Classification of Legal Entities in Modern Corporate Law: Organizational Forms and Criteria for their Differentiation

Abstract

The article examines the problems of the doctrinal and normative division of legal entities in Russian civil law into various types. The question is raised about the necessity and scientific validity of the existing classification of legal entities and the criteria for their differentiation. The analysis of proposals on the system of legal entities in the Concept for the development of civil legislation and their implementation in the current corporate law of Russia is carried out. Various classifications of legal entities are investigated, including the division of legal entities into associations of persons and associations of capital, public and non-public companies, corporate and unitary, commercial and non-commercial organizations, etc. It is concluded that these classifications are imperfect and unclear. It is proposed to abandon the rigid normative division of organizational forms of legal entities by the type of rights of participants (property or corporate rights); by type of activity (commercial and noncommercial organizations); by the presence of corporate rights of participation (corporate and unitary). Instead, one should use a functional approach and apply certain regimes to different legal entities, depending on the actual presence of the relevant features. At the same time, it is advisable to preserve the division of organizational forms into commercial or non-commercial on the basis of the presence or absence of the organization’s right to distribute the received income in favor of the participants. Possible approaches to the division of legal entities according to organizational forms are considered from the standpoint of the main theories of a legal entity (theory of fiction, theory of reality, contract theory). It is concluded that, regardless of the theories used, such a division should be due to utilitarian considerations based on practical needs and convenience for participants in civil turnover. The author’s definition of the organizational form of a legal entity and a set of basic civil legal parameters are given, according to which its constitutive characteristics should be determined, based on which a list of individual organizational and legal forms of commercial and non-commercial organizations is proposed. The necessity of preserving the division of all legal entities into organizational forms according to the principle of numerus clausus is substantiated.
For citation: Gutnikov O.V. (2022) Classification of legal entities in modern corporate law: organizational forms and criteria for their differentiation. Law. Journal of the Higher School of Economics, v ol. 15, no. 2, pp. 128–163 (in Russ.). DOI:10.17323/2072-8166.2022.2.128.163