Legal status of a state-owned enterprise. State-owned enterprises

Legal status of state-owned enterprises
A state-owned enterprise is a type of state unitary enterprise. State-owned enterprises are created by regulation on the basis of federal property by decision of the Government of the Russian Federation. The Government of the Russian Federation approves the charter of a federal government enterprise and decides on its reorganization and liquidation.
Features of the legal status of state-owned enterprises, the regime of property transferred to such enterprises by right operational management, are currently established by the Decrees of the Government of the Russian Federation “On approval of the Model Charter of a state-owned plant (state-owned factory, state-owned farm), created on the basis of a liquidated federal state enterprise” and “On the procedure for planning and financing the activities of state-owned factories (state-owned factories, state-owned farms).” A state-owned enterprise has special economic competence. Its charter defines the types of activities that the enterprise has the right to carry out; sources of formation, mode of use of property transferred to the enterprise; basics of accounting, reporting, control over the activities of an enterprise, including control over the intended use of property. Possession, use, and disposal of property are carried out by the enterprise in accordance with the instructions of the owner. Such tasks are embodied in an order plan, which the authorized body annually approves and delivers to the plant three months before the start of the planned year. The order plan is mandatory and prescriptive in nature. The order plan defines various indicators of the enterprise’s economic activity. The enterprise's wage fund may be reduced if the indicators of the order plan are not met.
Profit from the sale of products (works, services) produced in accordance with the order plan and as a result of permitted independent economic activity is used to finance activities that ensure the implementation of the order plan, plant development plan, and for other production purposes, as well as social development according to standards established annually by the authorized body. The free remainder of the profit remaining after it has been directed to these purposes is subject to withdrawal to the federal budget. The Civil Code of the Russian Federation provides for the obligation of the owner to bear subsidiary liability for the debts of the enterprise in the event of insufficiency of its property. A consequence of the establishment of the rule on subsidiary liability of the owner is also the norm of Art. 65 of the Civil Code of the Russian Federation, which determines the impossibility of declaring a state-owned enterprise insolvent (bankrupt).

2. The charters of unitary enterprises are approved by authorized state bodies of the Russian Federation, state bodies of constituent entities of the Russian Federation or local governments in relation to federal state unitary enterprises, the rights of the owner of property of which are exercised in accordance with Federal Law of December 1, 2007 N 317-FZ "On State Atomic Energy Corporation "Rosatom", - State Atomic Energy Corporation "Rosatom". The charters of unitary enterprises, the rights of the property owner of which are exercised in accordance with the Federal Law "On the National Research Center "Institute named after N.E. Zhukovsky", are approved by the federal state budgetary institution "National Research Center" Institute named after N.E. Zhukovsky". The charters of state unitary enterprises, the rights of the property owner of which are exercised in accordance with the Federal Law "On the State Corporation for Space Activities "Roscosmos", are approved by the State Corporation for Space Activities "Roscosmos". The charters of unitary enterprises, the rights of the property owner of which are exercised in accordance with the Federal Law “On the National Research Center “Kurchatov Institute”, are approved by the federal state budgetary institution “National Research Center “Kurchatov Institute”.

(see text in the previous edition)

3. The charter of a unitary enterprise must contain:

full and abbreviated corporate names of the unitary enterprise;

indication of the location of the unitary enterprise;

goals, subject, types of activities of a unitary enterprise;

information about the body or bodies exercising the powers of the owner of the property of the unitary enterprise;

name of the unitary enterprise body (manager, director, CEO);

the procedure for appointing a head of a unitary enterprise, as well as the procedure for concluding, amending and terminating an employment contract with him in accordance with labor legislation and other containing norms labor law regulatory legal acts;

a list of funds created by a unitary enterprise, the size, procedure for the formation and use of these funds;

other information provided for by this Federal Law.

4. The charter of a state or municipal enterprise, in addition to the information specified in paragraph 3 of this article, must contain information on the size of its authorized capital, the procedure and sources of its formation, as well as the directions for using profits.

5. The charter of a state-owned enterprise, in addition to the information specified in paragraph 3 of this article, must contain information on the procedure for the distribution and use of income of the state-owned enterprise.

6. The charter of a unitary enterprise may also contain other provisions that do not contradict this Federal Law and other federal laws.

7. Amendments to the charter of a unitary enterprise, including approval of the charter in new edition, is carried out by decision of the state body of the Russian Federation, the State Atomic Energy Corporation "Rosatom", the State Corporation for Space Activities "Roscosmos", the federal state budgetary institution "National Research Center" Institute named after N.E. Zhukovsky", the federal state budgetary institution "National Research Center "Kurchatov Institute", a state body of a constituent entity of the Russian Federation or a local government authority authorized to approve the charter of a unitary enterprise.

The fundamentals of the legal status of state-owned enterprises are established by the norms of the Civil Code of the Russian Federation, Federal Law of November 14, 2002 No. 161-FZ “On State and Municipal Unitary Enterprises” 1 (hereinafter referred to as the Law on Unitary Enterprises).

A state-owned enterprise is a unitary enterprise based on the right of operational management. In accordance with this Law, a commercial organization is recognized as unitary if it is not endowed with the right of ownership of property assigned to it by the owner. The property of a state-owned enterprise is indivisible and cannot be distributed among deposits (shares, shares), including among employees of the enterprise. Depending on the owner, a state-owned enterprise can be federal, owned by a constituent entity of the Russian Federation, or be a municipal state-owned enterprise.

In addition to state-owned enterprises, according to the legislation of the Russian Federation, unitary enterprises are created based on the right of economic management.

According to the Law on Unitary Enterprises, a state-owned enterprise does not have the right to create subsidiaries, but it is given the right, in agreement with the owner, to create branches and open representative offices. In accordance with Decree of the Government of the Russian Federation of December 3, 2004 No. 739 1, a federal government enterprise must coordinate these issues with the federal authority executive power, in whose jurisdiction it is located. In addition, a state-owned enterprise can be a participant (member) of commercial organizations, as well as non-profit organizations in which legal entities are allowed to participate. The decision on the participation of federal government enterprises in commercial or non-commercial commercial organization are adopted by federal executive authorities in agreement with Federal agency on federal property management.

A state-owned enterprise has special legal capacity. In relation to state-owned enterprises, the legislation provides for full property liability for their obligations. At the same time, an essential feature of their legal status is the obligation of the owner to bear subsidiary liability for their obligations if the property of the enterprise itself is insufficient. As a result, state-owned enterprises are not subject to insolvency (bankruptcy) legislation.

A state-owned enterprise is established by decision of the Government of the Russian Federation, or an executive body of a constituent entity of the Russian Federation, or a local government body. The decision defines the goals and subject of activity of the state-owned enterprise. The Law on Unitary Enterprises provides an exhaustive list of cases of creating enterprises of this type:

If the predominant or significant part of the products produced, work performed or services provided is intended for federal state needs, the needs of a constituent entity of the Russian Federation or a municipal entity;

If it is necessary to use property, the privatization of which is prohibited, including property necessary to ensure the security of the Russian Federation, the functioning of air, rail and water transport, and the implementation of other strategic interests of the Russian Federation;

"Resolution of the Government of the Russian Federation of December 3, 2004 No. 739 “On the powers of federal executive authorities to exercise the rights of the owner of the property of a federal state unitary enterprise” // SZ RF. 2004. No. 50 Article 5074

If it is necessary to carry out activities for the production of goods, provision of services sold at prices established by the state in order to solve social problems;

If it is necessary to develop and produce certain types of products withdrawn from circulation and have limited circulation;

If necessary, carry out certain subsidized activities and conduct unprofitable production;

If necessary, carry out the activities provided for federal laws exclusively for state-owned enterprises.

The constituent document of a state-owned enterprise is its charter, approved by an authorized state body or local government body. The charter of a federal government enterprise is approved by the Government of the Russian Federation. The content of the charter and the procedure for amending it are determined in Art. 9 of the Law on Unitary Enterprises.

State registration of a state-owned enterprise is carried out in accordance with the Registration Law. It should be noted that in state-owned enterprises an authorized capital is not created.

The peculiarities of the legal status of a state-owned enterprise are largely determined by the legal regime of its property, which, as already noted, is assigned to the enterprise with the right of operational management. It is also important to note that the Law on Unitary Enterprises provides for a special procedure for the distribution of enterprise income, which must be determined by the Decree of the Government of the Russian Federation, authorized bodies state power subjects of the Russian Federation or local governments.

The legislation provides the owner of the property of a state-owned enterprise with broad powers, the list of which is given in Art. 20 of the Law on Unitary Enterprises. Let's name some of them:

Making a decision on the creation of an enterprise, reorganization and liquidation, approval of the charter;

Determining the goals, subject, types of activity of the enterprise, giving consent to its participation in other legal entities, in associations of commercial organizations;

Determining the procedure for drawing up, approving and establishing indicators of plans (programs) for the financial and economic activities of the enterprise;

Appointment to the position of the head of the enterprise, conclusion of an employment contract with him;

Coordinating the hiring of a chief accountant, concluding an employment contract with him;

Giving consent to the disposal of property, including transactions related to the provision of loans, sureties, guarantees, other encumbrances, assignment of claims, transfer of debt, conclusion of a simple partnership agreement, to carry out major transactions, as well as transactions in which there is a interest, and other transactions;

Monitoring the intended use and safety of property;

Approval of indicators of economic efficiency of the enterprise, monitoring their implementation;

Approval of accounting and other reporting, making decisions on conducting audits, determining the amount of payment for auditor services;

Confiscation of excess, unused and improperly used property from a state-owned enterprise;

Bringing to the government enterprise mandatory orders for the supply of goods, performance of work, provision of services for state or municipal needs;

Approval of estimates of income and expenses.

The implementation of these powers of the owner of a federal government enterprise is carried out by the federal executive body in charge of which the enterprise is located, the Federal Agency for Federal Property Management. The division of powers between these bodies is carried out by Decree of the Government of the Russian Federation of December 3, 2004 No. 739.

The liquidation and reorganization of federal state treasury enterprises included in the list of strategic enterprises and strategic joint-stock companies, approved by Decree of the President of the Russian Federation of August 4, 2004 No. 1009, is carried out by the Government of the Russian Federation on the basis of a decision of the President of the Russian Federation.

Solely executive body of a state-owned enterprise is its director, appointed by the owner and accountable to him. The manager must act in the interests of the enterprise, in good faith and wisely. The legal status of the head of the enterprise is determined by Art. 21 of the Law on Unitary Enterprises and Labor Legislation. It must be emphasized that the head of the enterprise is responsible for losses caused to the state-owned enterprise by his guilty actions (inaction). The owner of the enterprise may sue him for compensation for such losses. In cases provided for by federal laws, collegial advisory bodies may be formed at state-owned enterprises.

NW RF. 2004. No. 32. Art. 3313

The peculiarities of the legal status of a state-owned enterprise should also include the publicity of financial statements, their submission to authorized bodies, and the possibility of the owner establishing cases of mandatory annual audit.

More on topic 3. Legal status of state-owned enterprises:

1. § 2. Fundamentals of the administrative and legal status of enterprises and institutions
2. Administrative and legal status of enterprises, institutions and other organizations
3. 8.3. Administrative and legal regime of martial law: concept, content and legal basis
4. Chapter 6. LEGAL STATUS OF THE STATE AS A PARTICIPANT IN CIVIL LEGAL RELATIONS
5. 12.1. Preliminary review of the economic and financial situation of the enterprise
6. Organizational and legal forms of enterprises. Basic regulations governing the activities of enterprises
7. 5.3. Supervision of abuses of enterprises with a dominant market position
8. 2.2.4.3. Analysis of changes in the property status of an enterprise
9. 12.3. Legal personality, legal status, legal status
10. Chapter 2 Organizational and legal forms of enterprises. Basic regulations governing the activities of enterprises
11. 11.5. Analysis of the dynamics of the financial position of the enterprise over a number of years

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State enterprise
“A state-owned enterprise is, 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, on the basis of property in federal ownership, a unitary enterprise based on the right of operational management (federal K.p.) can be formed. The founding document of K.p. is its charter, approved by the Government of the Russian Federation. The Russian Federation bears subsidiary liability for the obligations of K.p. if his property is insufficient. K.p. may be reorganized or liquidated by decision of the Government of the Russian Federation..."
(Government enterprise // Access mode: http://dic.academic.ru/dic.nsf/lower/15211. - Caption from the screen. - (Date of access: 3.11.2009).

State unitary enterprise
“Unitary enterprises exist in two varieties: those based on the right of economic management and those based on the right of operational management (state-owned) (Articles 114 and 115 of the Civil Code, paragraph 2 of Article 2 of the Law on Unitary Enterprises)…
The differences in the legal status of these types of unitary enterprises lie primarily in the scope of powers they receive in relation to the property of the founder-owner, since the right of operational management of a state-owned enterprise is even narrower in content than the right of economic management of a unitary enterprise (cf. Art. 295- 297 Civil Code). In particular, for a state-owned enterprise to carry out any transactions to dispose of its property, the mandatory consent of the owner (the state authority or local government authorized by him) is required, unless we are talking about the finished products of such an enterprise (Clause 1, Article 297 of the Civil Code, Art. 19 of the Law on Unitary Enterprises).
A state-owned enterprise carries out its activities in accordance with the estimate of income and expenses approved by the owner (similar to a state budgetary institution). This circumstance predetermines the strictly targeted (and not formally independent, as in an ordinary unitary enterprise) nature of the use of any property of the founder owner assigned to it. Binding orders from the owner for the supply of goods, performance of work or provision of services for state or municipal needs are communicated to him. In addition, excess, misused or unused property may be confiscated from him (Clause 2 of Article 20 of the Law on Unitary Enterprises).
Important for turnover is the fact that if state-owned enterprises lack “their own” property, their founders become vicariously liable for their debts (clause 5 of article 115 of the Civil Code, clause 3 of article 7 of the Law on Unitary Enterprises), whereas for ordinary For unitary enterprises, this situation is excluded (except for some cases of bankruptcy). Therefore, a state-owned enterprise, unlike an ordinary unitary enterprise, cannot be declared bankrupt..."
(Civil law. In 4 vols. T. 1: General part [Electronic resource] / chief editor E. A. Sukhanov. - M.: Wolters Kluwer, 2008).

Federal Law "On State and Municipal Unitary Enterprises"(as amended on December 8, 2003, December 18, 2006, July 24, December 1, 2007) dated November 14, 2002 No. 161-FZ
“A state-owned enterprise can be created in the following cases:
if the predominant or significant part of the products produced, work performed, services provided is intended for federal state needs, the needs of a constituent entity of the Russian Federation or a municipal entity;
the need to use property, the privatization of which is prohibited, including property necessary to ensure the security of the Russian Federation, the functioning of air, rail and water transport, and the implementation of other strategic interests of the Russian Federation;
the need to carry out activities for the production of goods, performance of work, provision of services sold at prices established by the state in order to solve social problems;
the need to develop and produce certain types of products that ensure the security of the Russian Federation;
the need to produce certain types of products that are withdrawn from circulation or have limited circulation;
the need to carry out certain subsidized activities and conduct unprofitable production;
the need to carry out activities provided for by federal laws exclusively for state-owned enterprises..."

Commentary on Article 115 of the Civil Code
“In the charter of the state unitary enterprise, in addition to the information indicated in accordance with Art. 113, 114 of the Civil Code, its full corporate name must be present, containing the words “federal state enterprise”, “state enterprise” or “municipal state enterprise” and an indication of the owner of the property.
3. In a state-owned enterprise, the authorized capital is not formed, and in addition general information specified in the charter of the unitary enterprise (see commentary to Article 113), the procedure for the distribution and use of income of a state-owned enterprise must be determined.
4. The owner of the property of the state UP, in addition to the general rights provided for in the commentary. to Art. 113, 114, has the right:
confiscate excess, unused or improperly used property from a state-owned enterprise;
bring to the government enterprise mandatory orders for the supply of goods, performance of work, provision of services for state and municipal needs;
approve the estimate of income and expenses of a state-owned enterprise.
Other powers of the owner of the property of a federal government enterprise are determined by the Government of the Russian Federation or authorized federal executive authorities. The charter of a state-owned enterprise must comply with Art. 52 of the Civil Code, the requirements of the Law on Unitary Enterprises (see commentary to Article 113), as well as the Model Charter, approved. Decree of the Government of the Russian Federation of August 12, 1994 N 908 (SZ RF, 1994, N 17, Art. 1982). This by-law provides for the legal regime of the property of a state-owned unitary enterprise, the nature and limits of its production and economic activities, the organization of accounting and reporting, its status as a legal entity, the right to have settlement and current accounts in a bank, a seal with its name, forms and registered in the established ok trademark (service mark).
5. In addition to the narrower scope of property powers in comparison with the UP, vested with property on the right of economic management (see Articles 114, 296, 297 and commentary to Articles 114, 296, 297), the state UP has, accordingly, fewer rights in areas of operational and economic activity..."
(Commentary to Article 115 of the Civil Code // Access mode: http://www.labex.ru/page/kom_gk_115.html. - Caption from the screen. - (Date of access: 3.11.2009).

Rules for the creation and regulation of the activities of federal government enterprises
"2. An enterprise can be created by establishing, reorganizing an existing unitary enterprise in the form of division, spin-off or merger, as well as by changing the type of unitary enterprise based on the right of economic management (hereinafter referred to as a unitary enterprise).
3. In order to create an enterprise, the federal executive body under whose jurisdiction the enterprise will be located (hereinafter referred to as the authorized body) ensures the preparation of the following documents:
a) a feasibility study for the creation of an enterprise, including a financial and economic analysis of the state of a unitary enterprise, indicating the structure of accounts payable and receivable, the conditions and reasons for its occurrence, a forecast of the volume of products (works, services) produced by order of the state to meet federal state needs with justification for the need to produce certain types of products (works, services) within the framework of independent economic activity, a forecast of income and expenses of the enterprise for the next year and planning period, as well as proposals for the organizational and staffing structure of the enterprise;
b) draft charter of the enterprise;
c) a draft program of the enterprise’s activities for the next year and planning period (hereinafter referred to as the activity program);
d) a draft estimate of income and expenses of the enterprise for the next year and planning period, which identifies income and expenses associated with the execution of orders for the supply of goods (work, services) for federal government needs (hereinafter referred to as the estimate of income and expenses);
e) a draft list of property that is subject to assignment to the enterprise with the right of operational management for the production of products (works, services) ordered by the state in accordance with the charter of the enterprise;
f) a report on the assessment of property that is subject to assignment to the enterprise with the right of operational management, containing information on the market value of the property (except for cases of creating an enterprise through reorganization or changing the type of unitary enterprise).
4. In the case of creating an enterprise through reorganization or changing the type of unitary enterprise, the authorized body, in addition to the documents specified in paragraph 3 of these Rules, also ensures the preparation of the following documents:
a) notarized copies of the constituent documents of the unitary enterprise;
b) copies of the financial statements of the unitary enterprise as of the last reporting date and annual financial statements for the previous 3 years with a mark from the tax authority...”
(Russian Federation. Government. On the creation and regulation of the activities of federal government enterprises: resolution of December 15, 2007 No. 872 // Access mode: http://www.government.ru/content/governmentactivity/rfgovernmentdecisions/ archive/2007/12 /19/331232.htm. - Caption from the screen. – (Date of access: November 3, 2009).

The procedure for the creation, reorganization and liquidation of state-owned enterprises
“The decision to create, reorganize and change the type of a state-owned enterprise (hereinafter referred to as the Enterprise) is made by the Moscow Government on the proposal of the executive authority of the city of Moscow, under the departmental subordination of which (which) the Enterprise is (will be) of the Moscow City Property Department and in the presence of a positive conclusion Interdepartmental Commission under the Moscow Government to streamline the activities of state and government enterprises in the city of Moscow. The establishment of an Enterprise is carried out in cases established by the legislation of the Russian Federation.
The decision to liquidate the Enterprise is made by the Property Department of the city of Moscow in the presence of a positive conclusion from the Interdepartmental Commission under the Moscow Government on streamlining the activities of state and state-owned enterprises of the city of Moscow.
3.1.2.2.2. Proposals (applications) for the creation, reorganization and liquidation of the Enterprise are sent by the department (committee, management), the prefecture of the administrative district and the district government of the city of Moscow, under the departmental subordination of which (which) the Enterprise is (will be), the Department of Property of the City of Moscow to the Interdepartmental Commission under The Moscow Government to streamline the activities of state and government enterprises in the city of Moscow (hereinafter referred to as the Commission).
3.1.2.2.3. An application to create an Enterprise must contain the following information:
- the purpose of creating the Enterprise;
- subject and main activities of the Enterprise;
- departmental subordination of the Enterprise;
- an enlarged list of property (including real estate) necessary for the functioning of the Enterprise.
The application must be accompanied by a feasibility study for the establishment of the Enterprise with the conclusion of the department (committee, management), prefecture of the administrative district and the district government of the city of Moscow, under whose departmental subordination the Enterprise will be located.
3.1.2.2.4. An application for liquidation, reorganization and change in the type of the Enterprise must contain the following information:
- the reason for liquidation, reorganization (indicating the method of reorganization) or change in the type of the Enterprise;
- the size of the Company’s receivables and payables, as well as an assessment of ways to repay it;
- assessment of the consequences for the city budget from liquidation, reorganization or change in the type of the Enterprise;
- directions for using the property of the liquidated Enterprise or a list of property (including real estate) transferred to the reorganized Enterprise (the Enterprise whose type is proposed to be changed);
- the subject and main activities of the reorganized Enterprise (the Enterprise whose type is proposed to be changed);
- departmental subordination of the reorganized Enterprise (Enterprise, the type of which is proposed to be changed) ... "
(Moscow. Government. On improving the mechanism for implementing the rights of the owner of property of state unitary enterprises of the city of Moscow in the context of their reform and increasing the level of responsibility and motivation of enterprise managers: resolution of June 9, 2009 N 541-PP // Access mode: http:/ /www.kadis.ru/texts/index.phtml?id=37769. - Caption from the screen. – (Date of access: November 3, 2009). – Attachment: Guidelines on drawing up a plan (program) for the financial and economic activities of a state unitary enterprise, including a state-owned enterprise, of the city of Moscow; Regulations on the motivation of managers of state unitary enterprises, including state-owned enterprises, of the city of Moscow; Model charter of a state-owned enterprise of the city of Moscow; A standard employment contract with the head of a state-owned enterprise in Moscow.

Features of the organization of financial and economic activities of a state-owned enterprise
“The property of a state-owned enterprise is assigned to it with the right of operational management. At the same time, in accordance with Art. 297 of the Civil Code of the Russian Federation, a state-owned enterprise can, similarly to state unitary enterprises, dispose of this property (sell, lease, write off, etc.) with the consent of the owner, which distinguishes it from budgetary institutions, which generally cannot dispose of property that is also assigned to them on the right of operational management. Thus, unlike budgetary institutions, whose property can be leased only on the basis of tripartite agreements, a state-owned enterprise independently enters into lease agreements and acts as a “lessor”, provided that these agreements bear a mark from the property management body approving these transactions.
A state-owned enterprise is liable for its obligations with all the property belonging to it, and if such property is insufficient, subsidiary liability for the obligations of the state-owned enterprise in accordance with clause 5 of Art. 115 of the Civil Code of the Russian Federation is borne by its owner (i.e. the state or municipal entity). In this regard, a state-owned enterprise cannot be liquidated due to insolvency (bankruptcy).
The activities of a state-owned enterprise are determined in accordance with those approved by the founder of this enterprise program (business plan) of financial and economic activities, in which the following basic indicators for the production of products (works, services) are mandatory:
volume of supplies of products (works, services) in physical terms, indicating the nomenclature and assortment, requirements for the quality of products (works, services), delivery times, prices and conditions for their change;
the wage fund and the standard for reducing it if the indicators of the order plan are not met; the wage fund is increased at the expense of profits according to the standards established by the authorized body;
limit on the number of employees;
the amount of funds allocated from the budget of the founder of the enterprise and the conditions for their provision;
measures necessary to ensure the sustainable operation of a state-owned enterprise;
tasks for commissioning and decommissioning of production facilities;
assignments for the creation and development of new types of products;
assignments for training and retraining of personnel;
conditions for implementing the development of a state-owned enterprise, including financial costs and sources of covering them...
The basis for planning the financial and economic activities of a state-owned enterprise, as well as the formation of the structure of analytical accounts in its system accounting is an estimate of income and expenses drawn up on the basis of a program (business plan) of the financial and economic activities of a given enterprise. Receipts and expenditures of funds in the specified estimate must be detailed by the sources of their financing, by the funds created at the enterprise in accordance with its charter, as well as by the purposes (directions) of using the funds. In order to ensure normal conditions To organize control over the targeted use of funds of a state-owned enterprise, it is advisable to detail all expenses of a state-owned enterprise according to ECR codes...”
(Garnov, I. Features of the organization of financial and economic activities of a state-owned enterprise // Financial newspaper [Electronic resource]. – 2006. - September (No. 36).

Article 19. Disposal of property of a state-owned enterprise
"1. A federal government enterprise has the right to alienate or otherwise dispose of property belonging to it only with the consent of the Government of the Russian Federation or someone authorized by it federal body executive power.
A state-owned enterprise of a constituent entity of the Russian Federation has the right to alienate or otherwise dispose of property belonging to it only with the consent of the authorized government body of the constituent entity of the Russian Federation.
A municipal government enterprise has the right to alienate or otherwise dispose of property belonging to it only with the consent of the authorized local government body.
The charter of a state-owned enterprise may provide for the types and (or) size of other transactions, the conclusion of which cannot be carried out without the consent of the owner of the property of such an enterprise.
A state-owned enterprise independently sells its products (work, services), unless otherwise established by federal laws or other regulatory legal acts of the Russian Federation.
2. A state-owned enterprise has the right to dispose of the property belonging to it, including with the consent of the owner of such property, only to the extent that does not deprive it of the opportunity to carry out activities, the subject and goals of which are determined by the charter of such an enterprise. The activities of a state-owned enterprise are carried out in accordance with the estimate of income and expenses approved by the owner of the property of the state-owned enterprise...”
(Federal Law “On State and Municipal Unitary Enterprises” (as amended on December 8, 2003, December 18, 2006, July 24, December 1, 2007) dated November 14, 2002 No. 161-FZ [Electronic resource] ).

State-owned enterprise and features of the legal status of its property
“State-owned enterprises are among state unitary enterprises created by the owner of the property and not endowed with the right of ownership of the property provided to them by the owner. The property of a unitary enterprise belongs by right of ownership to the Russian Federation, a constituent entity of the Russian Federation or a municipal entity. Accordingly, a distinction is made between federal government enterprises, government enterprises of the constituent entities of the Russian Federation, and municipal government enterprises.
On behalf of the Russian Federation or a subject of the Russian Federation, the rights of the owner of the property of a unitary enterprise are exercised by state authorities of the Russian Federation or government bodies of a subject of the Russian Federation within the framework of their competence established by acts defining the status of these bodies. On behalf of the municipality, the rights of the owner of the property of a unitary enterprise are exercised by local government bodies within the framework of their competence established by acts defining the status of these bodies.
The property of a state-owned enterprise belongs to it by right of operational management, is indivisible and cannot be distributed among deposits (shares, shares), including among employees of such an enterprise.
A state-owned enterprise as a subject of operational management law is obliged to: firstly, take into account the limits and restrictions legally established for this type of enterprise; secondly, to exercise their powers in accordance with the goals of the enterprise; thirdly, take into account and carry out the tasks of the owner of the property assigned to him; fourthly, to use the property provided to him for operational management strictly for its intended purpose.
If a state-owned enterprise has excess property, or the property is not used by it, or is used for other purposes, then the owner of this property has the right to seize it and dispose of it at his own discretion. In addition, budgetary allocations allocated to a state-owned enterprise and not used by it after a year are subject to mandatory return to the federal budget. The owner of the property can intervene financially economic activity state-owned enterprise, but only in cases specifically specified by law..."
(Akhmetyanova, Z. A. State enterprise and features of the legal status of its property / Z. A. Akhmetyanova // Access mode: http://www.lawmix.ru/comm.php?id=4266_. - Caption from the screen. – (Date of access: 3.11.2009).

Legal status of state-owned enterprises
“According to the Law on Unitary Enterprises, a state-owned enterprise does not have the right to create subsidiaries, but it is granted the right, in agreement with the owner, to create branches and open representative offices. In accordance with Decree of the Government of the Russian Federation of December 30, 2002 No. 940, a federal government enterprise must coordinate these issues with the federal executive body under whose jurisdiction it is located. In addition, a state-owned enterprise can be a participant (member) of commercial organizations, as well as non-profit organizations in which legal entities are allowed to participate. The decision to participate in a commercial or non-profit organization accepted with the consent of the owner. In relation to federal unitary enterprises, the functions of coordinating the solution of this issue are assigned to the Ministry of Property of the Russian Federation.
A state-owned enterprise has special legal capacity. In relation to state-owned enterprises, the legislation provides for full property liability for their obligations. At the same time, an essential feature of their legal status is the obligation of the owner to bear subsidiary liability for their obligations if the property of the enterprise itself is insufficient. As a result, state-owned enterprises are not subject to insolvency (bankruptcy) legislation.
A state-owned enterprise is established by decision of the Government of the Russian Federation, or an executive body of a constituent entity of the Russian Federation, or a local government body. The decision defines the goals and subject of activity of the state-owned enterprise. The Law on Unitary Enterprises provides an exhaustive list of cases of creating enterprises of this type:
- if the predominant or significant part of the products produced, work performed or services provided is intended for federal state needs, the needs of a constituent entity of the Russian Federation or a municipal entity;
- if it is necessary to use property, the privatization of which is prohibited, including property necessary to ensure the security of the Russian Federation, the functioning of air, rail and water transport, and the implementation of other strategic interests of the Russian Federation;
- if necessary, carry out activities for the production of goods, provision of services sold at prices established by the state in order to solve social problems;
- if necessary, the development and production of certain types of products withdrawn from circulation and limited circulation;
- if necessary, carry out certain subsidized types of activities and conduct unprofitable production;
- if it is necessary to carry out activities provided for by federal laws exclusively for state-owned enterprises..."
(Legal status of state-owned enterprises // Access mode: http://www.lex-pravo.ru/codex.php?ch=5&art=18&t=pp. - Caption from the screen. – (Date of access: 3.11.2009).

Development legal regulation organization and activities of state enterprises
“A state enterprise also differs from a unitary enterprise with the right of economic management in that it does not have the right to dispose of real and movable property without the consent of the owner (the exception is the finished products produced by the enterprise).
The production and economic activities of a state-owned enterprise are carried out in accordance with the plan - order approved by the owner, and the development plan developed and agreed upon with the authorized body of the owner. A state-owned enterprise is allowed to conduct independent economic activities only with the consent of the authorized body, which exercises general control over the activities of enterprises. Once a quarter, it reports to a higher authority not only on the implementation of the plan - order and development plan, but also for permitted independent economic activities. As we see, the rights of a state-owned enterprise in relation to the property assigned to it are sharply limited compared to a unitary enterprise.
Financing the activities of a state-owned enterprise related to the implementation of the plan - order and development plan of the enterprise, its production and social development, is carried out primarily through income from sales of products. Unlike an ordinary unitary enterprise, if its own funds are insufficient, a state-owned enterprise is allocated funds from the federal budget for strictly defined areas: implementation of the plant development plan, maintenance of social infrastructure facilities, compensation for losses from the implementation of the plan - order. In addition, the decision to allocate these funds to an enterprise is made by the Government of the Russian Federation only after providing information on their expenditure and the general results of the economic activity of the state-owned plant for the previous year. Budget funds not used by the enterprise this year are returned to the federal budget.
The owner himself establishes the procedure for distributing income of a state-owned enterprise, without coordinating it with the enterprises. In an ordinary unitary enterprise, he has the right to receive only part of the profit from his property. The profit received by a state-owned enterprise from the sale of products (works, services) and made in accordance with the plan - order and as a result of the independent economic activity permitted to it, is directed to certain purposes according to standards established annually by the authorized body of the owner. Moreover, the procedure for establishing standards is approved by the Ministry of Economy of the Russian Federation and the Ministry of Finance of the Russian Federation. The remaining profit is withdrawn to the federal budget.
The state bears subsidiary liability for the debts of a state-owned enterprise. This ensures the protection of the interests of other participants in property circulation...”
(Kosyakova N.I. Development of legal regulation of the organization and activities of state enterprises / N.I. Kosyakova // http://www.juristlib.ru/book_1880.html. - Caption from the screen. - (Date of access: 3.11.2009 ).

RIOTS are just around the corner
“According to NG, in the middle of last week the Ministry of Culture received draft documents from the Ministry of Finance that relate to all budgetary institutions. It is expected that work on these documents will be completed as soon as possible and that they will soon acquire official status. According to the projects, already next year all budgetary institutions should be transformed either into autonomous institutions, or into budgetary institutions of a new type, or become state-owned institutions...
The reforms were conceived long before the crisis, but in a crisis, these changes, quite clearly, are doubly or three times more dangerous.
That a state-owned institution guarantees stable, albeit modest, funding, but deprives the cultural institution of any income. Or rather, all the money earned with this new form of management goes into the budget.
And the very form of a government institution turns this institution into a kind of branch of the Ministry of Culture, which the founder, the Ministry of Culture, can liquidate at any time. Any government institution can easily transform into a budgetary or even autonomous institution, but reverse stroke can be done in the future only by government decision. Small provincial museums, which only yesterday were ready to think about free floating, now have to think three times before making a decision.
A budgetary institution seems to be the most acceptable form, but it may well be considered unprofitable, and then it can be liquidated from above, that is, by the state. The state has even less responsibility towards autonomous institutions.
In short, even at first glance, all three of these forms, be it a theater or a museum, are completely unsuitable for the cultural sphere.
Plus a reduction in funding, which even in best years grew in absolute numbers and decreased in percentage terms from year to year.
According to the State Secretary of the Ministry of Culture Ekaterina Chukovskaya, everything is not so scary. She believes that there is nothing particularly new in the projects being prepared; rather, we can talk about attempts that have been ongoing over the past five years “to create a form of organization of cultural institutions that would level out the shortcomings that these institutions are given by our Civil Code, the goal is reduce the degree of unfreedom.” But in response, the responsibility of heads of cultural institutions also increases...
State institutions, according to Chukovskaya, will most of all correspond to the current budgetary institutions and will also be fully subsidized by the state, “but the volume of these subsidies is not announced,” while “everything they earn should also go to the budget. This is unlikely to appeal to those organizations that know how to earn money themselves and that generally provide at least some paid services».
It is already known today that the Ministry of Education refused to convert all of its educational institutions into state-owned institutions - all of them, pre-school, school, university, etc. Will this give educational institutions more freedom? Or will this be followed by a reduction in subsidies?
Do managers realize educational institutions all the risks of other organizational and economic forms?
Let's return, however, to culture.
If an institution is able to earn 30% of its budget on its own, judging by how events are developing, it will be pushed to switch to the forms of REBELLION and AU. Tempting with more freedom.
In a government institution, no one will allow the budget to be regrouped, but in other forms - please. A certain amount will be allocated for the AU, with which the institution will be able to do almost anything it wants (except, of course, what is punishable by law). But what prevents us from rejoicing is the question that immediately arises: what will these same sums be enough for?..”
(Zaslavsky, G. RIOTS are just around the corner / Grigory Zaslavsky // Nezavisimaya Gazeta [Electronic resource]. - 2009. - August 10. - Access mode: http://www.ng.ru/culture/2009-08-10/ 1_bunt.html).

The salary increase may be by the end of 2010...
“State-owned enterprises are not new institutions, they are economic entities that are completely on the budget estimate, and the state fully finances all expenses according to the estimate that state-owned enterprises use in their activities. This approach is quite clear. Budget institutions of the new type are close to autonomous. And the differences there are not that big, although they exist. The main differences are that such budgetary institutions must maintain their budget accounts in the federal treasury. In this case, the state has greater control over the use of budget funds. And so, budgetary institutions of the new type will also work on state orders, they will have stricter relations with the founders, who have more control over such institutions and are more responsible for their economic activities. Perhaps on this moment These are all significant differences between budgetary institutions of the new type and autonomous ones.
- In your opinion, which of the listed forms is most optimal for cultural institutions?
- Museums or theaters, creative groups or cultural centers, philharmonic societies or other concert institutions - they all must see their own benefit in one form or another that suits them.
Now, when the law is passed, it is important for us to understand what is the interest of cultural institutions, what type of institution they are leaning towards. If the creation of budgetary and autonomous institutions depends on the teams themselves, then in order to become a state-owned enterprise, we need to include such an institution in a special list...
Therefore, we believe that the transition to new uniform management should be associated with a two-year moratorium on reducing funding for cultural institutions that have chosen a different path of existence - AU or BUNT. Such a ban is a guarantee that we, having freed up the creative potential of all groups to find a source of financing for their activities, will not allow state influence to decrease during this reform period...”
(Ivliev, G. An increase in salaries may be by the end of 2010... / Grigory Ivliev; Maria Tokmasheva // Culture [Electronic resource]. - 2009. - September 24-30. - Access mode: http://www. kultura-portal.ru/tree_new/cultpaper/article.jsp?number=852&rubric_id=200&crubric_id=1002077&pub_id=1069866).

The era of riots has arrived
“The draft federal law “On amendments to certain legislative acts of the Russian Federation in connection with the improvement of the legal status of state (municipal) institutions” has been submitted for consideration to the Government of the Russian Federation. The expected date for entry into force of this law is January 1, 2010. As they say, there is not long to wait...
However, in order not to cause a real revolt in the budgetary sphere, the bill proposes another form of management - a “state institution”, which is closest to today’s budgetary ones. Such an enterprise will be financed according to estimates. The founder (owner) bears full subsidiary liability to him. But the state institution will have to transfer all its extra-budgetary income to the budget of the appropriate level.
It is assumed that this type of institution will primarily include government agencies, military institutions and institutions of all law enforcement agencies. All others who want to move to the “kazenka” must “sign up” on a special list that will be approved by the Government of the Russian Federation.
Federal institutions can apply for this form of business, the volume extrabudgetary funds which represents less than 10 percent of total annual funding. For cultural institutions of federal subjects and municipalities, the threshold increases to 30 percent. “Government institutions will most closely correspond to the current budgetary institutions and will also be fully subsidized by the state, but the volume of these subsidies is not announced, and everything they earn must also go to the budget. This is unlikely to appeal to those organizations that know how to earn money themselves and that In general, they provide at least some paid services,” explains Ekaterina Chukovskaya. It is assumed that a state-owned institution can easily transform into a budgetary or even autonomous institution at any time, but the reverse process can only occur by government decision. Therefore, it is now important for legislators to understand which cultural institutions want to become “state-owned”.
Of course, of all the proposed forms, “breech” at first glance seems to be the safest from the point of view of the functioning of a cultural institution. It is only obvious that the list of “state-owned enterprises” will be small (otherwise why bother with such reforms at all?), and if cultural institutions are included, then only the largest ones, having the unspoken status of “national shrines”...
(Tokmasheva, M. The era of REVOLT has arrived: why new types of budgetary institutions are needed / Maria Tokmasheva // Culture [Electronic resource]. - 2009. - October 8-15. - Access mode: http://www.kultura-portal.ru /).

Prepare N. E. Filippova, head. SNICKY

1. Definition of a state-owned enterprise.

2. General provisions.

3. Legal status of a state-owned enterprise.

4. General legal status government enterprise.

5. Legal regime property of a state-owned enterprise.

6. Organization of activities of a state-owned enterprise.

7. Competence of enterprise management bodies.

8. Liquidation and reorganization of a state-owned enterprise.

9. Taxation issues.

10. Problems government controlled property.

Bibliography.

1. Definition of a state-owned enterprise.

A unitary enterprise based on the right of operational management is, according to the civil law of the Russian Federation, a unitary enterprise formed in cases provided for by the law on state and municipal unitary enterprises by decision of the Government of the Russian Federation, on the basis of property in federal ownership. A unitary enterprise based on the right of operational management is a federal government enterprise. The constituent document of a state-owned enterprise is its charter, approved by the Government of the Russian Federation. The corporate name of such an enterprise must indicate that the enterprise is state-owned.

The rights of a state-owned enterprise to the property assigned to it are determined as follows: such an enterprise, in relation to the property assigned to it, exercises the rights of ownership, use and disposal, but within the limits established by law, in accordance with the goals of its activities, the tasks of the owner and the purpose of the property. At the same time, the owner of property assigned to a state-owned enterprise has the right to withdraw excess, unused or misused property and dispose of it at his own discretion (Article 296 of the Civil Code of the Russian Federation). A state-owned enterprise has the right to alienate or otherwise dispose of the property assigned to it only with the consent of the owner of this property. At the same time, a state-owned enterprise has the right to independently sell the products it produces, unless otherwise established by law and other legal acts.

The procedure for distributing income of a state-owned enterprise is determined by the owner of its property. The Russian Federation bears subsidiary liability for the obligations of a state-owned enterprise if its property is insufficient. A state-owned enterprise may be reorganized or liquidated by decision of the Government of the Russian Federation.

2. General provisions.

Unitary enterprises based on the right of operational management (state-owned enterprises), as a new organizational and legal form of a legal entity, appeared in our legislation in May 1994.

Such unitary enterprises were first mentioned in Decree of the President of the Russian Federation of May 23, 1994 No. 1003 “On the Reform of State-Owned Enterprises”, the text of which, as one of the directions for the reform of state-owned enterprises, provided for the creation on the basis of a limited circle of liquidated federal state-owned enterprises of economic institutions - state-owned factories, state-owned factories and state-owned farms, with the assignment to them of the right of operational management of all property liquidated federal state enterprises.

Moreover, in the Decree, a possible decision to liquidate a federal state enterprise and create a state-owned plant on its basis was considered as a certain sanction in relation to state enterprises. This conclusion follows from an analysis of the provisions of the Decree that in order to make such a decision, the following grounds are required: misuse of allocated federal funds; lack of profit for the last two years; use of real estate assigned to the enterprise in violation current rules, including the inclusion of the specified property in the authorized capitals of enterprises, its transfer for rent; sale or provision for use to other legal entities without the permission of an authorized government body.

At the same time, the circle of state enterprises on the basis of whose property state-owned enterprises could be created (even taking into account the fact of violations committed by them) was defined quite narrowly. Decisions on the liquidation of a state enterprise and the creation of a state-owned enterprise on the basis of its property could be made only in relation to the following federal state enterprises: carrying out activities permitted by federal laws exclusively for state enterprises; the predominant consumer of products, works or services of which is the state (more than 50%); the privatization of which is prohibited by the State Program for the Privatization of State and Municipal Enterprises. As for other cases of creating state-owned enterprises, they could only be established by federal laws and decrees of the President of the Russian Federation.

The Decree of the President of the Russian Federation “On the Reform of State-Owned Enterprises” provided for the following procedure for the creation of state-owned enterprises. The decision to liquidate a federal state enterprise and create a state-owned plant on its basis is made by the Government of the Russian Federation on the proposal of the relevant federal executive authorities or on the initiative of the enterprise itself. By making such a decision, the Government directly determines the composition of the liquidation commission, allocates funds for the liquidation of the federal state enterprise, and determines the federal executive body that will approve the charter of the state-owned plant being created.

Noteworthy is the provision contained in the Decree that all expenses for the liquidation of a federal state enterprise, as well as settlements with its creditors, are carried out at the expense of the federal budget.

Legal status of a state-owned enterprise according to Decree of May 23, 1994 No. 1003 boiled down to the following: a state-owned enterprise created in accordance with the Decree is the legal successor of a liquidated state enterprise in terms of previously allocated federal funds, as well as in terms of land use, environmental management, subsoil use and granted quotas and licenses; A state-owned enterprise has the right to independently sell the products, works and services it produces and use the profits received. True, the legislation and charter of the enterprise may provide otherwise. At the same time, a state-owned enterprise could not alienate the real estate assigned to it, lease or use it, or as a pledge without the consent of the Government or a state body authorized by it. The right to receive loans by such an enterprise is conditional on the presence of a Government guarantee. The consent of the Government was also required in all cases of creation of subsidiaries by a state-owned enterprise.

The Government of the Russian Federation was given the right to confiscate from a state-owned enterprise property not used by it or used for other purposes.

It should be noted that a number of provisions contained in Decree of May 23, 1994 No. 1003, made its implementation impossible. In particular, the legislation (both previously in force and modern) excludes the possibility of liquidating an enterprise with the transfer of its rights and obligations to another entity in the order of legal succession. Satisfying the claims of a creditor of a liquidated enterprise must be carried out at the expense of its property, and not at the expense of the owner’s funds, not to mention the fact that this method of settlements with creditors of a liquidated state enterprise is an unbearable burden for the federal budget. Giving a state-owned enterprise the right to operationally manage assigned property, identical to that of state institutions, meant that if the state-owned enterprise lacked funds, all settlements with creditors had to be carried out at the expense of the federal budget.

Life has shown the inconsistency of such approaches. In any case, we do not know the facts of the creation of state-owned enterprises based on the requirements of Decree No. 1003.

The model of a state-owned enterprise under the Civil Code of the Russian Federation looks somewhat different. In accordance with Article 115 of the Civil Code of the Russian Federation, in cases provided for by the law on state and municipal unitary enterprises, on the basis of property in federal ownership, by decision of the Government of the Russian Federation, a unitary enterprise based on the right of operational management (federal state enterprise) can be formed. This means that a newly formed enterprise can also be created as a state-owned enterprise. In addition, a state-owned enterprise can be formed by reorganizing (in particular, transforming) an existing federal state enterprise. The possibility of creating a state-owned enterprise through the liquidation of a state enterprise is excluded by the Civil Code of the Russian Federation.

The constituent document of a state-owned enterprise is its charter, approved directly by the Government of the Russian Federation. In this case, the corporate name of the enterprise must contain an indication that the enterprise is state-owned. Only the Government of the Russian Federation can make a decision on the reorganization or liquidation of a state-owned enterprise.

In the Civil Code of the Russian Federation, as well as in the Decree of the President of the Russian Federation of May 23, 1994 No. 1003, a state-owned enterprise is vested with the right of operational management of the property assigned to it. However, the right to manage a state-owned enterprise differs significantly from the right of operational management granted to institutions.

The essence of the right of operational management of a state-owned enterprise is that such an enterprise, in relation to the property assigned to it, exercises the rights of ownership, use and disposal within the limits established by law, in accordance with the goals of its activities, the tasks of the owner and the purpose of the property.

The owner of property assigned to a state-owned enterprise, in addition to the rights that he has in relation to unitary enterprises based on the right of economic management, is vested with the power to confiscate excess property that is not used or used by the state-owned enterprise for other purposes.

Another difference between the powers of a state-owned enterprise as a subject of the right of operational management and the powers of a unitary enterprise based on the right of economic management is that the consent of the owner is required for the execution by a state-owned enterprise of any transactions related to the alienation or disposal in any other way of any property on the balance sheet enterprises (and not just real estate, as is the case with business management).

The procedure for distributing income received by a state-owned enterprise is determined by the owner of the property.

A state-owned enterprise has the right to independently sell only the products it produces, unless otherwise established by law.

The special powers of the owner of the property of a state-owned enterprise in relation to the enterprise and its property, up to the seizure of this property, made it necessary to include in the Civil Code of the Russian Federation a rule establishing the subsidiary liability of the owner - the Russian Federation for the obligations of the state-owned enterprise (clause 5 of Article 115). However, unlike government agencies, liability for the debts of which the state bears even if there are no funds on the current account of such an organization, subsidiary liability of the state for the obligations of state-owned enterprises is possible only if the enterprise’s property is insufficient to satisfy the claims of creditors. By the way, this is precisely why insolvency (bankruptcy) proceedings cannot be initiated against a state-owned enterprise.

3. Legal status of a state-owned enterprise.

Currently in domestic economy Many new organizational and legal forms of commercial organizations are being created.

One of these forms is a state-owned enterprise. Legal basis The formation of such enterprises in our country is, first of all, the new Civil Code (Articles 113, 115, 296, 297), which defines in a general form two types of unitary enterprises, one of which is a federal government enterprise. The specificity that distinguishes a unitary enterprise from other organizational and legal forms of commercial organizations is that: it is not endowed with the right of ownership of assigned property; his property is indivisible, not distributed among deposits (shares, shares).

The procedure for creating (forming) state-owned enterprises in the future is expected to be carried out on the basis of the law on state and municipal enterprises. However, such a law has not yet been adopted and the creation of state-owned enterprises is carried out on the basis of by-laws. These include Decree of the President of the Russian Federation N 1003 of May 23, 1994 “On the reform of state-owned enterprises” and Decree of the Government of the Russian Federation of August 12, 1994 N 908 “On approval of the standard charter of a state-owned plant (state-owned factory, state-owned enterprise), created on the basis liquidated federal state enterprise."

State-owned enterprises can be created on the basis of liquidated federal state enterprises in various sectors of the economy. However, the predominant sectors where such enterprises can be created are industry and Agriculture. To make a decision on the liquidation of a particular enterprise and the creation of a state-owned enterprise on its basis, it must meet the following criteria:

Carries out its activities exclusively for state-owned enterprises;
- the predominant (more than 50 percent) consumer of its products (works, services) is the state;
- is one of the enterprises whose privatization is prohibited by law.

After establishing these criteria, one of the grounds is determined according to which an appropriate government decision can be made. Such grounds, the list of which is exhaustive, include:

1) misuse by an enterprise of federal funds allocated to it;
2) its lack of profitability based on the results of the last two years;
3) disposal of real estate without the permission of an authorized state body (rent, transfer for use, sale, etc.).

During the period of creation of a specific state-owned plant, socio-economic guarantees are in force, expressed in established legal prohibitions:

Reductions in the number of jobs are not allowed;
- refusal to hire employees of a liquidated enterprise is prohibited;
- transfer of at least part of the property of a liquidated enterprise to legal entities or individuals is not allowed.

The liquidation of an enterprise and the formation on its basis of a federal government enterprise give rise to the emergence of legal succession, according to which the newly created enterprise is the legal successor of the liquidated one and, therefore, bears responsibility for all previously incurred obligations.

The legal status of a state-owned enterprise can be conditionally divided into the following blocks of rights and obligations: determining the general legal status; establishing the legal regime of property; regulating the organization of activities; defining the competence of management bodies; establishing the procedure for liquidation and reorganization.

4. General legal status of a state-owned enterprise.

It assumes that this enterprise is created as a legal entity and is given the right to have a current or current budget account in a bank. Due to the fact that a state-owned enterprise belongs to the category of commercial organizations, it must have a company name, the right to which arises from the moment of state registration of the enterprise. The right to a company name is a personal non-property right that cannot be used by anyone without the consent of the enterprise. In the event of a violation of this right, a state-owned enterprise, like any commercial organization, may demand that the causer of harm stop using the name and compensate for damages.

In addition to the company name to personal moral rights of a state-owned enterprise include rights to a trademark and service mark. These rights arise for the enterprise from the moment of its registration with the State Patent Office of the Russian Federation and are valid for 10 years, after which they can be renewed each time for the same period. In case of violation of rights to a trademark or service mark, they are subject to protection in the same manner as the rights associated with a company name. Despite the fact that a state-owned enterprise is not the owner of the property assigned to it, it is defined as an economic institution (commercial organization) that is independently responsible for its obligations. To the owner of this enterprise, i.e. the state, only subsidiary liability can be assigned, but only if the enterprise’s funds are insufficient.

Being a legal entity, a state-owned enterprise can carry out activities related to the production of products, performance of work, and provision of services. The scope of this activity is determined by the Government of the Russian Federation.

5. Legal regime of property of a state-owned enterprise.

The owner of the property of this enterprise is the state (Russian Federation). The enterprise is granted the right to operational management of the property assigned to it, meaning ownership, use and disposal of property in order to fulfill the tasks assigned to the enterprise. The owner state may seize excess, unused or misused property assigned to a state-owned enterprise.

The powers of a state-owned enterprise to dispose of property are significantly limited. Thus, it has no right to alienate or otherwise dispose of property without the consent of the State Property Committee. At the same time, the enterprise is given the right to independently sell its products (unless legal restrictions are established).

The formation of the property of a state-owned enterprise comes from several sources. Initially, as a rule, the property of the liquidated enterprise is transferred to him, which constitutes his main property base. Then financial and other material resources arrive as a result of the enterprise’s independent economic (entrepreneurial) activities. The source is financial resources allocated from the budget or extra-budgetary federal funds.

6. Organization of activities of a state-owned enterprise.

It is carried out on the basis of the rights of a legal entity granted to the enterprise in order to fulfill the tasks assigned to the enterprise (for production, work, services). One of the main elements of organizing activities is the question of the order of distribution and use of profits received in the process of economic activity of the enterprise. This issue is resolved taking into account the specifics of a particular enterprise and on the basis of the Procedure for planning and financing the activities of a state-owned enterprise, approved by the Government of the Russian Federation. Options for distributing profits, if any, can be very diverse. It can remain entirely with the enterprise and be spent on its development. It is also possible to transfer part of the profit to the budget.

The organization of the activities of a state-owned enterprise assumes that many issues of this activity must be agreed upon with the Government of the Russian Federation. In particular, prices for products (works, services) are set in the manner determined by the government. When receiving loans, an enterprise needs a guarantee from the Government of the Russian Federation.

7. Competence of enterprise management bodies.

The management bodies of the enterprise include its director and deputies. The legal status of an enterprise body (legal entity) means that it is through this body that the enterprise acquires civil rights and assumes civic responsibilities. However, in order for this to happen, the activities of the body must comply with the legislation and constituent documents.

The director of a state-owned enterprise acts on the principles of unity of command. This is due to the fact that he is appointed and dismissed by an authorized representative of the government, which, for example, may be the State Property Committee. The director’s competence is to represent the interests of the enterprise in various legal relations: civil, labor and others. In general, its competence is similar to the corresponding competence of the body of a legal entity.

8. Liquidation and reorganization of a state-owned enterprise.

Termination of the activities of a given enterprise can occur in the same way as any commercial organization, through its liquidation or reorganization (merger, accession, separation, spin-off). However, when reorganizing a state-owned enterprise, there are certain specifics: the legal status of the enterprise must be preserved.

The considered issues related to the legal status of a state-owned enterprise allow us to say that this organizational and legal form of a commercial organization is unique, because it simultaneously combines two organizational and legal forms: an independent commercial organization and an institution. The uniqueness of this form of enterprise is also determined by the fact that the number of such enterprises in the country is in minimal proportion to the number of commercial organizations of all other forms of enterprises combined.

The creation of state-owned enterprises in our country is based on the widely used experience of economically developed countries (England, France, Germany), where enterprises in the defense industries, communications, printing and some others receive state-owned status. But unlike our enterprises, they have neither legal nor any other independence and are actually divisions acting in legal relations on behalf of the state. Compared to them, domestic similar enterprises have a larger range of rights, but the scope of these rights is much narrower than that of an ordinary commercial organization. Only practice can show whether the scope of rights granted to a state-owned enterprise is sufficient.

9. Taxation issues.

In accordance with paragraph 1 of 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, on the basis of property in federal ownership, a unitary enterprise based on the right of operational management (federal state enterprise) can be formed.

According to paragraph 2 of Art. 296 of the Civil Code of the Russian Federation, the owner of property assigned to a state-owned enterprise or institution has the right to seize excess, unused or misused property and dispose of it at his own discretion.

From the above norms of the Civil Code of the Russian Federation it follows that the owner of the property - the state - has the right to withdraw property belonging to it from one state-owned enterprise and transfer it to another state-owned enterprise. In this case, there is no transfer of ownership from one subject to another, since both before and after the transfer the owner will not change, it will remain the state. What changes when the owner transfers property from one state-owned enterprise to another? There is a change in the subjects of operational management rights, which is not equivalent to a transfer of ownership. And, therefore, in the event that the state seizes property from one state-owned enterprise and provides this property to another state-owned enterprise, such an operation will not be considered a sale for tax purposes.

However, as provided for in paragraph 3, paragraph 4, article 2 of the Law “On the Income Tax of Enterprises and Organizations”, the previously granted benefit is not retained in the event of a gratuitous transfer of property within two years from the date of provision of such a benefit. When redistributing real estate between state unitary enterprises Ministry of Railways of the Russian Federation, such redistribution should be recognized free transfer y.

Thus, with a gratuitous transfer within two years from the date of granting the benefit, taxable profit increases by the residual value of these fixed assets and production costs for objects not completed construction.

However, the income tax law has a special rule that applies to relations between railroads. According to para. 6 paragraph 6 art. 2 of the Law of the Russian Federation "On income tax of enterprises and organizations" are also not included in the tax base:

The cost of equipment received free of charge by nuclear power plants to improve their safety;

Cost of basic production assets, as well as funds provided for capital investments in the development of their production and non-production base, and other property received free of charge for the implementation of production activities by some railways, enterprises and organizations from other railways, enterprises and organizations (transferred by decision of the Ministry of Railways of the Russian Federation, departments and departments of railways).

Based on the above, it should be concluded that the benefit when transferring property from one state-owned enterprise railway the railway is not retained for another state-owned enterprise for two years from the date of its provision. At the same time, the value of the property transferred in this way is not included in the income tax base.

10. Problems of state property management.

As a result of "voucher" privatization, one of the main tasks of economic reform was solved - the "critical mass" of privatized enterprises necessary for the functioning of the market was created. By July 1, 1994, about 70 percent of those employed in industry began to work in fully or partially privatized enterprises, the share of which in the total value of property was approximately 60 - 70 percent.

Under these conditions, the role of management of the public sector of the economy sharply increases, especially in connection with the transformation of the organizational and legal forms of state-owned enterprises.

It became clear that the destruction of the monopoly of state property does not mean the abandonment of state property as such. It remains, although attempts to a priori quantify its role in the country's economy can hardly be considered fruitful. One can only say that this sector of the Russian economy, due to the specific development paths of Russia, will be quite large in the foreseeable future. Therefore, it is necessary to learn how to manage state property in a new way, without resuscitating the administrative-command system.

There are two main ways of controlling influence on enterprises and their associations.

1. Government regulation, which includes the establishment of a regulatory framework for a market economy ("rules of the game") and the application of indirect, economic management methods in relation to enterprises of all forms of ownership (including state-owned ones).

2. State entrepreneurship, that is, a direct impact on the management of enterprises and their associations, when the state acts as the owner of property or a block of shares in joint-stock companies (JSC).

The organizational and legal forms in which state-owned enterprises and enterprises with state capital operate include state-owned enterprises (state-owned plant, factory, farm), state-owned commercial enterprises, joint-stock companies with 100 percent state capital, as well as joint-stock companies in which the state owns controlling interest or golden share.

When going to market economy its main regulator is the market, which economically, by the laws of supply and demand, determines the development of socially necessary production, the price of goods, their quality, consumer properties, gives impetus to the development of scientific and technological progress and at the same time extinguishes unnecessary, unprofitable, uncompetitive production. The market thereby influences the interests of entrepreneurs, forcing them to improve production and the quality of goods. Competition among entrepreneurs forces them to reduce production costs and, accordingly, prices. In this sense, the impact on the economy through interest turns out to be more significant than under the conditions of an administrative-command system, where the main method of influence was the directive commands of the state management of the economy based on plans, and economic measures were in second place. It must be said that state comprehensive management of the economy has, in principle, great opportunities force production to develop in a certain direction. The state can contribute to solving macro problems by concentrating efforts in the chosen direction. The turn to the market in our country posed a dilemma of two choices: a socialist reorganization of the planned economy towards a market based on social forms of ownership, or a rejection of the latter, global privatization and regression to the capitalist model. However, regardless of this, with any market model, the question arises about the role of the state in the economy, the need for its influence on the economic activities of autonomous entrepreneurs, the grounds and limits of permissible state intervention in it.

One of the forms of state entrepreneurship is state-owned enterprises.

“State-owned” are enterprises (plants, factories, farms) that belong to the “treasury”, that is, state-owned enterprises.

They are under direct government control on issues of production (directive planning, assignments), price policy, finance, and material incentives for personnel. State-owned enterprises do not have the right to refuse to conclude a state contract for the supply of goods for state needs. Accordingly, they are obliged to enter into specific contracts with organizations that are consumers of goods or services. The property of a state-owned enterprise is assigned to it with the right of operational management.

At the same time, the state assumes responsibility for the obligations of this category of enterprises and provides them with the necessary financial assistance, protects them from bankruptcy, provides benefits for government procurement, etc. Consequently, the enterprises in question are actually budgetary organizations and are excluded from market system management, although they experience a certain influence from it. The normal functioning of state-owned enterprises is supported by strict disciplinary liability, but they are unlikely to be able to claim a sufficiently high economic efficiency. The costs of their maintenance will make up a significant part of the state budget.

It would seem that a solution to the problem of managing state-owned enterprises can be found by borrowing the experience of managing state-owned enterprises in developed countries. However, in different countries it is different and takes into account the specific characteristics of a given country. Therefore, proposals to transfer the relevant experience of the United States or France to Russian soil are hardly acceptable. It is necessary to independently fit into the existing system of governing bodies and take into account your own historical experience.

Perhaps the only one common feature management of state-owned enterprises in all countries is the implementation of this management by the relevant ministries or (along with ministries) special standing commissions (for example, the Federal Atomic Energy Commission in the USA).

In Russia, in accordance with Decree of the President of the Russian Federation of May 23, 1994 No. 1003 “On the reform of state-owned enterprises,” the decision to liquidate a federal state-owned enterprise and create a state-owned plant, factory or farm on its basis is made by the Government of the Russian Federation. It also determines the federal executive body that approves the charter of a state-owned enterprise and manages its activities.

While maintaining the administrative subordination of enterprises, it is necessary to eliminate the previous most significant shortcomings of the command system. These include, first of all, the lack of incentives for enterprise management to take initiative and take risks, as well as the virtual absence of responsibility for the consequences of decisions made by higher authorities. The modern economic manager of a state-owned enterprise should not become a transfer authority for the implementation of orders and instructions from employees of the state apparatus. He has the right to have a certain independence here too. The higher authority should retain only control over his actions.

A means of overcoming these and other shortcomings of the previously existing management system can be: firstly, collegiality in making the most important business decisions by highly competent persons; secondly, the use of a competitive system for selecting management personnel; thirdly, the use in some cases of independent expert assessments.

The practical implementation of these provisions is seen as follows:

1.Strategic decisions on the management of a state-owned enterprise must be made collectively by a higher body.

2.Within decisions made the director of the enterprise must be guaranteed a certain degree of independence, without which the manager’s entrepreneurial activity cannot manifest itself.

3. The selection of managers should be carried out on the basis of a competition of applicants' programs. Preference is given to programs that most fully reflect the requirements of state industrial policy.

4. Conclusion of a contract with the economic manager, which actually guarantees his rights and clearly establishes his responsibilities, and with the enterprise - a “plan contract”, which contains the program of its activities.

5.As foreign practice shows, the activity programs of state-owned enterprises are drawn up in such a way that government subsidies for their implementation were minimal, and the costs were covered from funds from the successful entrepreneurial activity. For these purposes, it is necessary not only to have a certain freedom for the manager, but also to create interest among staff in achieving positive work results (individual, department, enterprise as a whole). It is possible and necessary to use both long-used (for example, team labor organization) and new (for example, profit sharing) forms of production management.

6. The state’s liability for the enterprise’s debts should not be direct, but subsidiary. Based on the above, one of the options for the management scheme of state-owned enterprises could look like this.

A commission (committee, council) for the management of state-owned enterprises is formed under the sectoral management body. The organization of such a body in the State Property Committee system is impractical, since managing a state-owned enterprise requires knowledge of the industry specifics of production. At the same time, in order to prevent departmental interests from prevailing, it is advisable to include at least 50 percent of independent specialists (economists, financiers, representatives of the State Committee for Industry, State Committee for Administrative Offenses, etc.) in these commissions. A commission formed in this way could perform the functions of a permanent competition commission for the selection of management personnel, develop the conditions of the competition, the program of the enterprise’s activities, and exercise control. Along with "external" control in organizational structure enterprises need to introduce bodies through which personnel would have the opportunity to take part in production management.

An attempt to establish the optimal legal status of managers of state-owned enterprises (both state-owned and commercial) was carried out by Decree of the President of the Russian Federation of June 10, 1994 No. 1200 “On some measures to ensure state management of the economy.” It established that the government or federal executive bodies authorized by it enter into a contract with the economic manager based not on labor law, but on civil law. The Decree lists the mandatory conditions that must be contained in the contract, including the procedure and conditions for its early termination and even the manager’s responsibility for damage caused to the enterprise as a result of his actions or inaction.

The civil law nature of the contract, in principle, makes it possible for federal authorities to establish the rights and obligations of the manager in managing an enterprise without regard to the legislative restrictions established by the Labor Code. After all, the Decree does not speak about any specific rights and responsibilities of an economic manager, other than his reporting, the procedure and deadlines for which must be established by the Government of the Russian Federation. Obviously, issues of managing a state-owned enterprise must be resolved in subsequent by-laws.

Thus, RF Government Resolution No. 14 dated January 5, 1995 resolved some issues of managing federal property located abroad:

“In order to ensure proper management of federal property located abroad and organize more effective control over the efficiency of its use and safety, the Government of the Russian Federation decides:

1. Establish that decisions on the sale, exchange, pledge, donation, seizure (except for cases of forced collection by decision of the competent authorities) of real estate located abroad and being federal property, as well as valuable papers, shares, interests and shares owned by the Russian Federation in legal entities located abroad are accepted by the Government of the Russian Federation on the basis of a joint submission from the State Committee of the Russian Federation for State Property Management and the federal executive body, which, in accordance with current legislation, is entrusted with coordination and regulation activities in the relevant industry (field of management). In the same order, decisions are made on the redistribution of the specified property between state enterprises, state-owned factories (state-owned factories, state-owned farms) and institutions of the Russian Federation.

8. Entrust the State Committee of the Russian Federation for State Property Management with control over the safety, intended use, as well as the efficiency of use of federal property located abroad and assigned to the balance sheet of state-owned enterprises, state-owned factories (state-owned factories, state-owned farms) and institutions. Grant the State Committee of the Russian Federation for State Property Management the right to carry out, for these purposes, jointly with the Ministry of Finance of the Russian Federation, documentary and factual checks (audits, inventories).”

And by Decree of the Government of the Russian Federation of 05/03/2001 N 337, changes were made to the charters of federal state-owned military trade enterprises, approved by Decree of the Government of the Russian Federation of 07/06/1999 N 743, related to the seizure of excess, unused property assigned to some state-owned enterprises, and its distribution between other government enterprises.

BIBLIOGRAPHY.

1. Decree of the President of the Russian Federation of May 23, 1994 No. 1003 “On the reform of state-owned enterprises”
2. Decree of the President of the Russian Federation of June 10, 1994 No. 1200 “On some measures to ensure state management of the economy”
3. Decree of the President of the Russian Federation of December 24, 1993 “On approval State program privatization of state and municipal enterprises in the Russian Federation"
4. Decree of the President of the Russian Federation of July 1, 1992 N 721 “On organizational measures for the transformation of state enterprises, voluntary associations of state enterprises into joint stock companies" (as amended and supplemented on November 16, December 31, 1992)
5. Order of the State Property Committee of Russia dated March 18, 1994 No. 542-r
6. Civil Code of the Russian Federation, Part I