Business contracts. Regulatory legal regime of entrepreneurship 5 normative agreement in the field of entrepreneurship

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On the subject: Sources of commercial law: the concept, types, the Civil Code of the Russian Federation and the norms of commercial law, the interpretation and application of commercial law norms, the legal regime of entrepreneurship

St. Petersburg 2012

1. The concept of commercial law

2. Sources of commercial law and their types

3. Civil Code of the Russian Federation and regulations. Interpretation and application

4. Regulatory regime of entrepreneurship

Literature

1. The concept of commercial law

Commercial law is a sub-branch of civil law that regulates activities in the field of trade. The subject of commercial law includes the sale and purchase of goods between professional market participants (without the participation of consumers), the registration of commercial legal entities, commercial intermediation relations, the circulation of securities and some other areas.

Commercial law as a science is a type of activity for the development of theoretical knowledge about objects, processes, phenomena of reality. Among the tasks that the science of commercial law is engaged in, one can, in particular, include the development of a methodology for determining and calculating lost profits.

Compensation for losses in the form of lost profits (lost income) is provided for by civil law. However, the law contains only one criterion for determining such losses: measures taken by the creditor to obtain benefits and preparations made for this purpose (paragraph 4 of article 393 of the Civil Code). What should be the evidence base, the law does not define.

In our country, there is a Temporary Method for Determining the Amount of Damage (Losses) Caused by Violations of Economic Contracts (letter of the USSR State Arbitration Court dated December 28, 1990 N C-12 / HA-225). According to this method, lost profit is determined as the difference between the price and the total planned cost of a unit of production, multiplied by the quantity of products not produced or not sold due to the fault of the counterparty.

Unlike other sub-branches of civil law, commercial law is not separated either in the form of a section in the Civil Code of the Russian Federation (like most sub-branches of civil law) or in the form of a separate code (like, for example, family law). The norms of commercial law are dispersed across all sections of the Civil Code of the Russian Federation, as well as in many other laws and regulatory legal acts.

2. Sources of commercial law and their types

Since entrepreneurial activity is mediated both by civil law relations (entrepreneurial relations) and by public law relations (relations on public organization entrepreneurial activity), then the sources of commercial law should be recognized as any external forms of expression of law, containing the norms of both private and public law, intended to regulate entrepreneurial activity.

The source of law is an external form of expression of law, i.e., a set of normative acts that contain rules of law. Sources of commercial law - regulations that express the features of the legal regulation of relations that arise between entrepreneurs or with their participation in connection with the implementation of the latter's entrepreneurial activities. Features of the legal regulation of entrepreneurial activity are expressed in the Civil Code of the Russian Federation and a number of special regulations, for example, the Federal Law "On Joint Stock Companies".

Types of sources of commercial law:

1. International treaties, since their priority over national legislation is provided for in Art. 15 of the Constitution of the Russian Federation.

2. The Constitution of the Russian Federation, which proclaims the basic principles of trade. In particular, the unity of the economic space, support for competition, protection of property, etc.

3. Federal laws, including codified acts - the Civil Code of the Russian Federation, the Merchant Shipping Code of the Russian Federation and many other laws, among which it is impossible to single out special commercial ones, since they also have a general civil character.

4. Decrees of the President of the Russian Federation, resolutions of the Government of the Russian Federation.

5. Business practices. These are the first sources of commercial law. At present, the application of customs is sanctioned (Article 5 of the Civil Code of the Russian Federation) in cases where the necessary norm is absent in the legislation. Custom as a source of law is an established rule, defined in its content, widely used in any area of business, not provided for by law.

6. Documents of judicial and arbitration practice. The recognition of jurisprudence as a source of law is a highly debatable issue, but there are a number of good reasons for this. First, the presence a large number so-called "generalized judicial precedents", expressed in the decisions of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation, as well as in information letters Presidium of the Supreme Arbitration Court of the Russian Federation for lower courts. Secondly, the presence of so-called "rubber" norms, i.e. expressions of an indefinite nature, for example, "care", "prudence", "negligence", "abuse of the right" (Article 10 of the Civil Code of the Russian Federation). Thirdly, often the explanations of the courts on how to apply the law become not an interpretation of the old norm, but the creation of a new norm. An example is the domestic bill of exchange legislation and its interpretation by the courts in resolving disputes.

law commerce shopping

3. Civil Code of the Russian Federation and normative acts. Interpretation and application

The basic document establishing the legal basis for trade is the Civil Code of the Russian Federation. According to Art. 2 of the Civil Code of the Russian Federation civil law:

determines the legal status of participants in civil transactions;

determines the grounds for the emergence and procedure for exercising the right of ownership and other property rights, rights to the results of intellectual activity and equated means of individualization (intellectual rights);

regulates contractual and other circumstances, as well as other property and non-property relations based on equality, autonomy of will and property independence of participants.

The Civil Code of the Russian Federation regulates relations between persons engaged in entrepreneurial activities, or with their participation, defines the legal principles for the functioning of a market economy: inviolability of property, freedom of contract, inadmissibility of interference by anyone and private affairs, equality of various forms of ownership.

The Civil Code of the Russian Federation consists of four parts, each of which, along with general rules, contains special rules aimed at regulating relations between entrepreneurs or with their participation.

Part one of the Civil Code of the Russian Federation contains provisions on the concept of entrepreneurial activity, on individual entrepreneurs and commercial organizations, on commercial representation, on the right of economic management, on the features of concluding, amending and terminating contracts and fulfilling obligations in the field of entrepreneurship. As part of the first part of the Civil Code of the Russian Federation, adopted federal laws on business companies, on production cooperatives, on bankruptcy, on privatization (FZ No. 178-FZ of 07/04/1991), on the securities market and a number of others.

Part two of the Civil Code of the Russian Federation is devoted to certain types of obligations, including obligations in the field of entrepreneurship, in particular, contracts for the supply, contracting, financing against the assignment of a monetary claim, financial lease, agency services, trust management of property, commercial concession, etc.

In part three of the Civil Code of the Russian Federation we find a number of special provisions designed to regulate business relations: on trust management of hereditary property (enterprise, shares in authorized capital, etc.); on the inheritance of the enterprise and the rights associated with participation in business partnerships and companies; on the requirements for the form and content of foreign trade transactions; on the applicable law when creating commercial organizations with the participation of foreign capital, etc.

Part four of the Civil Code of the Russian Federation contains provisions on the specifics of the commercial use of intellectual property, in particular such institutions of commercial law as patent law, the right to a secret of production (know-how), the right to means of individualization of legal entities, goods, works, services and enterprises.

Regulatory legal acts, as a rule, are complex, that is, they contain norms of different branches of law, none of which clearly prevail quantitatively (for example, laws on the securities market (FZ No. 39-FZ of 04/22/1996), on banks (FZ No. 395-1 of December 2, 1990), on bankruptcy (FZ No. 127-FZ of October 26, 2002), etc.) Industry codes are also complex (Civil Code of the Russian Federation, Criminal Code of the Russian Federation, Code of Administrative Offenses of the Russian Federation), which contain norms mainly one branch of law, since in each of them it is possible to find norms (or their accounting) of a different branch of affiliation. In particular, the Civil Code of the Russian Federation contains norms of public law that require individuals to act in accordance with public interests, for example, to carry out certain types of entrepreneurial activities only on the basis of a license (clause 1, article 49 of the Civil Code of the Russian Federation).

It can be argued that, unlike the branch of law, which includes homogeneous norms of law (there are only two such branches: private law and public law), the branch of legislation is always complex, since the normative legal acts that make it up include the norms of different branches of law. This conclusion extends to commercial legislation, thereby determining its nature as a comprehensive legislation.

There can be as many branches of legislation as you like, up to bath and laundry legislation, but such a branch of law does not exist. What in Russian jurisprudence has acquired the stable name of branches of law (state, civil, labor, tax, administrative, criminal, procedural, etc.), in essence, is not branches of law, but branches of legislation. Each of them is represented by a system of complex regulatory legal acts containing norms of private and public law aimed at regulating heterogeneous social relations in a particular area of society: the economy, the social sphere, defense, etc.

Commercial legislation is a set of normative legal acts containing the norms of various branches of law (private and public) that regulate entrepreneurial activity in terms of both its implementation and public organization. The specialization of commercial legislation lies in the legal regulation of business relations and relations related to the public organization of business activities.

Sometimes the concepts of commercial law are divided into private and public.

Private commercial law consists of the rules of law governing business relations, i.e. private relations arising in connection with the implementation of entrepreneurial activities. Features of private law regulation of business relations are embodied in special articles and chapters of the Civil Code of the Russian Federation, as well as in special regulatory legal acts, for example, in the JSC Law (FZ No. 208-FZ of 12/26/1995.). In the process of law enforcement, special rules take precedence over general rules. The general rules and institutions of the Civil Code of the Russian Federation are applied subsidiarily, i.e. when the relationship is not regulated or is not fully regulated by the special norms of the Civil Code of the Russian Federation or another regulatory legal act.

Public commercial law consists of the rules of law governing relations arising in connection with state regulation and control of entrepreneurial activity.

Sources of commercial law are also generally recognized principles and norms of international law, international treaties Russian Federation, which, according to part 4 of Art. 15 of the Constitution of the Russian Federation and art. 7 of the Civil Code of the Russian Federation are integral part Russian legal system. The generally recognized principles and norms of international law are applied directly to business relations, and the international treaties of the Russian Federation - as a result of their transformation, i.e. transformation, into the norms of domestic law. Such transformation is carried out by ratification, issuance of acts on the application of an international treaty of the Russian Federation or the issuance of another domestic act (Articles 2, 5, 6 of the Federal Law of July 15, 1995 No. 101-FZ "On International Treaties of the Russian Federation").

The norms of international law in the field of entrepreneurship are very significant. Them specific gravity is constantly increasing. Currently, Russia is a party to many international treaties. Taking into account them, as well as other international treaties to which Russia intends to join, modern Russian legislation is being developed and applied, and, in particular, the Civil Code of the Russian Federation. Here are some of these treaties and agreements:

· Agreement between the Russian Federation and the Republic of Panama on mutual legal assistance in criminal matters dated April 30, 2009

· European Convention on Mutual Assistance in Criminal Matters (ETS No. 30) of 20 April 1959 (within the Council of Europe).

· Convention between the Government of the Russian Federation and the Government of the United Kingdom of Great Britain and Northern Ireland for the avoidance of double taxation and the prevention of tax evasion with respect to taxes on income and capital gains and the Agreement between the Government of the Russian Federation and the Government of the United Kingdom of Great Britain and Northern Ireland dated February 15, 1994 year, concluded in the form of an exchange of notes, on the application of certain provisions of the Convention.

Most recently, Russia joined the World Trade Organization (WTO) on August 22, 2012. Already 157 countries of the world are members of the World Trade Organization, and their number will increase in the coming years. This means that virtually any state that claims to create a modern, efficient economy and equal participation in world trade seeks to become a member of the WTO. Russia is no exception in this sense.

Participation in the WTO gives the country many advantages. Getting them is, in a pragmatic sense, the goal of joining the WTO. The specific goals of accession for Russia can be considered as follows:

· Obtaining better, in comparison with the existing, and non-discriminatory conditions for the access of Russian products to foreign markets;

· Access to the international mechanism for resolving trade disputes;

Creating a more favorable climate for foreign investment as a result of bringing the legislative system in line with WTO rules;

· Expanding opportunities for Russian investors in WTO member countries, in particular, in the banking sector;

· Creation of conditions for improving the quality and competitiveness of domestic products as a result of an increase in the flow of foreign goods, services and investments to the Russian market;

· Participation in the development of rules for international trade, taking into account their national interests;

· Improving the image of Russia in the world as a full participant in international trade.

Possibility of Russia's accession to the OECD (membership in the WTO is a mandatory condition)

An important role in the regulation of commercial relations is played by the customs of business turnover, i.e. rules of conduct that have developed and are widely used in any area of business activity and are not provided for by law, regardless of whether they are recorded in any document (Article 5 of the Civil Code RF). Signs of customary business turnover are as follows:

This is a rule of conduct that is not provided for by law. It is applied if it does not contradict the provisions of the law or the contract that are binding on the participants in the relevant relationship;

a rule of conduct that has developed and is widely used in practice, regardless of whether it is fixed in any document. In particular, international contracts frequently refer to the International Rules for the Interpretation of Commercial Terms (INCOTERMS), the Principles of International Commercial Contracts (UNIDROIT Principles), the Uniform Rules on Contractual Guarantees and other similar documents1, making the rules contained in these Documents a part of the contract, which serves in this case reason to follow them. Also from Art. 431 of the Civil Code of the Russian Federation it follows that when interpreting the contract, all relevant circumstances are taken into account, including business practices;

a rule of conduct applicable exclusively in the field of entrepreneurial activity. Business custom is a kind of custom in general. For example, in Art. 309 of the Civil Code of the Russian Federation establishes that obligations must be properly performed in accordance with the terms of the obligation and the requirements of the law, other regulatory legal acts, and in the absence of such conditions and requirements, in accordance with business practices or other usually imposed requirements.

4. Regulatory regime of entrepreneurship

The legal regime of entrepreneurship should be understood as the correspondence of legislation to the nature of entrepreneurship, the nature of those relations that mediate it. Entrepreneurship belongs to the sphere of society where freedom (freedom of entrepreneurship) is decisive, therefore the legislation should define here only the necessary requirements for entrepreneurship, leaving wide scope for the entrepreneur's own discretion.

Legal regulation of business relations should be based on generally permissible, dispositive principles; detailed regulation of relations is unacceptable here. State regulation of entrepreneurship, on the contrary, should regulate in detail the behavior of participants in power relations (for example, the tax authority and the taxpayer entrepreneur); here importance acquire legal (administrative, procedural) procedures. Accordingly, to the extent that commercial legislation creates legal opportunities for the freedom of the entrepreneur and how strictly it defines the competence of public bodies, it contributes to the solution of the task of forming a civil society (effectively an economy) and building a rule of law state.

The practical significance of the theoretical provisions on the normative legal regime entrepreneurship lies in the fact that they can be used in the process of improving legislation and the practice of its application, the formation of modern legal thinking of those who are engaged in lawmaking in the field of entrepreneurship, organizing the implementation of laws in this area and resolving business disputes.

The regulatory regime of entrepreneurship manifests itself most prominently in the structure of commercial legislation, thanks to which it is possible to see what ratio of regulatory legal acts provides the necessary regulatory regime to the greatest extent. In this regard, the classification of normative legal acts of commercial legislation can be carried out on various grounds: according to the legal force of these acts, according to the scope of their action, according to their purpose, and some others.

Laws and subordinate regulations - this is the division of regulatory legal acts of commercial legislation by legal force. The practical significance of such a division lies in the fact that in the event of a discrepancy between the law and the subordinate normative legal act, the law (lex superior derogat legi inferior) applies. For example, an arbitration court, having established, when considering a case, that a normative legal act is inconsistent with another normative legal act of greater legal force, including its publication in excess of its authority, adopts a judicial act in accordance with a normative legal act of greater legal force (paragraph 2 of Art. 13 APC RF).

Ensuring the necessary regulatory and legal regime for entrepreneurship implies a more active use of laws to regulate commercial relations. Laws play a decisive role in the system of sources of commercial law, since they provide the most stable conditions for entrepreneurship. At the same time, the real supremacy of laws should be expressed not only in their formal prevalence over other normative legal acts, but also in their very content, which implies the predominance of direct action norms in them, as well as the coverage of the most important issues by laws.

Among the federal laws, the Constitution of the Russian Federation has the highest legal force (Article 15), which contains the basic norms of the life of society: on the fundamental rights and freedoms of the individual, on the relationship between the individual and the state; on the types and competence of bodies state power. The Constitution of the Russian Federation also contains norms aimed at regulating relations in the field of entrepreneurship. For example, Art. 8 states that Russia guarantees the unity of the economic space, free movement of goods, services and financial resources, support for competition, freedom economic activity; Art. 34 guarantees everyone the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law.

The dynamics of social life, including entrepreneurship, is taken into account in the current laws: the Tax Code of the Russian Federation, the Labor Code of the Russian Federation, the Code of Administrative Offenses of the Russian Federation, the Criminal Code of the Russian Federation, the APC of the Russian Federation, laws on foreign trade activities (FZ No. 164-FZ of 08.12.2003.), on competition (FZ No. 135-FZ of 26.07.2005.), on investment activities (FZ No. 39-FZ of 02.25.1999.) and many others.

In accordance with Art. 76 of the Constitution of the Russian Federation, laws are also adopted by the subjects of the Russian Federation. The laws of the constituent entities of the Russian Federation cannot contradict federal laws adopted on the subjects of the jurisdiction of the Russian Federation and the joint jurisdiction of the Russian Federation and the constituent entities of the Russian Federation. In the event of a conflict between these laws, the federal law shall prevail. In this regard, it should be noted that Art. 71 of the Constitution of the Russian Federation assigned civil (including commercial in terms of civil law norms) and arbitration procedural legislation to the jurisdiction of the Russian Federation. This ensures the unity of the economic space throughout Russia.

Regulatory legal acts that are not related to laws are by-laws. They regulate relations of an organizational nature aimed at ensuring the implementation of laws. These are normative legal acts of the President of the Russian Federation and the Government of the Russian Federation, ministries and departments, local authorities and administrations.

Decrees of the President of the Russian Federation can be adopted on any issue that falls within the competence of the President of the Russian Federation (Articles 80-90 of the Constitution of the Russian Federation), but must not contradict the laws.

Decrees of the Government of the Russian Federation may be adopted only on the basis of and in pursuance of the laws and decrees of the President of the Russian Federation. In the event of a conflict between a decree of the President of the Russian Federation or a resolution of the Government of the Russian Federation, the relevant law shall apply. In the event of a conflict between a decree of the Government of the Russian Federation and a decree of the President of the Russian Federation, the decree is applied.

Federal executive authorities may issue regulatory legal acts (departmental acts) in the field of entrepreneurship only in cases and within the limits provided for by laws and other regulatory legal acts (clause 7, article 3 of the Civil Code of the Russian Federation). Departmental normative acts that have not passed state registration with the Ministry of Justice of Russia and have not been published in the prescribed manner are not considered to have entered into force and cannot serve as a legal basis for regulating the relevant relations. These acts cannot be referred to in resolving disputes.

Concluding the characterization of the issue of the relationship between laws and by-laws, it should be noted that at present, despite the increasing role of laws among the sources of commercial law, not all of them have a clearly defined direct effect and quite often refer to by-laws (regulations, instructions, orders, etc.). In order for a law to have direct effect, it must be sufficiently detailed, detailed exactly to the extent that it can directly regulate the relevant relations. As already noted, the activities of public authorities (public relations) should be subject to detailed regulation in laws, their competence and responsibility should be clearly fixed, limited by the law. As for the activities of entrepreneurs, here it is necessary to define in detail the obligations of entrepreneurs to society, which correspond to the competences of public authorities (for example, the duties of a taxpayer). The rights of entrepreneurs should be determined not according to the list method (although this is permissible), but according to the principle “everything that is not prohibited by law is allowed”.

According to the scale of action, the normative legal acts of commercial legislation can be divided into acts of centralized regulation adopted by certain public bodies, and local acts adopted by commercial organizations.

The nature of entrepreneurship corresponds to the prevailing importance of local regulatory regulation, expressing the beginnings of self-government of a commercial organization and associations of entrepreneurs (FZ No. 315-FZ of December 1, 2007.). Only the minimum (necessary and sufficient) requirements for entrepreneurship, which constitute the objective legal boundaries of entrepreneurial freedom, should be fixed in acts of centralized regulation.

Normative legal acts of centralized regulation are divided into acts of federal authorities; acts of authorities of subjects of the Russian Federation; acts of local governments. This division reflects the distribution of rule-making competence in a federal state. The trend observed here is unstable and contradictory. On the one hand, this took place especially in the 90s. of the last century, the redistribution of competence in the regulation of social relations in the direction "from top to bottom", in favor of the constituent entities of the Russian Federation and local governments in order to develop regional self-government. On the other hand, it is currently gaining momentum towards the centralization of regulation, building a “vertical of power”.

Local acts, being regulatory legal acts, are adopted by the management bodies of a commercial organization and are mandatory for execution in this commercial organization. This refers to the charters of legal entities, regulations on structural divisions legal entity and other acts regulating internal (local, corporate) relations of commercial organizations. Such acts should not be confused with individual legal local acts, for example, with orders from the head of an organization to dismiss someone from work.

In a commercial organization, any decisions can be made, including decisions of a regulatory nature, if they do not contradict the normative legal acts of centralized regulation. In other words, the freedom of self-government of a commercial organization is limited:

· mandatory requirements of acts of centralized regulation, which are valid regardless of whether they are included in the texts of local acts or not (for example, the requirements for the charter of a JSC - Article 98 of the Civil Code of the Russian Federation);

· distribution of norm-setting competence between the management bodies of a commercial organization, if there are several of them (for example, in a joint-stock company - article 103 of the Civil Code of the Russian Federation).

In the development of local regulations, exemplary charters, rules, contracts developed by various methodological centers and which are sources of commercial law of a recommendatory nature are called upon to provide great assistance. The aforementioned exemplary acts should not be confused with standard contracts, regulations, etc., issued by the Government of the Russian Federation and binding on participants in commercial relations (clause 4, article 426 of the Civil Code of the Russian Federation).

According to their purpose, regulatory legal acts of commercial legislation are divided into general and special acts. Such a subdivision of normative legal acts essentially reflects the ratio of homogeneous in nature norms of different normative legal acts of the same level, for example, civil law norms in the Civil Code of the Russian Federation and the Bankruptcy Law; the rules of procedural law in the A P K RF and the Bankruptcy Law, etc.

The practical significance of the division of normative legal acts into general and special is that the norms of special acts in the process of law enforcement are given priority (lex speciali derogate generali). The norms of general acts are applied only when the relationship is not regulated or is not fully regulated in a special act.

The nature of entrepreneurship is more in line with the regime established by general regulatory legal acts, since they provide more stable conditions a la entrepreneurship.

General legislation is stable, since it directly reflects the system of objective law and contains rather abstract (general) norms: on persons, transactions, terms, etc. Special legislation is more variable, since it is indirectly connected with the objective system of law through general legislation. Its norms are more specific, reflect the economic policy of a given period of development of society. Chronological contradictions in rapidly changing legislation are eliminated on the basis of the conflict principle (the law adopted later has priority) lex posterior derogat priori.

Entrepreneurship does not tolerate instability, therefore, one should strive to clothe the rules about it in the most stable normative legal forms - unified laws. Differentiation of commercial legislation, adoption of special regulatory legal acts in the field of entrepreneurship -- necessary condition its effectiveness, since the features of the legal regulation of entrepreneurship are taken into account. However, the excessiveness of special acts almost always indicates a significant strengthening of the regulatory role of the state, its intervention in a particular area. privacy society, narrowing the autonomy of subjects of private law. The unification of legislation leads to consolidation of normative legal acts and simplification of the structure of legislation, and thus to the establishment of common and stable requirements for participants in private life.

Literature

1. Commercial (business) law: textbook / VF Popondopulo. -- 3rd ed., revised. and additional - M.: Norma, 2008. - 800 p.

2. Belyaeva O.A. Commercial Law of Russia: a course of lectures (3rd ed., revised and additional). - M.: ZAO Yustitsinform, 2009. -192s.

3. Commercial law [Text]: tutorial/ Ed. N.V. sentry. - M.: Publishing House "Jurisprudence", 2006. - 188 p. - 3000 copies.

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9. Legal regulation of taxation of individual entrepreneurs: usn, single tax.

taxes- these are economic relations between the state, on the one hand, and enterprises, organizations and citizens, on the other hand, regarding the withdrawal of part of their income. There are two types of taxes:

indirect - is included in the price of goods, works, services in the form of allowances and is paid by the buyer;

straight - the property of taxpayers and their income are taxed.

Individual entrepreneurs, as well as individuals who are not engaged in entrepreneurial activity.

Exempted from single tax individual entrepreneurs and other individuals who sell

medicinal plants, berries, mushrooms, nuts, other wild products.

A single tax is paid: - at the place of registration on a monthly basis no later than the 28th day of the month preceding the month in which the activity is carried out.

Organizations with an average of no more than 100 employees for the specified period, individual entrepreneurs, if their gross proceeds do not exceed 12 billion Belarusian rubles, are entitled to apply the simplified system. Organizations and individual entrepreneurs using the simplified system are exempted from the obligation to maintain accounting and reporting and keep records in the book of income and expenses of organizations and individual entrepreneurs

Payment of tax under the simplified system is made no later than the 22nd day of the month following the expired reporting period.

Tax rates under the simplified tax system:

(8)% - for organizations and individual entrepreneurs who do not pay VAT

(6)% - for organizations and individual entrepreneurs paying VAT

(2) % - for organizations and individual entrepreneurs in respect of proceeds from the sale of goods and services outside the Republic of Belarus

(15)% - for organizations and individual entrepreneurs using gross income as a tax base. For organizations and individual entrepreneurs with a location (residence) in rural areas:

(5)% - for organizations and individual entrepreneurs who do not pay VAT

(3)% - for organizations and individual entrepreneurs paying VAT

In accordance with paragraph 1 of Art. 420 of the Civil Code of the Russian Federation, an agreement is recognized as an agreement between two or more persons on the establishment, change or termination of civil rights and obligations.

One of the types of civil law contracts is a business contract.

Entrepreneurial agreement - an agreement concluded on a reimbursable basis for the purpose of carrying out entrepreneurial activities, the parties or one of the parties to which act as a business entity.

Features of contracts in the field of entrepreneurship are due to various factors; the purposes of their conclusion, a certain composition of the parties, a compensatory nature, etc.

Firstly, a business contract is concluded for the purpose of carrying out entrepreneurial activities by its parties (party).

The parties (or one party) of such an agreement enter into obligations with their counterparties for the sale of goods, use of property, performance of work, provision of services due to the fact that it is necessary for her (them) professional activity aimed at systematic profit, and not at the satisfaction of personal, domestic needs.

The presence or absence of the above goal entails certain legal consequences for the parties to business contracts. In particular, the obligations of the parties (parties) that have entered into an agreement for the purpose of carrying out entrepreneurial activities will be subject to special norms of legislation on obligations associated with such activities (for example, on liability - clause 3 of article 401 of the Civil Code of the Russian Federation, etc.). The obligations of a party that has entered into an agreement with an entrepreneur and does not pursue the goal of carrying out entrepreneurial activities will be subject to the general rules of civil law.

Secondly, the parties (or one of the parties) to such agreements must be business entities - legal entities and individual entrepreneurs who acquire the status of a subject of this activity from the moment of their state registration.

Some of these "hard" requirements are related to the necessary restriction of the mentioned freedom of contract in the field of entrepreneurship. It consists, in particular, in the obligation of the party to conclude an agreement without fail or with certain counterparties, etc.

Bidding is held in the form of a competition or auction, which may be open or closed.

Any person has the right to participate in open competitions and auctions, and only persons specially invited for this purpose can participate in closed competitions.

The person who, according to the conclusion of the tender commission appointed in advance by the organizer of the auction, offered the best conditions, and at the auction - the person who offered the highest price, is recognized as the winner of the auction in the competition. The contract is concluded with the person who won the auction. The conclusion of the contract with the winning bidder is the obligation of the seller, failure to fulfill which entails his liability in the form of compensation for losses. The winning bidder also has the right to demand compulsion of this person to conclude the contract.

The form of auction is determined by the owner of the goods being sold or the owner of the property right being sold, unless otherwise provided by law. An auction or competition in which only one participant participated is declared invalid (clauses 4 and 5 of article 447 of the Civil Code of the Russian Federation).

Regulations on the procedure for holding auctions are also contained in the Federal Law "On the Privatization of State and Municipal Property", Federal Law No. 213-FZ of December 27, 1995 "On the State Defense Order", etc.

As a rule, the notice of the auction must be made by the organizer at least 30 days before the auction, except as otherwise provided by law.

Change and termination of business contracts

In the event of a unilateral refusal to perform the contract in whole or in part, when such refusal is permitted by law or by agreement of the parties, the contract is considered terminated or amended.

In cases where the possibility of changing or terminating the contract is not provided for by law or the contract and the parties have not reached an agreement on this, the contract can be changed or terminated by one of the parties only by a court decision and only in the following cases:

in the event of a material breach of the contract by the other party;
in connection with a significant change in the circumstances from which the parties proceeded when concluding the contract;
in other cases stipulated by law or contract (Article 450, 451 of the Civil Code).

Violation of the contract by one of the parties is recognized as essential, which entails such damage for the other party that it is largely deprived of what it was entitled to count on when concluding the contract.

A change in circumstances is recognized as significant when they have changed so much that if the parties could reasonably foresee this, the contract would not have been concluded by them at all or would have been concluded on completely different conditions.

In this case, the interested party has the right to demand in court the termination of the contract if the following conditions are simultaneously present:

at the time of the conclusion of the contract, the parties proceeded from the fact that such a change in circumstances would not occur;
the change in circumstances is caused by reasons that the interested party could not overcome after they arose with the degree of care and diligence that was required of it by the nature of the contract and the conditions of civil circulation;
execution of the contract without changing its terms would so violate the balance of property interests of the parties and entail such damage for the interested party that it would largely lose what it had the right to count on when concluding the contract;
it does not follow from the customs of business transactions or the essence of the obligation that the risk of a change in circumstances is borne by the interested party (clause 2, article 451 of the Civil Code of the Russian Federation).

When terminating the contract due to materially changed circumstances, the court, at the request of either party, must determine the consequences of terminating the contract, based on the need for a fair distribution between the parties of the costs incurred by them in connection with its execution.

With regard to changing the contract due to significant changes in circumstances, it is allowed by a court decision only in exceptional cases when the termination of the contract is contrary to public interests or will entail damage to the parties that significantly exceeds the costs necessary for the execution of the contract on the conditions changed by the court.

In the listed cases of unilateral refusal to perform the contract, the interested party is obliged to send the other party a proposal to amend or terminate the contract. The other party is obliged, within the period specified in the offer or established in the law or in the contract, and in its absence - within 30 days, to send to the party that made the offer to amend or terminate the contract:

a) either a notice of acceptance of the proposal;
b) either a notice of rejection of the offer;
c) or a notice of consent to change the contract on other terms.

In paragraph 2 of Art. 452 of the Civil Code emphasizes that the requirement to change or terminate the contract can be filed by a party to the court only after receiving a refusal from the other party to the proposal to change or terminate the contract or failure to receive a response within the time period specified in the proposal or established by law or the contract, and in its absence - within 30 days.

The Civil Code of the Russian Federation establishes the following consequences of changing and terminating the contract:

the obligation under the contract is changed only to the extent that the underlying contract has been changed; other obligations remain unchanged;
upon termination of the contract, the obligations of the parties cease, that is, from that moment on, the parties are deprived of their rights by virtue of the obligation and are released from their obligations;
if the change or termination of the contract occurred due to mutual agreement parties, then the obligation based on it is accordingly modified or terminated from the moment the parties conclude an agreement or from the moment specified in it;
when a contract is amended or terminated by a court, the obligation based on it is changed or terminated from the moment the court decision enters into legal force;
on general rule the parties cannot demand the return of what was already performed before the change or termination of the contract. Another rule may be provided by law or by agreement of the parties;
if the contract was changed or terminated due to a material violation of its terms by one of the parties, the other party has the right to demand compensation for losses caused by the change or termination of the contract (clause 5 of article 453 of the Civil Code).

Types of contracts in the field of entrepreneurial activity

Classification of business contracts can be carried out on various grounds.

Business contracts for the sale (realization) of goods include a sale and purchase agreement, including a contract for the supply of goods, a contract for the supply of goods for state needs, a contracting agreement, an energy supply agreement, an enterprise sale agreement, as well as a retail sale and purchase agreement, an energy supply agreement, etc.

Entrepreneurial contracts for the sale of goods are extremely important for entrepreneurial turnover, since a developed civilized trading activity is the basis of a full-fledged entrepreneurship that stimulates production, intermediary and other types of entrepreneurial activity.

Among the business contracts for the transfer of property for use, first of all, it is necessary to include various types of lease agreements, since, on the one hand, the provision of property for temporary possession and use allows the lessor to receive entrepreneurial income (profit). On the other hand, for the effective implementation of their activities by entrepreneurs, in some cases it is more economically advantageous for them not to acquire property, but to rent it and use it for their activities. For example, a trading company expanding the volume of sales of its goods may need additional warehouse and office space, etc.

In this regard, the most typical for entrepreneurial activity are a lease agreement for an enterprise, a financial lease (leasing) agreement, and a rental agreement.

Entrepreneurial contracts for the performance (production) of work are, first of all, various types of work contracts - a construction contract, a contract for the performance of design and survey work, a state contract for the performance of contract work for state needs, a household contract, etc.

Business contracts for the provision of services are of great importance in entrepreneurial activity. The provision of services is essential in business turnover. In this regard, a significant number of contractual obligations in entrepreneurship are associated with the provision of services that both entrepreneurs themselves and persons who are not related to them may need. Unlike works, services do not receive a materialized expression that is different from the activity itself, in which they are expressed. Legislation provides for the possibility of providing various kinds services under the following agreements: paid services, commercial representation, commission, agency, transportation, forwarding, insurance, trust management of property, storage, etc.

According to the subject composition of the parties, contracts are distinguished, all parties to which are entrepreneurs and in which an entrepreneur acts as one of the parties.

Contracts in which one party acts as an entrepreneur are contracts of retail sale, rental, bank deposit and bank account, loan agreement, contracts for energy supply, transportation of goods, transport expedition, construction contract, agency agreement and many others.

Contracts concluded exclusively between entrepreneurs include contracts: supply of goods for business purposes, contracting, commercial concession, financial lease (leasing), warehousing, business risk insurance and a simple partnership agreement concluded for entrepreneurial activities, as well as other contracts, the parties to which are business entities.

A contract for the supply of goods, under which the supplier-seller, engaged in entrepreneurial activities, undertakes to transfer, within a specified period or terms, the goods produced or purchased by him to the buyer for use in entrepreneurial activities or for other purposes not related to personal, family, household and other similar use ( article 506 of the Civil Code of the Russian Federation).

The Civil Code of the Russian Federation establishes the following features of a supply agreement, which make it possible to distinguish it from other types of a sale and purchase agreement:

special legal status the seller and the buyer, who must act as business entities;
the purpose of acquiring goods under a supply agreement is to use it for business activities or for other purposes not related to personal, family, household or other similar use (for industrial processing, for subsequent sale, etc.).

A contracting agreement is a special type of agreement for the sale of goods concluded between business entities.

Under a contracting agreement, the producer of agricultural products undertakes to transfer the agricultural products grown (produced) by him to the procurer - the person who purchases such products for processing or sale (Article 535 of the Civil Code of the Russian Federation).

The parties to this agreement are the seller - the manufacturer of agricultural products and the buyer - the purveyor of these products.

Agricultural commercial organizations act as seller-manufacturers: economic societies and partnerships, production cooperatives, peasant (farm) enterprises engaged in entrepreneurial activities for the production (cultivation) of agricultural products.

The buyer-producer can be a commercial organization or an individual entrepreneur engaged in entrepreneurial activities for the acquisition (purchase) of agricultural products for their subsequent processing or sale (for example, dairies, meat processing plants, wool processing factories, wholesale trade enterprises in the field of consumer cooperation, etc.) .

Unlike a supply contract, under a contracting contract, the seller is obliged to produce (grow) agricultural products in order to sell them to the buyer (producer).

A financial lease agreement (leasing) is an agreement between the parties, under which the lessor undertakes to acquire ownership of the property specified by the tenant from the seller specified by him and provide the tenant with this property for a fee for temporary possession and use for business purposes. In this case, the lessor is not responsible for the choice of the subject of lease and the seller (Article 665 of the Civil Code of the Russian Federation).

The subject of a financial lease may be any non-consumable items used for business activities, except land plots and other natural objects. Based on this, a leasing agreement is concluded only for an entrepreneurial purpose and, accordingly, between business entities.

The lessors (lessors) are leasing companies created by various structures: manufacturers of machinery and equipment, banks, etc. Leasing companies (firms) are commercial organizations (residents of the Russian Federation or non-residents of the Russian Federation) that perform the functions in accordance with their constituent documents lessors and who have received permits (licenses) to carry out leasing activities in accordance with the procedure established by the legislation of the Russian Federation (Article 5 of the Law on Leasing).

A commercial concession agreement is an agreement under which one party (right holder) undertakes to provide the other party (user) for a fee for a period or without specifying a period of time the right to use in entrepreneurial activity a set of exclusive rights belonging to the right holder, including the right to a trade name and (or ) commercial designation of the right holder, for protected commercial information, as well as for other objects of exclusive rights provided for by the agreement - trademark, service mark, etc. (Article 1027 of the Civil Code of the Russian Federation).

Only commercial organizations and individual entrepreneurs can be parties to a commercial concession agreement.

Under a simple partnership agreement, two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another goal that does not contradict the law (1041 of the Civil Code of the Russian Federation).

The subject of a simple partnership agreement is the joint activity of the partners to achieve the goal specified in the agreement.

The parties to the agreement can be commercial organizations and individual entrepreneurs. Simple partnership agreements are, as a rule, multilateral.

A warehousing agreement is an agreement by virtue of which a warehouse (custodian) undertakes to store goods for a fee. Transferred to him by the goods owner (bailor), and return these goods in safety (Article 907 of the Civil Code of the Russian Federation).

A commodity warehouse is an organization that carries out storage of goods as an entrepreneurial activity and provides services related to storage.

Classification of business contracts can be carried out on various grounds.

Business contracts for the sale (realization) of goods include a contract of sale, including a contract for the supply of goods, a contract for the supply of goods for state needs, a contracting agreement, an energy supply contract, an enterprise sale contract, as well as a retail sale contract, an energy supply contract, etc.

In this regard, the most typical for entrepreneurial activity are a lease agreement for an enterprise, a financial lease (leasing) agreement, and a rental agreement.

Business contracts for the provision of services are of great importance in entrepreneurial activity. The provision of services is essential in business turnover. In this regard, a significant number of contractual obligations in entrepreneurship are associated with the provision of services that both entrepreneurs themselves and persons who are not related to them may need. Unlike works, services do not receive a reified expression that is distinct from the activity itself in which they are expressed. The legislation provides for the possibility of providing various types of services under the following contracts: paid services, commercial representation, commission, agency, transportation, forwarding, insurance, trust management of property, storage, etc.

According to the subject composition of the parties, contracts are distinguished, all parties to which are entrepreneurs and in which an entrepreneur acts as one of the parties.

Contracts concluded exclusively between entrepreneurs include contracts for the supply of goods for business purposes, contracting, commercial concession, financial lease (leasing), warehousing, business risk insurance, and a simple partnership agreement concluded for business activities, as well as other contracts by the parties which are business entities.

Treaty supply of goods, according to which the supplier-seller, carrying out entrepreneurial activities, undertakes to transfer, within a specified period or terms, the goods produced or purchased by him to the buyer for use in entrepreneurial activities or for other purposes not related to personal, family, home and other similar use ().

The Civil Code of the Russian Federation establishes the following features of a supply agreement, which make it possible to distinguish it from other types of a sale and purchase agreement:

The special legal status of the seller and the buyer, who must act as business entities;

The purpose of acquiring goods under a supply agreement is to use it for business or for other purposes not related to personal, family, household or other similar use (for industrial processing, for subsequent sale, etc.).

Treaty contracting- a special type of contract for the sale of goods concluded between business entities.

Under contract contracting the producer of agricultural products undertakes to transfer the agricultural products grown (produced) by him to the procurer - the person who purchases such products for processing or sale ().

The parties to this agreement are the seller - the manufacturer of agricultural products and the buyer - the purveyor of these products.

Unlike a supply contract, under a contracting contract, the seller is obliged to produce (grow) agricultural products in order to sell them to the buyer (producer).

Treaty financial lease (leasing)- this is an agreement of the parties, according to which the lessor undertakes to acquire ownership of the property indicated by the tenant from the seller specified by him and provide the tenant with this property for a fee for temporary possession and use for business purposes. In this case, the lessor is not responsible for the choice of the subject of the lease and the seller ().

The subject of a financial lease agreement may be any non-consumable items used for business activities, except for land plots and other natural objects. Based on this, a leasing agreement is concluded only for an entrepreneurial purpose and, accordingly, between business entities.

Lessors (lessors) are leasing companies created by various structures: manufacturers of machinery and equipment, banks, etc. Leasing companies (firms) are commercial organizations (residents of the Russian Federation or non-residents of the Russian Federation) that, in accordance with their constituent documents, perform the functions of lessors and who, in accordance with the procedure established by the legislation of the Russian Federation, have received permits (licenses) to carry out leasing activities (Article 5 of the Federal Law of October 29, 1998 No. 164-FZ “On Financial Lease (Leasing)”).

Treaty commercial concession- an agreement under which one party (right holder) undertakes to grant the other party (user) for a fee for a period or without specifying a period, the right to use in business activities a set of exclusive rights belonging to the right holder, including the right to a trade name and (or) commercial designation the right holder, to protected commercial information, as well as to other objects of exclusive rights provided for by the agreement - a trademark, a service mark, etc. ().

Only commercial organizations and individual entrepreneurs can be parties to a commercial concession agreement.

By simple partnership agreement two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another goal that does not contradict the law ().

The subject of a simple partnership agreement is the joint activity of the partners to achieve the goal specified in the agreement.

The parties to the agreement can be commercial organizations and individual entrepreneurs. Simple partnership agreements are, as a rule, multilateral.

Treaty warehousing is an agreement by virtue of which the warehouse (custodian) undertakes, for a fee, to store the goods transferred to it by the goods owner (bailor) and return these goods in safety ().

A commodity warehouse is an organization that carries out storage of goods as an entrepreneurial activity and provides services related to storage.

Modern economic law is an independent branch that regulates relations arising in the process of organizing and carrying out economic activities related to the manufacture and sale of products, the performance of work and the provision of services to meet the needs of individual consumers and public needs. The normative basis of economic law is economic legislation.

At the same time, economic activity as a subject of regulation of economic law is distinguished by its complexity, multi-stage, professional and systematic nature, which distinguishes this activity from consumer relations, where the norms of civil law are fully in force.

As we have already found out, under the term source of law the external form in which objective law is expressed is understood. In this sense, the sources of law are:

legal act

legal custom

Judicial precedent

legal doctrine

Legal acts in the field of entrepreneurship

Constitutional foundations of entrepreneurship

The place of a legislative act in the legal system of the state is predetermined by its legal force. The highest legal force in the Russian Federation is its Constitution (Part 1, Article 15 of the Constitution of the Russian Federation). That is why it occupies the highest position in the hierarchy of legislative acts.

The constitutional foundations of entrepreneurial activity are the fundamental constitutional norms that:

Form the necessary prerequisites for entrepreneurial activity;

Predetermine the content, conditions and procedure for its implementation;

Provide the right to entrepreneurial activity with appropriate guarantees.

These constitutional provisions are:

Express certain concepts of legal regulation;

Reinforce constitutional principles;

They determine the legal status of an entrepreneur, including his rights, duties, responsibilities, freedoms and interests, and also establish their guarantees.

Taken together, all these provisions form the constitutional basis on which the right to engage in entrepreneurial activity is born and develops.

Since the Constitution of Russia does not contain a special chapter on the foundations of the economic system, the constitutional norms on basic economic rights are assigned a significant functional burden - they predetermine the foundations of the economic system of the Russian Federation. constitutional economic public order, in addition to the Constitution of the Russian Federation, form:

Norms of constitutional treaties (agreements on the delimitation of jurisdictions and powers);

Constitutional federal laws;

Constitutions (charters) of subjects of the Russian Federation;

constitutional precedents.

The law is of the greatest importance in the legal regulation of entrepreneurial activity. The concept of "law" implies, in turn, the allocation of federal laws that have a higher degree of legal force than the laws of the subjects of the Federation; federal constitutional laws - laws of even higher legal force and, finally, a law with higher legal force - the Constitution of Russia. Of particular importance and a certain priority in relation to other federal laws are codified laws - codes.

Legislative acts on entrepreneurship objectively acquire the character of complex normative acts also because in this sphere of public life it is especially important to ensure a reasonable balance between the public (public) and private interests of entrepreneurs. The legal form that adequately reflects such private interests of entrepreneurs as freedom of economic activity, freedom of contract, free movement of goods, services and financial resources is traditionally the norms of civil law. As for public interests (concern for the interests of consumers, environmental and energy security, etc.), they are expressed using the norms of administrative, financial, and land law. These norms introduce certain restrictions into legal regulation, largely due to the fact that the Russian Federation is a social state.

Thus, the complex nature of legislative acts on entrepreneurship is largely due to the fact that the state is constantly in search of a fair combination of public and private interests. It is no coincidence that one of the initial concepts that forms the basis of the legal regulation of entrepreneurial activity is the concept of a social market economy. Although it is not directly reflected in the current Constitution of the Russian Federation, however, the characteristic of the Russian Federation as a social state enshrined in Article 7 of the Constitution presupposes precisely a socially oriented market economy.

The system of legislation on entrepreneurship in the Russian Federation is a classification of legislative acts, built using different criteria, or grounds.

The main criteria for this classification are:

I - legal force and place in the hierarchy of legal normative acts;

II - the areas of legislative regulation established in Articles 71-73 of the Constitution of Russia, in which they are adopted;

III- scale of action.

From the point of view of the first criterion, legislative acts on entrepreneurship are divided into: 1) laws, 2) by-laws.

Among the laws of particular importance is the Civil Code of the Russian Federation. Civil law regulates relations between persons engaged in entrepreneurial activities (paragraph 3, clause 1, article 2 of the Civil Code of the Russian Federation).

At the same time, it should be noted that in many countries with market economy the legislation on entrepreneurial and economic activity is independent.

Other, in addition to the Civil Code of the Russian Federation, federal laws regulating entrepreneurship are divided into laws containing norms common to various types of entrepreneurship, and into laws of a special nature containing norms on the regulation of certain areas of entrepreneurship. The former include laws on mortgages, bankruptcy, advertising, privatization of state and municipal property, securities market, licensing, competition in commodity markets, currency regulation, consumer protection, etc.

Laws of a special nature are laws on banks, on investment activities in the form capital investments, on state regulation of tariffs for electrical and thermal energy in the Russian Federation, etc.

The legislation on state entrepreneurship includes the Law on the supply of products for state needs.

Regulations

Important for entrepreneurship legal regulations are contained in by-laws, which include regulatory decrees of the President of the Russian Federation, which should not contradict the Constitution of the Russian Federation and federal laws (part 3 of article 90 of the Constitution of Russia).

Decrees of the Government of the Russian Federation, adopted on the basis of and in pursuance of the Constitution, federal laws, regulatory decrees of the President of the Russian Federation, are also part of the legislation on entrepreneurship.

By-laws also include legal acts of ministries, departments, regulations of federal commissions and the Central Bank of the Russian Federation. The departmental regulations of the Ministry of Economic Development, the Ministry of Finance of the Russian Federation, the Ministry of Labor, the Ministry of Agriculture Russian Federation, Ministry of Energy of the Russian Federation.

In accordance with the Rules for the preparation of normative acts of federal executive bodies and their state registration, federal executive bodies may issue normative acts in the form of resolutions, orders, orders, rules, instructions and regulations. It is not allowed to adopt normative acts in the form of letters and telegrams.

From the point of view of the second criterion for the classification of legislative acts on entrepreneurship, one should distinguish between: 1) federal laws adopted within the jurisdiction of the Russian Federation and joint jurisdiction of the Russian Federation and its subjects (Articles 71-72 of the Constitution of the Russian Federation) and 2) laws of the constituent entities of the Russian Federation (Article 73 Constitution of the Russian Federation). Federal laws include laws on federal state property and on its management, on establishing the foundations of federal policy and on federal programs in the field of economic development of the Russian Federation, on establishing legal framework single market, federal energy systems, nuclear energy, fissile materials, federal transport, means of communication, information and communications, space activities, foreign economic relations of the Russian Federation, standards, intellectual property, and delimitation of state property.

From the point of view of the third classification criterion, one can single out the normative acts of centralized legal regulation carried out by the rule-making bodies of the state, and acts of local regulation. Among the latter, an important role is played by corporate norms contained in the charters and other local acts of business companies and partnerships.