What is the difference between a state enterprise and a unitary enterprise. State and municipal unitary enterprises. State enterprise

A unitary enterprise is a commercial organization that carries out production, other economic activities as a state or municipal enterprise and is endowed with the right of economic management or (state-owned enterprise) the right of operational management in relation to the property assigned to it by the owner.

Among the norms established in relation to unitary enterprises in the Civil Code of the Russian Federation (Articles 113-115) and in the special Federal Law of November 14, 2002 N 161-FZ "On State and Municipal Unitary Enterprises" (hereinafter referred to as the Law on Unitary Enterprises) , the following are of particular importance.

Unitary enterprises operate on the basis of the norms of the Civil Code (as it is written in the Law on Unitary Enterprises), as well as constituent documents (charters). In accordance with this, their legal status is in principle the same as the position of other subjects of civil law, legal entities. At the same time, a number of restrictions have been introduced, including when making transactions, which do not allow them to fully participate in commodity market relations.

Only state and municipal enterprises can be created in the form of a unitary enterprise. The head of the enterprise is appointed by the owner or a body authorized by the owner and is accountable to him.

The property of a state or municipal unitary enterprise (hereinafter referred to as the "enterprise") is, respectively, in state or municipal ownership. It belongs to the enterprise on the right of economic management or operational management, which allows the enterprise to participate in civil circulation. This property is indivisible and cannot be distributed among contributions (shares, shares), including between employees of the enterprise. At the same time, the enterprise is liable for its obligations with all its property; but it is not responsible for the obligations of the owner of the property.

The Civil Code of the Russian Federation and the Law on Unitary Enterprises distinguish two main types of unitary enterprises:

An enterprise based on the right of economic management (Article 114 of the Civil Code of the Russian Federation);

An enterprise based on the right of operational management is a state-owned enterprise (Article 115 of the Civil Code of the Russian Federation).

a) An enterprise based on the right of economic management.

The right of economic management, on which enterprises of this type are based, is essentially a real right of generally permissive action, close to the right of ownership, with the exception of the right of disposal in the sense that affects the fate of state or municipal property. The size of the authorized capital of an enterprise cannot be less than the amount determined by law and necessary to satisfy the claims of creditors. In addition, there are rules related to the procedure and consequences of increasing or decreasing the size of the statutory fund.

Prior to the state registration of an enterprise, its statutory fund must be fully paid by the owner.

The owner of the property of a unitary enterprise, as already noted, is not liable for the debts of the enterprise (with the exception of the cases specified in paragraph 3 of article 56 of the Civil Code of the Russian Federation, which provides for the possibility of subsidiary liability).

b) State-owned enterprise based on the right of operational management. The right of operational management is a property right of a permissive order - it allows a state-owned enterprise to strictly certain actions, acts. Enterprises of this type are created, reorganized and liquidated on the basis of federal property, property of the subjects of the Russian Federation, municipal property.

The owner of the property bears subsidiary liability for the obligations of the state-owned enterprise in case of insufficiency of his property.

Among the legal entities registered and operating in accordance with the procedure established by law on the territory of the Russian Federation, there are entities that have a special, specific legal status. These include, in particular, state-owned enterprises. Let's take a look at their specifics.

general characteristics

A state-owned unitary enterprise is a legal entity that carries out operational management of the material assets entrusted to it. In legal publications, it is also called a business institution. On the one hand, a state-owned enterprise - this is explained by the purpose of its creation. It is formed primarily for the provision of certain services, the production of works or the production of products. At the same time, most of the costs of doing business are covered from the budget. In addition, state authorities act as the main customers.

Specificity

State institutions and enterprises have much in common. First of all, they are united by the inability to dispose of (own) the material values ​​assigned to them. At its core, a state-owned enterprise is one of the forms for the state power to implement its functions. A similar conclusion can be drawn for institutions. However, the difference between these entities is that they are formed in different areas. In particular, institutions are being created in the scientific, educational, cultural sectors, in the field of social protection, healthcare, physical education, sports, and employment of citizens. A state-owned enterprise is, first of all, a participant in industrial activity. It is created, for example, for the production of defense or other strategic products. At the same time, a state-owned enterprise is considered commercial, while an institution is not.

Legal status

As noted above, the property right of a state-owned enterprise is the right of operational management. Accordingly, it is impossible to form it on the basis of the combination of material values ​​attributed to the property of the Russian Federation, regions or the Moscow Region. A federal state enterprise is a legal entity with one founder. It is he who may own the material values ​​entrusted to operational management.

Normative base

From January 1, 1995, until the entry into force of Federal Law No. 161, the foundations of the legal status of state-owned enterprises were regulated exclusively by the Civil Code. This provision is specified by Article 6 (in clause 6) of Federal Law No. 52, which put the first part of the Code into effect. It established that enterprises established before the official publication of Part 1 of the Civil Code and operating on the basis of the right of economic management and operational management are subject to the relevant norms. Along with this, Art. 113 of the Code provided that the legal status of the legal entities in question is determined not only by the provisions of the Civil Code, but also by a special law. This normative act, however, was adopted only on November 14, 2002. This, in particular, is about Federal Law No. 161.

Additions and amendments

According to Art. 37 of Federal Law No. 161, all state-owned enterprises had to bring their charters in line with the law. At the same time, a period was set until July 1, 2003. In Federal Law No. 161, some provisions of the Civil Code were specified, regulating the rules by which a state-owned enterprise is created and operates. This, in particular, affected Articles 48-65 of the Code, as well as Art. 113-115. In addition, the law prohibited the formation of subsidiaries by the legal entities in question. Article 115 has undergone the most significant changes. In accordance with the innovations, a legal entity can now be created not only on the basis of state property. This provision allows today to form a municipal state-owned enterprise. This innovation removed the restrictions that existed before. In particular, before the adoption of the law, the legal entities in question could be formed by government decree and exclusively on the basis of state property. Accordingly, the adopted statutes had to be approved by the highest executive body. At the same time, subsidiary liability for obligations was assigned to the Russian Federation. Liquidation and reorganization of legal entities were carried out only by decision of the government.

Key requirements of the law

The property of a state-owned enterprise is considered indivisible. It cannot be distributed among shares, shares (deposits), including between employees. A state-owned enterprise is a legal entity that can acquire and exercise legal rights (property and personal) on its own behalf, act as a defendant / plaintiff in court. The legislation prescribes to have an independent balance sheet. The full name must include the phrase "State Treasury Enterprise". This requirement applies only to legal entities established on the basis of state property. Accordingly, the names of entities formed in the MO must contain an indication of the territorial affiliation ("municipal state enterprise"). The name must also contain information about the owner (RF, region or MO). The seal of the legal entity must contain the full name in Russian, an indication of the location. It may also contain names in other (folk or foreign) languages. The location of the enterprise is determined by the address of its state registration. The details must indicate the postal code, locality, street, house / building, room number (if any). In the event of a change in information about the location, the enterprise sends a corresponding notification to the body authorized to carry out state registration of legal entities.

Nuances

It should be noted that no other laws, except for the Civil Code and Federal Law No. 161, determine the legal status of a state-owned enterprise. This norm is directly enshrined in Article 113 (in paragraph 6) of the Code. As for the obligations and rights of the owners of material assets entrusted to a state-owned enterprise, the procedure for reorganization and liquidation, the legislation does not establish restrictions on their regulation by other legal documents. For example, the procedure for the formation and management of the activities of state institutions is determined by government decree.

Type of ownership

Continuing the analysis of the regulations governing the activities of state-owned enterprises, we can draw a certain analogy with the legal status of institutions. The first classification criterion is the form of ownership. It is the same for all state unitary enterprises (including those created in the Moscow Region) and institutions. This common feature indicates the unity of the goals of the formation of these legal entities. Both institutions and enterprises implement federal interests, which determines the features of regulatory regulation.

Founders

In the composition of owners for state institutions and enterprises, a general restriction is provided. First of all, as mentioned above, the founder must be one. As it, in accordance with regulatory requirements, either the Moscow Region, or the Russian Federation, or the region can act.

Scope of legal options

According to this criterion, legal entities are classified depending on the range of rights they are vested with in relation to the property entrusted to them. When a subject is formed, certain legal capabilities must be transferred to it. Property rights are necessary for the implementation of normal independent activities in accordance with the goals of creation. These material values, as well as objects acquired in the course of work, become (as a general rule) the property of the subject. State-owned institutions and enterprises are an exception to this provision. The owner, by transferring material values ​​to them, provides legal opportunities with some restrictions. In particular, the subjects have the right to exercise operational management. Pri remains the main owner of material assets. This means that the enterprise can dispose of the entrusted property only with its consent. This equally applies to legal entities established by order of the territorial authorities.

Owner

According to Art. 20 of the Federal Law No. 161, the powers of the legal owner of property transferred to the federal state enterprise, in matters of creation, liquidation, reorganization, are exercised by the government. Other legal possibilities are implemented by both the Supreme Executive Institute of Power and other state structures. Since December 1, 2007, the state corporation Rosatom has also been granted the powers of the owner. The rules governing the procedure for the implementation of the transferred legal opportunities by it are established by Federal Law No. 317. The corresponding addition was made to Law No. 161. From the municipality, material assets transferred to a state-owned enterprise are implemented by local authorities within their competence. The range of their legal possibilities is determined by the normative acts regulating the status of these institutions.

according to the civil legislation of the Russian Federation, a unitary enterprise based on the right of operational management. According to Art. 115 of the Civil Code of the Russian Federation, in cases provided for by the law on state and municipal unitary enterprises, by decision of the Government of the Russian Federation, a unitary enterprise based on the right of operational management (federal capital enterprise) can be formed on the basis of federally owned property. The founding document of the K. p. is its charter, approved by the Government of the Russian Federation. The Russian Federation bears subsidiary liability for the obligations of the C. p. in case of insufficiency of its property. The committee may be reorganized or liquidated by decision of the Government of the Russian Federation.

Great Definition

Incomplete definition ↓

PUBLIC ENTERPRISE

in accordance with the civil legislation of the Russian Federation - a unitary enterprise based on the right of operational management.

According to Art. 115 of the Civil Code of the Russian Federation, in cases provided for by the law on state and municipal unitary enterprises, by decision of the Government of the Russian Federation, a unitary enterprise based on the right of operational management (federal capital enterprise) can be formed on the basis of federally owned property. The constituent document of K.p. is its charter, approved by the Government of the Russian Federation. Trade name K.p. must contain an indication that the enterprise is state-owned. The Russian Federation bears subsidiary liability for the obligations of K.p. in case of insufficiency of his property. K.p. may be reorganized or liquidated by decision of the Government of the Russian Federation. See also. UNITARY ENTERPRISE.

Great Definition

Incomplete definition ↓

A federal state enterprise may be created if one of the following conditions is met:

if the activities carried out by him are allowed by federal laws exclusively for state enterprises;

if the predominant or significant part of the products manufactured by the enterprise (work performed, services rendered) is supplied for federal state needs.

The founding document of a state-owned enterprise is its charter, approved by the Government of the Russian Federation. The trade name of an enterprise based on the right of operational management must contain an indication that the enterprise is state-owned. The rights of a state-owned enterprise to the property assigned to it are determined in accordance with Articles 296 and 297 of the Civil Code of the Russian Federation.

The Russian Federation bears subsidiary liability for the obligations of a state-owned enterprise if its property is insufficient (Article 115 of the Civil Code of the Russian Federation).

The head of a federal state-owned enterprise is a civil servant, whose appointment to a position and dismissal from it is carried out in the manner established by the legislation of the Russian Federation for civil servants. The head of a federal state-owned enterprise enjoys all the rights and bears all the obligations stipulated by the legislation and the charter of the enterprise.

In cases where the state refuses to conclude a state contract or contracts with a state-owned enterprise that provide in aggregate the purchase from the enterprise of at least 50% of its products, the enterprise must be liquidated or reorganized in accordance with the established procedure within 6 months, including by transforming it into a joint-stock company of an open type.

State commercial enterprise

A unitary enterprise based on the right of economic management is created by decision of an authorized state body or local self-government body. The constituent document of an enterprise based on the right of economic management is its charter, approved by an authorized state body or local government body (Article 114 of the Civil Code of the Russian Federation).

The property of a state commercial enterprise is formed at the expense of funds allocated for the intended purpose from the relevant budget, property transferred to the enterprise by the owner, income from own entrepreneurial activity, and other sources.

The charter of a state commercial enterprise indicates the size of its authorized capital, which cannot be less than 1,000 minimum monthly wages established by law or a greater amount established by the legislation of the Russian Federation on the date of registration of the enterprise.

The state commercial enterprise is obliged to:

form a reserve fund in the amount determined by its charter and constituting at least 10% of its authorized fund, directing for these purposes the profit remaining at its disposal until the reserve fund reaches the established value;

use the resources of the reserve fund exclusively to cover losses, as well as to return budget loans and pay interest on targeted state loans in case of insufficient funds of the enterprise;

transfer to the appropriate budget part of the profit remaining at its disposal after taxes and other obligatory payments and the formation of a reserve fund in the amount determined by the owner within 10% of the net profit of the enterprise.

A unitary enterprise based on the right of economic management may create another unitary enterprise as a legal entity by transferring to it, in accordance with the established procedure, part of its property for economic management (subsidiary enterprise).

The rights of a state commercial enterprise to the property assigned to it are determined in accordance with Article 295 of the Civil Code of the Russian Federation.

The degree of property isolation of different enterprises is different.

Thus, the degree of property isolation of state unitary enterprises that are not owners of the state property transferred to them is expressed in the assignment of such property to them on the basis of the right of economic management. It is clear that in relation to this property the enterprise has a smaller set of rights than the owner in relation to his property.

The owner of property under economic management, in accordance with the law, decides on the establishment of an enterprise, determining the subject and goals of its activities, its reorganization and liquidation, appoints the head of the enterprise, exercises control over the use for the intended purpose and safety of the property belonging to the enterprise. The owner has the right to receive a part of the profit from the use of property under the economic management of the enterprise.

An enterprise is not entitled to sell property belonging to it under the right of economic management, lease it, pledge it, make a contribution to the authorized (reserve) capital of business companies and partnerships, or otherwise dispose of this property without the consent of the owner.

Institutions that are not owners of the property assigned to them own and use it on the basis of the right of operational management. The rights of such a legal entity in relation to the property assigned to it are even narrower than in the exercise of the right of economic management. Such an enterprise has the right to alienate or otherwise dispose of its property only with the consent of the owner of this property. When the ownership of an institution is transferred to another person, this institution retains the right of operational management of the property belonging to it.

The previously existing scheme of relations between the state and economic entities of the construction industry assumed the possibility of managing construction organizations only through vertical structures and management connections through command-administrative influence. At present, such a scheme for the bulk of functioning construction organizations is outdated.

The command-administrative system demanded from construction organizations the impeccable execution of instructions “from above”. At the same time, the construction organizations themselves were obliged to spend the earned funds (profit) on production and social development in strictly allocated amounts, receive raw materials from suppliers assigned to them and transfer finished products to predetermined consumers at stable prices established by higher authorities. The consumer was tied to the producer by the plan and could not create competition in those economic conditions.

During the transition to new economic relations during the transformation of the former management bodies at all levels, the administrative vertical was completely violated. In addition, when state enterprises were transformed into joint-stock companies, the principles of their management changed. The state (or a body authorized by it) can directly influence the economic activity of a joint-stock enterprise, owning a controlling stake.

The distribution of construction organizations by form of ownership is presented in the table below.

Table 4

PUBLIC ENTERPRISE

unitary state (federal) enterprises that have the right of operational management of the property assigned to them. K.p. can be created only on the basis of federal property by decision of the federal government in cases provided for by the law on state and municipal unitary enterprises (clause 1, article 115 of the Civil Code of the Russian Federation). In particular, they include enterprises. engaged in the production of certain types of defense\"products, and enterprises of correctional institutions. Kp are also reorganized and liquidated by decision of the federal government (clause 6 of article 115 of the Civil Code of the Russian Federation).

K.p. - a kind of unitary enterprises. Unlike enterprises based on the right of economic management, K.p. to assigned to

with it, the owner's property acquires the right of operational management, which in content coincides with the similar right of institutions financed by the owners (Article 296 of the Civil Code of the Russian Federation). K.p. manages the movable and immovable property assigned to him only with the prior consent of the owner (represented by the authorized body of the federal executive power). It has the right to sell only manufactured products on its own, however, special restrictions may be established by law or other legal acts (clause 1, article 297 of the Civil Code of the Russian Federation). The owner also determines the procedure for distributing income. K.p. He has the right, without the consent of K.p. seize from him excess, unused or misused property and dispose of it at his own discretion.

An important feature of the civil law status of K.p. - subsidiary liability of the Russian Federation (the owner of the property) for the obligations of K.p. (which is why it cannot be declared bankrupt). However, such liability arises only if all the property of K.p. to satisfy the requirements of creditors (clause 5, article 115 of the Civil Code of the Russian Federation). In this it differs from non-profit institutions, for whose debts the owners are liable already when there is a shortage of funds at the disposal of institutions, and from unitary enterprises, for whose debts their owners do not bear subsidiary liability. Otherwise, at K.p. the general rules on unitary state enterprises apply.

Sukhanov E.A.

Law Encyclopedia. 2005 .

See what "STATE ENTERPRISE" is in other dictionaries:

State enterprise

State enterprise- (state owned unitary enterprise) - A state-owned enterprise, as well as an institution conducting non-commercial activities, have the right to operational management. In accordance with Art. 296 of the Civil Code of the Russian Federation, they carry out in relation to the assigned for ... ... Economic and Mathematical Dictionary

state enterprise- A state-owned enterprise, as well as an institution conducting non-commercial activities, have the right of operational management. In accordance with Art. 296 of the Civil Code of the Russian Federation, they exercise in relation to the property assigned to them (within the limits established ... ... Technical Translator's Handbook

PUBLIC ENTERPRISE Legal Encyclopedia

Law Dictionary

State enterprise- see the right of operational management; Unitary enterprise based on the right of operational management ... Encyclopedia of Law

One of the types of state enterprises. Raizberg B.A., Lozovsky L.Sh., Starodubtseva E.B. Modern economic dictionary. 2nd ed., rev. M .: INFRA M. 479 s .. 1999 ... Economic dictionary

State enterprise- A kind of unitary enterprise. It is a commercial organization. A state-owned enterprise may be formed in cases provided for by the law on state and municipal unitary enterprises, by decision of the Government of the Russian ... ... Vocabulary: accounting, taxes, business law

PUBLIC ENTERPRISE- in accordance with Art. 115 of the Civil Code, in cases provided for by the legislation on unitary enterprises, by decision of the Government of the Republic of Belarus, on the basis of property owned by the Republic of Belarus, a unitary ... Legal Dictionary of Modern Civil Law

In accordance with the civil legislation of the Russian Federation, a unitary enterprise based on the right of operational management. According to Art. 115 of the Civil Code of the Russian Federation in cases provided for by the law on state and municipal unitary enterprises, by decision ... ... Encyclopedic Dictionary of Economics and Law

state enterprise- according to the civil legislation of the Russian Federation, a unitary enterprise based on the right of operational management. According to Art. 115 of the Civil Code of the Russian Federation in cases provided for by the law on state and municipal unitary enterprises, by decision of the Government ... ... Big Law Dictionary