Commentary on Article 52 of the Civil Code of the Russian Federation briefly. Civil Code of the Russian Federation (CC RF)

The Civil Code of the Russian Federation, along with the federal laws adopted in accordance with it, is the main source of civil legislation in Russian Federation. The norms of civil law contained in other normative legal acts, cannot be contrary to the Civil Code. The Civil Code of the Russian Federation, work on which began at the end of 1992, and initially went in parallel with work on the Russian Constitution of 1993, is a consolidated law consisting of four parts. In connection with the huge amount of material that required inclusion in the Civil Code, it was decided to accept it in parts.

The first part of the Civil Code of the Russian Federation, which entered into force on January 1, 1995, (with the exception of certain provisions), includes three of the seven sections of the code (section I "General Provisions", section II "Property and other property rights", Section III "General Part of the Law of Obligations"). This part of the Civil Code of the Russian Federation contains the fundamental norms of civil law and its terminology (on the subject and general principles of civil law, the status of its subjects (physical and legal entities)), objects of civil law ( various types property and property rights), transactions, representation, statute of limitations, ownership, as well as the general principles of the law of obligations.

The second part of the Civil Code of the Russian Federation, which is a continuation and addition to the first part, was put into effect on March 1, 1996. It is completely devoted to Section IV of the Code "Certain Types of Obligations". Based on the general principles of the new civil law of Russia, enshrined in the Constitution of 1993 and part one of the Civil Code, part two establishes a detailed system of norms on individual obligations and contracts, obligations from causing harm (torts) and unjust enrichment. In terms of its content and significance, part two of the Civil Code of the Russian Federation is a major stage in the creation of a new civil legislation of the Russian Federation.

The third part of the Civil Code of the Russian Federation includes Section V "Inheritance Law" and Section VI "International Private Law". In comparison with the legislation in force before the entry into force on March 01, 2002 of part three of the Civil Code of the Russian Federation, the rules on inheritance have undergone major changes: new forms of wills have been added, the circle of heirs has been expanded, as well as the circle of objects that can be transferred in the order of hereditary succession; introduced detailed rules relating to the protection of the inheritance and its management. Section VI of the Civil Code, dedicated to the regulation of civil law relations complicated by a foreign element, is a codification of the norms of private international law. This section, in particular, contains norms on the qualification of legal concepts in determining the applicable law, on the application of the law of a country with a plurality of legal systems, on reciprocity, back reference, establishing the content of foreign law norms.

The fourth part of the Civil Code (entered into force on January 1, 2008) consists entirely of Section VII "Rights to the results of intellectual activity and means of individualization." Its structure includes general provisions - norms that apply to all types of results of intellectual activity and means of individualization or to a significant number of their types. The inclusion of norms on intellectual property rights in the Civil Code of the Russian Federation made it possible to better coordinate these norms with the general norms of civil law, as well as to unify the terminology used in the field of intellectual property. The adoption of the fourth part of the Civil Code of the Russian Federation completed the codification of domestic civil legislation.

The Civil Code of the Russian Federation has passed the test of time and extensive practice of application, however, economic offenses, often committed under the guise of civil law, have revealed the lack of completeness in the law of a number of classical civil law institutions, such as the invalidity of transactions, the creation, reorganization and liquidation of legal entities, the assignment claims and transfer of debt, collateral, etc., which necessitated the introduction of a number of systemic changes into the Civil Code of the Russian Federation. As noted by one of the initiators of such changes, the President of the Russian Federation D.A. Medvedev, “The current system needs not to be reorganized, fundamentally changed, ... but to be improved, unlocking its potential and developing implementation mechanisms. The Civil Code has already become and should remain the basis for the formation and development of civilized market relations in the state, an effective mechanism for protecting all forms of ownership, as well as the rights and legitimate interests of citizens and legal entities. The Code does not require fundamental changes, but further improvement of civil legislation is necessary ... "<1>.

On July 18, 2008, Decree of the President of the Russian Federation N 1108 "On the improvement of the Civil Code of the Russian Federation" was issued, which set the task of developing a concept for the development of the civil legislation of the Russian Federation. On October 7, 2009, the Concept was approved by the decision of the Council for the Codification and Improvement of Russian Legislation and signed by the President of the Russian Federation.

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<1>See: Medvedev D.A. The Civil Code of Russia - its role in the development of a market economy and the creation of a legal state // Bulletin of Civil Law. 2007. N 2. V.7.

Section I. GENERAL PROVISIONS

Subsection 2. PERSONS

Chapter 4. LEGAL ENTITIES

§ 1. Basic provisions

Article 52. Constituent documents of a legal entity

1. A legal entity acts on the basis of a charter, or memorandum of association and the charter, or only the memorandum of association. In cases provided for by law, a legal entity that is not a commercial organization may act on the basis of general position about organizations of this type.

The constituent agreement of a legal entity is concluded, and the charter is approved by its founders (participants).

A legal entity created in accordance with this Code by one founder shall act on the basis of the charter approved by this founder.

2. The constituent documents of a legal entity must define the name of the legal entity, its location, the procedure for managing the activities of the legal entity, as well as contain other information provided for by law for legal entities of the corresponding type. The constituent documents of non-commercial organizations and unitary enterprises, and in cases provided for by law also of other commercial organizations, must define the subject and goals of the activity of a legal entity. The subject and certain goals of the activities of a commercial organization may be provided for by the constituent documents and in cases where this is not mandatory by law.

In the foundation agreement, the founders undertake to create a legal entity, determine the procedure for joint activities to create it, the conditions for transferring their property to it and participating in its activities. The agreement also defines the conditions and procedure for the distribution of profits and losses among the participants, management of the activities of a legal entity, withdrawal of founders (participants) from its composition.

3. Changes in constituent documents become effective for third parties from the moment of their state registration, and in cases established by law, from the moment of notification of the state registration body about such changes. However, legal entities and their founders (participants) are not entitled to refer to the absence of registration of such changes in relations with third parties acting subject to these changes.

1. Legal entities, with the exception of business partnerships and state corporations, act on the basis of charters, which are approved by their founders (participants), except for the case provided for in paragraph 2 of this article.

A business partnership operates on the basis of a founding agreement, which is concluded by its founders (participants) and to which the rules of this Code on the charter of a legal entity are applied.

The state corporation operates on the basis of federal law about such a public corporation.

2. Legal entities may act on the basis of model charter approved by the authorized government agency. Information that a legal entity operates on the basis of a model charter approved by an authorized state body is indicated in a unified state register legal entities.

The model charter approved by the authorized state body does not contain information about the name, company name, location and size authorized capital legal entity. Such information is indicated in the unified state register of legal entities.

3. In the cases provided for by law, an institution may act on the basis of a single model charter approved by its founder or a body authorized by him for institutions established to carry out activities in certain areas.

4. The charter of a legal entity, approved by the founders (participants) of the legal entity, must contain information about the name of the legal entity, its organizational and legal form, its location, the procedure for managing the activities of the legal entity, as well as other information provided by law for legal entities of the relevant organizational -legal form and type. The charters of non-profit organizations, the charters of unitary enterprises and, in cases provided for by law, the charters of other commercial organizations must define the subject and goals of the activities of legal entities. The subject and specific goals of the activity commercial organization may also be provided for by the charter in cases where this is not mandatory by law.

5. The founders (participants) of a legal entity shall have the right to approve regulating corporate relations (paragraph 1 of Article 2) and internal regulations and other internal documents of the legal entity that are not founding documents.

The internal regulations and other internal documents of a legal entity may contain provisions that do not contradict the constituent document of the legal entity.

6. Changes made to founding documents legal entities become effective for third parties from the moment of state registration of constituent documents, and in cases established by law, from the moment of notification of the state registration body of such changes. However, legal entities and their founders (participants) are not entitled to refer to the absence of registration of such changes in relations with third parties acting subject to such changes.

Comments to Art. 52 of the Civil Code of the Russian Federation

All legal entities, regardless of their organizational and legal form, operate on the basis of legislation governing the activities of the corresponding type of legal entities. At the same time, due to the principle of discretion inherent in the regulation of civil law relations, many issues related to the activities of legal entities are enshrined in the legislation only in general view, and a more detailed regulation of these issues, especially those of an intraorganizational nature, is at the discretion of the legal entities themselves, represented by their bodies, as well as the founders.

Such regulation is carried out through constituent documents. As a constituent document of a legal entity, depending on its organizational and legal form, a charter or a constituent agreement is considered. At the same time, based on the provisions of part 1 of the commented article, it is possible to establish cases when both of these documents are recognized as constituent. Thus, this requirement applies to non-profit organizations, and until June 1, 2009, such requirements were also imposed on the composition of the constituent documents of a company with limited liability.

Although the constituent agreement of a limited liability company is no longer recognized as a constituent document, the provisions of the previous version of the relevant federal law can serve as an example of the requirements for this document. Such an example can also be applied to partnerships (taking into account the specifics of this organizational and legal form), since there are no special laws regulating the activities of a partnership.

In the founding agreement, the founders of the company (partnership) undertake to create a company (partnership) and determine the procedure for joint activities to create it. The memorandum of association also determines the composition of the founders (participants) of the company (partnership), the size of the authorized capital of the company (share capital of the partnership) and the size of the share of each of the founders (participants) of the company, the amount and composition of contributions, the procedure and terms for their introduction into the authorized (share) capital society (partnership) upon its establishment, the liability of the founders (participants) of the company (partnership) for violation of the obligation to make contributions, the conditions and procedure for the distribution of profits between the founders (participants) of the company (partnership), the composition of the bodies of the company (partnership) and the procedure for the withdrawal of participants from societies (partnerships).

The charter of a business company must contain:

Full and abbreviated corporate name of the company;

Information about the location of the company;

Information on the composition and competence of the company's bodies, including on issues constituting the exclusive competence of the general meeting of the company's participants, on the procedure for making decisions by the company's bodies, including on issues decisions on which are taken unanimously or by a qualified majority of votes;

Information on the amount of the authorized capital of the company;

Rights and obligations of company participants (shareholders joint-stock company);

Information on the procedure and consequences of the withdrawal of a company participant from the company, if the right to withdraw from the company is provided for by the charter of the company;

Information on the procedure for the transfer of a share or part of a share to authorized capital society to another person;

Information on the procedure for storing the company's documents and on the procedure for the company to provide information to the company's participants and other persons;

Other information stipulated by the legislation or not contradicting it. The charter of a joint-stock company, in addition, must contain information:

On the type of society (open or closed);

On the number, par value, category (ordinary, preferred) shares and types of preferred shares placed by the company;

On the rights of shareholders - owners of shares of each category (type);

On the procedure for preparing and holding a general meeting of shareholders, including a list of issues on which decisions are made by the management bodies of the company by a qualified majority of votes or unanimously;

Information about the branches and the representations of society.

Feature of the charter production cooperative is the need to indicate in it information about the nature and procedure for labor and other participation of members of the cooperative in its activities and about their responsibility for violation of obligations for personal labor and other participation, about the amount and conditions of subsidiary liability of members of the cooperative for its debts.

The charter of a unitary enterprise, along with information common to all legal entities, must necessarily reflect information about the body or bodies exercising the powers of the owner of the property of the unitary enterprise, as well as a list of funds created by the unitary enterprise, the size, procedure for the formation and use of these funds.

The constituent documents of a non-profit organization must define the name of the non-profit organization, containing an indication of the nature of its activities and organizational and legal form, the location of the non-profit organization, the procedure for managing activities, the subject and goals of activities, information about branches and representative offices, the rights and obligations of members, conditions and the procedure for admission to and withdrawal from a non-profit organization (if the non-profit organization has membership), the sources for the formation of the property of the non-profit organization, the procedure for amending the constituent documents of the non-profit organization, the procedure for using property in the event of liquidation of the non-profit organization and other provisions provided for by federal laws .

In accordance with part 3 of the commented article, changes made to the constituent documents become effective for third parties from the moment of their state registration with the bodies that carry out state registration of legal entities.

Official text:

Article 52. Constituent documents of legal entities

1. Legal entities, with the exception of business partnerships, act on the basis of charters, which are approved by their founders (participants), except for the case provided for by paragraph 2 of this article.

A business partnership operates on the basis of a founding agreement, which is concluded by its founders (participants) and to which the rules of this Code on the charter of a legal entity are applied.

2. Legal entities may act on the basis of a model charter approved by the authorized state body. Information that a legal entity operates on the basis of a model charter approved by an authorized state body is indicated in the unified state register of legal entities.

The model charter approved by the authorized state body does not contain information about the name, company name, location and amount of the authorized capital of the legal entity. Such information is indicated in the unified state register of legal entities.

3. In the cases provided for by law, an institution may act on the basis of a single model charter approved by its founder or a body authorized by him for institutions established to carry out activities in certain areas.

4. The charter of a legal entity, approved by the founders (participants) of the legal entity, must contain information about the name of the legal entity, its organizational and legal form, its location, the procedure for managing the activities of the legal entity, as well as other information provided by law for legal entities of the relevant organizational -legal form and type. The charters of non-profit organizations, the charters of unitary enterprises and, in cases provided for by law, the charters of other commercial organizations must define the subject and goals of the activities of legal entities. The subject and certain goals of the activities of a commercial organization may be provided for by the charter also in cases where this is not mandatory by law.

5. The founders (participants) of a legal entity shall have the right to approve regulating corporate relations (paragraph 1 of Article 2) and internal regulations and other internal documents of the legal entity that are not founding documents.

The internal regulations and other internal documents of a legal entity may contain provisions that do not contradict the constituent document of the legal entity.

6. Changes made to the constituent documents of legal entities become effective for third parties from the moment of state registration of constituent documents, and in cases established by law, from the moment of notification of the state registration body of such changes. However, legal entities and their founders (participants) are not entitled to refer to the absence of registration of such changes in relations with third parties acting subject to such changes.

Lawyer's comment:

Constituent documents are documents on the basis of which, in accordance with the law, legal entities are registered and operate. The provisions of constituent documents are obligatory for a legal entity in relations with its founders (participants) and third parties. The law names three types of founding documents: memorandum of association, charter, general provision on organizations of this type. Legal entities act either on the basis of one of the named types of constituent documents, or on the basis of two documents - both the constituent agreement and the charter.

In cases stipulated by law, a non-profit organization may act on the basis of the general regulation on organizations of this type. In particular, primary trade union organizations may act on the basis of the general provision on primary trade union organization approved at the congress (conference) of the relevant trade union (Articles 3 and 8 of the Law on Trade Unions).

The constituent documents of a legal entity must contain a minimum of conditions (necessary conditions) determined by law. Paragraph 2 of this article establishes a list of conditions to be included in the constituent documents (charter, memorandum of association) of all legal entities (name, location, procedure for managing the activities of a legal entity, etc.). With regard to certain types of legal entities, this list is specified and supplemented by the relevant articles of the Civil Code of the Russian Federation and special laws on these legal entities.

In the constituent documents of legal entities that have special legal capacity in accordance with the law (non-profit organizations, unitary enterprises, banks, insurance organizations, stock exchanges, etc.), the subject and goals of the legal entity's activities should be determined. The founders (participants) of a commercial organization have the right to indicate in its constituent documents the subject and objectives of the activity, even in cases where this is not mandatory by law. In this case, the subject should be understood as the types of activities carried out by a legal entity (trade, construction, banking, etc.). The purpose of the activity is to achieve a certain result, there are commercial and non-commercial (charitable, educational, religious, consumer, etc.) goals.

The memorandum of association regulates the creation of a legal entity and the relationship of the founders with each other and with the legal entity for the period of its existence. He must answer general requirements presented by the Civil Code to contracts and transactions (including the rules on the grounds for declaring transactions invalid), as well as reflect the features provided by law for this contract as a constituent document of a legal entity of the corresponding organizational and legal form.

Paragraph 3 of this article concerns the issue of legal binding of changes made to constituent documents for a legal entity and its founders (participants) in their relations with third parties. By general rule changes in constituent documents become effective for third parties from the moment of their state registration. The law may establish cases when changes of a certain type become effective for third parties not from the moment of registration, but from the moment of notification of the state registration body about such changes.

At the same time, legal entities and their founders (participants) are not entitled to refer to the absence of changes made to the constituent documents in relations with third parties acting subject to these changes. In particular, this rule hinders the satisfaction of the requirements of the founders (participants) to invalidate the transactions of a legal entity concluded with third parties, due to the lack of state registration of the relevant changes.

The legal basis for the activities of a legal entity is its constituent documents.

According to Article 52 of the Civil Code of the Russian Federation, a legal entity acts:

1.​ by statute- general rule;

2. on the basis of the memorandum of association- for business partnerships

Charter- local normative act, which determines the legal status of a legal entity and regulates relations between participants and the legal entity itself. The charter comes into force from the moment of registration of the legal entity itself.

Memorandum of association is a consensual civil law contract that regulates relations between the founders in the process of creating and operating a legal entity.

3.1. The ratio of the charter and the memorandum of association

According to p.2-3 Art. 52 of the Civil Code of the Russian Federationfor state registration of legal entities can be used standard statutes, the forms of which are approved by the authorized state body in the manner prescribed by the law on state registration of legal entities.

In cases provided for by law, an institution can act on the basis of a single model charter , approved by its founder or a body authorized by him for institutions established to carry out activities in certain areas.

In general terms, Art. 52 of the Civil Code of the Russian Federation, and for certain types legal entities - in the relevant sections of the Civil Code and special regulations.

According to Clause 4 of Art. 52 of the Civil Code of the Russian Federation the charter of a legal entity must contain:

information about the name of the legal entity,

its location,

the procedure for managing the activities of a legal entity,

as well as other information provided by law for legal entities of the corresponding organizational and legal form and type.

In the statutesnon-profit organizations, charters of unitary enterprises and in cases provided for by law in the charters of other commercial organizationsthe subject and goals of the activities of legal entities should be determined. The subject and certain goals of the activities of a commercial organization may be provided for by the charter also in cases where this is not mandatory by law.

According to Clause 6 of Art. 52 of the Civil Code of the Russian Federation changes made to the constituent documents of legal entities become valid for third partiesfrom the moment of state registration of constituent documents , and in cases prescribed by law(for example, in relation to an LLC - clause 5 of article 5 of the Federal Law of the Russian Federation dated 08.02.1998 No. 14-FZ "On LLC", in relation to a joint-stock company - clause 6 of article 5 of the Federal Law of the Russian Federation of December 26, 1995 No. 208 - FZ " About JSC"), - from the moment of notification of the state registration authority of such changes .

However, legal entities and their founders (participants) are not entitled to refer to the absence of registration of such changes in relations with third parties acting subject to such changes).

According to Clause 2 of Art. 51 of the Civil Code of the Russian Federationa person relying in good faith on the data of the Unified State Register of Legal Entities has the right to proceed from the fact that they correspond to actual circumstances. A legal entity is not entitled, in relations with a person who relied on the data of the unified state register of legal entities, to refer to data not included in the specified register, as well as to unreliable data contained in it, unless the relevant data is included in the specified register in as a result of unlawful actions of third parties or in any other way beyond the will of the legal entity.