This article provides a comprehensive scientific study of the concept and content features of the legal status of the institute of individual entrepreneurs. Also, the research offers scientific analysis of the legal nature of the individual entrepreneur as the subject of civil and commercial relations.
Keywords: individual, individual entrepreneur, businessman, business, legal business, transactor.
The relevance of scientific research of legal status of individual entrepreneurs determined by the importance and complexity of civil relations in the field of economic (business) activities. In addition, for the domestic legal system, the category of «individual entrepreneur» is relatively new and requires detailed study and analysis in terms of the science and practice of civil law.
It should be noted that the problems raised repeatedly became the object of research. However, due to the extensive use of the variety of activities and individual – subjects of business it stays urgent now.
From a practical point of view, it is necessary to survey the main practical aspects of the implementation of the individual entrepreneur. The complexity and importance of the procedure of state registration of individual entrepreneurs, confirm the relevance and necessity of this research.¬
Scientific and theoretical basis of the proposed study were works of domestic and foreign civil scholars . Particularly noteworthy works: M. M. Aharkova, O.M.Vinnyk, S. D. Hrynka, T. B. Hrek, O. S. Yoffe, V.M.Kravchuk, L. I. Liashevskoi, R.A.Maidanyk, V. V. Paryshkury, I. S. Timush, S.O.Tenkova, V.S.Shcherbynaand others.
Each institute or category of law is a complex unit of a legal system, and therefore characterized by inherent only to it features, special status, and most importantly – legal and social values, which are also usually differ. Certainly, legal institutions and categories of rights are essential social and legal meaning and is the result of a gradual evolution of social relations. Accordingly, these institutions do not arise suddenly, but has been developing over time. Therefore, there is a need of tracing and analysis of genesis(historical development)of investigated Institute.
Most scientists determined that the institution of an individual entrepreneur is relatively young for the civil law of Ukraine. So, Volodymyr Rotan stressed that «individual entrepreneur is a new phenomenon for domestic law-making and enforcement practice» [1, P. 63]. This statement is completely justified, because only change of the economic system, which was caused by the collapse of the Soviet Union and other socio-economic and political changes, could provide rapid business development. More about the content and significance of business will be discussed further.
Arguing the importance and relevance of the research of this institute, V. Rotan argues that «there is need to learn proper this social and legal phenomenon». While this development does not happen, there is primarily dependence on the basis of science for the lack of certainty of the legal status of individual entrepreneurs in legislative acts. This, in turn, gives rise to substantial disadvantages for resolving disputes arising from legal relations involving individual entrepreneurs.
Novelty of Institute investigation primarily associated with long-term no recognition of the human right to business. Yes, the Soviet doctrine and practice of civil law denied the opportunity of business individuals. In scientific circlesof that period such activity was characterized as bourgeois, and suchthat contrary to the principles of socialist legal system [2, P. 88].
Only after Ukraine gained independence in 1991, a person’s right of establishment gradually solidified in the national legal system. Thus, fixed in Article 42 of the Constitution of Ukraine the right of everyone to the entrepreneurial activity that is not prohibited by law , establishes the possibility of human and citizens use this right. However, not only have the right to attain the objectives for which it exists. This requires its implementation, transformation and legally fixed measure of possible behavior into reality. Legal status and mechanism of realization of the right to carry out business activities were finally enshrined in the Civil Code of Ukraine, adopted on 13 January 2003. In that act was codified under Chapter 5, «individual entrepreneur» which defined common-position and characteristics of civil status of a subject of civil legal individual entrepreneur.
Unfortunately, the Civil Code of Ukraine did not provide the legal definition of individual entrepreneurs. The Code only provided basic features of legal status of the studied subject of civil and economic relations. Thus, Article 50 of the Civil Code of Ukraine ( CC of Ukraine) «individual right of establishment», indicated that the right of establishment which is prohibited by law, is a person with full civil capacity. Limit individual right of establishment established by the Constitution of Ukraine and the law. An individual has the right to his business, on terms of its registration in the manner prescribed by law. Information about state registration of individuals – entrepreneurs is open .
The proper interpretation and understanding of the concept of «individual entrepreneur» to analyze the components of this category. So, pay attention to the understanding of the term «entrepreneur» Scientist R. Shyshka said that the first definition of the term «entrepreneur», introduced in the scientific revolution were this:
1) entrepreneur as a person who is able to perform a function different from the owner at risk;
2) the entrepreneur as a person who is responsible for the business case, a person who plans, supervises, organizes and owns the company;
3) the entrepreneur as an innovator who develops new technologies;
4) entrepreneur – a person who takes the initiative and organize social and economic mechanisms operating in conditions of risk and full responsibility for possible failure [5, P. 8].
Big Encyclopedic Dictionary contains a legal definition of «entrepreneur» – a person who on a professional basis systematically engaged in business activities (private production, trade, mediation, services, etc.) according to the current legislation of Ukraine. Entrepreneur as an economic entity can be: a citizen who has an active independent business without a legal entity; legal person whatever the form of ownership that is engaged in the production and sale of goods, works and various services; Group legal entities or individuals if one or more of them have a decisive impact on their business activities on the basis of ownership of shares, rights to use assets like. In the legislation of Ukraine the term «entrepreneur» is used primarily about individual as one of the main subject of the entrepreneurship [6, P. 610].
Thus, now in the world there is no universally accepted definition of entrepreneurship as a basic category for understanding the individual entrepreneur. American scientist, Professor Robert Khyzrich defines entrepreneurship as the process of creating something new that has value and entrepreneur – a man who spends it all the necessary time and effort assumes all financial, psychological and social risk, receiving the reward money and the satisfaction [7, P. 20].
In reference literature Entrepreneurship understood as initiative, independent activity of citizens and their associations aimed at making profit or personal income [8, P. 309]. In dictionaries entrepreneurship designated as proactive, independent, carried out on their behalf, at your own risk, under their financial responsibility activities of citizens, individuals and businesses, aimed at systematically obtaining income, income from use of property, sale of goods, works and services [ 9, P. 260].
It should also be noted that subparagraph 3.8.1 of paragraph 3.8 of Section III Classification of legal forms of entities DK 002: 2004 approved by the State Committee of Ukraine for Technical Regulation and Consumer Policy of 28 May 2004, determined that the employer is an individual, who is a citizen of Ukraine, a foreign citizen, stateless person who carries on business. That is, the entrepreneur is any natural person, regardless of nationality .
A similar view is shared by the Academic I. Basova, who in her writings holds the position that individual entrepreneurs, which operate as businesses include the following groups:
1) citizens of Ukraine – persons who have citizenship of Ukraine in the legislation of Ukraine and international treaties of Ukraine;
2) foreign nationals – persons who do not have citizenship of Ukraine and citizens (subjects) of another state (or states);
3) stateless persons – persons without citizenship of any country. Thus, individual entrepreneurs is a branch of «entrepreneurial tree» participants of economic relations [11, P. 14].
An important element of the study is the category of «natural person». In terms of the object of our study, this category primarily refers to the position of the subject of civil (including economic) relations. In passing, we note that in the legal literature are different classifications of law.
Thus, the most common classification is the division of the rights to physical and legal entities. But there are very different criteria such division, in particular, natural or artificial (rational) character entity [12, P. 132], according to which the individual is subject to natural law and legal – artificial; original primary criterion according to which the individual is the primary subject of law and legal – derived [13, P. 107-151]; collective individual criterion according to which under an individual person should understand the individual, unit, and legal entities, in turn, are collective entities.
Thus, analyzing the position of domestic and foreign scientists, we can talk about an individual entrepreneur as a person who takes the initiative in the economic sphere of the State, carries on business through increased productivity and lower production costs and is responsible for their activities.
Of course, to understand the legal nature of the individual entrepreneur, you should focus on clarifying the nature of its legal status. Scientific Shamshyna draws attention to the fact that the decisive role in the structure of the entity relationship in labor law updates the problem of scientific research of its legal status and prospects of this status in market conditions, which involves, above all, a clear definition of conceptual categories. The presence of the legal status of a person identifies as an entity, the law establishing the same range of rights and responsibilities, and possible appropriate action of that person. However, the notion of the legal status of the entity and its contents have not received a clear reflection of modern legal science [10, P. 29].
According to Article 2 of the CC of Ukraine members of civil relations recognized individuals and legal entities. As we see, the law specified paper not ignore such a large group of participants in civil relations as private entrepreneurs, who together also covered by the term «individual», but because of their status are some differences in the legal regulation of their relations. However, the legal status of an individual is much broader than the legal status of an individual entrepreneur [10, P. 56].
The issue of the legal status, its definition, content and public relations roles settlement remains debatable as in the general theory of law and science in civil and commercial law.
The status of an individual entrepreneur – a legal status that confirms the right of individuals to engage in business activities, namely independent, active and systematic, at your own risk economic activity carried out by economic entities (entrepreneurs) to achieve economic and social benefits and profit.
However, the legal status of «individual entrepreneur» itself is not affected and does not limit any powers of persons arising out of civil legal capacity .
However, in accordance with Article 128 of the Commercial Code of Ukraine citizen recognized entity in the event of his business activities, provided its state registration as an entrepreneur without a legal entity status under Article 58 of the Code . It is in the economic relations between individual entrepreneurs involved primarily as businesses, not as individuals, and only on the basis of their registration and entering information about them in the Unified State Register of Legal and individual entrepreneurs.
As noted above, Article 51 of the Civil Code of Ukraine predicted that for the business activities of individuals is used regulatory and legal acts, that regulates business activities of legal entities, unless otherwise provided by law or follows from the nature of relationships.
Ambiguous interpretation of the rules specified in the scientific and legal literature and in practice causes the appearance of conflicting opinions, which certainly affects its enforcement, because somehow there is a merger of the legal status of an individual with the legal status of a legal entity, which by their legal nature is different.
As the systems analysis shows , in practice, this provision is interpreted based on the following. First, the capacity of an individual entrepreneur is almost equivalent to the capacity of legal entities – commercial organizations. He may have rights and duties necessary to implement any activities not prohibited by law, and for which the law provides restrictions (Article 50 CC of Ukraine). The indicated is evident, in particular, on the basis of the provisions of Article 91 of the Civil Code of Ukraine.
Second, the entrepreneurial activity of individuals, the rules as general civil (Civil Code of Ukraine) and special legislation (Commercial Code of Ukraine, Laws of Ukraine «On State Registration of Legal Entities and Individual Entrepreneurs», «On state support of small business», «On licensing certain types of activities», etc.).
However, it should be noted that the economic legislation «legal person» and «individual entrepreneur» covered by the common term «entity».
Describing the legal nature of individual entrepreneurs, one way or another to apply to the categories of «business» and «business activities». Entrepreneurial activity of citizens characterized by factors such as independence, initiative, systematic, own risk and focus on defined outcome – obtaining economic and social results and profits .
The independence of entrepreneurial activity means that the individual operates on its own behalf and not on behalf of the organization, which is whether its leader or founder. According to part 3. 128 of the Commercial Code of Ukraine (The CC of Ukraine) citizen may carry on business as an entrepreneur directly or through a private company that created it. Instead, part 1 of article 128 of the CC of Ukraine recognizes citizen entity in the event of his business activities only if its registration as an entrepreneur. In the case of the creation of a national private company, he acquires the status of the founder of the company with the relevant legal consequences. Accordingly, we must clearly distinguish between the activities of an individual as a business entity and individual activities as founder (participant) of a business partnership, a member of the production cooperative and more. In the latter case, the legal status of an individual acquires the features by investment and corporate relations. This individual as a member of a business partnership may have the status of employer, sometimes such status is required (example, in full partnership ).
Thus, taking into consideration presented materials it can be noted that individual – entrepreneur in the civil and economic relations is a versatile member. Principles of realization by him of entrepreneurial activity make him similar to legal entities, while in private relations, in spite of any change in his status, he remains to be a citizen – an individual. Therefore, we should clearly distinguish these different spheres of relations.
1. Rotan V. Legal status of individual entrepreneurs / V. Rotan // Legal Counsel. – 2006. – № 2. – P. 63-66.
2. Sahaidak Y. Essence, the role of organizational and legal issues of legalization of business in Ukraine / Sahaidak Y. // Entrepreneurship, Economy and Law. – 2006. – № 11. – P. 87-90.
3. The Constitution of Ukraine from June 28, 1996 // Supreme Council of Ukraine. – 1996. – № 31. – Art. 141.
4. Civil Code of Ukraine from January 13, 2003 // Supreme Council of Ukraine. – 2003. – № 40-44. – Art. 461.
5. Business Law: Textbook / Shyshka R. B. – H: Espada, 2001. – 560 p.
6. Great Encyclopedic Dictionary of Law / ed. Acad. NAS of Ukraine Y. S. Shemshuchenko. – 2nd ed., Be refurbished.. – K: Type-in «Legal opinion», 2012. – 1020 p.
7. Hyzrych R. Entrepreneurship / Hyzrych R., M. Peters. – Vol. 1. – M., 1991. – 120 p.
8. Economic Encyclopedia. – Volume 3: P-I / Redkol .: S. V. Mochernii and others. Kyiv – Ternopil Publishing Center «Akademiya», 2002. – 952 p.
9. Great Dictionary of Modern Ukrainian / V. T. Busel. – Irpin .: Perun, 2001 – 895 p.
10. The status of an individual entrepreneur: the problem of applying the legislation: Explanation of the Ministry of Justice of Ukraine from January 14, 2011 // Business Accounting law. Taxes. Consultations. – 2011. – № 8. – P. 56.
11. I. Basova An individual entrepreneur / I. Basova, V. Klets, A. Andrusenko. – H: Factor, 2012. – 704 p.
12. Nersesiants V. S. General Theory of law and state: Textbook for Universities / V. S. Nersesiants. – Moscow: Norma, 2004. – 552 p.
13. Pervomaiskyi O. O. Participation of the territorial community in civil matters: Dis. candidate. jur. Sciences specials. 12.04.03 / O.O. Pervomaiskyi. – Kharkiv, 2003. – 202 p.
14. Shamshyna I. I. Subjects of labor law: legal regulation under market conditions: monograph / I. I. Shamshyna. – Luhansk: Type-in «Literature», 2010. – 448 p.
15. Economic Code of Ukraine from January 16, 2003 // Supreme Council of Ukraine. – 2003. – № 18-22. – 144 p.