An educational institution has the right to conduct business activities provided for by its charter. Entrepreneurial activity (educational institution)
Chapter 3. Organizations carrying out educational activities
Article 25. Educational organizations
1. An educational organization is a non-profit organization whose main activity, aimed at achieving the goals for which such an organization was created, is educational activities.
2. Within the scope of the main activity specified in the charter of an educational organization, an educational organization has the right to implement educational programs of various levels and directions and provide educational services, both free of charge and for a fee, as well as conduct scientific and other activities related to the provision of education in the prescribed manner in accordance with the requirements established by this Federal Law for educational organizations of a certain type, type, category.
3. The right to carry out educational activities and benefits established by the legislation of the Russian Federation arises for an educational organization from the moment it is granted a license.
4. An educational organization has the right to engage in educational activities that generate income, within the limits established by law Russian Federation and the charter of the educational organization, subject to the use of the income received in accordance with this Federal Law.
Educational activities that generate income cannot be carried out in exchange for and (or) within the framework of educational activities financed from the budgets of the budgetary system of the Russian Federation.
5. An educational organization has the right to carry out, along with educational activities, other income-generating activities only insofar as it serves the achievement of the goals for which it was created and corresponds to these goals.
An educational organization is not allowed to carry out income-generating activities if it is conducted solely for the purpose of generating profit and transferring it to the founder.
Article 26. Creation, reorganization and liquidation of educational organizations
1. An educational organization is a legal entity. It can be created in the form of an institution or in another organizational and legal form provided for by the civil legislation of the Russian Federation for non-profit organizations.
2. The founders of an educational organization (hereinafter referred to as the founder), in the manner established by the legislation of the Russian Federation for a non-profit organization of the appropriate organizational and legal form, may be:
1) Russian Federation, constituent entities of the Russian Federation, municipalities;
In case of reorganization of government bodies, bodies local government the rights of the founder of the educational institution are transferred to the corresponding legal successors.
9. An educational organization is created and registered in accordance with the legislation of the Russian Federation.
Institutions of professional religious education (spiritual educational institutions) for the training of ministers and religious personnel are created and registered in accordance with the Federal Law “On Freedom of Conscience and on Religious Associations”.
10. To register an educational organization, the founder(s) submits documents in accordance with the federal law on state registration of legal entities.
11. The authorized body, within the time limits established by the federal law on state registration of legal entities, registers an educational organization, which it notifies in writing to the applicant, financial authorities, as well as bodies that carry out licensing of educational activities of the relevant type of educational organizations - the federal executive body, carrying out functions of control and supervision in the field of education, or an executive body of a constituent entity of the Russian Federation exercising the delegated powers of the Russian Federation to license educational activities.
12. From the moment of registration, an educational organization acquires the rights of a legal entity in terms of conducting financial and economic activities provided for by its charter and aimed at preparing for the implementation of educational activities.
13. An educational organization may be reorganized in the form of merger, accession, division, separation, transformation by decision of its founder(s) in accordance with the civil legislation of the Russian Federation.
14. A state or municipal educational institution may be reorganized if this does not entail a violation of the constitutional rights of citizens in the field of education, including the rights of citizens to receive a free education. The reorganization of municipal rural pre-school educational and general education institutions is carried out taking into account the opinion of the population expressed by the representative bodies of the relevant municipal districts and settlements.
15. An educational organization may be liquidated by a court decision if educational activities are carried out without a proper license, or activities prohibited by law, or activities that do not correspond to its statutory goals, as well as on other grounds and in the manner provided for by the legislation of the Russian Federation and this Federal law.
16. The liquidation of municipal rural pre-school educational and general education institutions is permitted only with the consent of the population of the settlements served by this institution, expressed by the representative bodies of the relevant municipal districts and settlements, or by a gathering of citizens (in a settlement with no more than 100 residents with voting rights).
17. The procedure for the creation, reorganization and liquidation of federal state educational institutions is established by the Government of the Russian Federation, unless otherwise provided by federal law, state educational institutions under the jurisdiction of a constituent entity of the Russian Federation - by the highest executive body state authorities of a constituent entity of the Russian Federation, municipal educational institutions - by the local administration of the municipality.
18. The creation, reorganization and liquidation of international (interstate) educational institutions is carried out in accordance with international treaties of the Russian Federation.
Article 27. Types of educational organizations
1. Educational organizations, in accordance with the goals of their main activities and the types of educational programs implemented within its framework, are divided into types.
2. In the Russian Federation, the following types of educational organizations are established that implement basic educational programs:
1) preschool educational organization;
2) general education organization;
3) professional educational organization;
4) educational organization of higher education.
3. Educational organizations implementing various types of additional educational programs belong to one of the following types :
2) organization of additional professional education.
4. Educational organizations within the same type can be divided into types and categories, and also use special names in accordance with the characteristics of the educational activities carried out (levels and focus of educational programs, integration of various types of educational programs, special conditions their implementation and (or) the special needs of students), as well as additionally performed functions related to the provision of education (content, treatment, rehabilitation, correction, psychological and pedagogical support, boarding school, research, technological activities and others provided for by the legislation on education ).
The main types and categories of educational organizations of the same type and the procedure for their activities are established by this Federal Law. In order to ensure the development of the education system, other types and categories of educational organizations of the corresponding type may be additionally established in accordance with federal laws, decrees of the President of the Russian Federation by the Government of the Russian Federation, and also - in relation to educational organizations implementing basic and (or) additional general education programs - in accordance with the laws of the constituent entities of the Russian Federation by the constituent entities of the Russian Federation in agreement with the federal executive body exercising the functions of developing public policy and legal regulation in the field of education.
6. The federal executive body, which carries out the functions of developing state policy and legal regulation in the field of education, forms a nomenclature (lists) of types, categories and special names of educational organizations used to designate them, and also, if necessary, establishes the features of the organization of the educational process and implementation of educational activities by certain types and categories of educational organizations.
A subject of the Russian Federation, if it establishes an additional type or category of an educational organization, determines the features of organizing the activities of an educational organization of this type (category) in accordance with the legislation on education.
7. Features of the activities of federal state educational institutions implementing educational programs in areas of training (specialties) in the field of defense and state security ( military educational institutions), are established by the Government of the Russian Federation; federal state educational institutions, the training in which is related to entry into the civil service and (or) citizens having access to information constituting state secrets, are determined by the federal executive body entrusted with the functions of the founder, in agreement with the federal executive body carrying out functions for the development of state policy and legal regulation in the field of education.
9. The type, type, category (if any) of an educational organization is determined during its creation or reorganization by the founder in accordance with the legislation on education and is enshrined in the charter. The educational status of an educational organization established by the founder is confirmed (established) during its state accreditation, unless otherwise provided by federal laws.
10. The list of performance indicators of an educational organization necessary to determine its type and type (with the exception of a preschool educational organization, educational organization of additional education for children) is approved by the federal executive body exercising the functions of developing state policy and legal regulation in the field of education.
The criteria for the indicators necessary to determine the type and type of educational organization are established by the federal executive body exercising control and supervision functions in the field of education, or by the executive body of the constituent entity of the Russian Federation exercising the delegated powers of the Russian Federation in the field of education, in accordance with their competence in the manner determined by the Government of the Russian Federation, based on the requirements of legislation on education and taking into account the information contained in information systems of state accreditation
when a different educational status is established as a result of state accreditation;
at the initiative of the founder;
during reorganization in the manner prescribed by the charter of the educational organization.
12. The name of an educational organization, along with its form of ownership, organizational and legal form, must contain an indication of the nature of its activities through the use of the word “educational” or words derived from it, and also include the name of its type, unless otherwise established by federal laws, decrees of the President of the Russian Federation Federation or acts of the Government of the Russian Federation. If necessary, the name of the educational organization shall indicate its special name.
13. An educational organization that has not been licensed within three months from the date of making an entry about it in the Unified State Register of Legal Entities or has been refused a license does not have the right to use in its name words indicating that it carries out educational activities.
14. The use of words and phrases “Russia”, “Russian Federation”, “federal”, as well as words and phrases derived from them, in the name of an educational organization is permitted in the manner established by the legislation of the Russian Federation.
15. When the educational status of an educational organization changes, its name in mandatory appropriate changes are made .
Article 28. Charter of an educational organization
1. An educational organization operates on the basis of a charter developed and approved in accordance with the legislation of the Russian Federation, this Federal Law and other regulatory legal acts governing relations in the field of education.
2. The procedure for approving the charter of a federal state educational institution is established by the Government of the Russian Federation, of a state educational institution under the jurisdiction of a constituent entity of the Russian Federation - by the executive body of a constituent entity of the Russian Federation, of a municipal educational institution - by a local government body.
3. The charter of an educational organization must contain the following information:
1) name of the educational organization;
2) organizational and legal form, type, category (if any) of the educational organization; its founder(s);
3) location of the educational organization;
4) the subject and goals of the educational organization’s activities;
5) branches and representative offices of an educational organization;
6) structure, competence of the bodies of the educational organization, the procedure for their formation, terms of office and procedure for the activities of these bodies;
7) types of main activities (educational and other activities related to the provision of education) of the educational organization;
8) an exhaustive list of types of income-generating activities of an educational organization (for state and municipal institutions - within the limits established by this Federal Law);
9) the procedure for financial and logistical support of the educational organization by its founder;
10) the procedure for disposing of property acquired by an educational organization from income received from income-generating activities.
4. In addition to the information specified in Part 3 of this article, the charter of an educational organization must contain the following information:
1) goals of the educational process, types and types of educational programs being implemented;
2) the language or languages in which training and education are conducted;
3) main characteristics of the organization of the educational process, including:
a) rules for admitting students;
b) duration of study in basic and (or) additional educational programs;
c) the mode of study of students;
10. An educational organization, in accordance with the procedure established by the legislation of the Russian Federation, is responsible for:
1) failure to perform or improper performance of functions within its competence;
2) implementation of educational programs not in full in accordance with approved curriculum; the quality of education provided in accordance with established requirements;
3) compliance of the applied forms, methods and means of organizing the educational process with the age, psycho-physiological characteristics, inclinations, abilities, interests and needs of students;
4) life and health of students and employees of an educational organization during the educational process;
5) violation of the rights and freedoms of students and employees of an educational organization;
6) other actions provided for by the legislation of the Russian Federation.
11. Direct control over the compliance of the activities of the educational organization with the goals provided for by its charter, its compliance with the legislation of the Russian Federation, the charter, licensing requirements and conditions, as well as its educational and financial and economic activities are carried out by the founder (founders) within their competence.
12. Supervision over the educational organization’s compliance with the legislation on education, control of licensing requirements and conditions and the quality of the education it provides is carried out, within its competence, by the state executive body that exercises the functions of control and supervision in the field of education and has issued it a license to conduct educational activities.
13. Control over the implementation of the legislation of the Russian Federation in the field of budgetary and financial discipline in educational organizations is carried out by authorized government bodies within the limits of their powers.
14. For violation of the right to education and the rights and freedoms of students provided for by the legislation on education, the requirements for the implementation of educational activities and the organization of the educational process, the educational organization and its officials bear administrative responsibility in accordance with the Code of the Russian Federation on Administrative Offenses.
15. Officials of an educational organization bear disciplinary, administrative and criminal liability established by the legislation of the Russian Federation for distortion of state reporting.
Article 33. Organizations providing training
1. In the Russian Federation, scientific organizations and other organizations, including those created in the form of commercial organizations, may carry out educational activities as additional to their main activities under educational programs established by this Federal Law. Such organizations belong to organizations providing training and are not educational.
2. The organizations specified in part 1 of this article carry out educational activities on the basis of a license for programs vocational training and additional professional educational programs, except for cases established by this Federal Law. Scientific organizations are given the right to implement, in addition to the above, basic educational programs of higher education - master's program and a program for training scientific and pedagogical personnel, as well as a program for training scientific personnel .
2. Organizations providing training do not have the right to implement professional educational programs in areas of training and specialties in the field of defense and state security.
3. Organizations providing training acquire the right to conduct educational activities from the moment they receive the appropriate license.
4. To conduct educational activities by organizations providing training, a specialized structural educational unit is created within the structure of the organization. The activities of such a unit are regulated by regulations developed and approved by the organization providing training in accordance with the legislation on education and the charter.
5. Organizations providing training, in terms of educational activities, are subject to the rights and obligations of educational organizations implementing relevant educational programs and (or) professional training programs provided for by the legislation on education, with the exception of cases established by this Federal Law.
6. Features of the implementation of educational programs that do not contradict the legislation on education can be regulated local act organization providing training.
7. The rights of employees of specialized structural educational units of organizations providing training cannot be less than the rights of employees of educational organizations implementing relevant educational programs and (or) professional training programs provided for by the legislation of the Russian Federation.
/Article New law“About education”: what’s new for private educational organizations from September 1, 2013?
New Law “On Education”: what’s new for private educational organizations from September 1, 2013?
On September 1, 2013, the Federal Law of December 29, 2012 No. 273-FZ “On Education in the Russian Federation” comes into force. At the same time, the Law of the Russian Federation of July 10, 1992 No. 3266-1 “On Education” and the Federal Law of August 22, 1996 No. 125-FZ “On Higher and Postgraduate Education” vocational education"lose their validity. Now the activities of all educational organizations, including higher and postgraduate professional education, are regulated by one law. Svetlana Viktorovna Koleeva, Head of Corporate Practice at the Yusta Aura Law Firm, talks about the main provisions of the new law concerning private educational organizations (institutions).
1. The main change is the expansion of the circle of persons who have the right to engage in educational activities
Let us recall that according to the previously effective Law of the Russian Federation “On Education”, educational activities were not entrepreneurial, and only non-profit organizations (non-state educational private institutions, autonomous non-profit organizations, etc.) could carry them out. Now, the new Federal Law of December 29, 2012 No. 273-FZ “On Education in the Russian Federation” (hereinafter referred to as the law) has also granted the right to conduct educational activities along with non-profit organizations to commercial organizations and even individual entrepreneurs (and the provision that educational activity is not entrepreneurial, excluded).
In Art. 2 of the law contains the main concepts used in it. Now organizations carrying out educational activities are divided into two groups: educational organizations and organizations providing training. Educational organizations, as before, remain non-profit organizations that carry out educational activities on the basis of a license as the main type of activity in accordance with the goals for which they were created (clause 18 of Article 2 of the law).
In paragraph 19 of Art. 2 of the law contains a definition of the concept of “organization providing training”, according to which it is “a legal entity that, on the basis of a license, carries out educational activities as an additional type of activity along with its main activity.”
Part 1 of Art. 31 of the law, organizations providing training include scientific organizations carrying out educational activities, organizations for orphans and children left without parental care, organizations providing treatment, rehabilitation and (or) recreation, organizations providing social services, and other legal entities .
The wording “other legal entities” also includes commercial organizations. However, the right of commercial organizations to conduct educational activities is limited to a closed list of educational programs being implemented - according to Part 5 of Art. 31 of the law, they have the right to carry out educational activities under vocational training programs, educational programs for preschool education and additional educational programs.
So, commercial organizations have the right to implement the following educational programs: vocational training, preschool education, childcare and supervision (Part 2 of Article 23 of the law), additional general education and additional professional educational programs (Part 3 of Article 23 of the law). Thus, a general education organization (primary general, basic general and secondary) cannot be created in the form of a commercial organization general education(clause 2, part 2, article 23 of the law); professional educational organization (secondary vocational education (clause 3, part 2, article 23 of the law) and educational organization of higher education (clause 4, part 2, article 23 of the law).
However, you should once again pay attention to the definition contained in paragraph 18 of Art. 2 of the law, - educational activities of commercial organizations can be carried out by them only as an additional, and not the main type of activity.
Individual entrepreneurs carry out educational activities directly or with the involvement of teaching staff. They are allowed to teach in basic and additional general education programs and vocational training programs (Part 3 of Article 32 of the Law). Individual entrepreneurs conducting educational activities directly (personally) without the involvement of teaching staff, by virtue of Part 2 of Art. 91 of the law does not require a license. Those who engage teaching staff are allowed to conduct educational activities without a license until 01/01/2014. If they do not receive licenses before the expiration of the specified period, they are obliged to stop carrying out educational activities with the involvement of teaching staff.
According to paragraph 20 of Art. 2 IP laws according to legal status are equated to organizations carrying out educational activities, unless otherwise provided by law.
2. Types of educational organizations have been changed
The law provides for six types of educational organizations: preschool, general education, vocational, higher education, additional education, additional vocational education. A professional educational organization implements secondary vocational education programs as the main goal of its activities, but as additional goals it has the right to teach basic general education programs, vocational training programs, additional general education and additional professional programs. Educational organizations of higher professional education have the right to implement, in addition to directly higher education, all of the above programs of a professional educational organization.
The legislator's indication of specific additional types of educational activities that an educational organization has the right to carry out is aimed at eliminating uncertainty in law enforcement, and therefore is a positive side of the law.
3. The requirements for the charter of an educational organization have been simplified
In the previously effective Law of the Russian Federation “On Education”, Art. 13 provided for a large list of information that was necessarily included in the charter. Now Art. 25 of the law establishes that, along with the provisions of the charter provided for by the general norms (clause 2 of article 52 of the Civil Code of the Russian Federation, part 3 of article 14 of the Federal Law of January 12, 1996 No. 7-FZ “On Non-Profit Organizations”), the charter of an educational organization must contain : type of educational organization; information about the founder, founders; types of educational programs indicating the level of education and (or) focus; structure and competence of management bodies, the procedure for their formation and terms of office. As you can see, this list is significantly smaller than the list contained in Art. 13 of the previous law.
4. The structure of the governing bodies of the educational organization has been changed
Part 4 of Art. 26 introduces mandatory collegial governing bodies: a general meeting (conference) of workers (in a professional educational organization and higher education organization - a general meeting (conference) of workers and students) and a pedagogical council (in an educational organization of higher education - an academic council). The competence of these bodies, the procedure for formation and terms of office are determined by the educational organization independently and are enshrined in the charter. We believe that in practice, in private educational organizations, these bodies will be created only formally and vested with minimal powers.
5. Information openness (publicity) of educational
organizations. And non-compliance entails administrative liability
Yes, Art. 29 of the law provides for the obligation of an educational organization to post information on the Internet, incl. on the official website of the organization (and therefore the obligation of the educational organization to have a website is introduced), in particular:
about the date of creation of the educational organization, about the founder, founders;
on the structure and governing bodies of the educational organization;
on the number of students in educational programs being implemented at the expense of budgetary allocations and under educational agreements at the expense of individuals and (or) legal entities;
about the head of the educational organization, his deputies, heads of branches (if any);
on the personnel of teaching staff, indicating the level of education, qualifications and work experience;
on the material and technical support of educational activities (including the availability of equipped classrooms, facilities for conducting practical classes, libraries, sports facilities, training and education facilities, about nutritional conditions and health protection for students, about access to information systems and information and telecommunication networks, about electronic educational resources to which students have access);
on the number of vacant places for admission (transfer) for each educational program;
on the receipt of financial and material resources and their expenditure at the end of the financial year.
Also on the website of the educational organization the following must be posted: charter, license, certificate of state accreditation; financial and economic activity plan, internal regulations for students, internal labor regulations; a document on the procedure for the provision of paid educational services, including a sample contract for the provision of services, a document on approval of the cost of training for each educational program, instructions from bodies exercising state control (supervision) in the field of education, reports on the implementation of such instructions.
The specified information and documents are subject to publication within 10 days from the date of their creation, receipt or relevant changes.
On the one hand, the introduction of the principle of openness is a positive step aimed at ensuring compliance with the rights of consumers (applicants and students). On the other hand, for educational organizations themselves this is rather a negative point, because they are assigned additional responsibilities: to have an official website on the Internet (not all educational organizations have a website; small educational organizations, especially kindergartens and other socially oriented educational organizations often cannot afford this) and to disclose information that can be used not only by consumers , but also competitors of the educational organization.
Part 2 of Art. 5.57 of the Code of Administrative Offenses of the Russian Federation provides for liability for violation or illegal restriction of the rights and freedoms of students and pupils of educational organizations provided for by legislation in the field of education, or violation of the established procedure for the implementation of these rights and freedoms. In this case, we are talking about a violation of students’ right to information.
Sanction part 2 art. 5.57 of the Code of Administrative Offenses of the Russian Federation provides for fines in the following amounts: for officials in the amount of 10 thousand to 30 thousand rubles; for legal entities - from 50 thousand to 100 thousand rubles.
We believe that such fines will encourage educational organizations to comply with the principle of openness (publicity) introduced by the new law.
It is likely that in connection with the new law, a special composition may be included in the Code of Administrative Offenses of the Russian Federation administrative offense with more severe punishment. In the meantime, violation of the principle of openness will be qualified under Part 2 of Art. 5.57 Code of Administrative Offenses of the Russian Federation.
6. All previously created educational organizations are entrusted with the responsibility
Bring your names and charters into compliance with the new law by 01/01/2016.
The names must include an indication of the type of educational organization. For example, if previously there was a NOCHU SPO, then according to the new law it is a NOCHU VPO (or NCHU VOO); NIGHT DPO - NCHU ODPO.
7. An obligation to re-issue licenses has been established.
In order to bring educational activities into compliance with the new law, previously issued licenses for educational activities and certificates of state accreditation are reissued before 01/01/2016.
8. The special norm on the reorganization of educational organizations has been excluded.
Let us recall that the previously effective Law of the Russian Federation “On Education” provided for a restriction on reorganization in the form of transformation - an educational institution could only be transformed into another non-profit educational organization(Part 1, Article 34). Whereas part 2 art. 17 of the Federal Law of January 12, 1996 No. 7-FZ “On Non-Profit Organizations”, the transformation of a private institution into a business company is allowed. That is, the law provided for a special procedure for the reorganization of private educational institutions.
In the new law, the rule on reorganization is Part 10 of Art. 22 - sounds like this: “An educational organization is reorganized or liquidated in the manner established by civil legislation, taking into account the features provided for by the legislation on education.” However, the new law does not provide for any restrictions on the possibility of transforming an educational non-profit organization into a commercial one (for example, a private institution into a business company). Of course, the possibility of such a transformation is determined by the type of educational organization and the educational programs it implements. Of course, the reorganization of a private institution of higher or secondary vocational education into an LLC is impossible, since the LLC does not have the right to implement these educational programs. However, for example, a private institution of additional or additional vocational education can transform into an LLC, because According to the new law, as noted earlier, commercial organizations have the right to implement vocational training programs, additional and additional vocational education.
9. The rule on the fate of the property of an educational organization has been preservedin case of its liquidation.
The legal norm, according to which, upon liquidation of an educational organization, its property, after satisfying the claims of creditors, is directed to the development of education, “migrated” from the previous law to the new one. Now this norm is enshrined in Part 3 of Art. 102 laws.
10. Independent assessment of the quality of education is being introduced(Article 95 of the law) and public accreditation organizations carrying out educational activities (Article 96 of the law). However, they are voluntary and do not entail any legal consequences; are being implemented specialized organizations at the initiative of an educational organization.
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Assignment to the establishment of property with the right of operational management is compensated by the owner’s obligation to fully or partially finance it. Financing of federal state educational institutions is carried out on the basis of federal standards for financing state educational institutions (clause 2 of article 41 of the Law on Education). This financing is carried out at the expense of the federal budget by the federal state education management body or the federal executive authorities in charge of these institutions (Clause 1, Article 28 of the Law on Higher and Postgraduate Professional Education).
In conditions of underfunding, the institution faces a dilemma: either earn money on its own through entrepreneurial activities and develop the material and technical base, or exist mainly at the expense of budget funds and eke out a miserable existence. Most universities choose the first path. The funds received by universities from entrepreneurial activities are very significant. In particular, the functioning of state universities under the jurisdiction of the Ministry of Education and Science of Russia is ensured at the expense of funds from entrepreneurial activities at the level of 40% 1 . Individual state universities have a total financial resources 60-70% of revenues from extra-budgetary activities 2. By attracting additional financial resources, universities have the opportunity to adequately fulfill their educational and scientific mission in society, strengthen their material and technical base, and retain professional staff.
The right to conduct business activities by non-profit organizations, which include institutions, is legalized and provided for, first of all, by the general norms of civil legislation - paragraph. 2 p. 3 art. 50, art. 298 Civil Code of the Russian Federation 1, art. 24 of the Law on Non-Profit Organizations, as well as the norms of educational legislation - Art. 46–47 of the Law on Education, clause 100 of the Model Regulations on an educational institution of higher professional education in the Russian Federation. This right was first provided for by the Fundamentals of Civil Legislation of the USSR and Republics (1991) and the Law of the RSFSR “On Property in the RSFSR” 2. In paragraph 3 of Art. 18 of the Fundamentals, it was established that non-profit organizations can engage in entrepreneurial activities only to the extent that this is necessary for their statutory purposes. The Property Law, in turn, provided that institutions carrying out activities with the consent of the owner entrepreneurial activity, in cases provided for by the legislation of the RSFSR, acquire the right to independently dispose of income from such activities and property acquired from these incomes (clause 4 of article 5). Similar rules are contained in current legislation. At the same time, the legislator limited the right of non-profit organizations to carry out entrepreneurial activities with two conditions: according to paragraph 2 of Art. 50 of the Civil Code of the Russian Federation, they can carry out entrepreneurial activities only insofar as it serves the achievement of the goals for which they were created and corresponds to these goals. Thus, the entrepreneurial activity of a non-profit organization must meet the following signs: 1) serve the purposes for which it was created; 2) meet these goals. In Art. 2 of the Law on Non-Profit Organizations lists the following goals of non-profit organizations: achieving social, charitable, cultural, educational, scientific, managerial, etc. goals of activity; public health protection, development physical culture and sports, protection of rights, etc.
The first criterion for the entrepreneurial activity of non-profit organizations does not raise any questions and is that this activity should contribute to the main goal of the activity. In relation to the educational activities of educational institutions, this can manifest itself in the direction of the funds received to the fixed and working capital of the institution, for the payment of wages, official creative business trips, etc. Other authors adhere to a similar point of view 1 .
As for the second requirement imposed by law on the entrepreneurial activity of a non-profit organization - compliance with its goals for the sake of which it was created, problems of a lexical nature arise here. Correspond - to include correspondence with someone or something; correspondence - a relationship between something, expressing consistency, equality in some respect 2. Coherence is revealed through the concept of “coordinated” - one in which unity and agreement have been achieved 3; equality - complete similarity, similarity 1. If we proceed from the literal interpretation of the word “compliance,” then the analyzed feature should mean that the entrepreneurial activity of a non-profit organization should be unified with its goals and similar to them 2. Based on what has been stated regarding the entrepreneurial activities of an educational institution, it follows that these activities should be similar to the main goal of its activities. The latter, according to Art. 12 of the Law on Education is the implementation of the educational process in the form of the implementation of educational programs. What can correspond to this activity and be on par with it? In our opinion, only educational activities carried out in excess of budget funding, i.e. on a reimbursable basis. But it cannot be attributed to it in any way, taking into account this criterion those types of business activities that are provided for by the Law on Education (sale of fixed and working capital, provision of intermediary services, etc.).
Regarding the second criterion for the entrepreneurial activities of non-profit organizations, other judgments have been made. For example, G.A. Kudryavtseva believes that the entrepreneurial activity of non-profit organizations should be limited only to the scope of the statutory goals of these organizations and cannot go beyond this scope. To explain her idea, she gives an example: if some sports society opens a workshop for repairing sports equipment, then such entrepreneurial activity will correspond to the statutory goals of this sports public organization and, therefore, will become completely legal 3.
O.P. Kashkovsky, in turn, believes that the entrepreneurial activity of a non-profit organization will correspond to the goals of its creation if it is a socially beneficial (main) activity or an activity that ensures it. The latter is: activities, the results of which, due to their qualities, are intended for use only in socially useful (core) activities (for example, the production of sports equipment); activities that promote socially beneficial (core) activities, making them more effective and accessible (for example, advertising the socially beneficial activities of a non-profit organization); activities that satisfy the needs that arise during the implementation of socially useful (core) activities (for example, the preparation and sale of food by a theater buffet) 1.
It seems to us that the given authors’ understanding of the second condition for the entrepreneurial activity of non-profit organizations is erroneous, since the authors proceeded not from the meaning of the word “comply”, but from the principle of expediency.
Unlike the Civil Code of the Russian Federation, Art. 24 of the Law on Non-Profit Organizations makes only one requirement for the entrepreneurial activity of non-profit organizations - it must serve the achievement of the goals for which the non-profit organization was created. The second criterion – “compliance with these goals” – is absent here. This law lists the types of activities that can, in the opinion of the legislator, serve the purpose of the organization for which it was created: 1) profit-generating production of goods and services that meet the goals of creating a non-profit organization; 2) acquisition and sale of securities, property and non-property rights; 3) participation in business companies; 4) participation in limited partnerships as an investor. As you can see, the types of business activities listed in the list cannot “correspond” to the main purpose of the activities of any non-profit organization.
There is also no unity in the norms of laws devoted to certain types of non-profit organizations on the issue of requirements for entrepreneurial activity. Yes, Art. 37 of the Law “On public associations» 1, Art. 12 of the Law “On Charitable Activities and charitable organizations» 2 and paragraph 1 of Art. 117 of the Civil Code of the Russian Federation imposes two requirements for entrepreneurial activity public organizations– it must serve the achievement of the statutory goals (in the Law on Charitable Activities - it must serve the achievement of the goals) for which the association was created; meet these goals. The Law “On Freedom of Conscience and Religious Associations” 3 generally omits this issue, indicating only that religious organizations have the right to carry out business activities and create their own enterprises in the manner established by the legislation of the Russian Federation (Article 23). By law, in this case, we should also mean Art. 117 of the Civil Code of the Russian Federation (“Public and religious organizations”). As noted above, this article makes two requirements for the entrepreneurial activities of public and religious organizations. The Law “On Consumer Cooperation (Consumer Societies, Their Unions) in the Russian Federation” (Article 5) makes one requirement for the company’s entrepreneurial activity - it must serve the achievement of the goals for which it was created (Article 116 of the Civil Code of the Russian Federation is silent about the criteria for to the entrepreneurial activity of a consumer cooperative). The Law on Education (Article 47) and the Fundamentals of Legislation of the Russian Federation on Culture 4 (Article 47) also do not impose any requirements for the entrepreneurial activities of educational institutions and cultural organizations. Accordingly, they provide that an educational institution, state and municipal cultural organizations have the right to conduct business activities provided for by their charter.
In the civil legislation of neighboring countries, the issue of the right of non-profit organizations to engage in entrepreneurial activities is also not resolved in the most the best way. For example, the Civil Code of the Republic of Kazakhstan enshrines one requirement for the entrepreneurial activities of non-profit organizations - compliance with its statutory goals (clause 2 of Article 34) 1 ; and in the Civil Code of the Republic of Belarus there are three requirements: 1) it must be necessary for the statutory purposes for which the organization was created; 2) meet these goals; 3) correspond to the subject of the activities of non-profit organizations (clause 3 of Article 46) 2.
If we take into account Art. 24 of the Law on Non-Profit Organizations, it follows that the legislator allows a non-profit organization to carry out entrepreneurial activities that are not identical to the main type of activity of the organization. If we proceed from the literal meaning of paragraph. 2 p. 3 art. 50 of the Civil Code of the Russian Federation, it turns out that in most cases entrepreneurial activity carried out by non-profit organizations is illegal. Thus, there is an internal conflict between the idea of the legislator and the rule of law. This circumstance requires the presentation of paragraph. 2 p. 3 art. 50 Civil Code of the Russian Federation new edition: “Non-profit organizations can carry out business activities only insofar as they serve the purposes for which they were created.” This provision will allow non-profit organizations to engage in any type of activity, but on the condition that this activity itself, the income received from its implementation, will be aimed at achieving the goals of the organization. The barrier against excessive involvement in activities that are unusual for the essence of a non-profit organization must be enshrined in its constituent documents (Clause 2 of Article 52 of the Civil Code of the Russian Federation). As additional guarantees for preventing “departure” from the main activity and replacing the main goal of the activities of non-profit organizations with another goal - making a profit, other methods can be proposed. One of these methods may be a list of permitted or prohibited types of business activities enshrined in the law that can (or cannot) be carried out by non-profit organizations. An analysis of laws devoted to certain types of non-profit organizations indicates that only certain laws provide for such a list 1 . There is no such list in the Civil Code of the Russian Federation, but the corresponding restrictions on the right to engage in certain types of entrepreneurial activities are contained in the articles devoted to contractual obligations. For example, non-profit organizations do not have the right to act as a financial agent in financing agreements for the assignment of a monetary claim (Article 825), cannot be a party to a commercial concession agreement (Article 1027), cannot act as a commercial representative (Article 184) and trustee under a property trust management agreement (Article 1015), etc. In addition, according to Art. 426 of the Civil Code of the Russian Federation, non-profit organizations cannot be a party to a public contract that sells goods, performs work or provides services (disagreement with this norm will be discussed in the next chapter of the work).
As a criterion for the scope of an institution’s right to carry out entrepreneurial activities, one could consider the amount of underfunding on the part of the founder. In relation to the educational activities of the university, a unique criterion was the permissible percentage of admission of students on a contract basis in the areas of training “law”, “economics”, “management”, “state and municipal administration”, fixed at the level of law. By the Law of July 20, 2004, this provision was excluded from the Education Law.
Other proposals have been made in the literature regarding the criteria for the permissible volume of entrepreneurial activity of non-profit organizations. In particular, to determine it on the basis of a complex criterion, components which are: the number of different areas of the organization’s activities, their specificity and intensity; time costs for implementation individual species activities; the relationship between income and expenses for entrepreneurial and non-entrepreneurial activities; representation in governing bodies; composition of participants (members) 1.
Some authors believe that the institution, due to its organizational and legal form, is not able to carry out entrepreneurial activities 2. Usually, this conclusion explained by the fact that he does not have the main criteria for entrepreneurial activity established by Art. 2 of the Civil Code of the Russian Federation: independence, its implementation at your own risk and at your own expense 3. Such a statement, in our opinion, can only be a consequence of an inadequate perception of the signs of entrepreneurial activity. To clarify this issue, let us dwell in more detail on the essence of these features.
In the Civil Code of the Russian Federation, entrepreneurial activity is understood as independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in established by law order (Article 2). The following constitutive features of entrepreneurial activity follow from the above definition: 1) the independent nature of this activity; 2) implementation at your own risk; 3) the main goal of this activity is to make a profit; 4) systematic profit generation; 5) this is an activity related to the use of property, sale of goods, performance of work or provision of services; 6) registration of a person carrying out entrepreneurial activities as an entrepreneur in the manner prescribed by law.
1. The independent nature of entrepreneurial activity. This feature is revealed through substantive and economic aspects 1.
The substantive and legal aspect of this feature implies that the business entity has legal personality, i.e. has the right to independently, independently of other persons, make a decision on the implementation of entrepreneurial activities and on the organizational and legal form of entrepreneurship. The right to make this decision for legal entities arises from the moment of state registration (clause 3 of article 49, clause 2 of article 51 of the Civil Code of the Russian Federation), since it is from this moment that they are endowed with legal capacity.
The entrepreneurial legal personality of individuals, as follows from the analysis of Articles 21–28 of the Civil Code of the Russian Federation, fully arises when they reach 18 years of age. From of this rule the law provides for a number of exceptions. In particular, according to paragraph 2 of Art. 26 of the Civil Code of the Russian Federation, upon reaching 16 years of age, minors have the right to be members of cooperatives. Membership in a cooperative presupposes personal labor and property participation, in accordance with which the profit of the cooperative is distributed (Articles 108, 109 of the Civil Code of the Russian Federation). In addition, upon reaching the age of 16, under certain conditions, citizens can be emancipated (Article 27 of the Civil Code of the Russian Federation), and, therefore, from that moment they have full legal personality.
The economic aspect of the independence of a business entity presupposes that the entrepreneur has a sufficient property base to conduct business activities. The property assigned to a business entity forms the basis of its economic activity. The extent of property independence of legal entities depends primarily on the type of property right on which property is assigned to them. The greatest opportunities for conducting business activities are available to legal entities - owners and individual entrepreneurs; the smallest are for subjects of economic management and operational management rights.
The independence of entrepreneurs is not unlimited; its limits are significantly limited by civil, antimonopoly and other legislation.
2. Carrying out business activities at your own risk.
In civil legislation, “entrepreneurial risk” is a specific concept in relation to the category “risk”. The definition of “risk” is used in legislation and in scientific literature in relation to certain types of relationships and areas professional activity. Within the objective category of risk, there are such types of risk as service, industrial, scientific and technical, creative, medical, sports, journalistic, insurance, commercial, etc. 1 .
Most often, the category “risk” is used in civil law. Yu. Fogelson calculated that this category is used in the norms of the Civil Code of the Russian Federation 89 times, where risk is correlated with losses, accidental loss or damage to property, accidental impossibility of performance, attribution of costs and losses, consequences (adverse, failure to submit a claim, lack of information, death or damage , failure to fulfill duties), loss (death), shortage or damage, non-receipt of expected income, liability, payments 1.
In the field of civil law relations, the following judgments were made regarding risk. N.S. Malein at risk considered the possibility of adverse property consequences, and bearing risk was the assumption of these adverse consequences that could occur due to random circumstances 2. A similar opinion was expressed by A.A. Sobchak 3. O.A. perceived this category somewhat more broadly. Krasavchikov, considering risk from the objective side as a certain danger (possibility) of diminishing property or personal non-property benefits 4.
The above understandings of risk are characterized by the fact that risk is considered as a circumstance that excludes civil liability. In this case, the party acting under risk conditions is required to bear the adverse property consequences.
The concept of risk also has other meanings, however, within the framework of our study they are unacceptable 5 .
More recently, the category “risk” was enshrined in the Law “On Technical Regulation” 1. Risk is understood as the likelihood of harm to the life or health of citizens, the property of individuals or legal entities, state or municipal property, the environment, the life or health of animals and plants, taking into account the severity of this harm (Article 2). This definition is general in nature and does not reflect the characteristics of individual types of risk and risk consequences.
The concept of risk as a functional characteristic of entrepreneurship was first put forward in the 15th century by the French economist of Scottish origin R. Cantillon. He viewed the entrepreneur as a figure who makes decisions and satisfies his interests in conditions of uncertainty. An entrepreneur's profits and losses are a consequence of the risk and uncertainty that accompany his decisions. An entrepreneur, according to Cantillon, is any individual who has foresight and a desire to take risks aimed at the future, whose actions are characterized by both the hope of gaining income and the readiness for losses 2.
Many authors have worked on the problem of the concept and essence of entrepreneurial risk, each of them showing their own vision of this phenomenon 3 . However, in any interpretation, entrepreneurial risk includes such an element as the occurrence of adverse property consequences in the form of incurring expenses and losses.
As we see it, business risk is a complex category, including, among other things, bearing civil liability without fault, other adverse consequences of technological, innovative, informational, etc. character. Thus, entrepreneurial risk should be understood as the incurrence of adverse consequences (property in the form of losses incurred during the conduct of business, technological, innovative, information, etc.), as well as independent property innocent liability (the only basis for exemption from liability is the presence of force majeure , unless otherwise provided by law or agreement (clause 3 of article 401 of the Civil Code of the Russian Federation)).
The legal definition of business risk in the Civil Code of the Russian Federation is given only in relation to an insurance contract. It is understood as “the risk of losses from business activities due to violation of their obligations by the entrepreneur’s counterparties or changes in the conditions of this activity due to circumstances beyond the control of the entrepreneur, including the risk of non-receipt of expected income” (clause 2 of Article 929). This definition, based on our understanding of business risk, does not reflect all the specifics of the phenomenon under study. Firstly, the risk of losses from business activities due to violation of their obligations by the entrepreneur’s counterparties can be localized by holding them accountable; secondly, this definition does not contain other elements of entrepreneurial risk: bearing innocent liability, innovative, technological, information and other risks.
Business risk in the legal literature is subject to detailed classification on a wide variety of grounds: source of danger; type of activity or type of entrepreneur; area of occurrence of business risk; risk activity over time; legal basis for the risk; degree of business risk, etc. 1
3. The main goal of entrepreneurial activity is to make a profit.
In civil legislation, along with the concept of “profit”, the concept of “income” is used. We are talking, in particular, about clause 2 of Art. 298 Civil Code of the Russian Federation. In the Law on Education, in relation to our issue, we also talk about income (see paragraph 2 of Article 45, paragraph 2 of Article 46, paragraph 1 of Article 47). Profit and income are specific terms of tax legislation, since this is where the fundamental basis and purpose of these categories is laid - payment of tax. In Art. 11 of the Tax Code of the Russian Federation establishes that the institutions, concepts and terms of civil, family and other branches of legislation of the Russian Federation used in this code are applied in the meaning in which they are used in these branches of legislation, unless otherwise provided by this code, and the concepts of “taxpayer” ", "object of taxation", "tax base", "tax period" and other specific concepts and terms of the legislation on taxes and fees are used in the meanings defined in the relevant articles of this code. In accordance with Art. 247 of the Tax Code of the Russian Federation, profit is recognized (for Russian organizations) income received, reduced by the amount of expenses incurred, which are determined in accordance with Chapter 25 of the Tax Code of the Russian Federation. Income, in turn, is the difference between the benefits received and the expenses incurred (Articles 210, 247 and 277 of the Tax Code of the Russian Federation).
Making a profit is the goal of entrepreneurial activity, not required result. The lack of profit cannot serve as a basis for the conclusion that such activity is not entrepreneurial. Failure to make a profit as a result of this activity is the result of entrepreneurial risk. In addition, there are exceptions to the general rule about making a profit as the goal of entrepreneurial activity, especially in the field of state and municipal entrepreneurship. For example, an enterprise financed from the state budget produces products necessary for the defense of the country, which may be, and most often are, unprofitable, but necessary for society; an urban transport enterprise satisfies public needs for the transportation of passengers, although in some cases such enterprises are unprofitable and operate on subsidies 1 . As noted by O.V. Tishanskaya, in developed countries, state policy is to encourage non-profit entrepreneurship in the fields of ecology, health, culture, social security 2. This remark allows us to come to the conclusion that income (profit) in relation to the concept of entrepreneurial activity should be understood as the amount of receipts without reducing them by the amount of expenses. Other authors have come to similar conclusions 3 .
The substantive part of the studied feature is very significant for criminal legislation, since the presence of income is one of the conditions for bringing to criminal liability for illegal entrepreneurship (Article 171 of the Criminal Code of the Russian Federation). In the science of criminal law there is no consensus on this criterion 4 . Judicial practice is ambiguous, as can be seen from the example of decisions of the Plenum of the Supreme Court of the Russian Federation. Thus, one resolution of the Plenum of the Supreme Court of the Russian Federation notes that in order to hold a person accountable for tax evasion, it is necessary to establish a taxable amount (profit), which is calculated as the difference between income received and expenses 5 ; another resolution clarifies that under income in Art. 171 of the Criminal Code of the Russian Federation should be understood as revenue from the sale of goods (work, services) during the period of illegal business activity without deducting expenses incurred by the person related to the implementation of illegal business activity 1 .
4. Systematic conduct of business activities.
In general, the criterion of “systematicity” in civil law is not a new concept. It has been and is being applied to completely different situations (see, for example, Article 111 of the Civil Code of the RSFSR of 1964, paragraph 2 of Article 61, Article 293 of the Civil Code of the Russian Federation, etc.). In addition, the concept of “systematicity” is also used in other branches of law 2. However, at the legislative level it does not have clearly defined criteria (guidelines). The legislative gap regarding the criterion of consistency has given rise to a number of judgments regarding this category. Some authors believe that this is both the amount of profit generated and the number of actions performed and aimed at this extraction (use of property, sale of goods, performance of work, provision of services). Both manifestations of the characteristic under consideration are not strictly related to each other, since both one-time and systematic profits can be the result of both systematic behavioral acts and a one-time action 3. In the opinion of others, the criterion for the systematic nature of entrepreneurial activity should be clarified by the size of the income of this activity: it should be of a significant nature and measured as a multiple of the minimum wage; systematic but insignificant income should not be recognized as entrepreneurial, otherwise it would mean neglect common sense and economic feasibility 1. Some authors point to such a sign of systematic profit-making as the share of income from a certain activity in the income structure of a given person, which conditionally should not be less than 10% of the income of a legal entity 2 ; “materiality” of profit, making a profit a certain number of times over a certain period of time, etc. 3
In our opinion, the “systematic” criterion is of significant importance only in relation to the entrepreneurial activity of an individual entrepreneur. If we remove this feature from the definition of entrepreneurial activity, then absolutely nothing changes in relation to the activities of a legal entity, since for tax purposes it does not matter whether the operation (transaction) was carried out once or whether the activity was carried out systematically. In any case, the organization is obliged to pay income tax.
The consistency applied to individuals, in our opinion, should be determined not depending on the number of actions performed aimed at generating income, but on the amount of income received. In this case, actions in which there is no element of resale should not be taken into account. The amount of income for the purpose of classifying a citizen’s activity as entrepreneurial can be determined as a multiple of the minimum wage. For example, it could be 1000 minimum wages. If an individual carries out different types activities, the total income must be summed up.
In the legal literature, the criterion of “systematicity” is correlated with such quality of entrepreneurial activity as professionalism 1 . Consonant with the criterion of “professionalism” in pre-revolutionary trade law, the criterion of “trade” was used. Fishing was understood as an activity aimed at acquiring material resources through constant occupation. This activity was designed for an indefinite number of acts constituting a source of income. The occasional, even repeated, commission of actions related to trade was not enough to recognize the existence of a trade 2 . In all likelihood, guided by this theory, some authors began to replace the “systematic” criterion with the “constant” (read “fishery”) criterion 3 .
The term “permanent”, as well as “systematic”, is used in civil law. So, in paragraph 1 of Art. 184 of the Civil Code of the Russian Federation stipulates that a commercial representative carries out entrepreneurship in the field of entrepreneurial activity independently and constantly. Thus, one could assume that, in relation to entrepreneurial activity, the categories “systematic” and “constant” are identical. This is precisely the point of view held, for example, by N.I. Klein 4. To understand the meaning of this category, let us turn to the Russian language dictionary, in which one of the meanings of the word “systematic” is constantly repeating, non-stop 5 . In turn, the term “permanent” means - designed for a long period, not temporary 1. The category “professional” means – relating to a profession, associated with a profession, doing something as a profession; profession, in turn, is defined as the main occupation, labor activity 2. Thus, based on the meaning of these words, it follows that the criteria “systematic” and “constant” are of the same type, in contrast to the criterion “professional activity”.
5. Entrepreneurial activity is an activity related to the use of property, sale of goods, performance of work or provision of services.
Enshrined in Art. 2 of the Civil Code of the Russian Federation, the list of methods for conducting business activities is conditional, since in Art. 34 of the Constitution of the Russian Federation provides for the possibility of using any abilities to carry out entrepreneurial activities that are not prohibited by law. In this regard, it seems that it is advisable to exclude this feature from the definition of entrepreneurial activity.
6. Registration as an entrepreneur in the manner prescribed by law.
State registration of legal entities and individual entrepreneurs is carried out in accordance with the Law “On State Registration of Legal Entities and Individual Entrepreneurs” 3. This registration is of a clearly public nature 4 .
State registration as a sign of entrepreneurial activity is important only in relation to individuals - individual entrepreneurs. It indicates the emergence of a new subject of entrepreneurial legal relations (the given person may have already acted as a subject of non-entrepreneurial relations) and grants the right to engage in such activities to this person. The purpose of state registration of legal entities is completely different: they are registered with the tax authorities not as subjects of entrepreneurial activity, but as potential subjects of various legal relations (both entrepreneurial and non-entrepreneurial). Non-profit organizations are subject to state registration even if they do not engage in entrepreneurial activities. This is explained by the fact that the state registration of a legal entity is associated with the moment of its creation, and, consequently, the emergence of legal capacity.
Along with the registration of a legal entity as a sign of entrepreneurial activity, the legal literature has expressed the view that the entrepreneurial activity of a legal entity should be subject to special public registration 1 . We believe that this wish is meaningless and does not require comment.
In addition to the characteristics of entrepreneurial activity discussed above, the legal literature also identifies the following: all entrepreneurial and organizational actions are carried out by the business entity on its own behalf; business activities are carried out on the basis of a license 2; business activities should be aimed at meeting social needs; the presence of property liability of the entrepreneur (for the results of economic activities and as liability for obligations), etc.
The first criterion of entrepreneurial activity mentioned above is borrowed from G.F. Shershenevich, who wrote that it does not matter whether the merchant conducts the business himself or entrusts it to someone completely trusted; it does not matter whether the enterprise belongs to him by right of ownership, because he can be its tenant - after all, he will be the merchant, not the owner; it does not matter at whose expense the trade is carried out, and even if, in reality, behind the merchant’s back, as a figurehead, there was another person with a property interest in success, the merchant would still be the one on whose behalf the business is conducted 1 . However, the application of this provision, taking into account modern legislation, is not always acceptable. According to the current legislation, in a number of cases, an entrepreneur will be both the one who makes transactions and the one on whose behalf they are made (see, for example, Chapters 52, 53 of the Civil Code of the Russian Federation, provided that the activities of the agent and trustee will meet the legal characteristics of entrepreneurial activity ). In this case, it is appropriate, in our opinion, to cite the reasoning of E. Sukhanov: “one should not proceed from any artificial dogmas, squeezing real life relationships into them, but should do just the opposite (as was always done perfectly in Roman private law) » 2.
As for the second sign - carrying out business activities on the basis of licensing, then, as we see it, licensing should be considered not as a sign of business activity, but as one of the requirements or conditions imposed on it. Our point of view can be confirmed by the fact that the legislator classifies the implementation of entrepreneurial activities without an appropriate license as voidable transactions (Article 173 of the Civil Code of the Russian Federation).
Satisfaction of social needs, as a sign of entrepreneurial activity, is defended by K.K. Lebedev. He notes that the main goal of entrepreneurial activity is to make a profit, but making a profit depends on the implementation of the results of the entrepreneur’s activities, which depend on how well they - the results - correspond to social needs 1.
We believe that this attribute is far-fetched, since any activity (both entrepreneurial and non-entrepreneurial), directly or indirectly, as mentioned above, must satisfy social needs (with the exception of certain types of activities). Otherwise, it will be antisocial, for the implementation of which appropriate sanctions will be applied.
Property liability, as a sign of entrepreneurial activity, is substantiated by V.V. Laptev. He considers this responsibility simultaneously as responsibility for the results of economic activity and as responsibility for obligations 2. In our opinion, this feature does not bring anything new to the essence of entrepreneurial activity: the first component of property liability acts as an element of business risk; the second component is the result of improper fulfillment of an obligation, both in business and in other areas of activity.
Based on the above, it seems that the signs of entrepreneurial activity of legal entities and individuals are different. For legal entities, these include: 1) the independent nature of this activity; 2) implementation at your own risk; 3) the main goal of this activity is to make a profit. Along with these signs, the signs of entrepreneurial activity of individuals should include systematic profit-making, as well as state registration of a person as an individual entrepreneur.
The activities of an educational institution aimed at generating income fully meet the characteristics of entrepreneurship. Firstly, this activity is inherently independent. This manifests itself in the following. The law and the founder allow the institution, under certain conditions, to carry out entrepreneurial activities; There is no need to agree with the founder on the implementation of specific relevant actions. So, for example, according to paragraph 2 of Art. 29 of the Law on Higher and Postgraduate Professional Education, the university independently resolves issues regarding the conclusion of contracts, determination of obligations and other conditions that do not contradict the legislation of the Russian Federation and the charter of this higher educational institution.
The institution has the necessary amount of property independence to carry out entrepreneurial activities: the founder assigns property to it with the right of operational management; in addition, funds and acquired property from activities authorized by the founder are also under the jurisdiction of the institution.
For its obligations, the institution bears independent property liability with the funds at its disposal (clause 2 of Article 120 of the Civil Code of the Russian Federation). If they are insufficient, the owner of the relevant property bears subsidiary liability for his obligations. In fact, as evidenced arbitrage practice, the order of foreclosure on the property of an institution is different. For any obligations of the institution, collection, first of all, is directed to the funds received by it from permitted business activities. Secondly, foreclosure is applied to property acquired using the above funds; thirdly, with funds received from the founder. And only after that the founder is held accountable.
The main goal of the entrepreneurial activity of an institution, as well as a commercial legal entity, is to make a profit. However, his motivation for carrying out this activity is completely different. In conditions of underfunding, it faces the tasks of preserving the university and highly qualified scientific and teaching staff, carrying out research work, updating and expanding the material and technical base, etc. Funds received from entrepreneurial activities are primarily used to solve these problems. In this regard, the implementation of entrepreneurial activities by a university is a forced, but necessary measure for it. At the same time, the implementation of entrepreneurial activities by a university distracts it from its main goal - the provision of educational services, and to a certain extent affects the quality of education. In this regard, we believe that in the future, with the proper amount of government funding, the entrepreneurial activities of the university should be limited only to paid educational, innovative and related activities.
The Education Law provides for additional signs of entrepreneurial activity of educational institutions. So, in accordance with paragraph 2 of Art. 46 of the Law on Education, paid educational activities of a non-state educational institution are not considered entrepreneurial if the income received from it is fully used to reimburse the costs of providing the educational process (including wages), its development and improvement in this educational institution. The concept of “providing, developing and improving the educational process” includes a set of expenses that ensure the organization and implementation of educational and educational processes, material support for students/pupils and strengthening the material and technical base of an educational institution 1.
Additional condition classifying the educational activities of educational institutions as entrepreneurial activities has repeatedly been the subject of criticism 2 . As most researchers rightly note, this criterion is very controversial and should be taken into account only when taxing in order to establish a preferential tax regime.
The provisions of the Law on Education, which introduce the condition for classifying the educational activities of non-state educational institutions as entrepreneurial, are in conflict with both paragraph. 3 p. 1 art. 2 of the Civil Code of the Russian Federation, and para. 2 p. 3 art. 50 of the Civil Code of the Russian Federation (these norms do not provide for such an approach to defining the entrepreneurial activities of non-profit organizations and are inherently imperative).
In contrast to the paid primary educational activities of non-state educational institutions, the Education Law does not define the nature of such activities of state educational institutions. And in general, in Section IV of this Law, dedicated to the economics of the education system, there are no relevant provisions on this activity (in paragraph 10 of Article 41 only the right to carry out this activity is secured), and paid additional educational activities of state educational institutions are not linked to the direction of expenditure income. In our opinion, there is the following explanation for this: under the conditions of the treasury system, funds from state educational institutions from the implementation of paid educational activities (main and additional) cannot but be reinvested in the educational institution, i.e. they cannot leave the system. Based on this and taking into account the provisions of Art. 46 of the Education Law, it can be assumed that the Education Law does not classify this activity as entrepreneurial. As a result, the same type of activity carried out by same-level entities that differ only in the composition of the founders and the source of financing is subject to different legal regulation regimes. In the light of the Tax Code of the Russian Federation, perhaps this inconsistency in the norms of the Law on Education does not have special significance, since income from any paid educational activity provided by both state and non-state educational institutions is not included in the list of income not taken into account when determining the tax base. However, by providing paid educational services, both basic and additional, universities enter into civil legal relations. And here the nature of the activity is of the utmost importance, since legal regulation These relationships are directly related to the nature of the activity being carried out (entrepreneurial or non-entrepreneurial).
The above indicates the obvious “shortcomings” of the provisions of the Law on Education and the need to eliminate them. Regarding the nature of paid educational activities carried out by educational institutions, we note that it, like other types of activities performed by these entities on a reimbursable basis, is by its nature a type of entrepreneurship.
According to paragraph 5 of Art. 47 of the Law on Education, the founder or local government body has the right to suspend the entrepreneurial activities of the institution if it is to the detriment of educational activities provided for by the charter, until a court decision on this issue. However, there is no mechanism for implementing this procedure. Considering that the suspension of educational activities will have a negative impact on the educational process, as well as the fact that it will be very difficult for the body supervising the activities of an educational institution to determine whether or not business activities cause damage to the main activity, this issue, in our opinion, should be considered within the competence of the court, and not the regulatory authorities.
In legislation and legal literature regarding a university, the concept of “entrepreneurial activity” is contrasted with the concept of “extrabudgetary activity.” These categories are related to each other as species and genus. Extra-budgetary should be understood as any activity of a university that is not financed from the state budget. Such activities, in particular, include the training of students on a reimbursable basis, the organization of courses and seminars, the implementation of contractual research work, the leasing of property, the production of products (works, services) by structural units, activities financed by trustee and charitable contributions, donations and etc. Only those extra-budgetary activities of a university that meet the characteristics of entrepreneurship are entrepreneurial: associated with independence, initiative, and risk.
In addition, in economic and legal literature, along with entrepreneurial activity, economic and business activities are also distinguished. Of the three named types of activity, only entrepreneurial activity has a legal definition. Its signs have been discussed above. As for economic and business activities, there are no generally accepted doctrinal definitions regarding them. Identifying the essence of these types of activities is not only theoretical, but also practical significance. For example, criminal legislation provides for liability for crimes in the field of economic activity (see Chapter 22 of the Criminal Code of the Russian Federation), administrative legislation provides for liability in the field of business activity, finance, taxes and fees, and the securities market (see Chapters 14, 15 of the Code of Administrative Offenses of the Russian Federation ). From the analysis of Chapter 22 of the Criminal Code of the Russian Federation (as well as in general, Section 8 of the Criminal Code of the Russian Federation “Crimes in the Economic Sphere”) and the Code of Administrative Offenses of the Russian Federation, it follows that in criminal and administrative legislation there is no elementary systematization of types of crimes and offenses in the economic sphere, which can have the most negative impact in the administration of justice 1. One of the explanations for this phenomenon can be the fact that the concept of “economic activity” has not been developed in science.
Most often, economic activity refers to activities related to property management, creation material assets, their transportation, sale, provision of services, as well as management of all these activities in the national economy 2. V.F. Popondopulo, criticizing this approach to the definition of economic activity, excludes from its number management activities (managerial activities). In addition, entrepreneurial and economic activity, in his opinion, are equivalent concepts 3. Other authors 4 hold a similar point of view.
According to another point of view, entrepreneurial activity is a type of economic activity, i.e. Economic activity is a broader concept than entrepreneurial activity. So, for example, V.V. Laptev believes that economic activity is the activity of manufacturing products, performing work, and providing services. In modern conditions it for the most part takes the form of entrepreneurial activity, but there may also be types of economic activity that do not have the characteristics inherent in entrepreneurial activity. In particular, the economic activities of socio-cultural institutions, religious, public and other non-profit organizations may not be aimed at making a profit. Such activities are of an auxiliary nature and are intended to contribute to the achievement of the statutory objectives of the relevant organizations 1 (a similar point of view is shared by V.S. Belykh 2).
The conclusion about the relationship between the definitions of economic and entrepreneurial activity depends on a related concept - economic activity. In turn, the concepts of economic and economic activity are derived from the categories “economy” and “economy”. An economy is an economy, a set of means, objects, processes used by people to ensure life, satisfy needs by creating the goods, conditions and means of subsistence necessary for a person using labor 3. Economy is a set of natural and man-made means used by people to create, maintain, improve conditions and means of subsistence, and life support 4 . From this definition it follows that economics and economy are almost identical categories, and economic activity represents the activity of people to create, maintain, improve the conditions and means of their existence, life support. Thus, comparing the concepts of economics and management, we can conclude that economic and economic activity are phenomena of the same order, identical. The economic changes taking place in society could not but affect the terminology: political economic categories are being replaced by market concepts. This, in our opinion, is what happened with the concept of “economic activity,” which was used in the pre-perestroika period. In market conditions, it is most appropriate to use market terminology, which includes economic activity 5 .
As for the relationship between economic (economic) and entrepreneurial activities, it should be concluded that the first concept is much broader than the second concept: they are related to each other as a genus and a species.
In accordance with Art. 47 of the Law on Education, an educational institution has the right to conduct business activities provided for by its charter. This includes the sale and rental of fixed assets and property of the institution, trade in goods and equipment, provision of intermediary services, equity participation in the activities of other institutions and organizations, acquisition of shares, bonds, other securities and receipt of income on them, as well as the conduct of other non-operating operations that generate income.
Educational institution may also conduct income-generating activities in the sale of manufactured products, works and provision of services. Moreover, this activity refers to entrepreneurial activity only to the extent that the income received from it is not reinvested directly into this educational institution and (or) for the immediate needs of ensuring, developing and improving the educational process in this institution, including expenses for staff salaries.
An educational institution in its business activities is equated to an enterprise and is subject to legislation in the field of business activities. At the same time, of practical interest is the question of why the income-generating activities of an educational institution are subject to different legal assessments depending on the direction of reinvestment of the funds received.
Experts consider the reinvestment criterion controversial. While agreeing that it can be used in taxation in order to establish a preferential tax regime, they admit that from a civil law point of view this is hardly justified. “Firstly, in the field of providing paid educational services (basic or additional), an educational institution is a professional, which is a prerequisite for its competitiveness in the educational services market. Secondly, for the institution’s counterparties, it does not matter for what purposes the income from sales contracts, works, provision of services and other income-generating activities listed in clause 2 of Art. 47 of the Law “On Education”, however, the regulation of relations for similar transactions will be different. Thus, if a transaction is concluded for the purpose of directly reinvesting the proceeds from it in educational activities, then it does not require recognition of the status of an entrepreneur for the educational institution and does not apply to it the legislation of the Russian Federation in the field of entrepreneurial activity. If a similar transaction is concluded for the purpose of indirect reinvestment or another purpose, then, accordingly, it indicates the entrepreneurial activity of an institution that must be registered as an entrepreneur and its relations will be regulated differently. In particular, the institution under this transaction will bear increased responsibility like any entrepreneur acting under conditions of risk, i.e., regardless of guilt (clause 3 of Article 401 of the Civil Code of the Russian Federation). In the first case, responsibility is based on general principles - in the presence of guilt. It is easy to see from this example that the position of the counterparty changes significantly; his rights are better protected in the second case, although in both cases he is dealing with the same counterparty" 74 .
It must also be taken into account that with the adoption of the Tax Code, namely, its Chapter 25 “Income Tax”, it did not reproduce the previously existing special rules on exemption from taxation of income reinvested in education. The Law of the Russian Federation of December 27, 1991 “On the income tax of enterprises and organizations” provided that budgetary institutions and other non-profit organizations with income from business activities pay tax on the amount of excess income received from such activity over expenses. Taxable profit is reduced by amounts allocated by state and municipal educational institutions, as well as non-state educational institutions that have received licenses in the prescribed manner, directly for the needs of ensuring, developing and improving the educational process (including remuneration) in a given educational institution. During the period of validity of these norms, the position of the tax authorities regarding their application was not always consistent. Exemption of educational institutions from paying income tax was considered as a tax benefit that is not consistent with the general principles of tax legislation. In other sectors of the economy, internal investment is also used, and from the point of view of social significance, reinvestment in health care and in the field of culture is no less important than in education. However, the legislator established such a preferential treatment only for educational institutions. It is also interesting that for citizen entrepreneurs carrying out individual teaching activities, such tax exemption mechanisms were not applied, although they also worked in the field of education and satisfied the needs of citizens for additional educational services.
In Chapter 25 of the Tax Code of the Russian Federation there is no mention of reinvestment of income in education. It can be concluded that taxation of educational institutions is carried out on a general basis. This means that the object of taxation, i.e., profit, is income reduced by the amount of expenses incurred. Income includes both income from sales, which is understood as income from the sale of goods (work, services) both of one’s own production and previously acquired (in relation to the problem under discussion - income from the provision of paid educational services), and non-operating income (clause 2 Article 47 of the Law on Education). The specifics of determining sales income for certain categories of taxpayers are established by the provisions of Chapter 25 of the Tax Code of the Russian Federation. Income received by organizations within the framework of targeted financing is not taken into account. At the same time, separate accounting of such income and expenses is carried out, otherwise they are included in the tax base. Targeted financing means include funds from budgets of all levels allocated to budgetary institutions according to estimates of income and expenses, grants, funds from the Russian Foundation for Basic Research, the Russian Humanitarian Scientific Foundation (Article 251 of the Tax Code of the Russian Federation). The taxpayer reduces the income received by the amount of expenses incurred. These may be costs associated with production and sales (in particular, with the provision of services), costs for maintenance and operation, repair and maintenance of fixed assets and other property, for scientific research, for labor costs, etc. Thus, any organization, paying income tax, reduces taxable income by expenses incurred, and these expenses can also be considered as internal investment, or reinvestment.
On the other hand, tax rules may be contained not only in the Tax Code, but also in other legislative acts regulating certain areas of public life, for example, in the Law on Education. Art. 6 of the Tax Code of the Russian Federation establishes general rules for resolving conflicts of tax rules contained in this code and other regulations. A normative legal act on taxes and fees is considered inconsistent with the code if it is issued by a body that does not have the right to issue such acts or is issued in violation of the law; cancels or limits the rights of taxpayers or prohibits their actions permitted by the code; contradicts the general principles and (or) the literal meaning of specific provisions of the code in other cases. Recognition of a normative act as contrary to the Tax Code of the Russian Federation is carried out in court, unless otherwise provided by the code itself. Since the provisions of the Law on Education do not contain provisions that contradict the Tax Code, they are subject to application, which is confirmed by established judicial practice. Educational institutions do not pay income tax if the income is reinvested in educational activities. The financial and material situation of educational institutions in the current conditions is such that they are forced to direct all income received directly to the needs of education, to improve the educational process, therefore there is almost complete reinvestment.
The activities of an educational institution for the sale of products, works and services provided for in its charter are classified as entrepreneurial only to the extent that the income received from it is not reinvested directly into this institution and (or) directly for the needs of education. In accordance with Art. 2 of the Civil Code of the Russian Federation, entrepreneurial activity is an independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in the prescribed manner.
An institution is a non-profit organization that does not pursue the main goal of making a profit. They can carry out entrepreneurial activities only insofar as it serves to achieve the goals for which they were created and corresponds to these goals (Article 50 of the Civil Code of the Russian Federation). Thus, there is a duality in the legal status of the institution, which is determined by the ability to act as an entrepreneur. According to experts, it is necessary to strictly correlate this form with the social significance of the functions for which this form is intended 75 . However, the state and municipalities today are not able to finance the activities of the educational institutions they have created in full, so the latter are forced to engage in entrepreneurial activities and provide paid services.
In our opinion, the activities of an educational institution in providing paid educational services do not meet all the characteristics of entrepreneurship, since they are carried out by a special entity - an institution, for the obligations of which the owner-founder bears subsidiary liability.
Let's consider the concept of educational services and the procedure for their provision. The service is one of the objects of civil rights and obligations (Articles 1, 128 of the Civil Code of the Russian Federation), however, civil legislation does not contain a definition of service. E.G. Shablova proposes to define a service as “a way of satisfying an individual need of a person, which is not associated with the creation (improvement) of a thing or an object of intellectual property, but is achieved as a result of activities permitted by the current legal order on a reimbursable basis” 76 . As we see, all scientists agree that the main feature of a service is the absence of a materialized result of activity, a kind of “intangibility” of the service. This causes difficulties in determining the quality of a service, especially one whose object of influence is a person (for example, medical, spiritual, educational, etc.). “In such cases, the typification of criteria for assessing quality and, in general, satisfying needs is much more difficult than defining and formalizing, for example, indicators of the quality of a product (product). The variability of service quality and its dependence on a number of external (including subjective) circumstances require the creation of an adequate legal regime for assessing the quality of services, including improving the legal basis for certification of services and developing legal models of quality conditions in an obligatory legal relationship for the provision of services” 77.
All of the above applies to educational services, which V.I. Shkatulla defines it as “the economic activity of an educational institution that satisfies human demand for educational needs” and emphasizes such differences from goods as intangibility, inseparability of a service (its production and consumption usually occur at the same time), etc. 78. The main thing that must be taken into account when determining the quality of an educational service is that it cannot be ensured only by the efforts of the performer. Achieving the planned result is possible only if the student actively participates in the educational process. As for the quality of an educational service, it can be determined from different points of view: content (the extent to which the service meets the requirements of the state educational standard); psychological (whether she finds herself in conditions of psychological comfort that exclude violence against the student’s personality); hygienic (whether it is in conditions that meet sanitary and hygienic requirements). Of course, the list of such indicators can be continued. We have named only the main ones, without achieving which the very question of the quality of service would be meaningless.
Educational services can be provided in various modes. They can be provided by legal entities that are not subjects of educational relations. For example, a commercial organization is engaged in the retail trade of computer equipment and offers clients who do not have user skills a training course on how to use the purchased computer. Consulting, auditing and other firms may offer similar services. Training in this case is not mandatory and represents some kind of additional service.
Educational services in the proper sense of the word are provided only by subjects endowed with special legal capacity, for example, citizens engaged in individual teaching activities and having the status of an entrepreneur. Recently, services such as tutoring, home teacher or tutor have become in demand. This activity in terms of implementing training programs is entrepreneurship in the field of education. It is subject to state registration and control. Income from such activities is subject to appropriate taxes. Regulation of pedagogical relations is carried out in full accordance with the Law on Education. But, unlike the educational activities of commercial and non-profit legal entities, this activity is recognized as entrepreneurship, regardless of the direction of reinvestment of income.
Paid educational services can be provided by both state and municipal and non-state educational institutions. But the scope of such services in these types of educational institutions varies. Yes, Art. 45 of the Education Law provides state and municipal institutions the right to provide paid additional educational services not provided for by the relevant educational programs and educational standards. This may include training in additional educational programs, teaching special courses and cycles of disciplines, tutoring, in-depth study of subjects and other services. A party to an agreement on paid educational services can be both legal entities and individuals, but the recipient of an educational service is always an individual who is a student. Paid educational services cannot be provided instead of educational activities financed from the budget, otherwise the funds earned are withdrawn by the founder into his budget. An educational institution has the right to appeal this action of the founder to the court. Non-state educational institution has the right to charge fees for educational services, including for training within the limits of state educational standards. The relationship between the institution and the student (his legal representatives) is regulated by agreements (Article 46 of the Education Law).
Legal regulation paid services also differs depending on what subsystem of education they find themselves in – general or vocational. Rules of provision paid educational services in the field of preschool and general education approved by Decree of the Government of the Russian Federation of July 5, 2001 79. They apply to state and municipal educational institutions, non-state educational organizations and citizens engaged in individual teaching activities. At the same time, state and municipal institutions can provide additional educational services for a fee that are not provided for by the relevant educational programs and state educational standards, while non-state educational organizations and citizens engaged in private teaching practice have the right to provide paid services within the limits of state educational standards.
The list of paid educational services and the procedure for their provision must be enshrined in the charters of state and municipal educational institutions and non-state educational organizations. At the same time, state and municipal institutions, as paid educational services, can provide training in additional educational programs, teaching special courses and cycles of disciplines, tutoring, classes in in-depth study of subjects and other services. Reducing the established occupancy of classes (groups), dividing them into subgroups during the implementation of basic educational programs cannot be classified as paid educational services; implementation of basic general education, general education programs of an increased level and focus by general education schools (classes) with in-depth study of individual subjects, gymnasiums, lyceums, preschool educational institutions in accordance with their status, as well as optional, individual and group classes, elective courses at the expense of hours, allocated in basic general education programs.
The by-law reproduces the general rule for the provision of paid educational services in state and municipal institutions, which is that they cannot be provided in exchange for or as part of the main educational activities (within the framework of basic educational programs (curricula) and state educational standards), financed from the corresponding budget.
If an additional educational service is provided for a fee, then the requirements for the content of educational programs and special courses are determined by agreement of the parties and may be higher than those provided for by state educational standards.
Organization of paid educational services must be carried out in accordance with the rules established by the Civil Code and the law on the protection of consumer rights. An educational institution acting as a performer is obliged to provide the consumer with reliable information about the educational services provided, ensuring the possibility of their correct choice. The contractor must provide the necessary information about himself, indicate the name (last name, first name and patronymic - for an individual entrepreneur), location (legal address), as well as information about the availability of a license to conduct educational activities and a certificate of state accreditation, indicating their details. The consumer must be aware of the level and focus of the basic and additional educational programs being implemented, the forms and timing of their development, as well as the list of educational services provided and their cost. In addition, the admission procedure and requirements for applicants must be explained to him and information about the form of the document issued upon completion of training must be provided. At the consumer's request, the charter of a state or municipal educational institution, non-state educational organization, other local regulations, basic and additional educational programs, etc. are also provided.
When providing paid educational services, state and municipal institutions, non-state educational organizations are required to comply with the curriculum established by them, agreed upon with local governments, and the class schedule.
Legal relations between the performer and the consumer of a paid educational service arise on the basis of a written agreement between them agreement. It must contain indications of the parties to the contract, conditions defining the types and nature of services, the timing of their provision, their cost and payment procedure. The contract is drawn up in two copies, one of which is kept by the contractor, the other by the consumer.
Sample form of contract approved by the federal education authority. Thus, the approximate form of an agreement on the provision of paid educational services in the field of general education was approved by order of the Ministry of Education of the Russian Federation dated March 15, 2002. If the student has reached the age of 14 years, he is referred to in the agreement as a consumer and is assigned certain responsibilities related to the organization educational process. Parents (other legal representatives) of the student are called customers. The sample form of the contract contains a list of the rights and obligations of the contractor, customer and consumer. So, executor is obliged to organize and ensure proper performance of services in conditions that meet sanitary and hygienic requirements; show respect for the consumer’s personality, protect him from all forms of physical and psychological violence. An educational institution is obliged to reserve a student’s place in the event of illness, treatment, quarantine, or vacation.
parents, holidays and other cases of absence from classes for valid reasons. The educational process must be organized taking into account the individual characteristics of the student. The contractor must notify the customer that it is inappropriate to provide the consumer with educational services in the amount provided for in the contract due to his individual characteristics, which make it impossible or pedagogically inappropriate to provide these services.
Customer is obliged to promptly pay fees for services provided, inform the head of the institution about changes in contact telephone number and place of residence, as well as valid reasons for the student’s absence from classes, and show respect for teachers, administration and technical staff. Parents (other legal representatives) must provide the student, at their own expense, with the items necessary for proper perception of educational services, in quantities appropriate to his age and needs. At the request of the administration of the educational institution, they are obliged to come for a conversation if there are complaints about the behavior of the student or his attitude towards receiving additional educational services.
Consumer is obliged to attend classes specified in the curriculum, carry out assignments to prepare for classes, observe academic discipline and generally accepted standards of behavior, in particular, show respect for teachers, administration and technical staff and other students, not infringe on their honor and dignity, and treat to the property of the institution.
Cost of educational services provided in the contract is determined by agreement between the contractor and the consumer. At the request of the consumer or contractor, an estimate is drawn up, which becomes part of the contract.
For non-fulfillment or improper fulfillment of obligations under the contract, the contractor and the consumer bear responsibility provided for by the agreement and legislation of the Russian Federation.
Consumer, having discovered shortcomings in the educational services provided to him, has the right to choose demand:
a) free provision of educational services, including the provision of educational services in full in accordance with educational programs, curricula and contracts;
b) a corresponding reduction in the cost of educational services provided;
c) reimbursement of expenses incurred by him to eliminate deficiencies in the educational services provided on his own or by third parties.
If the defects have not been eliminated within the period established by the contract or are of a significant nature, the consumer has the right to terminate the contract and demand full compensation for losses.
If the contractor does not start providing educational services in a timely manner or if during the provision of educational services it becomes obvious that it will not be carried out on time, as well as in the event of delay in the provision of educational services, the consumer has the right, at his choice:
a) assign the contractor a new period during which the contractor must begin providing educational services and (or) complete the provision of educational services;
b) entrust the provision of educational services to third parties for a reasonable price and demand reimbursement of expenses incurred from the contractor;
c) demand a reduction in the cost of educational services;
d) terminate the contract.
Almost everything stated above can be attributed to paid educational services provided in the system vocational education. Letter from the Ministry of General and Professional Education of the Russian Federation dated December 16, 1998 “On the inadmissibility of establishing fees for educational services provided by state and municipal educational institutions within the framework of basic educational programs” 80. All Training activities provided for by state educational standards of secondary and higher vocational education, including the elimination of academic debt, retake tests, colloquiums, tests, course and state exams, laboratory, practical work, industrial (professional) and research internships are among the main activities of vocational education institutions.
Also, the conduct of entrance examinations, paperwork during entrance examinations and enrollment in secondary specialized and higher educational institutions, transfer from one educational institution to another, from one form of education to another, from one educational program to another cannot be considered as paid services. recovery, psychological certification. Therefore, charging for all of the above services is not permitted.
The state regulates paid educational services in the vocational education system, including through quotas provided for in paragraph 10 of Art. 41 of the Education Law. State and municipal educational institutions of secondary vocational and higher vocational education have the right to carry out, in addition to the tasks (control figures) for admission of students financed from the funds of the founder, training and retraining of skilled workers (workers and employees) and specialists of the corresponding level of education under contracts with individuals and (or ) by legal entities with their payment of training costs. Admission of students to such institutions for training specialists in the field of law, economics, management, state and municipal administration on a paid basis cannot account for more than 50 percent of the admission of students in each area of training (specialty). At the same time, admission of foreign citizens to paid training is not limited. We emphasize that until June 28, 2002, when the Federal Law of June 25, 2002 on amendments to educational legislation came into force, the specified quota was 25%. So, quotas apply only to state and municipal institutions that provide training in the most prestigious areas and specialties (law, economics, management, state and municipal administration) under agreements with citizens and non-governmental organizations.
N.N. Tarusina regards this quota as “an unconditional and blatant limitation on the legal capacity of a state university; restriction of the constitutional right to higher education of your choice and on a competitive basis.” In addition, the legislation on freedom of competition is violated. She concludes that quotas for educational services in this case are “an openly protectionist measure in favor of private (exclusively paid) education” 81 .
The introduction of such restrictions is most likely due to the desire to optimize the situation on the professional labor market in the relevant specialties, where there is an excess of supply over demand. On the other hand, training in these specialties opens up broad prospects for self-employment, therefore, over the past few years, there has been an increased, if not rush, demand for these areas of training in the educational services market. The volume of paid services provided by state universities in these specialties has increased sharply, and income from their provision began to exceed, and in some cases replace, budget funding. Therefore, these restrictions are implemented extremely rarely in practice 82.
The increase in the volume of paid educational services is also due to the fact that in the named prestigious areas and specialties of training, the target figures for admission to training financed from the budget have been reduced. One of the basic laws of the market has worked - demand creates supply. Universities began accepting students for commercial education, often violating licensing requirements regarding the maximum number of students. This in many cases led to a deterioration in the quality of educational services, aggravated the problem of lack of classroom space, library stock, places in dormitories, and created difficulties in scheduling classes. The problem of staffing the educational process was solved either by increasing the workload of full-time teachers, or by attracting part-time and hourly workers, who on average have lower qualifications. In this connection, the goals that the legislator may have pursued when introducing restrictions on the provision of paid services in the system of secondary and higher vocational education could be achieved in other ways that would be more consistent with the spirit and letter of the law. In particular, it would be possible to strengthen control over compliance with licensing requirements and ensuring the quality of educational services, while at the same time maintaining the number of budget places for training in prestigious specialties. In addition, it should be taken into account that the mechanism of self-regulation in the labor market could help optimize the situation (although, of course, one should not exaggerate its effectiveness). In the context of the revival of manufacturing enterprises in our country, specialists in technical professions are becoming increasingly in demand, so the demand for humanitarian and technical specialties will level out in the coming years, and there will be no need for quotas for educational services.
When analyzing the problems that arise in the provision of paid educational services, one cannot ignore the issue of the use of funds received by educational institutions. In most cases, contracts for the provision of paid educational services are drawn up with extremely general wording. “The management of educational institutions concentrates the funds received from the provision of paid educational services at their disposal, often directing them past clients, i.e., not only to reimburse the costs of training a specific student (listener) (improving the material base, additional payments to employees unrelated with the organization of the educational process). This contradicts the very essence of the contract and is the basis for the corresponding extrajudicial or judicial civil claims of the customer” 83. This may reduce the quality of the service.
The development of paid educational services should be facilitated not only by improving their quality, but also by providing certain tax benefits physical and legal entities who enter into relevant agreements. In particular, this kind of support is aimed at the development of additional education in the form of training and retraining of personnel of organizations. So, for example, according to Art. 264 of the Tax Code of the Russian Federation, the taxpayer’s expenses for training and retraining of personnel on a contractual basis with educational institutions are taken into account when reducing income when assessing income tax. To do this, the following conditions must be met:
1) educational services are provided by Russian educational institutions that have received state accreditation (licensed) or foreign ones that have the appropriate status;
2) employees on staff undergo training or retraining;
3) the training program contributes to the improvement of qualifications and more effective use of a specialist in this organization within the framework of the taxpayer’s activities. Expenses related to the organization of entertainment, recreation or treatment, as well as expenses related to the maintenance of educational institutions or the provision of free services to them, with payment for training in higher and secondary specialized educational institutions for employees when they receive higher and secondary specialized education are not recognized as personnel training expenses. education.
Individuals are provided with a social tax deduction in the amount they paid during the tax period for their education in educational institutions, as well as for the full-time education of their children under the age of 24 in educational institutions. Such a deduction is made in the amount of actual expenses incurred for this training, but not more than 25 thousand rubles for each child in the total amount for both parents (Article 219 of the Tax Code of the Russian Federation). The conditions for its provision are that the educational institution has an appropriate license or other document that confirms the status of the educational institution, and the taxpayer submits documents confirming his actual expenses for education. A social tax deduction is provided for the period of study of these persons at an educational institution, including academic leave issued in the prescribed manner during the course of study. The basis for its provision is a written application from the taxpayer submitted to the Ministry of Taxes and Duties simultaneously with the tax return at the end of the tax period. In addition, the application must be accompanied by certificates of income of the parent-taxpayer and payment of tuition (in the form approved by order of the Ministry of Taxes and Duties, agreed with the Ministry of Education dated September 27, 2001), as well as copies of the agreement with the educational institution, payment documents confirming the entry or transfer Money under this agreement and the child’s birth certificate 84.
Questions for control
How are educational institutions financed?
What is the significance of state accreditation for the financing of an educational institution?
Is it possible to privatize educational institutions? Please provide comments on current legislation on this issue.
Formulate a definition of educational service.
Is the activity of an educational institution providing paid educational services entrepreneurial?
Name the features of taxation of educational institutions that you know.
How do you feel about the problem of quotas for educational services?
Topic 5
Organization of the educational process
The concept of the educational process and the basic requirements for its organization.
Admission to educational institutions.
Certification of students.
Unified State Exam.
Education documents.
According to the Law of the Russian Federation on Education (1992), educational institutions have the right to conduct educational activities provided for by their charter. In his P.d. they are equated to enterprises and fall under the legislation of the Russian Federation in the field of entrepreneurial activity. To P.d. include: sale and rental of fixed assets and property, trade in purchased goods, equipment, provision of intermediary services, equity participation in the activities of other institutions (including educational) and organizations; the acquisition of shares, bonds and other securities and the receipt of income from them, etc. The founders or local governments have the right to suspend P.D. if it is to the detriment of educational activities, pending trial on this issue.
(Bim-Bad B.M. Pedagogical encyclopedic dictionary. - M., 2002. P. 212-213)
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author author unknownARTICLE 11. Founder of an educational institution (as amended by Federal Law No. 122-FZ of August 22, 2004)1. The founder of an educational institution (hereinafter referred to as the founder) can be: (as amended by Federal Law No. 122-FZ of August 22, 2004)1) state authorities, local authorities
From the book Law of the Russian Federation “On Education” Text as amended. and additional for 2009 author author unknownARTICLE 13. Charter of an educational institution 1. The charter of an educational institution must indicate: 1) name, location (legal, actual address), status of the educational institution; 2) founder; 3) legal form
From the book Law of the Russian Federation “On Education” Text as amended. and additional for 2009 author author unknownARTICLE 32. Competence and responsibility of an educational institution 1. An educational institution is independent in the implementation of the educational process, selection and placement of personnel, scientific, financial, economic and other activities within the limits established
From the book Law of the Russian Federation “On Education” Text as amended. and additional for 2009 author author unknownARTICLE 34. Reorganization and liquidation of an educational institution 1. An educational institution may be reorganized into another non-profit educational organization in accordance with the legislation of the Russian Federation. (as amended by the Federal Law of November 3, 2006
From the book Law of the Russian Federation “On Education” Text as amended. and additional for 2009 author author unknownARTICLE 43. Rights of an educational institution to use financial and material resources 1. An educational institution independently carries out financial and economic activities, may have an independent balance sheet and personal account. (Clause 1 as amended.
From the book Law of the Russian Federation “On Education” Text as amended. and additional for 2009 author author unknownARTICLE 46. Paid educational activities of a non-state educational institution 1. A non-state educational institution has the right to charge students and pupils for educational services, including for training within the federal
From the book Law of the Russian Federation “On Education” Text as amended. and additional for 2009 author author unknownARTICLE 47. Entrepreneurial and other income-generating activities of an educational institution (as amended by Federal Law No. 122-FZ of August 22, 2004)1. An educational institution has the right to conduct business and other income-generating activities provided for by its
8.3. Development of a marketing plan for an educational institution
From the book Marketing Education author Vankina Inna Vyacheslavovna8.3. Development of a marketing plan for an educational institution A marketing plan is a set of basic marketing decisions resulting from an assessment of the market situation and the educational institution’s own capabilities and aimed at achieving its main goals.
3.3. Harmonization of the social environment of an educational institution. Social protection and self-defense of students
From the book Introduction to Psychological and Pedagogical Activities: tutorial author Chernyavskaya Anna Pavlovna3.3. Harmonization social environment educational institution. Social protection and self-defense of students The professional activity of a teacher-psychologist involves ensuring the harmonization of the social environment of an educational institution, social protection
1.2. Workshop “Analysis of the external environment of a private educational institution”
author Mansurov Ruslan Evgenievich1.2. Workshop “Analysis of the external environment of the activities of a private educational institution” As an example of the implementation of the proposed algorithm for analyzing the external environment, let us consider the activities of the Zelenodolsk branch of the Private Educational Institution of Higher Professional Education “Institute of Economics, Management and
2.2. Workshop “Analysis of resources and abilities of a private educational institution”
From the book The Great Leader's Handbook. How a development strategy is developed in practice. author Mansurov Ruslan Evgenievich2.2. Workshop “Analysis of the resources and abilities of a private educational institution” So, let's move from words to action! Or from specific, but still theoretical calculations on how to analyze the capabilities of an organization, for example, their practical implementation. As
3.2. Workshop “Application of SWOT analysis to the activities of a private educational institution”
From the book The Great Leader's Handbook. How a development strategy is developed in practice. author Mansurov Ruslan Evgenievich3.2. Workshop “Application of SWOT analysis to the activities of a private educational institution” Well, now in practice, returning to our organization under study, for which a private university was chosen - the Institute of Economics, Management and Law. Note that everything
4.6. Workshop “An example of forming a development strategy for a private educational institution”
From the book The Great Leader's Handbook. How a development strategy is developed in practice. author Mansurov Ruslan Evgenievich4.6. Workshop “An example of forming a development strategy for a private educational institution” 4.6.1. Identification of development strategy options Based on the conducted strategic analysis current situation, we will formulate the main options for strategic development