, we can observe a kind of “legislative paradox”. Essentially, the law establishes that an individual entrepreneur is, first of all, an individual, which is confirmed by the provisions of the Constitution of the Russian Federation, which enshrines the right of everyone to engage in entrepreneurial activity. However, on the other hand, the Civil Code establishes the norm that the rules governing the activities of legal entities apply to the activities of individual entrepreneurs. In addition, according to the classification of subjects of civil law defined above, individuals are natural subjects that arose and exist regardless of their belonging to certain forms of political societies, and legal entities are artificial subjects that are created and function only where there is law . This is due to the fact that the legal capacity of a legal entity arises from the moment of state registration, which is provided for by law. The emergence of the legal capacity of an individual entrepreneur is also associated with the state registration procedure prescribed by law. From which we can conclude that an individual entrepreneur should also be classified as an artificial entity. However, such an attribution contradicts the conclusion that an individual entrepreneur is, first of all, an individual. Thus, we are faced with the impossibility of classifying an individual entrepreneur as one of the two groups defined in the previous discussions: individuals and legal entities. The question naturally arises of considering it as an independent type of subject of civil law, which has absorbed various properties and characteristics of two main groups.

In the literature on this issue there are mixed points of view. For example, S.I. Arkhipov, considering the issue of legal personality, considers it inappropriate to single out an individual entrepreneur as an independent entity. “Neither civil servants, nor individual entrepreneurs, heads of peasant (farm) enterprises, agents of the state or other persons, nor citizens or foreigners, stateless persons are, in our opinion, independent subjects of law.” The fact of legal registration of a person as an individual entrepreneur or head of a peasant (farm) enterprise, although legally significant, does not, according to Arkhipov, create a new subject of law. The main importance of registration comes down to establishing the moment of a person’s legal capacity in terms of his ability to carry out entrepreneurial activities and participate in entrepreneurial relations. In itself, reaching a certain age is not a sufficient condition for a person to engage in entrepreneurial activity. Arkhipov calls for considering an individual entrepreneur not as an independent subject, but only as a new quality of a citizen, referring to Articles 18 and 23 of the Civil Code of the Russian Federation. According to Article 18 of the Civil Code of the Russian Federation, the ability to engage in entrepreneurial activity is included in the general legal capacity of a citizen. However, in our opinion, a reference to Article 23 of the Civil Code of the Russian Federation in support of this thesis seems inappropriate. Since this article indicates that a citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur. It should be noted that the possibility of engaging in entrepreneurial activity is, of course, included in the content of the legal capacity of citizens, however, in our opinion, it comes down only to the possibility of filing an application for state registration of an individual as an individual entrepreneur. Since after carrying out this procedure, an individual acquires specific rights and obligations that citizens who are not individual entrepreneurs do not have. The legal capacity of an individual entrepreneur, i.e. the opportunity to have civil rights and bear responsibilities in accordance with the activities carried out is not covered, in our opinion, by the framework of general legal capacity. The legal capacity of an individual entrepreneur, as the ability to acquire and exercise rights and obligations through his actions, is also separate in comparison with the legal capacity of individuals. As a general rule, the full legal capacity of individuals arises upon reaching the age of majority, i.e. upon reaching the age of eighteen. However, reaching the specified age cannot indicate that a person is capable of at this moment have the legal capacity of an individual entrepreneur, since the latter appears only from the moment of state registration of a person in the appropriate capacity.

Thus, the problem of identifying an individual entrepreneur as a separate subject of civil law is very acute in the literature and it is not possible to identify a single point of view on this issue, due to the inextricable connection between the status of an individual entrepreneur and the status of an individual.

If we consider the opportunity to engage in entrepreneurial activity only as a significant addition to a person’s civil legal personality, then it should be noted that the influence of this opportunity on the civil legal personality of an individual is so great that it forces us to reconsider some seemingly immutable rules. Such familiar and stable guidelines in determining the legal status of a person and his legal capabilities are lost. For example, the statement that a citizen’s legal capacity does not fully arise from the moment of majority, i.e., begins to make sense. reaching the age of eighteen. Indeed, if we consider that the right to engage in entrepreneurial activity is an element of the general legal capacity of an individual, then, accordingly, by his actions, a person must acquire this right from the moment his legal capacity arises in full. However, the law establishes that a person acquires the right to engage in entrepreneurial activity not from the moment he reaches the age of majority, but from the moment of state registration as an individual entrepreneur. Thus, if we take the opportunity to engage in entrepreneurial activity as an element of a person’s general legal capacity, then full legal capacity does not occur from the moment of majority. Moreover, in this case, full legal capacity may not arise at all if the person does not show a desire to engage in entrepreneurial activity as an individual entrepreneur. Thus, through logical reasoning, we come to the conclusion that the right to engage in entrepreneurial activity within the framework of general legal capacity looks like a kind of foreign body. The right to engage in entrepreneurial activity is not just another opportunity acquired by citizens. The content of this right is perhaps richer than the content of all other rights known from Article 18 of the Civil Code of the Russian Federation. Engagement in entrepreneurial activity presupposes the ability of a citizen to be an owner, enter into contracts, create legal entities, and be a subject exclusive rights on results intellectual activity etc. This right in its structure is quite comparable to legal capacity in general.

Legislation twice allows a citizen, on his initiative, to acquire full legal capacity early: marriage and emancipation. At the same time, one of the grounds for emancipation is that a person engages in entrepreneurial activity. Thus, we see that a person is able to carry out entrepreneurial activities on the basis of state registration until he reaches the age of eighteen, from which full legal capacity arises. However, such persons encounter significant obstacles on the way to realizing their rights. For state registration of a person under eighteen years of age, a notarized consent of parents, adoptive parents or a guardian to carry out entrepreneurial activities is required. The obstacle is, in principle, surmountable, but much in this case depends on the legal representatives, and not just on the will of the minor himself. In other words, if legal representatives do not agree that a person carries out entrepreneurial activities, it will not be possible to exercise this right before reaching adulthood.

Let us summarize some of the above discussions.

The legal capacity of an individual entrepreneur is associated with the moment of state registration of an individual in this capacity, which allows us to raise the question of classifying him into the category of artificial subjects of civil law, which are legal entities. However, we should not forget that an individual entrepreneur is, first of all, an individual who is a natural subject of civil law. Thus, an individual entrepreneur cannot be completely classified into any of these categories. The question arises of distinguishing it as a separate subject of civil law. There is an opinion in the literature that this is neither possible nor advisable due to the fact that the right to engage in entrepreneurial activity is included in the general legal capacity of an individual. However, we take a different position, arguing that with the emergence of full legal capacity, as the ability to acquire rights and create obligations, the legal capacity and legal capacity of an individual entrepreneur does not arise. The legislator associates their occurrence with additional actions. Therefore, in Article 18 of the Civil Code of the Russian Federation, it would be more appropriate to replace the words “engage in entrepreneurial activity” with the words “apply to the registration authority for the purpose of registering as an individual entrepreneur.” In our opinion, it is the right to apply to the registration authority that can be considered as an element of the general legal capacity of individuals, and not the right to carry out entrepreneurial activities itself. This right is exclusively possessed by an individual entrepreneur; in our opinion, it constitutes the content of his legal capacity. Of course, by registering as an individual entrepreneur, a citizen does not cease to be an individual and does not lose his legal personality. At the same time, in certain legal relations he acts as an independent subject with a different legal status. Here we are faced with the fact that essentially two different legal statuses are combined in one person. This is a kind of fiction when one person is essentially two different subjects of civil law.

Thus, with the above reasoning we supplement the original classification of subjects of civil law. Above we accepted the nature of their origin as the basis for classification. The nature of the origin of such a subject as an individual entrepreneur seems to be mixed, due to which such a subject is allocated to a separate group.

2.3. Termination of the legal status of an individual entrepreneur.

In accordance with the structure of studying the problems of a subject of civil law, which we defined above, at this stage we should move on to the issue of the cessation of the existence of an individual entrepreneur as a subject of civil law.

There are six circumstances of a subjective and objective nature, in the presence of which the registering authority makes a decision on state registration when an individual ceases to operate as an individual entrepreneur, namely in connection with:

· with the entrepreneur himself making a decision to terminate this activity;

· with the death of an individual entrepreneur;

· with a court decision declaring an entrepreneur insolvent (bankrupt);

· with compulsory termination of business activity by a court decision;

· with the entry into force of a court verdict, which sentences an individual entrepreneur in the form of deprivation of the right to engage in entrepreneurial activity for a certain period;

with the cancellation of a document confirming the right of an entrepreneur ( foreign citizen or stateless persons) temporarily or permanently reside in the Russian Federation, or the expiration of the specified document.

Within the framework of the issues we are considering of an individual entrepreneur as a separate subject of civil law, it is advisable to analyze each of these circumstances. At the same time, it is important to remember with what events the legislator associates the cessation of existence of such subjects of civil law as legal entities and individuals. We touched on this issue above. The legal capacity of an individual is terminated due to only one circumstance – death. The legal capacity of a legal entity terminates at the moment an entry is made about its exclusion from the unified state register of legal entities. The grounds for making such an entry are: liquidation and insolvency (bankruptcy) of a legal entity. A legal entity may be liquidated:

· by decision of its founders (participants) or a body of a legal entity authorized by the constituent documents, including in connection with the expiration of the period for which the legal entity was created, with the achievement of the purpose for which it was created. In other words, in order of self-destruction;

· by a court decision in the event of gross violations of the law committed during its creation, if these violations are irreparable, as well as for other reasons related to the violation of the law.

Comparing the listed circumstances leading to the termination of the status of a legal entity and an individual with similar ones for an individual entrepreneur, we can again see confirmation of its duality, its mixed nature of origin. It is significant for us that the status of an individual entrepreneur is terminated due to the death of an entrepreneur, similar to the termination of the status of an individual. Other circumstances, one way or another, demonstrate the connection between an individual entrepreneur and a legal entity. The law provides for the possibility, both for legal entities and individual entrepreneurs, of voluntary termination of status. The differences lie only in the procedure for such termination.

Speaking about the voluntary termination of the status of an individual entrepreneur, it is important to note that the law does not provide for the possibility of temporary termination of this status, due to the fact that the entrepreneur, for some reason, does not carry out business activities for some time. Since it is as a result of state registration that a citizen becomes an individual entrepreneur (this is confirmed by the issuance of an appropriate certificate), an individual cannot even temporarily “lose” the acquired status without canceling the state registration itself. If an entrepreneur has not submitted an application for termination of his status to the registration authority in accordance with the procedure established by law, then he retains his status with all the ensuing rights and obligations. As mentioned above, the legislation does not establish a procedure for temporary termination of a registration certificate.

The sign of bankruptcy of an individual entrepreneur is contained in the Civil Code of the Russian Federation. Such a sign is the inability of an individual entrepreneur to satisfy the demands of creditors related to his business activities. A sign of bankruptcy of a legal entity includes the inability to satisfy the claims of creditors for monetary obligations and (or) to fulfill the obligation to make mandatory payments, if the corresponding obligations and (or) obligations are not fulfilled by it within three months from the date on which they should have been fulfilled. It is important to note that both legal entities and individual entrepreneurs can be declared bankrupt only by a court decision. The procedure for declaring an individual entrepreneur bankrupt and the order of satisfaction of creditors' claims is established in Article 25 of the Civil Code of the Russian Federation. A similar procedure concerning legal entities is provided for by the Federal Law “On Insolvency (Bankruptcy)” dated October 26, 2002 No. 127-FZ.

In addition to termination of the status of an individual entrepreneur, the consequences of declaring an individual entrepreneur bankrupt include a restriction on subsequent registration as an individual entrepreneur for a period of one year.

An individual (citizen) under current legislation can also be declared bankrupt on similar grounds. The procedure for declaring a citizen bankrupt, the grounds for such recognition, and its consequences are regulated by the above-mentioned Law No. 127-FZ.

At the same time, it is important for us to pay attention to the fact that, despite the fact that the rules on bankruptcy of an individual entrepreneur and a citizen are in this Federal Law in one chapter, they are distributed across different paragraphs, which, one way or another, indicates the different legal status of these data subjects.

We are not faced with the task of a detailed study of the bankruptcy procedure as a circumstance leading to the termination of the status of an individual entrepreneur. Within the framework of the issue in the field of our study, we must conclude that in the issue of termination of the status of an individual entrepreneur, the duality of its origin is manifested. And at this stage, it is associated, first of all, with the fact that the status of an individual entrepreneur ceases with the death of a citizen, which is completely out of the question when considering the institution of a legal entity.

HEAD OF A PEASANT (FARMER) FARM AS A SUBJECT OF CIVIL LAW

Let us analyze the legal status of the peasant (farm) economy.

The RSFSR Law of November 22, 1990 “On Peasant (Farm) Economy” defined a peasant (farm) economy as an independent economic entity with the rights of a legal entity, represented by an individual citizen, family or group of other persons engaged in the production, processing and sale of agricultural products on the basis use of property and land plots in their use, including lease, lifelong inheritable possession or ownership.

The situation has changed somewhat after the entry into force of Part 1 of the Civil Code of the Russian Federation, which not only does not consider peasant (farm) farming as an organizational and legal form of legal entities - commercial organizations, but also directly classifies these farms, or rather their heads, by status as a different category subjects of civil law to individual entrepreneurs. At the same time, such a change in the status of a peasant farm could not lead to any significant civil consequences, since, according to Part 3 of Article 23, the rules that regulate the activities of commercial organizations apply to the entrepreneurial activities of the head of a peasant (farm) farm as an individual entrepreneur.

The legal status of the head of a peasant (farm) enterprise is currently regulated by the Civil Code of the Russian Federation, as well as the special Federal Law “On Peasant (Farm) Economy” dated June 11, 2003 No. 73-FZ.

In accordance with this Federal Law, a peasant (farm) enterprise is an association of citizens related by kinship and (or) property, having property in common ownership and jointly carrying out production and other economic activities (production, processing, storage, transportation and sale of agricultural products), based on their personal participation.

For us, within the framework of the topic under consideration, the head of a peasant (farm) enterprise will be of interest as an individual entrepreneur, and, accordingly, as an independent subject of civil law.

Traditionally, we will begin our consideration of the issue that interests us from the moment of the emergence of the legal personality of the head of a peasant (farm) enterprise. A peasant (farm) enterprise is considered created from the date of its state registration in the manner established by law. It is important to note that the law does not provide for a separate procedure for state registration of the head of such an enterprise. He acquires the status of an individual entrepreneur from the moment of state registration of the peasant (farm) enterprise. The difference between the legal status of the head of a peasant (farm) enterprise and the individual entrepreneur, which we considered in the previous chapter, is that the head of the enterprise does not conduct his own individual entrepreneurial activity, separate from other members of the enterprise.

The head of a farm must act in the interests of the farm he represents in good faith and wisely and does not have the right to take actions that infringe on the rights and legitimate interests of the farm and its members.

Thus, despite the fact that the head of a peasant (farm) enterprise is an individual entrepreneur, the legal nature of his origin is very specific. This is of course connected with the development of ideas about peasant (farming) farming, and with the specifics of the activities carried out by the head of this farm. However, we are still talking about the fact that the head of a peasant (farm) enterprise acts as an individual entrepreneur.

Let us summarize: the basis for the emergence of the legal status of an individual entrepreneur for the head of a peasant (farm) enterprise is the state registration of the peasant (farm) enterprise. Accordingly, he can no longer be considered a natural subject of law, like an individual. However, we cannot classify him as an artificial entity (legal entity) due to the fact that the head of the farm is, first of all, an individual. Thus, we conclude that by its origin, by its nature, the head of a peasant (farm) enterprise belongs to mixed entities. Those. We, following the legislator, come to the conclusion that the head of the peasant (farmer) is an individual entrepreneur. Since in our previous discussions we said that an individual entrepreneur is an independent subject of law, and the head of a peasant (farm) enterprise is an individual entrepreneur, then the conclusion suggests itself that the head of a peasant (farm) enterprise is an independent subject of civil law who cannot be classified as neither individuals nor legal entities. However, it is important to understand that the head of a peasant (farm) enterprise acts as an independent subject of civil law insofar as he is an individual entrepreneur.

Its significant features can be highlighted when considering the issue of termination of the status of the head of a peasant (farm) enterprise.

The Federal Law “On Peasant (Farm) Economy” provides the following reasons termination of a farm, with which the legislator associates the termination of the status of its head as an individual entrepreneur:

1) unanimous decision of the members of the farm to terminate the farm;

2) the absence of members of the farm or their heirs who want to continue the activities of the farm (a kind of “natural liquidation”);

3) insolvency (bankruptcy) of the farm;

4) creation of a production cooperative or business partnership based on the property of a farm (reorganization);

5) a court decision to terminate the activities of a peasant (farm) enterprise.

In addition, for this type of individual entrepreneur, the law provides for the possibility of changing it, which also entails termination of the status of an individual entrepreneur. The reasons for such a change are:

· the inability of the head of the farm to perform his duties for more than six months;

· death of the head of a peasant (farm) enterprise;

· voluntary renunciation of the head of the farm from his powers.

Thus, we can conclude that the legal status of the head of a peasant (farm) household is also characterized by the duality that we discussed above. This is evident both from the moment of determining the beginning of action as the head of the household and from the grounds for the termination of his legal personality. We have already touched upon this issue above, when considering the problems of an individual entrepreneur as a subject of civil law.

The possibility of changing the head of the peasant (farmer) seems interesting due to his inability to fulfill his duties for more than six months. In our opinion, this is due, first of all, to the special role of the head of the peasant (farm) enterprise, since he organizes the activities of the entire farm and acts not only in his own interest, but also in the interest of the peasant (farm) enterprise he represents. Otherwise, the grounds for terminating the legal personality of the head of a peasant (farm) enterprise, in a slightly modified form, are identical to the grounds for terminating the legal personality of two basic groups of subjects: individuals and legal entities. But it is important to remember that we classify the head of a peasant (farm) enterprise as an individual entrepreneur into a separate group due to the fact that for him there are simultaneously inherent grounds for termination of the legal personality of both individuals and legal entities.

JUDICIAL PRACTICE IN CASES INVOLVING INDIVIDUAL ENTREPRENEURS

1) During an on-site tax audit on the issue of compliance by individual entrepreneur N. (hereinafter referred to as the entrepreneur) with tax legislation, the correctness of calculation and payment of value added tax to the budget, the Inspectorate of the Ministry of the Russian Federation for Taxes and Duties for the city of Birobidzhan, Jewish Autonomous Region (currently time - the Inspectorate of the Federal Tax Service for the city of Birobidzhan, Jewish Autonomous Region, hereinafter - the inspection) came to the conclusion that the entrepreneur violated the provisions of Article 143, subparagraph 1 of paragraph 1 of Article 146 of the Tax Code of the Russian Federation (hereinafter - the Code), expressed in unlawful non-calculation in 2001 value added tax on turnover on sales of services.

These violations served as the basis for the inspectorate to make a decision to bring the entrepreneur to tax liability in accordance with paragraph 1 of Article 122 of the Code in the form of a fine of 44,079 rubles for non-payment of value added tax in 2001. In addition, the entrepreneur was asked to pay 220,396 rubles in value added tax and 119,609 rubles in penalties to the budget.

Since the requirement for the entrepreneur to pay the amount of the tax sanction voluntarily was not fulfilled, the inspectorate applied to the Arbitration Court of the Jewish Autonomous Region with an application to collect a fine from him. During the consideration of the case in the court of first instance, the inspectorate increased the amount of the stated claim to 384,084 rubles, including the amount of value added tax and penalties to be collected according to the decision.

In an application submitted to the Supreme Arbitration Court of the Russian Federation for a supervisory review of the decision of the first court and the decisions of the courts of appeal and cassation, the entrepreneur asks to cancel them, citing the incorrect application by the courts of the provisions of the Code, which resulted in a violation of uniformity in the interpretation and application of the law.

The Presidium believes that the appealed judicial acts are subject to cancellation with the adoption of a new decision to refuse the inspection to satisfy the stated requirement on the following grounds.

According to paragraph 5 of Article 173 of the Code, which was in force in this edition until 01/01/2002, the amount of value added tax payable to the budget is calculated by the following taxpayers if they issue an invoice to the buyer highlighting the amount of this tax:

taxpayers exempt from fulfilling taxpayer obligations related to the calculation and payment of tax in accordance with Article 145 of the Code;

taxpayers applying the exemption from taxation of transactions provided for in Article 149 of the Code.

Amendments to paragraph 5 of Article 173 of the Code, as a result of which the obligation to transfer value added tax to the budget is assigned to persons who are not its payers, were introduced by Federal Law No. 57-FZ of May 29, 2002 and apply to legal relations that arose from January 1, 2002 .

The entrepreneur paid a single tax on imputed income in 2001 and was not recognized as a payer of value added tax by virtue of Article 1 of Federal Law No. 148-FZ of July 31, 1998 “On the single tax on imputed income for certain types of activities.”

Thus, the entrepreneur was not obliged to transfer to the budget the value added tax received from the buyer in 2001. Consequently, liability could not be applied to him in accordance with Article 122 of the Code, since this type of tax liability is applicable in the case under consideration only to the payer of value added tax, while the entrepreneur was not a payer of this tax during the disputed period.

Penalties as a measure to ensure the fulfillment of the obligation to pay taxes (fees) are applied to taxpayers (payers of fees) and tax agents and cannot be applied to persons who are not recognized as payers of value added tax if they violate the requirements of paragraph 5 of Article 173 of the Code.

The Presidium considers it erroneous that the courts referred to the provisions of Article 145 of the Code, since this norm established in 2001 the procedure for exempting organizations and individual entrepreneurs from fulfilling the duties of a value added tax payer related to the calculation and payment of tax, if for three previous consecutive calendar months the amount of revenue from sales of goods (work, services) of these organizations or individual entrepreneurs, excluding value added tax and sales tax, did not exceed in the aggregate one million rubles (as amended by Federal Law No. 166-FZ of December 29, 2000).

For entrepreneurs who have been transferred to a special tax regime and are not recognized as payers of value added tax, the specified application procedure for tax exemption does not apply.

This court case demonstrates the special legal personality of an individual entrepreneur as an independent subject of civil law.

2) Entrepreneur M filed a claim with the Arbitration Court of the Volgograd Region against the Health Committee of the Administration of the Volgograd Region to invalidate the decision of the Licensing and Certification Commission medical activities, by which the plaintiff was deprived of a license to engage in medical activities, the defendant’s obligation to publish a notice in newspapers about the cancellation of the unlawful decision, as well as the recovery of damages from him in the form of lost profits and compensation for moral damage. By court decision claims partially satisfied. The claim was denied regarding compensation for moral damage.

The decision of the appellate instance was overturned and the claim was completely rejected.

As follows from the case materials, the reason that served as the basis for deprivation of the license to carry out medical activities of entrepreneur M, who is a private practitioner, was the plaintiff’s violation of the terms of its validity, expressed in the admission to the provision of dental medical care to another individual.

Meanwhile, according to Article 56 of the “Fundamentals of the Legislation of the Russian Federation on the Protection of Citizens’ Health,” persons who have received a diploma of higher or secondary medical education, a specialist certificate and a license for the chosen type of activity have the right to engage in private medical practice.

Clause 11 of the Regulations on Licensing of Medical Activities prohibits the transfer of a license to another legal entity or individual.

Based on the meaning of these norms, the right to engage in private medical practice is purely individual, and the validity of a private practitioner’s license cannot be extended to other persons. Thus, one of the basic conditions for the license of a private practitioner is the provision of medical care personally and directly, but the admission of this doctor to another person to carry out medical activities is a violation of the terms of the license.

This case clearly demonstrates our reasoning that the right to engage in entrepreneurial activity cannot be considered within the framework of the general legal capacity of individuals. Moreover, to engage in certain types of entrepreneurial activities, essential conditions must be present, such as: special education and a license. Thus, the emergence of the legal personality of a person as an individual entrepreneur is not identical to the moment of emergence of the person’s full legal capacity (the age of majority). Due to the specifics of a certain type of entrepreneurial activity, a person upon reaching the age of eighteen may not have the right not only to engage in this activity, but also to submit documents for registration, since he will not have the appropriate education.

3) Citizen K. appealed to the Arbitration Court of the city of Moscow with an application to recognize as illegal the evasion of the Interdistrict Inspectorate of the Ministry of the Russian Federation for Taxes and Duties N 46 for the city of Moscow (currently - the Interdistrict Inspectorate of the Federal Tax Service N 46 for the city of Moscow; hereinafter - the registering body) from making an entry about him into the Unified State Register of Individual Entrepreneurs (hereinafter referred to as the state register) and the obligation of the registering authority to make a corresponding entry in the state register.

By decision of the Moscow Arbitration Court, the stated requirements were satisfied.

By the decision of the Ninth Arbitration court of appeal The decision of the court of first instance was left unchanged.

Federal arbitration court The Moscow District, by decree, canceled the above-mentioned judicial acts and refused to satisfy the stated demands.

In an application submitted to the Supreme Arbitration Court of the Russian Federation for a supervisory review of the ruling of the cassation court, K. asks to cancel it, citing a violation by the judicial act of uniformity in the interpretation and application of the rules of law by arbitration courts.

In the response to the application, the registration authority requests that the contested judicial act be left unchanged as consistent with current legislation.

Having checked the validity of the arguments set out in the application, the response to it and the speeches of the representatives of the persons participating in the case present at the meeting, the Presidium considers that the contested decision of the cassation court is subject to cancellation, and the decision of the court of the first instance and the decision of the appellate court are to be left unchanged for the following reasons .

In accordance with Article 3 of the Federal Law of June 23, 2003 N 76-FZ "On Amendments and Additions to the Federal Law "On State Registration of Legal Entities" (hereinafter referred to as the Federal Law of June 23, 2003 N 76-FZ) an individual registered in as an individual entrepreneur, before the entry into force of this Federal Law (before 01/01/2004), before 01/01/2005, he is obliged to submit documents and information to the registering authority at his place of residence in order to make an entry about him in the state register. The list of necessary documents specified in this article is indicated. document confirming state registration of this person as an individual entrepreneur.

In accordance with the above requirements, K. applied to the registration authority with an application to make an entry about him in the state register, presenting as a document confirming his status as an individual entrepreneur, certificate of the Moscow Registration Chamber dated April 13, 1999 N 77: 7: 01254, issued to until April 1, 2004.

The registration authority refused to make an entry in the state register, citing the loss of K.’s status as an individual entrepreneur on the day of his application to the registration authority due to the expiration of the state registration certificate.

The courts of the first and appellate instances, recognizing the registration authority’s refusal as unlawful, proceeded from the fact that in accordance with the Federal Law of 08.08.2001 N 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs” (hereinafter referred to as the Federal Law of 08.08.2001 N 129-FZ) the expiration of the certificate of state registration as an individual entrepreneur is not a basis for the termination of activities by an individual in such a capacity.

The cassation court overturned the decision of the first court and the decision of the appellate court and refused to satisfy the stated demands, making the following conclusion: by the time K. applied to the registration authority, the validity of his certificate of state registration as an individual entrepreneur had expired, therefore his status as an entrepreneur was lost and the registration authority had no grounds for making an entry in the state register in the manner provided for in Article 3 of Federal Law No. 76-FZ of June 23, 2003.

This conclusion of the cassation court is erroneous.

K. is registered as an individual entrepreneur operating without forming a legal entity, on the basis of the RSFSR Law of December 7, 1991 N 2000-1 “On the registration fee for individuals engaged in entrepreneurial activities and the procedure for their registration.” According to the certificate issued by the Moscow Registration Chamber, the validity period of state registration is set until 04/01/2004.

This Law, which provided for state registration as an individual entrepreneur for a certain period, became invalid on January 1, 2004 due to the adoption of the Federal Law of December 8, 2003 N 169-FZ “On amendments to certain legislative acts of the Russian Federation, as well as on recognition as lost force of legislative acts of the RSFSR".

Article 22.3 of the Federal Law of 08.08.2001 N 129-FZ (as amended in force on 01.01.2004) does not provide for the expiration of registration as an individual entrepreneur as one of the grounds for termination by an individual of entrepreneurial activity without forming a legal entity.

In accordance with Article 3 of the Federal Law of June 23, 2003 N 76-FZ, in the event of failure by an individual registered as an individual entrepreneur before the entry into force of this Law, the obligation provided for by this article to provide the necessary documents and information to the registering authority, state registration of this person as an individual entrepreneur becomes invalid as of 01/01/2005.

Since on the day Federal Law No. 76-FZ of June 23, 2003 came into force, citizen K. had the status of an individual entrepreneur and before January 1, 2005 he submitted necessary documents and information, the registering authority had no legal grounds for refusing to make an entry in the state register on the grounds that he lost his status as an individual entrepreneur due to the expiration of his registration in this capacity.

This case demonstrates the moment of termination of the legal personality of an individual entrepreneur, namely, the fact that the expiration of registration as an individual entrepreneur is not provided for as one of the grounds for termination by an individual of entrepreneurial activity without forming a legal entity.

CONCLUSION

At the beginning this study Our goal was to answer the question about the possibility of distinguishing an individual entrepreneur as a separate subject of civil law. To achieve this goal, we examined the concept of an individual entrepreneur, the emergence and essence of his legal status, the termination of the legal status of an entrepreneur, the problems of the legal status of the head of a peasant (farm) enterprise as an individual entrepreneur.

When studying different views on the basis for the classification of subjects of law, we took the nature of origin (natural and artificial subjects) as the initial basis. Considering the legal status of an individual entrepreneur, we came to the conclusion that due to his special dual position, he cannot be completely attributed to any of the groups we have identified, therefore, according to our classification, he stands apart as a kind of mixed entity.

Consideration of the right to engage in entrepreneurial activity within the framework of the general legal capacity of individuals is inappropriate, since the full legal capacity of an individual, i.e. The ability to acquire and exercise rights and bear responsibilities through one’s actions, as a general rule, occurs from the moment a person reaches the age of eighteen. The emergence of legal capacity determines the ability of a person to fully exercise the rights that are part of the legal capacity of an individual. However, reaching age in itself does not create for a person the rights and obligations of an individual entrepreneur. Upon reaching the age of majority, a person only acquires the right to apply to the registration authority with the appropriate application for state registration as an individual entrepreneur. Thus, it seems appropriate to us to add to Art. 18 of the Civil Code of the Russian Federation changes, namely the words “engage in entrepreneurial activity” with the words “apply to the registration authority for registration as an individual entrepreneur.” Since, in our opinion, based on the meaning of the legislation, only this right arises in a person from the moment of full legal capacity. Not the subjective rights and obligations associated with the implementation of entrepreneurial activities, but only the right to obtain the status of an individual entrepreneur. Here you should not confuse the right to obtain a status and the right to act in this status.

In addition, the law does not have a legal definition of the term individual entrepreneur. It is advisable to consolidate, if not the definition, then at least the characteristics of an individual entrepreneur in a separate article of the Civil Code.

An individual entrepreneur is an individual who has the legal status of an individual entrepreneur in accordance with state registration in this capacity, carries out business activities and has a set of rights and obligations determined by the specifics of the activity, capable of being a plaintiff and defendant in court.

Considering the issues of the legal status of the head of a peasant (farm) enterprise, through simple logical reasoning, we came to the conclusion that he is an individual entrepreneur, although there are significant features in his legal status as a subject of civil law.

The duality of the very essence of an individual entrepreneur is manifested at all stages of the study of his legal personality, which makes it impossible to attribute him to any of the currently existing groups of subjects of civil law. Thus, they should be separated into an independent group of subjects of civil law.

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Windshade. Textbook of pandic law. T.1. General part. St. Petersburg, 1874. P. 108.

Iering R. Purpose in law. SPb., T. 1. 1881 P. 337.

Bratus S.N., Ioffe O.S. Civil law, M,: Knowledge 1967. 159p.

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 14, 2006 N 11670/05 in case N A16-1432/2004-1

Resolution of the Presidium of the Supreme Arbitration Court of September 31. 1999 No. 422/99 // Judicial practice in economic cases, M,: Jurisprudence, 2001. 624s.

And receive profit from its activities or engage in individual activities without forming a legal entity.

In accordance with Article 23 of the Civil Code of the Russian Federation, a citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur. Any citizen has the right to conduct business, but not every citizen is able to exercise this right.

• Legal capacity(the ability to have civil rights and bear responsibilities)
• Legal capacity(the ability to acquire and exercise civil rights through one’s actions)
• Have a place of residence(the place where the citizen resides permanently or primarily).

Only capable citizens can carry out entrepreneurial activities, that is, those who are able to independently perform legal actions, conclude and execute them, acquire property and own, use and dispose of it. As a general rule, civil capacity arises in full from the onset of adulthood (on reaching 18 years of age).

The status of an individual entrepreneur is acquired as a result of state registration citizen as an individual entrepreneur.

An unjustified refusal of state registration may be appealed by a citizen in an arbitration court. Refusal of state registration of an entrepreneur is allowed only in cases of discrepancy between the composition of the submitted documents and the composition of the information contained in them with the requirements of the Regulations on the procedure for state registration of business entities (No. 1482).

Property disputes between citizens registered as individual entrepreneurs, as well as between these citizens and legal entities are permitted arbitration courts, with the exception of disputes not related to the implementation of entrepreneurial activities by citizens.

An entrepreneur bears increased responsibility, unlike other citizens, since in accordance with the current legislation (Article 401 of the Civil Code of the Russian Federation), a person who fails to fulfill or improperly fulfills an obligation when carrying out business activities bears responsibility regardless of the presence of guilt. Creditors can also make claims against an individual entrepreneur for obligations not related to business activities (causing harm to the life, health or property of citizens or legal entities, collecting alimony, etc.).

An entrepreneur (individual) can work in any paid position in any private, state or public organization, unless this work or position is prohibited by law from combining this work with entrepreneurship. Unlike legal entities, the property of individual entrepreneurs, which constitute objects of commercial activity, can be passed on by inheritance and by will. But the right to engage in entrepreneurial activity does not pass by inheritance.

Individuals carrying out business activities without registration bear liability, including criminal liability, in accordance with the legislation of the Russian Federation. All income received from such activities is subject to collection to the state.

Commercial activity without forming a legal entity

Two groups of commercial entities

• citizens or individuals;
• legal entities.

The law establishes equal treatment of citizens and legal entities in determining their rights and obligations, in determining any conditions for doing business (commerce, entrepreneurship) that do not contradict the law.

The concept of an individual entrepreneur

Individual entrepreneur- a citizen engaged in entrepreneurial (commercial) activities without forming a legal entity.

A citizen can act in the market as an individual entrepreneur only from the moment of his state registration.

An independent type of individual entrepreneur is the head of a farm operating without forming a legal entity, who is also recognized as an individual entrepreneur from the moment of state registration of his farm.

Basic rights and obligations of an individual entrepreneur

• the right to create legal entities independently or jointly with other persons;
• are obliged to answer for their obligations with all their property;
• may be declared bankrupt by a court decision.

For activities carried out without forming a legal entity, the rules governing the activities of legal entities apply.

Associations of individual entrepreneurs

Engaging in entrepreneurial activity without forming a legal entity is possible not only by individual entrepreneurs, but also by their associations. Such an association is possible only on the basis of a simple partnership agreement. Under a simple partnership agreement, two or more persons pool their contributions and act together without forming a legal entity to make a profit or achieve another goal.

• common goal;
• connection of deposits of individual entrepreneurs;
• joint activities to achieve the set goal.

When conducting common affairs, each partner has the right to act on behalf of all partners, unless the terms of the agreement provide for other conditions. Moreover, in relations with third parties, the authority of a partner to make transactions on behalf of all partners is certified by a power of attorney issued to him by the other partners.

Partners bear joint liability for all common obligations, regardless of the grounds for their occurrence. Moreover, even if a person ceased his participation in the agreement, but the agreement between the remaining partners was not terminated, he is liable to third parties for general obligations that arose during the period of his participation in the agreement.

Types of individual entrepreneurs.

Bankruptcy (insolvency) of an individual entrepreneur.

An individual entrepreneur may be declared bankrupt if he is unable to satisfy the demands of creditors for monetary obligations or fulfill obligations for mandatory payments within three months from the date of their execution and if the amount of his obligations exceeds the value of his property.

Insolvency (Bankruptcy) of an individual entrepreneur

An individual entrepreneur may be declared bankrupt by decision of the arbitration court in the event that he is unable to satisfy the claims of creditors related to his business activities. Also, an individual entrepreneur can voluntarily officially declare bankruptcy.

The grounds and procedure for recognizing an individual entrepreneur are established by Federal Law No. 127 “On Insolvency (Bankruptcy).

The basis declaring an individual entrepreneur bankrupt is his inability to satisfy the demands of creditors for monetary obligations or to fulfill the obligation to make mandatory payments.

Statement declaring an individual entrepreneur bankrupt can be filed by the debtor, creditor, tax and other authorized authorities for requirements for mandatory payments.

The entrepreneur is considered bankrupt and his registration as an individual entrepreneur loses force from the moment the arbitration court makes a decision to declare the individual entrepreneur insolvent and to open bankruptcy proceedings. The entrepreneur's licenses issued to him are revoked.

Out of court An entrepreneur is considered bankrupt after he officially declares his bankruptcy in the “Bulletin of the Arbitration Court of the Russian Federation” and the official publication of the state body for bankruptcy cases.

The debtor's declaration of bankruptcy and its liquidation shall indicate the period for filing claims of creditors and objections of creditors against the liquidation of the debtor, which cannot be less than two months from the date of publication of the said announcement.

Individual entrepreneur, declared bankrupt, cannot be registered as an individual entrepreneur within one year from the moment he was declared bankrupt.

The arbitration court sends a copy of the decision to declare the individual entrepreneur bankrupt and to open bankruptcy proceedings to the body that registered the citizen as an individual entrepreneur, and also forwards the decision to all known creditors.

Creditors' requirements Individual entrepreneurs are satisfied in accordance with the priority established by law at the expense of the property belonging to him, with the exception of property that cannot be foreclosed on in accordance with Federal Law No. 229 “On Enforcement Proceedings”.

The claims of creditors of each subsequent priority are satisfied after the last satisfaction of the claims of the creditors of the previous priority. If the amount is insufficient to fully satisfy all the claims of creditors of one priority, these claims are satisfied in proportion to the amount of recognized claims of each creditor of this priority.

After completing settlements with creditors, an individual entrepreneur declared bankrupt is considered free from fulfillment of remaining obligations related to his business activities, even if they were not declared to the arbitration court. Also considered repaid, regardless of whether they were actually satisfied, are claims for other obligations not related to business activities that were presented and taken into account by the court when declaring an individual entrepreneur bankrupt.

Exception made only for requirements on compensation for harm caused to life and health, and others personal requirements, which remain in force regardless of whether they were presented during the bankruptcy procedure, in the event that they remained unsatisfied.

Upon completion of the bankruptcy procedure, the bankrupt loses the validity of his registration as an individual entrepreneur and all subsequent disputes from that moment are resolved in the courts of general jurisdiction.

Small businesses in Russia enjoy special benefits intended only for them. The state is trying to reduce the tax and administrative burden of small businesses, receiving in return an increase in employment and a decrease in social tension. What does the definition of “small businesses” mean and who belongs to them in 2020?

A small business entity is a Russian commercial organization or individual entrepreneur that aims to make a profit. This category also includes:

• peasant (farm) farms;
• production and agricultural cooperatives;
• business partnerships.

A non-profit organization, as well as a unitary municipal or state institution is not a small business entity.

Who are SMEs?

The criteria for classification as small businesses in 2020 are established by the state. The main requirements, subject to which it is possible to classify a businessman as a small and medium-sized enterprise (SME), relate to the number of employees and the amount of income received. Who is the SME, i.e. refers to small businesses, defined by law dated July 24, 2007 N 209-FZ in Article 4. Let’s consider these criteria taking into account innovations.

Thanks to the amendments made to Law No. 209-FZ, more enterprises and individual entrepreneurs can be classified as small businesses.

• The maximum allowable amount of annual revenue excluding VAT for the previous year for micro-enterprises increased from 60 to 120 million rubles, and for small enterprises - from 400 to 800 million rubles.
• The permitted share of participation in the authorized capital of a small enterprise of other commercial organizations that are not small and medium-sized businesses has increased - from 25% to 49%.

But the permissible average number of employees has not changed: no more than 15 people for micro-enterprises and no more than 100 people for small enterprises.

For individual entrepreneurs, the same criteria for dividing into business categories apply: according to annual revenue and number of employees. If an individual entrepreneur does not have employees, then his SME category is determined only by the amount of revenue. And all entrepreneurs working only on the patent taxation system are classified as micro-enterprises.

The period during which a businessman continues to be considered a SME has been extended, even if he has exceeded the permissible limit on the number of employees or revenue received. Before 2016 it was two years, and now it’s three. For example, if the limit was exceeded in 2017, then the organization will lose the right to be considered small only in 2020.

What to do in a situation where the status of a small enterprise is lost due to reaching the previously existing limit of 400 million rubles, because it is lower than what is currently established? The Ministry of Economic Development believes that after the entry into force of Act No. 702 of the Government of the Russian Federation dated July 13, 2015, such an enterprise can return to the status of a small one if annual revenue does not exceed 800 million rubles.

State Register of SMEs

Effective since mid-2016 Unified register small and medium-sized businesses. The portal of the Federal Tax Service contains a list that includes all small and medium-sized businesses in the Russian Federation. Information about SMEs is entered into the register automatically, based on data from the Unified State Register of Legal Entities, Unified State Register of Individual Entrepreneurs and tax reporting.

The following mandatory information is publicly available:

• name of the legal entity or full name IP;
• TIN of the taxpayer and his location (residence);
• the category that includes small and medium-sized businesses (micro, small or medium-sized enterprise);
• information about activity codes according to OKVED;
• an indication of the presence of a license if the type of activity of the businessman is licensed.

In addition, at the request of a businessman belonging to small and medium-sized businesses, additional information can be entered into the register:

• about manufactured products and their compliance with the criteria of innovative or high-tech;
• on the inclusion of SMEs in partnership programs with government customers;
• on the availability of contracts concluded as a participant in public procurement;
• full contact information.

To transfer this data to the Unified Register, you must log in to the information transfer service using an enhanced qualified electronic signature.

After the formation of the official register, small businesses are no longer required to confirm with documents that they meet this status in order to participate in state support programs. Previously, this required providing annual accounting and tax reporting, a report on financial results, information on the average number of employees.

You can check the information related to small and medium-sized businesses and their accuracy by making a request in the Register for information by TIN or name. If you find that there is no information about you or that it is unreliable, you must send an application to the Registry operator to verify the information.

What does the status of a small business give?

As we have already said, the state creates special preferential conditions for entrepreneurial activity for micro and small businesses, pursuing the following financial and social goals:

• ensure exit from the shadows and self-employment of persons providing services to the population, engaged in small-scale production, working as freelancers;
• create new jobs and reduce social tension in society by increasing the well-being of the population;
• reduce budget expenditures on unemployment benefits, health insurance and pensions for officially unemployed persons;
• develop new types of activities, especially in the field of innovative production that does not require significant costs.

The easiest way to achieve these goals is to make the state registration procedure simple and fast, reducing administrative pressure on business, and reducing the tax burden. In addition, targeted financing in the form of non-repayable subsidies has a positive effect on the activities of start-up entrepreneurs.

The main list of preferences for small businesses looks like this:

1. Tax benefits. Special tax regimes (STS, UTII, Unified Agricultural Tax, PSN) allow you to work at a reduced tax rate. Since 2016, regional authorities have the right to further reduce taxes on UTII (from 15% to 7.5%) and on simplified taxation system Income (from 6% to 1%). On the simplified tax system Income minus Expenses, the opportunity to reduce the rate from 15% to 5% has existed for several years. In addition, from 2015 to 2020, individual entrepreneurs registered for the first time after the regional law on came into force have the right not to pay tax at all for two years under the PSN and simplified tax system regimes.
2. Financial benefits. This is direct financial government support in the form of grants and gratuitous subsidies issued as part of a nationwide program valid until 2020. Financing can be obtained to reimburse leasing costs; interest on loans and credits; to participate in congress and exhibition events; co-financing projects (up to 500 thousand rubles).
3. Administrative benefits. This refers to such relaxations as simplified accounting and cash discipline, supervisory holidays (limiting the number and duration of inspections), the ability to issue urgent requests to employees. employment contracts. When participating in government procurement, there is a special quota for representatives of small businesses - at least 15% of the total annual volume of government and municipal institutions obliged to produce from them. When receiving loans, government guarantors for small businesses act as guarantors.