Тенденції розвитку законодавства та доктрини приватного права про підприємницькі юридичні особи

Abstract

The scientific article raises the question of outlining the direction of development of civil and corporate legislation of Ukraine regarding legal entities in general and business, in particular. The definition of legal forms of legal entities in the light of the recodification of the Civil Code of Ukraine. The author of the article supports the idea laid down in the Concept of updating the Civil Code of Ukraine in the part that the legal regulation of organizational and legal forms should be developed in the direction of a closed list of organizational and legal forms of legal entities– societies and institutions. The need to systematize those legal entities that are part of the legal form of «institution» is emphasized, because institutions, funds, and individual legal entities of public law operating in the legal form of the institution differ in their legal status and are not sufficiently regulated today. It is concluded that it is necessary to strengthen the role of the Civil Code of Ukraine in determining the legal status of legal entities of public law by enshrining in the Code norms that would indicate the fundamental nature of the provisions of private law in regulating the organizational and legal forms of legal entities of public law. It is noted that the basis of understanding the concept of an entrepreneurial legal entity are two criteria: activities for profit and its subsequent distribution between participants; the emergence of the founders of a special type of property and personal rights, which are called corporate rights. It is indicated on the need to distinguish between corporate and membership legal relations arising in entrepreneurial and non-entrepreneurial societies. In the article, due to the application of the criterion of «degree of completeness of rights», it was concluded that there are no grounds for identifying membership and corporate legal relations. The content of membership rights in non-entrepreneurial societies is non-property rights, that is, one of the elements of the corporate rights of participants in entrepreneurial societies. Certain property interests, if any, arise in non-entrepreneurial societies, as a general rule, fit into the design «not to get more than invested». It also emphasized the need to improve Art. 961 of the Civil Code of Ukraine regarding the definition of corporate rights, the need to determine the degree of detail of regulation of entrepreneurial legal entities at the level of the Civil Code of Ukraine, in particular in terms of returning to the structure of the Civil Code of Ukraine the norms on joint-stock companies and limited and additional liability companies.