Business management definition. The right to economic management and operational management of property. Limits of exercising the right of economic management of property

The main type of property rights are the rights of economic management and operational management. Within the framework of developed legal orders, these rights were not previously so well known. Legal entities have and are endowed with such rights. Legal entities have the right to business entities and can use property that was transferred on behalf of the owner.

The state has a planned, regulated economy, which is why property rights have found their place. The state is the sole owner, which has the bulk of the property at its disposal. At the same time, the state simply physically cannot dispose of property, but at the same time it wants to have this property in its possession.

As a result, it was forced to create enterprises that were assigned property rights, but with few restrictions. As a result, since 1960 this right has become official with an official name. Later this became known as the right, which began to belong to state budgetary and other similar enterprises.

More information about this rule of law

The market economy began to develop, a strong private sector emerged, and therefore obvious shortcomings appeared that were well hidden in the previous economic conditions. The first and main disadvantage is that legal entities could abuse their powers, i.e. economic freedom which was provided to them. This was usually done in order to take advantage.

But this benefit will not be for the owner and not for the organization. This was done to transfer the provided property into the hands of the private sector, and for the owner such a transfer was unprofitable. Therefore, ownership of something was narrowed so that the situation could be controlled. The owner was able to fully control what non-owners, that is, legal entities, do.

The right of economic management and the right of operational management are the elements that existed previously. And even with the modification of the economy, these elements remained. The owner is the only person who can fully dispose of the property, provided that there are market relations. The right of management and management act as certain derivatives, which are determined by the rights of the owner.

Each subject is endowed with a specific character and type of activity. This allocation occurs depending on the volume and content. The right of economic management is vested in an enterprise, just like a commercial organization. It is also characteristic that it is less endowed with a certain content and volume of property. The right of operational management may belong to any non-profit structures or state-owned enterprises.

Such objects that are endowed with these rights include any property complexes. They hang on the balance sheet of legal entities. If the property is in the form of property, fruits or products, then the law has a clause that the enterprise can manage all this only on the basis of the clauses of the contract.

On video - the right of economic management and the right of operational management:

The right of operational management and how it differs from economic management

This right is understood as the right of a government institution or enterprise to fully dispose, use and own the property of the owner, but within the framework of the law.

The order must be within the limits of what the enterprise was intended for and in accordance with what purposes.

Which entities fall under the right of ownership:

• state-owned or unitary institutions that can be classified as commercial;
• enterprises that receive financing from the owner and are classified as non-profit structures.

The owner has the full right to create objects of operational management, can determine the extent to which legal capacity can be assigned, as well as approve documents and appoint managers. The enterprise is subject to liquidation and reorganization without the consent of other managers.

The owner gives clear instructions to managers regarding the purposes for which the enterprise should be used and how to use the provided property. The owner can direct individual objects that are part of the structure in the direction he needs for implementation. He can distribute this property into several funds he needs. If funds are listed in one fund, then they cannot be used for the development of another.

If any property was used for other purposes, the owner has every right to seize it; he can dispose of it as he pleases. But it is worth saying that property can only be seized if the law allows it.

If debts arise, the owner will bear responsibility for this. Subsidiary liability arises. When considering a state-owned enterprise and an owner-financed one, a number of differences are observed.

If the owner has given his consent, then the state-owned enterprise has the right to dispose of the property entrusted to it. Such enterprises cannot take independent participation in the civil turnover process. A government enterprise can only dispose finished products unless otherwise prohibited by law.

The owner can distribute income independently. He should not coordinate such actions with the manager. This is impossible in the case of a unitary enterprise. All property in circulation lies on the shoulders of the state-owned enterprise, and it will be the one responsible for it.

As for an institution that is financed by the owner, only the owner can dispose of it. No action is possible without his consent. All funds must be spent only in accordance with the estimate. The property of enterprises is reserved from collection by creditors.

Such rights in law have basic differences that need to be clearly distinguished. Thus, it is characteristic of the right of economic management that the objects can be property complexes. The same property complexes are also characteristic of the right of operational management. Any state and municipal enterprises act as economic entities.

Operational management includes government institutions and enterprises. It’s also interesting to know if there is a checkpoint individual entrepreneurs

. To find out about this, you should read this It will be equally important to have information regarding whether it is possible to find out whether there are tax debts individual

. Everything is described in more detail

But what it is is detailed here in the article.

If we talk about the rights that participants are entitled to, then you need to carefully study each right separately. To do this, it is important to understand what the owner and manager or creditor can do in a given situation. The main thing is that all actions take place within the framework of the law.

The right of economic management belongs only to unitary and state enterprises. Their object can be not only real estate, but also any other things that are necessary to carry out the activities of the subjects. The right of economic management applies only to municipal or state property. The composition of the property is fixed in the manner established by the owner. Its cost is calculated according to the legislation on

The right of economic management is a right that is established by federal law. It cannot be amended based on an agreement between the legal representative and the owner of his property. The right of economic management, which is vested in commercial organizations- unitary enterprises, has a fairly wide scope.

Thus, the right to use in terms of the ability to appropriate the fruits and income from the use of property is limited by the possibility of the owner receiving a part of the profit from this use.

The disposal of property by a unitary enterprise is carried out within a framework that does not limit the conduct of its own statutory activities. It can only be disposed of with the consent of the owner. Consent is also required when disposing of shares (contributions) in joint stock (authorized) capital or shares. Transactions that were made in violation of restrictions are void.

Features in accordance with which the right of economic management is exercised in relation to certain types of property located outside of Russia ( securities, real estate, shares) may be established by the Government of Russia.

Termination of powers, as well as their emergence, in accordance with general rule directly related to the moment of transfer of property. We are talking about certain property, in relation to which the authorized bodies representing the public owner decide to assign it to a legal entity. Other moments in which these rights arise may be established in the decision on the transfer of property made by the public owner.

The emergence and termination of powers must be registered with the relevant government agencies.

Termination of economic management rights is carried out in accordance with the general grounds that are established for termination. In addition, there is a special basis for termination in connection with a unilateral transaction by the owner - a decision on seizure (in accordance with the law). This procedure may occur in the event of reorganization or liquidation measures at a unitary enterprise.

Another specific reason for the termination of these rights may be the transfer of ownership rights to a private owner from a public one. This happens, as a rule, as a result of privatization. This basis represents an exception to the rule.

One of the methods of exercising the power of disposal is the waiver of economic management rights. It should be noted that to terminate the disposal of property, a unilateral expression of will is not enough legal entity. But this expression of will may become the basis for the owner to make a decision on the lawful seizure of property.

RIGHT OF ECONOMIC MANAGEMENT

the method of carrying out economic activities by state and municipal unitary enterprises with the property entrusted to them. in which the enterprise owns, uses and disposes of this property in accordance with the conditions, subject and purposes and activities established by the owner when transferring the property to the enterprise. The owner is represented by the state or municipality, which retains the rights of ownership even after the transfer of property to the enterprise. The subjects of P.H.V. cannot be state-owned enterprises, to which the property is assigned under the right of operational management. The object of P.H.V. is any property transferred by the owner and credited to the balance sheet of the enterprise. This property is indivisible and cannot be distributed as contributions between employees during privatization. The charter 4yund of the created enterprise for P.H.V. must be paid in full by the owner. state registration. In accordance with Art. 295 GK

of the Russian Federation, limited real rights to property transferred to an enterprise (P.h.v.) arise at the will of the founder-owner, who makes a decision on the creation of the enterprise, its reorganization and liquidation, appoints the head of the enterprise, exercises control over the intended use and safety of the property property enterprise. An additional basis for establishing the P.H.V. regime. - agreement between the owner and the subjects of P.h.v. In such an agreement, the following conditions are essential: the amount of the profit that the owner receives for the use of his property; on the forms and procedure for monitoring the safety and use of a P.H.V. facility. Currently, the Civil Code of the Russian Federation does not contain requirements for the mandatory conclusion of such agreements, but practice is developing in this direction. P.h.v. arises for the enterprise from the moment of transfer of property to it, unless otherwise provided by law. P.h.v. involves two modes of disposal of property depending on its purpose. Real estate cannot be alienated by an enterprise without the consent of the owner. The enterprise disposes of movable property under the control of the founder, in particular, it can contribute it to the authorized capital when creating a Subsidiary.

When a unitary enterprise creates its subsidiary with the transfer of part of the property into its economic management, the owner decides on the compliance of the sizes of the parts of the divided property with the minimum permissible sizes determined by the law on state and municipal unitary enterprises.

The newly created enterprise also becomes unitary. Profit in the form of fruits and income from the economic activities of the enterprise comes into the ownership of the founder and is kept by the enterprise on P.H.V., since it was created on the basis of property of which the enterprise is not the owner. Thus, unitary enterprise under no circumstances becomes the owner of the property in his possession. And only with the privatization of the P.h.v. enterprise. terminates along with the right of state and,.

municipal property Despite the fact that the legislator classified P.h.v. (together with the right of operational management) to real rights along with the right of ownership (Article 206 of the Civil Code of the Russian Federation), i.e. included in their composition the same powers of possession, use and disposal. such a legal construction is contradictory. The right of ownership can only be identical to itself. Therefore, it must be recognized that in the case where the owner voluntarily transferred property to another person, all three powers included in the property arose in this person. and to call this set of rights otherwise than the right of ownership means to sin against the rules of formal logic.

Property rights are divided into two categories: a) ownership; b) the right to someone else's thing. Since under the conditions of P.h.v. the enterprise uses the property only in a certain direction and for the purposes specified by the founder, then. by definition, this right is a right to someone else's thing.

P.h.v. is a relatively new legal construction. Its emergence is due to the transition from a state-monopoly to a capitalist model of managing society.

The restructuring of the management system of post-socialist society in the Russian Federation was expressed in the desire of the state to distance itself from direct entrepreneurial activity, retaining the authoritative forms of management characteristic of the capitalist state. A transitional form of management from a state monopoly to a private form of entrepreneurship was needed. The form of operational property management known in Soviet times was unsuitable for the solution of the task for the reason that, firstly, it provided for the transfer state property only state enterprise, secondly, did not provide the enterprise with the opportunity to dispose of the property assigned to it and. thirdly, income from the activities of the enterprise was distributed by the state as the owner of the property at its own discretion. It is clear that in conditions where the nature of the activities of such an enterprise, the composition of its property and the amount of deductions from its income are removed from the sphere of competence of the enterprise. this does not create incentives to improve production efficiency.

P.h.v. is a legal instrument for limiting the liability of the owner represented by the state or municipality for the results of entrepreneurial activity by the volume of property allocated for the economic management of an established enterprise, just as a citizen can register a legal entity in his own name in order to limit property liability for the results of entrepreneurial activity only to the capital contributed to the authorized capital. However, the legislation provides for subsidiary liability of the founder if the enterprise’s property is insufficient to satisfy the claims of creditors, if it is proven that the insolvency of the enterprise is caused by the actions of the founder (Clause 3 of Article 56 of the Civil Code of the Russian Federation).

Thus, P.h.v. in its current form is legal form, with the help of which, within the framework of state ownership of the property of enterprises, an attempt is made to increase the efficiency of their activities through economic incentives based on the contractual nature of the distribution of profits between the enterprise and the state.

It should be noted that such a significant restriction of the rights of enterprises at the disposal of state or municipal property, located in their P.H.V., did not eliminate all the shortcomings of this transitional form of entrepreneurial activity. In particular, the responsibility of a unitary enterprise for its obligations with all available property, established in paragraph 5 of Article 113 of the Civil Code of the Russian Federation, creates channels for the abuse of economic freedom by taking on obviously impossible obligations by the enterprise with the subsequent transfer of state property to the private sector to pay off debts.

Foreign legislation does not know an analogue of P.h.v. For example, countries common law took the path of contractual regulation of relations for managing the property of the owner (trust agreement), in which a professional in the relevant field of business activity is invited as a trustee.

Sheet,; Ivanov A.A. Property right// Jurisprudence. 1992, no. 1; Khokhl o in S.A. Ownership and other property rights // Bulletin of the Supreme Arbitration Court of the Russian Federation, 1995. No. 8.

: Pavlov V.P.

Encyclopedia of Lawyer. 2005 .

Article 294. Right of economic management

A state or municipal unitary enterprise, to which property belongs under the right of economic management, owns, uses and disposes of this property within the limits determined in accordance with this Code.

Article 295. Rights of the owner in relation to property under economic management

1. The owner of property under economic management, in accordance with the law, decides on the creation of an enterprise, determining the subject and goals of its activities, its reorganization and liquidation, appoints a director (manager) of the enterprise, and exercises control over the use for its intended purpose and the safety of property belonging to the enterprise.

The owner has the right to receive part of the profit from the use of property under the economic control of the enterprise.

2. An enterprise does not have the right to sell what it owns under the right of economic management real estate, rent it out, pledge it, make a contribution to the authorized (share) capital business entities and partnerships or otherwise dispose of this property without the consent of the owner.

The rest of the property belonging to the enterprise is disposed of independently, except in cases established by law or other legal acts.

Article 296. Right of operational management

(Article 296 as amended) Federal Law dated 03.11.2006 N 175-FZ)

1. An institution and a state-owned enterprise, to which property is assigned by right of operational management, own and use this property within the limits established by law, in accordance with the goals of its activities, the purpose of this property and, unless otherwise established by law, dispose of this property with the consent of the owner of this property. (as amended by Federal Law dated 05/08/2010 N 83-FZ)

2. The owner of property has the right to withdraw excess, unused or misused property assigned to an institution or a state-owned enterprise or acquired by a state-owned enterprise or institution at the expense of funds allocated to it by the owner for the acquisition of this property. The owner of this property has the right to dispose of property seized from an institution or state-owned enterprise at his own discretion. (as amended by Federal Law dated 05/08/2010 N 83-FZ)

Article 297. Disposal of property of a state-owned enterprise

1. 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.

A state-owned enterprise independently sells the products it produces, unless otherwise established by law or other legal acts.

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

Article 298. Disposal of the property of an institution

(as amended by Federal Law dated 05/08/2010 N 83-FZ)

1. A private institution does not have the right to alienate or otherwise dispose of property assigned to it by the owner or acquired by this institution at the expense of funds allocated to it by the owner for the acquisition of such property.

A private institution has the right to carry out income-generating activities only if such a right is provided for in its constituent document, while the income received from such activities and the property acquired from these incomes are at the independent disposal of the private institution.

2. An autonomous institution, without the consent of the owner, has no right to dispose of real estate and especially valuable movable property, assigned to him by the owner or acquired autonomous institution at the expense of funds allocated to him by the owner for the acquisition of such property. The autonomous institution has the right to dispose of the remaining property that it has under the right of operational management independently, unless otherwise provided by law.

An autonomous institution has the right to carry out income-generating activities only insofar as it serves the purposes for which it was created and is consistent with these purposes, provided that such activities are specified in its constituent documents. Income received from such activities and property acquired from these incomes shall be at the independent disposal of the autonomous institution.

3. State-financed organization without the consent of the owner, he has no right to dispose of particularly valuable movable property assigned to him by the owner or acquired by a budgetary institution at the expense of funds allocated to him by the owner for the acquisition of such property, as well as real estate. The budgetary institution has the right to dispose of the remaining property that it has under the right of operational management independently, unless otherwise provided by law.

A budgetary institution has the right to carry out income-generating activities only insofar as it serves to achieve the goals for which it was created and corresponds to these goals, provided that such activities are specified in its constituent documents. Income received from such activities and property acquired from these incomes are at the independent disposal of the budgetary institution.

4. A government institution does not have the right to alienate or otherwise dispose of property without the consent of the property owner.

A government institution may carry out income-generating activities in accordance with its constituent documents. Income received from these activities goes to the corresponding budget of the budget system of the Russian Federation.

Article 299. Acquisition and termination of the right of economic management and the right of operational management

1. The right of economic management or the right of operational management of property, in respect of which the owner has made a decision to assign it to a unitary enterprise or institution, arises for this enterprise or institution from the moment of transfer of property, unless otherwise established by law and other legal acts or a decision of the owner.

2. Fruits, products and income from the use of property under the economic control or operational management of a unitary enterprise or institution, as well as property acquired by a unitary enterprise or institution under an agreement or other grounds, shall come under the economic control or operational management enterprises or institutions in the manner established by this Code, other laws and other legal acts for the acquisition of property rights. (as amended by Federal Law dated 05/08/2010 N 83-FZ)

3. The right of economic management and the right of operational management of property are terminated on the grounds and in the manner provided for by this Code, other laws and other legal acts for the termination of ownership rights, as well as in cases of lawful seizure of property from an enterprise or institution by decision of the owner.

Article 300. Preservation of rights to property during the transfer of an enterprise or institution to another owner

1. When transferring ownership of a state or municipal enterprise as Property Complex to another owner of state or municipal property, such an enterprise retains the right of economic management or the right of operational management of the property belonging to it.

2. When the ownership of an institution is transferred to another person, this institution retains the right of operational management of the property belonging to it.

As part of state and municipal property, there are, on the one hand, property that is not assigned to the relevant enterprises and institutions as independent legal entities and belongs to the property of the treasury (state or municipal), and on the other hand, property that is under the economic control or operational management of state and municipal enterprises and institutions not directly related to the treasury of legal entities. Accordingly, a distinction is made between the exercise of the right of state and municipal property in relation to state property and in relation to property assigned to the relevant enterprises and institutions as independent legal entities.

In the first case we're talking about on the exercise of the right of state and municipal property by the bearer of this right through the relevant state bodies or local government bodies, and in some cases legal entities and citizens commit certain actions on behalf of the subject of property rights - the Russian Federation, a constituent entity of the Russian Federation or a municipal entity.

In the second case, an additional and completely independent link is connected to the implementation of the right of state and municipal property - a legal entity acting in civil circulation on its own behalf and endowed with either the right of economic management or the right of operational management over the state and municipal property assigned to it.

Thus, the right of economic management and the right of operational management are ways of exercising the right of state and municipal property.

The Civil Code of the Russian Federation provides that the right of economic management may be vested in state and municipal unitary enterprises, except federal enterprises, to which the property is assigned with the right of operational management, therefore Art. 216 of the Civil Code of the Russian Federation calls the right of economic management of state and municipal property a real right of persons who are not the owners. Article 8 of the Federal Law “On the Enactment of Part One of the Civil Code of the Russian Federation” states that enterprises that are not state or municipally owned and based on the right of full economic management must be transformed into business partnerships, societies or cooperatives or liquidated.

The right of full economic management was previously built on the same model as the right of ownership. Now the rights of a state or municipal enterprise, to which property belongs under the right of full economic management, are strictly limited. This circumstance is explained by the fact that the size of the authorized capital of such an enterprise cannot be less than the amount determined by the law on state and municipal enterprises and even before their registration must be fully paid by the owner. If at the end of the financial year the value net assets If the enterprise turns out to be less than the size of the authorized capital, the body authorized to create the enterprise is obliged to reduce the authorized capital in accordance with the established procedure. If the value of net assets is less than the amount determined by law, the enterprise may be liquidated by court decision.

The rights of the owner of property under the economic control of an economic entity are as follows: resolving issues of creating an enterprise; determination of the subject and goals of its activities; resolving issues of reorganization and liquidation of the enterprise; appointment of the head of the enterprise; exercising control over the use and safety of property owned by the enterprise; receiving part of the profit from the use of property under the economic control of the enterprise.

At the same time, the owner of the property of a legal entity based on the right of economic management is not liable for the obligations of a state or municipal unitary enterprise, except for the cases provided for in paragraph 3 of Art. 56 Civil Code of the Russian Federation. In particular, the owner may be assigned additional liability for the obligations of the enterprise if its insolvency is caused by the actions of the owner, and the property of the enterprise is insufficient to satisfy the claims of creditors.

Big legal meaning has a division of the property of an enterprise, based on the right of economic management, into immovable and movable. An enterprise does not have the right to sell immovable property owned by the right of economic management, rent it out, pledge it, make a contribution to the authorized capital of business companies and partnerships, or otherwise dispose of this property without the consent of its owner, and movable property that belongs to enterprise, it manages independently, except in cases established by law or other legal acts.

A unitary enterprise based on the right of economic management can create another unitary enterprise as a legal entity by transferring part of its property to it for economic management. IN in this case the subsidiary acquires a secondary right of economic management in relation to the property transferred to it. The liability of the parent and subsidiary enterprises for each other’s obligations is subject to the rules of paragraph 3 of Art. 56 Civil Code of the Russian Federation. In particular, the parent company bears additional responsibility for the obligations of a subsidiary if its property is insufficient, if the insolvency of the subsidiary is caused by the actions of the enterprise that founded it. On the other hand, if the parent company established a subsidiary in order to be freed from liability to creditors, then foreclosure may also be applied to the property of the subsidiary.

Right of operational management

Unlike enterprises based on the right of economic management, state-owned enterprises, to which property is assigned under the right of operational management, do not have the right to dispose of not only real estate, but also movable property without the consent of the owner. The state-owned enterprise sells its products independently, unless otherwise established by law or other legal acts.

The responsibilities of the state-owned plant are as follows:

• direct profits from the sale of products (works, services) to finance activities that ensure the implementation of the order plan, the plant development plan and for other production purposes, as well as for social purposes according to standards established annually by the authorized body, and direct the remaining profit to the federal budget ;
• introduce authorized body Report on intended use allocated budgetary allocations, as well as depreciation charges intended for updating fixed assets; return after a year federal budget unused budget allocations.

A state-owned enterprise is liable for its obligations with all the property assigned to it, but is not liable for the obligations of the owner of its property, and bears additional responsibility for its obligations in all cases where its property is insufficient Russian Federation as a subject of civil law (clause 5 of article 113 of the Civil Code of the Russian Federation). If a state-owned enterprise is created on the basis of the property of a constituent entity of the Russian Federation and municipal property, these entities bear additional responsibility civil law.

The right of operational management of an owner-financed institution is even more limited compared to the right of operational management of state-owned enterprises. An institution does not have the right to alienate or otherwise dispose of property assigned to it, acquired using funds allocated to it according to the estimate. The institution is liable for its obligations with the funds at its disposal only. The property of the institution, regardless of whether it is accounted for as part of fixed assets or assets in circulation, is protected from collections by creditors. If there are insufficient resources at the institution's disposal Money The owner of this legal entity bears additional responsibility for its obligations.

Institutions are non-profit organizations, however, in accordance with their constituent documents, they can engage in commercial activities. Income received from such activities and property acquired from these incomes are at the independent disposal of the institution and are accounted for on a separate balance sheet. According to the estimate, the indicated income is not included, and the law does not provide for the question of the possibility of creditors to foreclose on property acquired by the institution through commercial activities permitted in the constituent documents.