The Theoretical And Practical Conception Of Adjusting Of The Enterpreneurial Legal Entity Of Private Law In Ukraine
The legal basis of activity of the entrepreneurial legal entities of Private Law was forming, when the general concept of the development of these legal entities was absent. This situation was natural for those the soviet period, because the entrepreneurial legal entities of Private Law didn't function. The needs of market economy required the immediate creation of the legal basis for these legal entities. It has become the reason of the differences between the practice and science.
The reason of integration's problems is the absence of the general concept of these legal entities in the general norms of the Civil and the Commercial codes of Ukraine. The main task of the systematization of legislation is the scientific development of conception of the legal adjusting of the entrepreneurial legal entities of Private Law.
This conception will become an effective basis for the differentiation of the legal adjusting in the special legal acts.
The Civil code use the legal construction of “company” for entrepreneurial legal entities of Private Law only. The analysis of norms of Civil code established the basis of this construction - relations of participation. This quality description is the static component of our construction. The relations of participation are present in all forms of legal entities, that will be created on the basis of this construction. The expounded positions allow to assert, that the Civil code establishes single construction for all forms of the entrepreneurial legal entities of Private Law - “company”. The relations of participation are identifying sign of this construction. Such conclusion corresponds to nature of the investigated legal entities.
The realization of the transformations of sphere of adjusting of entrepreneurial legal entities of Private law needs additional classification criteria and change of their levels. The decision of this problem requires to appeal to experience of the foreign states. Such analysis testifies, that the legislation of the foreign states uses a few classification criteria and establishes a classification levels, which differ from the classification levels of Civil code of Ukraine. These primary levels of classification are: right on distribution of profit between the participants of legal entity. Only on second level of the classification Civil codes of the separate states use the legal constructions of companies or cooperatives.
However, the analysis of norms of foreign states testifies, that the trade character of companies can be determined also by the object of activity - realization of entrepreneurial activity. Optionality of legislation of these states of the continental legal system is using of such the means of legal technique: entrepreneurial character of legal entities is determined by their form or object of activity, when a kind and volume of activity of legal entity requires commercial organization.
It is established, that the current legislation of Ukraine requires using of the considered mechanisms of adjusting of entrepreneurial legal entities of Private Law. Such mechanisms will provide adjusting of all forms of entrepreneurial legal entities in Private Law, that is set in the Civil code and in the special acts.