A citizen has the right to practice entrepreneurial activity without the formation of a legal entity from the moment of the GR as an individual entrepreneur (Article 23). Entrepreneurial an independent production activity carried out at its own risk and aimed at systematic profit is recognized. A prerequisite for a citizen to engage in entrepreneurial activity is: a) his legal capacity; b) GR as an entrepreneur.
The entrepreneur's GR is made on the basis of his application, which indicates the types of activities that the citizen intends to engage in. GR is made on the day of receipt of documents. The grounds for refusal may be the entrepreneur's incapacity, the intention to engage in activities prohibited by law, or the lack of a license, if needed. Refusal or evasion of registration can be appealed by the applicant in court. After paying the registration fee, the applicant is issued a certificate, which indicates the types of activities and the period of its validity.
A citizen who is engaged in entrepreneurial activity, but did not pass the GR, does not acquire the status of an entrepreneur in this regard. It also loses this status from the moment of termination of the GR, after the expiration of the established period, cancellation of the GR, etc. In such cases, according to the Resolution of the Plenums of the RF Armed Forces and the RF Supreme Arbitration Court No. 6/8, disputes involving citizens, including those related to their entrepreneurial activities, fall within the jurisdiction of a court of general jurisdiction, however, when resolving a dispute, the court may apply the provisions of the Civil Code on obligations related to with entrepreneurial activity.
Full legal capacity is required to engage in entrepreneurial activity. Consequently, citizens can exercise it upon reaching the age of 18, if they are not limited in their legal capacity. The latter can engage in entrepreneurial activities with the consent of the trustee. A person who marries before reaching the age of 18 is recognized as fully capable (Article 21) and therefore has the right to independently engage in entrepreneurial activity. The same applies to the emancipated (Article 27) (with the exception of PD for which the age limit is established by law).
The legal capacity of an individual entrepreneur is practically equal to the legal capacity of legal entities - commercial organizations. He may have the rights and bear the obligations necessary to carry out any activities not prohibited by law. However, he does not have the right to create enterprises, while remaining the owner of the property transferred to him (I (S) PE, which must be transformed into business partnerships, societies or cooperatives). Before transformation or liquidation, the norms of the Civil Code on unitary enterprises are applied to them.
Clause 2 of Article 23 recognizes the head of a peasant (farm) economy as an entrepreneur. Such a farm can be created by only one citizen or jointly with family members or partners for the purpose of production, processing and sale of agricultural products. A peasant (farm) farm is not a legal entity. Its head is recognized as an entrepreneur from the moment of the farm's GR.
The peasant farm is subject to registration with the local self-government body in charge of this land plot... The use of the property is carried out by the members of the farm by agreement between themselves, transactions for the disposal of the property of the farm are made by the head of the farm or other persons by his power of attorney.
Entrepreneurial activity is one of the forms of citizens' participation in entrepreneurial relations. In accordance with Article 2 of the Civil Code of the Russian Federation, entrepreneurial is an independent activity carried out at its own risk, aimed at systematic profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law.
Entrepreneurial activity is economic activity. Entrepreneurship is objectively associated with some uncertainty and instability, the possibility of non-demand for the results of its activities, which means the inevitability of risk, the threat of loss of time, resources, profit.
Individual entrepreneurs - (entrepreneurs without education legal entity or abbreviated unincorporated legal entities) are individuals registered in the prescribed manner and carrying out entrepreneurial activities without forming a legal entity, as well as private notaries, lawyers who have established law offices, private security guards, private detectives (clause 2 of article 11 of the Tax Code of the Russian Federation).
Individual entrepreneur (private entrepreneur) - a subject of economic activity, organizational and legal form provided for by law Russian Federation for the conduct of commercial (entrepreneurial) activities by citizens registered in the prescribed manner.
Therefore, in life, citizens who do business from time to time, who do not have any documents giving them the right to engage in this activity, call themselves entrepreneurs, for example, persons reselling goods. If a citizen is occasionally engaged in this kind of activity, without pursuing profit-making, he cannot be regarded as an entrepreneur and should not be registered in this capacity. From a legal point of view, an entrepreneur is only a citizen who is engaged in entrepreneurial activity and is registered in this capacity. From the standpoint of public law (criminal and administrative), entrepreneurial activity carried out by a person who is not registered as an entrepreneur is illegal business.
The right of a citizen to engage in entrepreneurial and any other activity not prohibited by law constitutes the content of civil legal capacity. In order to exercise this right, a citizen must have the so-called entrepreneurial capacity, i.e. the ability to independently, proactively and professionally carry out entrepreneurial activities and fulfill all obligations arising in connection with its implementation.
An individual entrepreneur has the right to: open a current account in a banking institution; have your own trademark; conclude deals and sign business contracts; get a bank loan; pay taxes on your own; use hired labor of other citizens on the basis of work contracts, etc.
For the purpose of making a profit, a citizen can establish a legal entity and receive profit from its activities or engage in individual entrepreneurial activities without forming a legal entity. In accordance with Article 23 of the Civil Code of the Russian Federation, a citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment state registration as an individual entrepreneur. Any citizen has the right to conduct business, but not every citizen is able to exercise this right.
To acquire the status of an individual entrepreneur, a citizen must have the following common features subject of civil law:
legal capacity (the ability to have civil rights and bear responsibilities);
legal capacity (the ability to acquire and exercise civil rights by their actions);
and the place of residence (the place where the citizen resides permanently or predominantly).
For certain categories of citizens, the laws of the Russian Federation prohibit engaging in independent entrepreneurial activities. Moreover, in some cases, the law proceeds from the incompatibility of entrepreneurship with the social status of a person. In particular, the Law of the Russian Federation "On Competition and Restriction of Monopolistic Activity in Commodity Markets" prohibits officials public authorities and government controlled engage in independent business activities. Judges, employees of the prosecutor's office, employees of bodies are not entitled to engage in independent entrepreneurial activity. federal security, tax police, notaries.
The subjects of entrepreneurial activity are citizens - individual entrepreneurs and commercial organizations - legal entities. Foreign citizens, stateless persons and foreign legal entities, in particular enterprises with foreign investments, can participate in entrepreneurial activities on the territory of the Russian Federation. In relations with entrepreneurs regulated by civil law, on an equal footing with citizens and legal entities, the Russian Federation, its constituent entities, and municipalities can also act.
Elements legal status citizens (individuals) who are individual entrepreneurs are legal capacity, legal capacity and place of residence.
Legal capacity is potential capacity natural person have civil rights and responsibilities. It is recognized equally for all citizens, arises at the moment of birth and ends with his death. Acts of civil status that determine the emergence and termination of civil legal capacity, such as the birth and death of a citizen, are subject to state registration by civil registration authorities, by making appropriate entries in the act books and issuing certificates to citizens based on these records. Among the rights that form the content of the legal capacity of citizens is the right to engage in entrepreneurial activity. This right, like other civil rights and obligations, individual entrepreneur acquires and carries out under its own name.
All individuals engaged in entrepreneurial activities without forming a legal entity are recognized as small businesses. Registration of citizens of the Russian Federation, foreign citizens and stateless persons is carried out as individual entrepreneurs, in accordance with the law. The entrepreneurial status of a citizen obliges him to fully answer for his debts, both to the budget and to creditors. An individual entrepreneur who is unable to satisfy the claims of creditors related to the implementation of entrepreneurial activity may be declared insolvent (bankrupt) by a court decision and lose the quality of an entrepreneur.
The legal capacity of any citizen is his ability to acquire and exercise civil rights by his actions, to create civil obligations for himself and to fulfill them. There are 4 states of legal capacity:
1) full legal capacity;
2) partial legal capacity;
3) limited legal capacity;
4) complete incapacity.
Only capable citizens can carry out entrepreneurial activity, that is, those who are able to independently perform legal actions, conclude transactions and execute them, acquire property and own, use and dispose of it. By general rule civil legal capacity arises in full from the onset of majority (upon reaching the age of 18). Thus, a citizen who has reached the age of 18, in the cases and in the manner prescribed by law, has the right to engage in entrepreneurial activity. At the same time, a citizen under the age of 18 can acquire full legal capacity in case of marriage in the prescribed manner earlier than this age or as a result of emancipation.
Emancipation is the declaration of a minor who has reached the age of 16 as fully capable, subject to his work on labor contract or engaging in entrepreneurial activities with the consent of legal representatives. Emancipation is carried out by decision of the guardianship and guardianship authorities - with the consent of legal representatives or by a court decision - in the absence of such consent.
Minor citizens have partial legal capacity: minors under the age of 14 and non-emancipated adolescents between the ages of 14 and 18. Only their parents, adoptive parents, guardians can carry out transactions on their behalf.
The limited legal capacity of citizens is also regulated by law. Failure to comply with the conditions and procedure for restricting the legal capacity of citizens or their right to engage in entrepreneurial or other activities established by law shall entail the invalidity of an act of a state or other body that established such a restriction. Both fully capable and partially capable citizens can be limited in their legal capacity. An adult citizen may be restricted by a court of legal capacity in accordance with the procedure established by civil procedural legislation.
A citizen who, due to a mental disorder, cannot understand the meaning of his actions and control them, can be recognized as completely incapacitated by a court decision with the establishment of guardianship over him. On behalf of such a citizen, transactions are made by his guardian. If the grounds for recognizing a citizen as incompetent have ceased to exist, the court shall recognize him as legally capable, and on the basis of the court's decision, the guardianship established over him is canceled.
The civil legal capacity of a foreign citizen is determined by the law of the country of which he is a citizen, and a stateless person is determined by the country in which he has permanent residence. At the same time, however, the legal capacity of these persons, including those engaged in entrepreneurship, in relation to transactions carried out in the Russian Federation, and obligations arising as a result of causing harm in the Russian Federation, is determined by Russian law.
The place of residence of a citizen, which is important element its legal status, the place where the citizen permanently or predominantly resides is recognized. The place of residence of minors and wards of citizens is the place of residence of their legal representatives.
Citizens registered as individual entrepreneurs have rights and obligations, including:
the right to create legal entities independently or jointly with other persons;
are obliged to answer for their obligations with all property belonging to them;
can be declared bankrupt by a court decision.
Most often, their business is created by people who are not psychologically adapted to submission. They cannot work in systems where bosses are behind their backs, where they have to do their part of the work without feeling the final results of their work. The motivation for entrepreneurship among those who have discovered in themselves a vocation for this is often the desire for freedom - material freedom, freedom to influence their own position, freedom to influence the activities of their company, freedom to influence their niche in the market. Freedom of influence on the situation in your village, city, in your country. They do any job in their small business, their income may be small, but they are proud that they are the source of what is happening, the owners. Often, those who decide to start their own business defend their own dignity, offended by a material disadvantage. Entrepreneurship is interesting for those who want to use their intelligence, skill, knowledge and ingenuity as efficiently as possible, physical strength... Entrepreneurs want to have moral satisfaction from their activities, from the point of view of its social usefulness, they will not do useless work or produce unnecessary products. The individual business will always have its place in the market. There are many areas in which large enterprises are simply not needed. There are areas that need both large enterprises and individual entrepreneurs - for large and small orders, respectively.
An individual entrepreneur, like a commercial legal entity, acts on its own behalf and performs any trade transactions not prohibited by law, i.e. those transactions that are related to the implementation of entrepreneurial activities are carried out systematically or constantly and are aimed at making a profit.
An entrepreneur is liable for his obligations with all property belonging to him, with the exception of that property, on which, in accordance with the civil procedural legislation, collection cannot be levied. Moreover, an individual entrepreneur who has not fulfilled or improperly fulfilled an obligation related to the implementation of entrepreneurial activity is liable regardless of fault. He is released from liability only if he proves that the proper performance of the obligation was impossible due to force majeure. At the same time, such circumstances do not include, in particular, violation of obligations on the part of the debtor's counterparties, the absence on the market of the goods necessary for execution, the absence of the necessary Money Counterparty, one of the parties to the contract. Violated property rights and interests of an individual entrepreneur are protected in a special arbitration procedure.
An individual entrepreneur carries out economic activity at his own expense, bears full property responsibility for its results, manages his own enterprise, is completely independent in organizing and developing his business, single-handedly decides the distribution of the income received after taxes. All this leads to the possibility of flexible adaptation, but also increases the degree of risk. An individual entrepreneur has the right, like a legal entity, to engage hired labor, but unlike a legal entity, it has the right to bequeath its property.
An individual entrepreneur has the right to engage in any type of entrepreneurial activity that is not prohibited by law. At the same time, he can engage in certain types of activities, the list of which must be determined by law, only on the basis of a special permit (license).
There are three main features of entrepreneurial activity:
carrying out activities for the purpose of making a profit (commercial). Each owner of property has the right to freely dispose of it at his own discretion for his own good, which is expressed, as a rule, in the fruits and income from the property, that is, profit;
implementation at your own risk, that is, under your own property responsibility. This risk implies that the entrepreneur, as the owner of the property, assumes not only possible adverse consequences, but also additional risk in obligations;
implementation by persons registered in this capacity in the manner prescribed by law. Thus, the implementation of independent, at their own risk, activities aimed at the systematic receipt of profit by persons who are not registered as entrepreneurs is not entrepreneurship.
So, the status of an individual entrepreneur is acquired as a result of state registration of a citizen as an individual entrepreneur. An unjustified refusal of state registration may be appealed by a citizen in an arbitration court. Refusal of state registration of an entrepreneur is allowed only in cases of inconsistency of the composition of the documents submitted and the composition of the information contained in them with the requirements of the Regulation on the procedure for state registration of business entities (No. 1482).
Entrepreneur (individual) can work in any position on a paid basis in any private, public or public organizations, unless this work or position is prohibited by law from combining with entrepreneurship. Unlike legal entities, the property of individual entrepreneurs, which constitutes objects of commercial activity, can be inherited and by will. But the right to engage in entrepreneurial activity does not pass by inheritance.
Individual entrepreneurial activity of citizens is the basis of the economic system, and the entrepreneur himself acts as a central figure in the economic and social life of the whole society. With rare exceptions, everyone agrees. famous politicians and scientists. Relationships associated with entrepreneurship are represented by a special specific area of public life, which makes such relations an object of regulation on the basis of law. About special relationship in the field of entrepreneurship may be evidenced by the fact that legal regulation covers all relationships in this area. These are tax, labor, property, social relations... Individual entrepreneurial activity of a citizen is based on the desire to make a profit, while at the same time satisfying social needs for the goods he produces, the services provided, and the work performed.
What is meant by individual entrepreneurial activity
Business law operates with the concept of entrepreneurial activity, where the individual entrepreneurial activity of a citizen and collective activity are interpreted in a similar way. That is, the interpretation for individuals and legal entities in this case is the same. Today, this concept itself and its content are defined in the Civil Code of the Russian Federation (Article 2, Clause 1, Paragraph 3). The entrepreneurial activity of a citizen, the Civil Code of the Russian Federation (Article 23, Clause 3, etc.) has inextricable link, since it is in the code that, in accordance with the interpretation, equal conditions legal relationship for individuals and legal entities in the field of entrepreneurship.
The entrepreneurial activity of a citizen is an activity carried out independently, at his own peril and risk, the main purpose of which is the constant receipt of income from different kinds action. Such actions are the use of property, sale of goods, performance various works and the provision of services by citizens who are registered as entrepreneurs in the manner prescribed by laws and regulations.
Since in the Civil Code of the Russian Federation (Article 23) the subjectivity of entrepreneurship is defined for citizens and legal entities, and the very content of such a concept as the entrepreneurial activity of a citizen of the Russian Federation is given, but not disclosed, the individual entrepreneurial activity of a citizen is considered the same entrepreneurship, but carried out exclusively individually.
The final definition will look like this:
- Individual entrepreneurial activity of citizens as individuals is an activity carried out independently, at his own peril and risk, directly by a citizen who is registered as an individual entrepreneur without creating a legal entity, in the manner prescribed by laws and regulations, and is aimed at constantly receiving income from actions such as the use of property, the sale of goods, the performance of various works and the provision of services.
It should be noted that in accordance with Russian legislation, the right of citizens to engage in entrepreneurial activity is determined, but the term citizen denotes any individual who is a subject in civil law. Accordingly, the entrepreneurial activity of foreign citizens also falls under the definition of an individual entrepreneurial activity of a citizen.
Legal capacity of an individual entrepreneur
Legal capacity together with legal capacity determines the legal personality, which is necessary for a citizen to carry out entrepreneurial activities.
The legal capacity of a citizen is his ability to have rights and bear responsibility, performing duties in civil society.
Legal capacity is automatically recognized for all citizens equally. It arises from the moment a person is born and ends with his death. Legal capacity is general and is limited exclusively in accordance with the procedure established by the Civil Code of the Russian Federation (Article 22, Clause 1). The general exercise of civil rights can be limited by the boundaries of permissible behavior set out in the Civil Code. Not allowed certain actions aimed at causing harm to other citizens and all kinds of abuse of law. Can't use civil rights to restrict competition, and also to abuse the dominant position in the market.
Any citizen with legal capacity can engage in entrepreneurship, but not every citizen can exercise this right. To exercise such a right, a citizen independently must be capable of acting.
Legal capacity of an entrepreneur
The concept of a citizen's legal capacity is given in the Civil Code of the Russian Federation (Article 21):
- The legal capacity of a citizen is his ability to exercise civil rights by his own actions, which is also manifested in the creation and performance of civic duties.
The main elements of legal capacity include:
- Dealability - the ability of a citizen to independently conclude transactions.
- Delicacy - the ability to bear independent property responsibility.
The legal capacity of a citizen begins after reaching the age of 18 at the age of 18 or after undergoing the emancipation procedure on the basis of the Civil Code of the Russian Federation (Article 27) from the age of 16.
It follows from the above that individual entrepreneurial activity of citizens without the formation of a legal entity can be carried out only by capable citizens.
Restriction of legal capacity can be applied in cases where a citizen abuses alcohol or takes narcotic drugs. Also, the restriction can be applied to minors, if there is no parental permission to engage in individual entrepreneurship, and to citizens with limited legal capacity by the court.
Direct implementation of individual entrepreneurship
An individual entrepreneur in the Russian Federation can be either a citizen of Russia or a citizen of another state, as well as persons who do not have citizenship. All actions carried out by an individual entrepreneur can only be carried out by him directly on his own behalf. In this regard, an individual entrepreneur must be registered with government bodies... In his activities, he uses exclusively his own labor.
Differences between an individual entrepreneur and a citizen-entrepreneur
In accordance with the Civil Code of the Russian Federation, a citizen-entrepreneur can be either an individual or a legal entity, and an individual entrepreneur can be an exclusively individual who acts independently and does not use hired labor.
Forms of individual entrepreneurship
The forms of entrepreneurial activity of a citizen are defined in a single individual form.
In the case of an individual form, a sole enterprise of a citizen can be organized, who acts as the owner of such an enterprise. Both the owner himself and his family can take part in the activities of such an enterprise, but the functions of the owner and the individual entrepreneur are combined in this case in one subject, namely in the entrepreneur himself. Usually, the implementation of entrepreneurial activities by a citizen on an individual basis is used where quick decisions are required. Most often, this is trading, where capital turns around the fastest. An individual form of entrepreneurial activity, due to the fact that all activities are conducted by an entrepreneur independently, requires high level vocational training in different areas.
State registration of individual entrepreneurship
The right of a citizen to engage in entrepreneurial activity must be confirmed by registration with state bodies. The sequence of actions is as follows:
- Contacting the registration authority represented by the Federal Tax Service of Russia.
- Obtaining a certificate of state registration.
- Obtaining licenses for certain types of activities, subject to licensing in accordance with the law.
- Registration with funds that are off-budget.
- Opening bank accounts.
Documents required for registration
An individual who wishes to become an individual entrepreneur submits the following documents to the registration authority:
- An application for state registration completed and signed personally by a citizen. The application form is approved by the Government of the Russian Federation.
- A copy of the main identity document.
- If the main identity document does not contain the date and place of birth, then a birth certificate must be provided.
- A copy of the document giving the right to permanent residence in the Russian Federation for citizens of other states and stateless persons.
- A copy or original of the document confirming the citizen's place of residence.
- Notarized document of parental consent when registering minors.
- Receipt for payment of state duty.
What can an individual entrepreneur do
An individual entrepreneur is allowed to engage in different kinds activities not prohibited by law. Certain activities require a license or special permits. There are activities that are closed to individual entrepreneurship. All these issues are negotiated within the framework of the current Russian legislation and appropriate advice can be obtained when registering an individual business.
Responsibility of an individual entrepreneur
When carrying out an individual entrepreneurial activity without forming a legal entity, a citizen may be imposed civil, tax or even criminal liability. Bringing a citizen to justice can be carried out when he commits unlawful acts with intent or negligence. The measure of responsibility is determined in accordance with the applicable Russian legislation, namely the Civil Code of the Russian Federation, the Tax Code of the Russian Federation, the Criminal Code of the Russian Federation, the Code of Administrative Offenses of the Russian Federation.
In what cases an individual entrepreneur can lose his status
The entrepreneurial activity of a citizen of an individual can at any time be stopped by him in accordance with the current legislation on the following grounds:
- Decision-making on the termination of activities.
- Death of an entrepreneur.
- Recognition of an individual entrepreneur as insolvent in court.
- The activity was stopped forcibly by a court decision.
- A court verdict entered into force prohibiting a citizen to carry out individual entrepreneurial activities.
To terminate activities, he must fill out an application with the registration authority at the place of registration and pay the state duty, as well as provide data on the termination of activities in Pension Fund RF.
The role of individual entrepreneurship is highly appreciated throughout the world community in connection with its functionality and efficiency, the ability to instantly respond to emerging demand for all kinds of goods, works and services.
Art. 2 of the Civil Code of the Russian Federation - entrepreneurial is an independent activity carried out at its own risk aimed at systematic profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law.
The opportunity to engage in entrepreneurial activity is part of the legal capacity of a citizen specified in article 18 of the Civil Code of the Russian Federation.
A citizen acquires and exercises rights and obligations under his own name. The name must include the first and last name. Patronymic and other individualizing signs (junior, senior, second, etc.) are determined in accordance with the national legislation of the citizen and custom. The name of a citizen is determined in accordance with an identity document issued in accordance with the procedure established by national legislation.
The citizen has a permanent or preferential place of residence. A citizen bears the risk of notifying creditors of a different place of residence, as well as the risk of not receiving legally significant messages at his place of residence.
A citizen has the right to engage in entrepreneurial activity as part of a legal entity, or without its formation, after registering as an individual entrepreneur. The entrepreneurial activity of a citizen is subject to the rules governing the activity of a commercial legal entity, within the limits of no contradiction with the status of a citizen.
Violation by a citizen of the procedure for registering as an individual entrepreneur does not give him the right to refer to the fact that he is not an entrepreneur in relation to the transactions concluded by him. The court may apply to such transactions the rules on obligations related to the implementation of entrepreneurial activities.
Citizens can unite in a peasant (farm) economy to carry out activities in the region Agriculture without state registration of a legal entity. The head of the KLF is a citizen registered as an individual entrepreneur.
A citizen is responsible for his obligations with all property belonging to him. Exceptions to this rule are established by the legislation of the Russian Federation. If a Citizen cannot satisfy the claims of creditors for monetary obligations and (or) fulfill the obligation to pay mandatory payments, he may be declared insolvent (bankrupt) in court. Cases on recognizing a citizen as insolvent (bankrupt) are considered by arbitration courts, in accordance with the Federal Law "On Insolvency (Bankruptcy" and the rules of the Arbitration Procedure Code of the Russian Federation.
Did you like the material? You can treat the author with a cup of aromatic coffee and leave him a good wish :-)
Your treat will certainly be delivered to the author. A cup of coffee is not much, but it warms up and gives strength to create further. You can choose how to treat the author.
A cup of coffee from PitStop for 60 rubles.
Entrepreneurial an independent activity carried out at its own risk aimed at systematic profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law (paragraph 3, clause 1 of article 2 of the Civil Code).
Signs of entrepreneurial activity.
- It should be an activity (a system of actions), not a one-time action.
- it independent activity- organizational independence, insubordination, acting on their own behalf, the ability to act at their own discretion.
- At your own risk - activities with a non-guaranteed positive result, all losses are directed to the business entity, i.e. will answer with his property.
- Focus on systematic profit.
- Activities are subject to state registration.
Conditions for engaging in entrepreneurial activity.
- State registration of a person as an individual entrepreneur. Registration is carried out by the tax authorities. A declarative procedure has been established for registration.
2. Absence of a ban on engaging in entrepreneurial activity (for some categories of citizens, related to the position held). State registration of an individual as an individual entrepreneur is not allowed, in cases
His incapacity;
If its state registration in such capacity has not lost its force;
If a year has not expired from the date of the court's decision to declare him insolvent (bankrupt);
If the period for which this person is deprived of the right to engage in entrepreneurial activity has not expired.
3. availability of a license to engage in certain types of activities.
Order... The rules of the Civil Code, which regulate the activities of legal entities that are commercial organizations, are accordingly applied to the entrepreneurial activities of citizens carried out without the formation of a legal entity, unless otherwise follows from the law, other legal acts or the essence of the legal relationship.
The issue is resolved differently for individual entrepreneurs than for commercial organizations on the following issues:
- Brand name(possibly for commercial organization). The rules on the use of the name prohibit the use of a fictitious name (pseudonym) for an individual entrepreneur. An individual entrepreneur can only act on his own behalf (Article 19 of the Civil Code).
- Consequences of carrying out entrepreneurial activity without state registration... The court may apply to such transactions the rules of the Civil Code on obligations related to the implementation of entrepreneurial activity (regime of commercial organizations).
- Limits of property liability of individual entrepreneurs... For legal entities - they are responsible with all their property. A citizen is liable for his obligations with all property belonging to him, with the exception of property, which, in accordance with the law, cannot be foreclosed. The list of property of citizens, which cannot be foreclosed, is established by Art. 446 CPC (the only living quarters, property necessary for professional occupations, household items ...).
- The issue of insolvency (bankruptcy) of individual entrepreneurs is resolved in a different way.
Under insolvency (bankruptcy) means the inability of the debtor recognized by the arbitration court or declared by the debtor in full to satisfy the claims of creditors for monetary obligations and (or) to fulfill the obligation to pay mandatory payments.
The federal law "On insolvency (bankruptcy)" provides for three cases of bankruptcy of a citizen:
Bankruptcy of a citizen who is not an individual entrepreneur;
Bankruptcy of an individual entrepreneur;
Bankruptcy of a peasant (farm) economy.
Signs of bankruptcy all three categories are:
inability to meet the claims of creditors for monetary obligations and (or) to fulfill the obligation to pay mandatory payments
Within three months from the date on which they should have been performed;
The amount of his obligations exceeds the value of the property belonging to him (non-payment);
The amount of the debt is at least ten thousand rubles.
Order: judicial.
Effects:
1. Bankruptcy proceedings are opened - lining up creditors in a queue;
2. Determined the property on which the collection can be directed (taking into account Art. 446 Code of Civil Procedure);
3. The claims of creditors shall be satisfied in the order and priority provided for by the law on insolvency (bankruptcy).
4. After the completion of settlements with creditors, a bankrupt citizen is released from further execution of creditors' claims declared in the course of the procedures applied in the bankruptcy case.
Claims of creditors for compensation for harm caused to life or health, for the recovery of alimony, as well as other claims inextricably linked with the personality of the creditor and not extinguished in the execution of the decision of the arbitration court on declaring a citizen bankrupt, either partially extinguished, or not declared in the course of the procedures, applied in the bankruptcy case, remain in force and may be brought after the end of the bankruptcy proceedings of a citizen in full or in their outstanding part.
In case of revealing facts of concealment by a citizen of property or illegal transfer of property by a citizen to third parties, the creditor whose claims were not satisfied in the course of the procedures used in the bankruptcy case has the right to file a claim for foreclosure on this property.
Feature for individual entrepreneurs and peasant farms:
5. From the moment such a decision is made, his registration as an individual entrepreneur becomes invalid, and licenses issued to him for carrying out certain types of entrepreneurial activity are canceled.
6. For one year, an individual entrepreneur cannot be registered in this capacity.