Forms Of Entrepreneurial Legal Entities Of Private Law.

  • Alla Zelisko

Abstract

The objective of the dissertation is the development of a universal legal cate-gory of “entrepreneurial legal entity of Private law” and system regulation of the ex-isting legal entities within its boundaries. This is made on the basis of modern prac-tices of the national and world doctrine, as well as legislative practice of European counties.
It is established that such category as “the entrepreneurial legal entity of the private law” is grounded upon the eligibility to distribute income between the partic-ipants or members of the legal entity. This is special characteristic feature peculiar to the legal entities in question. Moreover, the right of the participant or the mem-ber to make a part of profit from the legal entity’s activity includes not only a part of profit, which may be paid on the basis of the decision issued by the general meeting or participants of the legal entity, but the right to a liquidation quota in case of the legal entity liquidation either.
Such criterion has not only a theoretical significance for definition of the legal entity as an entrepreneurial one but a practical significance is also present, since it is a basis to settle the issue on inclusion or non-inclusion of such legal entity to the list of the subjects coming under taxation. Based on the foregoing, for the first time, we offer a definition of the universal category of “the entrepreneurial legal entity of the private law” as a legal entity, which acts under participation or membership rela-tions of its participants or members and shall be entitled to distribute profit among them.
The developed category of “the entrepreneurial legal entity of the pri-vate law” encourages reviewing of the existing classification typical for the legal enti-ties of the private law. Indeed, accordingly to the provision the Civil Code of Ukraine, the entrepreneurial legal entities of the private law are entirely covered by the concept of “the entrepreneurial company” that includes economic entities and production cooperatives. On the ground of provisions stated in this academic paper, we have primarily proved the expediency to borrow the leading European states’ experience in the scope of changing classification levels of the legal entities of the private law provided by the Civil Code of Ukraine. It is possible while introducing the first level of classification (after making separation between the legal entities of the public law and the legal entities of the private law) to divide the entities into en-trepreneurial and non entrepreneurial ones depending on the fact if they have or do not have the right to distribute the profit between the participants or members (nowadays the current legislation of Ukraine envisages such division within the en-trepreneurial company’s framework only). The specified criterion of classification has the applied nature because it permits to identify the legal entity as those to be included in the list of the subjects undergoing taxation. Primary nature of such cri-terion in the process of formation of the classification scheme for the legal entities of the private law will include all possible forms of the entrepreneurial legal entities of the private law.
The unified system of the legal entities in question includes those organiza-tional-legal forms, which correspond to their legal parameters developed in the doc-trine. Accordingly, neither business profile nor the form of ownership, or other non-legal criteria cannot determine the legal entity’s belonging to a separate organiza-tional- legal form. As to the legal entities, which are existing within the other integra-tion classifications in any derivative or modified organizational-legal forms (corpo-rate investment funds, banks, insurance companies, pawnshops, etc.), we have ac-cepted a scientific position such as existing of the entrepreneurial legal entities of the private law in the main organizational-legal forms, but the mentioned entities must have a special status connected with the public interest.

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Published
2019-06-23
Section
Articles