Activities for the production and sale of goods, works and non-educational services

In accordance with paragraph 1 of Art. 47 of the Law of the Russian Federation "On Education", an educational institution has the right to conduct business activities provided for by its charter. In the charter of an educational institution in without fail the structure of the financial and economic activities of the educational institution is fixed, including in terms of “carrying out entrepreneurial and other income-generating activities” (clause 6 “d”, clause 1, article 13).

In paragraph 2 of Art. 47 of the Law of the Russian Federation "On Education" establishes that the entrepreneurial activities of an educational institution include:

trade in purchased goods, equipment;

provision of intermediary services;

equity participation in the activities of other institutions (including educational ones) and organizations;

purchase of shares, bonds, other valuable papers and receipt of income (dividends, interest) on them;

* In relation to federal state educational institutions, such a norm fromyear a year is included in the federal law on the federal budget for the corresponding year (for example, Article 30 of the Federal Law of December 26, 2005 No. 185-FZ "On the Federal Budget for 2006").

conducting income-generating other non-sales operations that are not directly related to own production products, works, services provided for by the charter and with their implementation.

Based on this, the activity of an educational institution for the implementation of the products, works and services provided by the charter of this educational institution does not apply to entrepreneurial activity, but is “another income-generating activity”. However, as already noted, today such differentiation does not play a fundamental role.

In practice, the most common activities of state and municipal educational institutions are the sale of purchased goods, as a rule, food and stationery, as well as the sale of products produced by the educational institution itself.

Trade in food products at school can be carried out in canteens and canteens, which are structural divisions of an educational institution. According to paragraphs. "e" of clause 2 of the List of certain categories of enterprises (including individuals engaged in entrepreneurial activities without forming a legal entity, in the event that they carry out trade operations or provide services), organizations and institutions that, due to the specifics of their activities or location, may carry out cash settlements with the population without the use of cash registers, approved by the decision of the Council of Ministers - Government Russian Federation dated July 30, 1993 No. 745, cash settlements with the population to provide meals for students and employees of general education schools and equivalent educational institutions during training sessions can be carried out without the use of cash registers.

Some problems in practice raise questions about the sale of products, works and services that are made by the hands of students. Yes, often in class. labor training students make various crafts, which can later be sold as souvenirs, handicrafts, etc. During the classes, students use materials purchased with school funds and school tools. The question arises, how, according to the law, income from the sale of products created by students in the learning process should be distributed?

According to Art. 220 of the Civil Code of the Russian Federation, the right of ownership to a new movable thing made by a person by processing materials that do not belong to him, is acquired by the owner of the materials. The school as an institution is not legally the owner of its property, it is assigned to the school on the basis of the right of operational management. The founder of the school is the owner of the property. Thus, in the manufacture of materials belonging to the school on the right operational management new products, the founder of the school becomes the owner of these products, and the school itself acquires the right of operational management for them.

There is one exception to this rule: “If the cost of processing substantially exceeds the cost of the materials, the ownership of the new thing is acquired by a person who, acting voluntarily, has carried out processing for himself ”(paragraph two of paragraph 1 of article 220 of the Civil Code of the Russian Federation). The term "significantly exceeds" is evaluative and is used by the parties when defending their position in court, for us something else is more important - an indication that the processing was carried out by a person "for yourself". In the lessons of labor training, especially with a targeted focus on the subsequent sale of products, processing is carried out on the instructions of the teacher, who determines the requirements for the product and indicates that the student will have to hand over the finished work.

According to paragraph 2 of Art. 220 of the Civil Code of the Russian Federation, unless otherwise provided by the contract, the owner of the materials who has acquired the ownership of the thing made from them is obliged to reimburse the cost of processing to the person who carried it out. Thus, if strictly followed by the letter of the law, students are entitled to receive some compensation for overtime. Therefore, an agreement must be concluded between the school and students, which determines the procedure for remuneration of students in the manufacture of a particular product. In practice, the conclusion of such agreements is practically not carried out for a number of reasons. Firstly, when paying in favor of students any funds as a payment for work, the school will need to pay a single social tax, and the students themselves will need to pay a personal income tax. Secondly, the proceeds from the sale of such souvenirs and other products made by schoolchildren are directed to solving various problems of the school, i.e. in the end, in any case, they are spent in favor of the students. Therefore, if the students are aware of the fact that the funds received by the school are spent on the needs of the educational process and agree with this, then their consent to free work in favor of the school can be issued with a statement (receipt) of the following form:

"(the date)

We, the undersigned students of the 9th grade of the MOU " high school No. ___ city______ » (hereinafter referred to as the School), we confirm that thewe make the manufacture of wooden products at the lessons of laborfor the benefit of the School during the entire period of study at the School.

(Student signatures)"

It should be noted that only students who have reached the age of fourteen can give such a receipt, since in accordance with paragraph 2 of Art. 26 of the Civil Code of the Russian Federation, they independently manage their earnings. As for younger students, such a waiver on their behalf must be made by their parents, because. they cannot make such transactions on their own (Article 28 of the Civil Code of the Russian Federation).

The work of students at the school site is common in rural areas, where, in the absence of solvent demand for additional paid educational services, often the only real way to earn money is to grow and sell agricultural products or use them for their own needs (most often for students to eat). It should be noted that if students work on the site without special payment (for example, in the case when the grown vegetables are used to organize free meals, and textbooks are bought with the funds from the sale), then the consent of the students and their parents for such work is required (clause 14 article 50 of the Law of the Russian Federation "On Education").

It is legally much more difficult to organize the work of students at the school site on a reimbursable basis. First, a conclusion is needed. employment contract, which, as a general rule, can be concluded with persons who have reached the age of sixteen years, and under certain conditions - with persons who have reached fourteen years of age. Conclusion of an employment contract with students under the age of fourteen to perform agricultural work Art. 63 of the Labor Code of the Russian Federation is not allowed. Secondly, again there will be financial losses in taxation. Therefore, in practice, obviously, only the first model of organizing work at the school site is applicable - formally gratuitous on the part of students.

Assignment of property to the institution on the right of operational management is compensated by the obligation of the owner 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, article 41 of the Law on Education). This financing is carried out at the expense of the federal budget by the federal state educational authority or federal authorities executive power, which are in charge of these institutions (clause 1, article 28 of the Law on Higher and Postgraduate Vocational Education).

In conditions of underfunding, the institution faces a dilemma: either to earn money on its own through entrepreneurial activities and develop the material and technical base, or to exist mainly at the expense of budget funds and lead a miserable existence. Most universities choose the first path. The funds received by universities from the implementation of entrepreneurial activities are very significant. In particular, the functioning of state universities, which are under the jurisdiction of the Ministry of Education and Science of Russia, is provided at the expense of funds from entrepreneurial activity at the level of 40% 1 . Some public universities have total volume funds 60-70 % of proceeds from extrabudgetary activities 2 . Due to the attracted additional financial resources, universities have the opportunity to adequately fulfill their educational and scientific mission in society, strengthen the material and technical base, and retain professional personnel.

The right to conduct business activities by non-profit organizations, which include institutions, is legalized and provided, first of all, general rules civil law - para. 2 p. 3 art. 50, art. 298 of the 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, paragraph 100 of the Model Regulation on an educational institution of higher vocational education Russian Federation. This right was first provided for by the Fundamentals of Civil Legislation. USSR and republics (1991) and the Law of the RSFSR "On Property in the RSFSR" 2 . In paragraph 3 of Art. 18 Fundamentals was enshrined that not commercial organizations may engage in entrepreneurial activity only insofar as it is necessary for their statutory purposes. The Law on Property, in turn, provided that institutions engaged in entrepreneurial activities with the consent of the owner, in cases provided for by the legislation of the RSFSR, acquire the right to independently dispose of income from such activities and property acquired at the expense of these incomes (paragraph 4 of Art. 5). Similar rules are contained in the current legislation. At the same time, the legislator limited the right of non-profit organizations to carry out entrepreneurial activities with two conditions: in accordance with paragraph 2 of Art. 50 of the Civil Code of the Russian Federation, they can carry out entrepreneurial activities only insofar as it serves to achieve the goals for which they were created, and corresponding to these goals. Thus, the entrepreneurial activity of a non-profit organization must meet the following criteria: 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: the achievement of social, charitable, cultural, educational, scientific, managerial, etc. goals of activity; public health, development physical education and sports, protection of rights, etc.

The first feature that is presented to the entrepreneurial activity of non-profit organizations does not raise questions and lies in the fact that this activity should contribute to the main goal of the activity. With regard 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, to pay wages, business trips, etc. A similar point of view is shared by other authors 1 .

As for the second requirement imposed by law on the entrepreneurial activity of a non-profit organization - its compliance with the goals for which it was created, then problems of a lexical nature arise here. Correspond - to include a correspondence with someone; correspondence - a relationship between something, expressing consistency, equality in some respect 2. Consistency is revealed through the concept of "coordinated" - one in which unity, agreement has been achieved 3 ; equality - complete similarity, similarity 1 . Based on literal interpretation the words “compliance”, then the analyzed feature should mean that the entrepreneurial activity of a non-profit organization must be one with its goals of activity and similar to them 2 . In view of the foregoing, regarding the entrepreneurial activity of an educational institution, it follows that this activity should be similar to the main goal of its activity. The latter, according to Art. 12 of the Education Act, is the implementation educational process in the form of educational programs. What can correspond to this activity, be in equality with it? In our opinion, only educational activities carried out beyond budget financing, i.e. on a reimbursable basis. But in no way can it be attributed to 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.).

Concerning the second criterion applied to entrepreneurial activity of non-commercial organizations, other opinions have been expressed. 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 clarify her thoughts, she gives an example: if a sports society opens a sports equipment repair shop, 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 useful (main) activity or an activity that provides it. The latter is: activities, the results of which, due to their qualities, are intended for use only in socially useful (main) activities (for example, the production of sports simulators); activities that promote socially useful (main) activities, making them more efficient and accessible (for example, advertising the socially useful activities of a non-profit organization); activities that meet the needs arising from the implementation of socially useful (main) activities (for example, the preparation and sale of food by the theater buffet) 1 .

It seems to us that the given understanding by the indicated authors 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 “correspond”, 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, in the opinion of the legislator, can serve to achieve the goals of the organization for which it was created: 1) profit-making 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 economic companies; 4) participation in limited partnerships as a contributor. As you can see, the types of entrepreneurial activity listed in the list cannot “correspond” to the main goal of the activity 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 impose two requirements on the entrepreneurial activity of 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 on Religious Associations” 3 generally omits this issue, indicating only that religious organizations have the right to carry out entrepreneurial activities and create their own enterprises in the manner established by the legislation of the Russian Federation (Article 23). Under the legislation, in this case, Art. 117 of the Civil Code of the Russian Federation (“Public and religious organizations”). As noted above, this article sets out 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) imposes one requirement on the entrepreneurial activity of a society - 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 (Art. 47) and Fundamentals of Russian Legislation on Culture 4 (Art. 47) also do not impose any requirements on 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 entrepreneurial 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 best way. So, for example, the Civil Code of the Republic of Kazakhstan establishes one requirement for the entrepreneurial activities of non-profit organizations - compliance with its statutory goals (clause 2, 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 activity of non-profit organizations (clause 3 of article 46) 2 .

If we take into account Art. 24 of the Law on Non-Commercial Organizations, it follows that the legislator allows a non-commercial organization to carry out entrepreneurial activities that are non-identical in relation to the main activity of the organization. If we proceed from the literal meaning of par. 2 p. 3 art. 50 of the Civil Code of the Russian Federation, it turns out that in most cases entrepreneurial activities carried out by non-profit organizations are illegal. Thus, there is an internal conflict between the idea of ​​the legislator and the norm of the law. This circumstance requires the presentation of par. 2 p. 3 art. 50 of the Civil Code of the Russian Federation in the new edition: "Non-profit organizations can carry out entrepreneurial activities only insofar as this serves to achieve the goals for which they were created." This rule 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 directed to achieve the goals of the organization. A barrier against excessive enthusiasm for activities that are unusual for the essence of a non-profit organization should be fixed in its constituent documents (clause 2, article 52 of the Civil Code of the Russian Federation). As additional guarantees of suppression of "departure" from the main activity and replacement of the main goal of the activity of non-profit organizations with a different goal - making a profit, other methods can be proposed. One of these ways can be a list of permitted or prohibited types of entrepreneurial activity, enshrined in the law, that may (or may not) be carried out by non-profit organizations. An analysis of laws dealing with certain types of non-profit organizations shows 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 relevant restrictions on the right to engage in certain types of entrepreneurial activity are contained in the articles on contractual obligations. For example, non-profit organizations are not entitled to act as a financial agent in financing agreements against 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 a 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 rule will be discussed in the next chapter of the work).

As a criterion for the scope of the right of an institution to carry out entrepreneurial activities, one could consider the amount of underfunding on the part of the founder. With regard to the educational activities of the university, a specific criterion was the permissible percentage of enrollment of students on a contract basis, fixed at the level of law, in the areas of training "jurisprudence", "economics", "management", "public and municipal government". The Law of 20.07.2004 removed this provision from the Law on Education.

Regarding the criteria for the permissible scope of entrepreneurial activity of non-profit organizations, other proposals have been made in the literature. In particular, to determine it on the basis of a complex criterion, the components of which are: number various directions activities of the organization, their specificity and intensity; time costs for the implementation of certain types of activities; the ratio 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 . As a rule, this conclusion is explained by the fact that it lacks 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 the result 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 signs.

In the Civil Code of the Russian Federation, entrepreneurial activity is understood as an independent activity carried out at one's own risk, aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law (Article 2). The following constitutive features of entrepreneurial activity follow from the above definition: 1) the independent nature of this activity; 2) carrying it out at your own risk; 3) the main purpose of this activity is to make a profit; 4) systematic profit making; 5) these are activities related to the use of property, the sale of goods, the performance of work or the provision of services; 6) registration of a person carrying out entrepreneurial activity as an entrepreneur in accordance with the procedure established by law.

1. Independent nature of entrepreneurial activity. This feature is revealed through the substantive and economic aspects 1 .

The material and legal aspect of this feature implies that the subject of entrepreneurial activity has legal personality, i.e. has the right to independently, independently of other persons, decide on the implementation of entrepreneurial activities, on the organizational and legal form of entrepreneurship. Right to Accept this decision at legal entities arises from the moment of state registration (clause 3, article 49, clause 2, article 51 of the Civil Code of the Russian Federation), since it is from that moment that they are endowed with legal capacity.

Entrepreneurial legal personality of individuals, as follows from the analysis of Articles 21-28 of the Civil Code of the Russian Federation, in in full arises when they reach the age of 18. From 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, minors, upon reaching 16 years of age, have the right to be members of cooperatives. Membership in a cooperative implies 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 assumes that the entrepreneur has a sufficient property base for doing business. The property assigned to a business entity is the basis of its economic activity. The volume 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 doing business are available to legal entities - owners and individual entrepreneurs; the smallest - for the subjects of the right of economic management and operational management.

The autonomy 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 law, "entrepreneurial risk" is a specific concept in relation to the category "risk". The definition of "risk" is used in legislation and in the scientific literature in relation to certain types of relationships and areas of professional activity. Within the framework of the objective category of risk, such types of risk are distinguished as official, 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 the risk is correlated with losses, accidental loss or damage to property, accidental impossibility of performance, attribution of costs and losses, consequences (adverse, failure to present a claim, lack of information, death or damage to , failure to fulfill obligations), loss (death), shortage or damage, failure to receive expected income, liability, payments 1 .

In the field of civil law relations, the following judgments were made about risk. N.S. Malein under the risk considered the possibility of adverse property consequences, and risk-bearing - 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 the 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 excluding civil liability. At the same time, the party acting under conditions of risk is charged with incurring adverse property consequences.

Other meanings are put into the concept of risk, however, in the framework of our study, they are unacceptable 5 .

Most recently, the category of "risk" was enshrined in the Law "On Technical Regulation" 1 . Risk is understood as the probability of causing harm to the life or health of citizens, property of individuals or legal entities, state or municipal property, environment, life or health of animals and plants, taking into account the severity of this harm (Article 2). This definition has general character and does not reflect the characteristics of certain types of risk and the consequences of the risk.

For the first time, the concept of risk as functional characteristics entrepreneurship was put forward in the ХVΙΙΙ century by the French economist of Scottish origin R. Cantillon. He considered the entrepreneur as a decision-maker and satisfying his interests in conditions of uncertainty. The entrepreneur's profits and losses are a consequence of the risk and uncertainty that accompany his decisions. According to Cantillon, an entrepreneur is any individual who has the foresight and desire to take risks, looking to the future, whose actions are characterized by both the hope of gaining profit and the willingness to lose 2.

Many authors have worked on the problem of the concept and essence of entrepreneurial risk, each of them shows their own vision this phenomenon 3 . However, in any interpretation, such an element as the onset of adverse property consequences in the form of incurring costs and losses is embedded in entrepreneurial risk.

It seems to us that entrepreneurial risk is a complex category, including, among other things, civil liability without fault, other adverse consequences of technological, innovative, informational, etc. character. Thus, entrepreneurial risk should be understood as the bearing of adverse consequences (property in the form of losses incurred in the course of doing business, technological, innovative, informational, 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 contract (Clause 3, Article 401 of the Civil Code of the Russian Federation)).

The legal definition of entrepreneurial 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 entrepreneurial activities due to a breach of their obligations by the counterparties of the entrepreneur or changes in the conditions of this activity due to circumstances beyond the control of the entrepreneur, including the risk of not receiving the expected income” (paragraph 2 of article 929). This definition, based on our understanding of entrepreneurial risk, does not reflect all the specifics of the phenomenon under study. Firstly, the risk of losses from entrepreneurial activity due to a violation of their obligations by the counterparties of the entrepreneur can be localized by holding them accountable; secondly, in this definition there are no other elements of entrepreneurial risk: incurring blameless responsibility, innovative, technological, informational and other risks.

Entrepreneurial risk in the legal literature is subject to a detailed classification on a variety of grounds: a source of danger; type of activity or type of entrepreneur; the scope of entrepreneurial risk; risk activity over time; legal basis for the risk; degree of entrepreneurial risk, etc. 1

3. The main goal of entrepreneurial activity is to make a profit.

In civil law, along with the concept of "profit", the concept of "income" is used. We are talking, in particular, about paragraph 2 of Art. 298 of the Civil Code of the Russian Federation. In the Law on Education, in relation to our question, also we are talking on income (see paragraph 2 of article 45, paragraph 2 of article 46, paragraph 1 of article 47). Profit, income - specific terms of tax legislation, since it is here that the fundamental basis and purpose of these categories is laid - the payment of tax. In Art. 11 of the Tax Code of the Russian Federation, it is established that the institutions, concepts and terms of civil, family and other branches of the legislation of the Russian Federation used in this code are applied in the sense 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 determined in the relevant articles of this code. In accordance with Art. 247 of the Tax Code of the Russian Federation, income is recognized (for Russian organizations) as 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 an obligatory result. Lack of profit cannot serve as a basis for the conclusion that such activity is not entrepreneurial. Failure to receive profit as a result of this activity is the result of entrepreneurial risk. In addition, there are exceptions to the general rule on making a profit as the goal of entrepreneurial activity, especially in the field of state and municipal entrepreneurship. For example, an enterprise funded by state budget, produces products necessary for the defense of the country, which may be, and most often is unprofitable, but is necessary for society; urban transport company satisfies public needs for the transportation of passengers, although in some cases such enterprises are unprofitable and operate on subsidies 1 . As O.V. Tishanskaya, in developed countries State policy is to encourage non-profit entrepreneurship in the areas of ecology, healthcare, culture, and social security 2 . This remark allows us to conclude that income (profit) in relation to the concept of entrepreneurial activity should be understood as the amount of income without reducing them by the amount of expenses. Other authors have come to similar conclusions 3 .

The content of the feature under study is very significant for criminal law, since the availability of income is one of the conditions for bringing to criminal responsibility 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 feature 4 . Judicial practice is ambiguous, as can be seen from the example of the resolutions of the Plenum Supreme Court RF. Thus, in one resolution of the Plenum of the Supreme Court of the Russian Federation it is noted 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 ; in another ruling it is explained that under the income in Art. 171 of the Criminal Code of the Russian Federation should be understood as proceeds from the sale of goods (works, services) for the period of illegal entrepreneurial activity without deduction of expenses incurred by the person associated with the implementation of illegal entrepreneurial activity 1 .

4. Systematic conduct of business activities.

In general, the criterion of "systematic" in civil law is not a new concept. It has been applied and is applied to absolutely 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 "systematic" is used in other branches of law 2 . However, at the legislative level, it does not have clearly defined criteria (landmarks). The legislative gap on the criterion of consistency gave rise to a number of judgments about this category. Some authors believe that this is both the amount of profit being made 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 trait under consideration are not strictly related to each other, because 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 of systematic entrepreneurial activity should be clarified by the size of the income of this activity: it should be of a significant nature and be measured in multiples of the minimum wage; systematic, but insignificant income should not be recognized as entrepreneurial, otherwise it would mean the neglect of common sense and economic expediency 1 . Some authors point to such a sign of systematic profit making as the share of income from certain activities in the income structure of this 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 criterion of “systematicity” is essential only in relation to the entrepreneurial activity of an individual entrepreneur. If removed from the definition of entrepreneurial activity this sign, then absolutely nothing changes in relation to the activities of a legal entity, since for tax purposes it does not matter whether an operation (transaction) was performed once or 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 taken to generate 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 the activity of a citizen as entrepreneurial can be determined as a multiple of the minimum wage. For example, it could be 1000 minimum wages. If an individual performs different types activities, the total income should be summed up.

In the legal literature, the criterion of "consistency" is correlated with such a quality of entrepreneurial activity as professionalism 1 . Consonant with the criterion of "professionalism" in pre-revolutionary commercial law the criterion "fishing" was applied. Fishing was defined as an activity aimed at acquiring material resources through constant practice. This activity was designed for an indefinite number of acts that constitute the source of income. Random, albeit repeated, performance of actions having contact with trade was not enough to recognize the presence of fishing 2 . In all likelihood, guided by this theory, some authors began to replace the “systematic” criterion with the “permanent” criterion (read “fishing”) 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 “permanent” are identical. It is this point of view that is held, for example, by N.I. Klein 4 . To understand the meaning of this category, let's turn to the dictionary of the Russian language, in which one of the meanings of the word "systematic" is - constantly repeating, not stopping 5 . In turn, the term "permanent" means - designed for a long time, not temporary 1 . The category "professional" means - related to any profession, associated with a profession, doing something as a profession; the 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 "permanent" are of the same type, in contrast to the criterion "professional activity".

5. Entrepreneurial activity is an activity related to the use of property, the sale of goods, the performance of work or the provision of services.

Enshrined in Art. 2 of the Civil Code of the Russian Federation, the list of ways of doing business 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 this feature should be excluded 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 clearly public in nature 4 .

State registration as a sign of entrepreneurial activity matters only in relation to individuals - individual entrepreneurs. It testifies to the emergence of a new subject of precisely entrepreneurial legal relations (perhaps, this person has already acted as a subject of non-entrepreneurial relations) and gives 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 moment of its creation, and, consequently, the emergence of legal capacity, is associated with the state registration of a legal entity.

Along with the registration of a legal entity as a sign of entrepreneurial activity, the legal literature 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 signs of entrepreneurial activity discussed above, the following are also distinguished in the legal literature: all actions of entrepreneurial and organizational plan carried out by a business entity on its own behalf; entrepreneurial activity is carried out on the basis of a license 2 ; entrepreneurial activity should be aimed at meeting social needs; the presence of property liability of the entrepreneur (for the results of economic activity 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 a completely trusted one; it does not matter whether he owns the enterprise, because he can be its tenant - nevertheless, he will be the merchant, and not the owner; it does not matter at whose expense the trade is conducted, and if in reality another person was hiding behind the back of the merchant, as a figurehead, with a property interest in success, the merchant would still be the one on behalf of whom the business is being conducted 1 . However, the application of this provision, taking into account modern legislation, is not always acceptable. Under current legislation, in a number of cases, the 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 signs of entrepreneurial activity ). In this case, it is appropriate, in our opinion, to cite E. Sukhanov’s reasoning: “one should not proceed from any artificial dogmas, squeezing real life relationships, but it is worth doing just the opposite (as it has always been perfectly done in Roman private law)” 2 .

With regard to the second sign - the implementation of entrepreneurial activity on the basis of licensing, then, as we see it, licensing should be considered not as a sign of entrepreneurial activity, but as one of the requirements or conditions for such. Our point of view can be confirmed by the fact that the legislator classifies 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 they - the results - correspond to social needs 1.

We believe that this sign 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 activity). Otherwise, it will be anti-social, for the implementation of which appropriate sanctions are subject to application.

Property liability, as a sign of entrepreneurial activity, is substantiated by V.V. Laptev. This responsibility is considered by him both as responsibility for the results of economic activity and as responsibility for obligations 2 . In our opinion, this sign does not bring anything new to the essence of entrepreneurial activity: the first component of property liability acts as an element of entrepreneurial risk; the second component is the result of improper fulfillment of obligations, both in business and in other areas of activity.

Based on the foregoing, 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) carrying it out at your own risk; 3) the main purpose of this activity is to make a profit. Along with these signs, the signs of entrepreneurial activity of individuals should include the systematic receipt of profit, as well as state registration person as an individual entrepreneur.

The activities of an educational institution aimed at generating income fully meet the characteristics of entrepreneurship. First, this activity has an independent character. This is shown in the following. The law and the founder allow the institution, under certain conditions, to carry out entrepreneurial activities; in this case, it is not required to coordinate with the founder the issue of taking specific appropriate 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 related to the conclusion of contracts, the definition 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 on the basis of the right of operational management; in addition, funds and property acquired from activities permitted by the founder are also under the authority of the institution.

For its obligations, the institution bears independent property liability with the funds at its disposal (clause 2, article 120 of the Civil Code of the Russian Federation). In case of their insufficiency, the owner of the relevant property bears subsidiary liability for its obligations. In reality, as judicial practice testifies, the sequence of foreclosure on the property of an institution is different. For any obligations of the institution, the recovery, first of all, is levied on the funds received by it from the permitted entrepreneurial activity. Secondly, the recovery is levied on the property acquired at the expense of the above funds; in the third place - on the funds received from the founder. And only after that the founder is held liable.

The main purpose of the entrepreneurial activity of an institution, like a commercial legal entity, is to make a profit. However, the motivation for the implementation of this activity is completely different. In the conditions of underfunding, it faces the task of preserving the university and highly qualified scientific and pedagogical personnel, carrying out research work, updating and expanding the material and technical base, etc. The funds received from the implementation of entrepreneurial activities are primarily directed to the solution specified tasks. In this regard, the implementation of entrepreneurial activities by the university is a forced, but necessary measure for it. At the same time, the implementation of entrepreneurial activity by the university distracts it from the 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 state funding, the entrepreneurial activity of the university should be limited only to paid educational, innovative and related activities.

The Law on Education 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 as 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 .

An additional condition for classifying the educational activities of educational institutions as entrepreneurial activities has repeatedly been the subject of criticism 2 . As most researchers rightly point out, this criterion is very controversial and should be taken into account only in taxation in order to establish a preferential tax regime.

The norms 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 par. 3 p. 1 art. 2 of the Civil Code of the Russian Federation, as well as par. 2 p. 3 art. 50 of the Civil Code of the Russian Federation (these norms do not provide similar approach to the definition of entrepreneurial activities of non-profit organizations and are inherently imperative).

Unlike paid basic educational activities of non-state educational institutions, the nature of such activities of state educational institutions is not defined in the Law on Education. 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 enshrined), and paid additional educational activities of state educational institutions are not linked to the direction of spending income. In our opinion, there is the following explanation for this: in the conditions of the treasury system, the funds of state educational institutions from the implementation of paid educational activities (main and additional) cannot but be reinvested in an educational institution, i.e. they cannot leave the system. Based on this and subject to the provisions of Art. 46 of the Law on Education, it can be assumed that this activity The law on education does not refer to entrepreneurial. As a result, activities of the same type, carried out by same-level entities that differ only in the composition of the founders and the source of funding, fall under different mode legal regulation. In the light of the Tax Code of the Russian Federation, this inconsistency in the norms of the Law on Education may not be of particular importance, since income from any paid educational activities provided by both state and non-state educational institutions do not fall into 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 law relations. And here the nature of the activity already has paramount importance, since the legal regulation of these relations is directly related to the nature of the activities carried out (entrepreneurial or non-entrepreneurial).

The foregoing testifies to the obvious "shortcomings" of the norms 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 body local government has the right to suspend the entrepreneurial activities of the institution, if it is to the detriment of the educational activities provided for by the charter, until a court decision on this issue. However, there is no mechanism for implementing this procedure. Given 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 entrepreneurial activity causes damage to the main activity or not, this issue, in our opinion, should be in the jurisdiction of the court, not the regulatory authorities.

In the legislation and legal literature in relation to the university, the concept of "entrepreneurial activity" is opposed to the concept of " extrabudgetary activities". These categories are related to each other as species and genus. Extra-budgetary should be understood as any activity of the 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, the leasing of property, the production of products (works, services) structural divisions, activities financed by trustee and charitable contributions, donations, etc. Entrepreneurial is only those extrabudgetary activities of the university that meet the characteristics of entrepreneurship: associated with independence, initiative, risk.

In addition, in the economic and legal literature, along with entrepreneurial activity, there are also economic and economic activities. Of the three named types of activity, only entrepreneurial activity has a legal definition. Its features have been discussed above. As for economic and economic activity, there are not even generally accepted doctrinal definitions for them. Revealing the essence of these types of activities has not only theoretical, but also practical value. For example, criminal law 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 entrepreneurial 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 sphere of economy”) and the Code of Administrative Offenses of the Russian Federation, it follows that in the criminal and administrative legislation there is no elementary systematization of the types of crimes and offenses in economic sphere, which may have the most negative impact on the administration of justice 1 . As one of the explanations for this phenomenon, the fact that the concept of " economic activity».

Most often, economic activity is understood as the activity of property management, the creation of material values, their transportation, sale, provision of services, as well as the management of all this activity in the national economy 2 . V.F. Popondopoulo, criticizing this approach to the definition of economic activity, excludes from its number management activities (management activities). In addition, entrepreneurial and economic activity, in his opinion, are equivalent concepts 3 . A similar point of view is shared by other authors 4 .

According to another point of view, entrepreneurial activity is a kind 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 an activity for the manufacture of products, the production of works, the provision of services. In modern conditions, it mostly takes the form of entrepreneurial activity, but there may be such 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 aimed at contributing to the achievement of the statutory tasks of the relevant organizations 1 (V.S. Belykh 2 adheres to a similar point of view).

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 of "economy" and "economy". The economy is an economy, a set of means, objects, processes used by people to ensure life, meet needs by creating necessary for a person benefits, conditions and means of subsistence with the use of labor 3 . The economy is a set of natural and man-made means used by people to create, maintain, improve conditions and means of subsistence, life support 4 . From this definition it follows that the economy and the economy are almost identical categories, and economic activity is the activity of people to create, maintain, improve the conditions and means of their existence, life support. Thus, comparing the concepts of economy and economy, 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. So, in our opinion, this 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 correlation between economic (economic) and entrepreneurial activity, 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 species.

1. An educational institution has the right to conduct entrepreneurial activities provided for by its charter.

2. Entrepreneurial activities of an educational institution include:

sale and leasing of fixed assets and property of an educational institution;

trade in purchased goods, equipment;

provision of intermediary services;

equity participation in the activities of other institutions (including educational ones) and organizations;

acquisition of shares, bonds, other securities and receipt of income (dividends, interest) on them;

· conducting income-generating other non-sales operations that are not directly related to the own production of products, works, services provided for by the charter and with their implementation.

3. The activities of an educational institution for the implementation of the products, works and services provided for by the charter of this educational institution shall be classified as entrepreneurial only to the extent that the income received from this activity is not reinvested directly in this educational institution and (or) for the immediate needs of ensuring, developing and improvement of the educational process (including wages) in this educational institution.

4. In its entrepreneurial activities, an educational institution is equated to an enterprise and is subject to the legislation of the Russian Federation in the field of entrepreneurial activity.

5. The founder or local self-government bodies have the right to suspend the entrepreneurial activity of an educational institution, if it is to the detriment of educational activities provided for by the charter, until a court decision on this issue.

Article 48. Individual labor pedagogical activity

1. Individual labor pedagogical activity, accompanied by the receipt of income, is considered as entrepreneurial and is subject to registration in accordance with the legislation of the Russian Federation.

2. Individual labor pedagogical activity is not licensed. When registering it, the applicant submits to the relevant local government only an application and a document confirming the payment of the registration fee.

3. Unregistered individual labor pedagogical activity is not allowed. Individuals engaged in such activities in violation of the legislation of the Russian Federation shall be liable in accordance with the legislation of the Russian Federation. All revenues received from such activities are subject to collection in the income of the relevant local budget in the prescribed manner.

Article 49. Compensation for damage caused by low-quality education

1. The state, represented by authorized state educational authorities, in the event of poor-quality training of graduates by an accredited educational institution, has the right to bring a claim to this educational institution for compensation additional costs for the retraining of these graduates in other educational institutions.

2. The basis for filing a claim is the claim of the state certification service for the quality of training of students (the second and third sentences were excluded from November 22, 1997 by the Federal Law of November 16, 1997 N 144-FZ).

Chapter V

Article 50. Rights and social protection students, pupils

1. The rights and obligations of students, pupils of an educational institution are determined by the charter of this educational institution and others provided for by this charter. local acts.

2. Adult citizens of the Russian Federation have the right to choose an educational institution and form of education.

3. Citizens who have received education in non-accredited educational institutions, in the form family education and self-education have the right to attestation in the form of an external study in accredited educational institutions of the appropriate type.

4. Students of all educational institutions have the right to receive education in accordance with state educational standards, to study within these standards according to individual curricula, to crash course education, for the free use of library and information resources of libraries, for additional (including paid) educational services, for participation in the management of an educational institution, for respect for one’s human dignity freedom of conscience, information, free expression of one's own opinions and beliefs.

The education of citizens according to individual curricula within the state educational standard and the forms of participation of students in the management of an educational institution are regulated by the charter of this educational institution.

5. Graduates of educational institutions, regardless of their organizational and legal forms, having state accreditation, have equal rights when entering an educational institution of the next level.

6. The founder, within its competence and in accordance with applicable regulations, provides students, pupils of a state or municipal educational institution with scholarships, places in dormitories and boarding schools, subsidized or free meals and transportation, other types of benefits and material assistance.

7. Citizens of the Russian Federation have the right to receive for the first time free primary general, basic general, secondary (complete) general, primary vocational education and, on a competitive basis, secondary vocational, higher professional and postgraduate professional education in state or municipal educational institutions within state educational standards .

Citizens of the Russian Federation have the right, in accordance with the established procedure, to repeatedly receive free vocational education in the direction public service employment, in case of loss of the opportunity to work by profession, specialty, in the event of an occupational disease and (or) disability, in other cases provided for by the legislation of the Russian Federation.

8. Students studying in educational institutions on part-time (evening) and in absentia who fulfill the curriculum are entitled to additional paid leave at the place of work, to a reduced working week and other benefits that are provided in the manner established by the legislation of the Russian Federation.

9. In educational institutions, the maintenance and education of orphans and children left without parental care (legal representatives) are carried out on the basis of full state support.

10. For children and adolescents with developmental disabilities, education authorities create special (correctional) educational institutions (classes, groups) that provide them with treatment, education and training, social adaptation and integration into society.

Financing of these educational institutions is carried out according to increased standards.

The categories of students, pupils sent to these educational institutions, as well as those kept on full state support, are determined by the Government of the Russian Federation.

Children and adolescents with developmental disabilities are sent to these educational institutions by educational authorities only with the consent of their parents (legal representatives) upon the conclusion of the psychological and pedagogical and medical and pedagogical commissions.

11. For adolescents with deviant (socially dangerous) behavior who have reached the age of eleven, who need special conditions for education and training and require special pedagogical approach, special educational institutions are being created to provide them with medical and social rehabilitation, education and vocational training.

The direction of such teenagers to these educational institutions is carried out only by a court decision.

12. For citizens held in educational and labor and corrective labor institutions, the administration of these institutions and government bodies management of education, conditions are created for obtaining basic general and primary vocational education, for vocational training as well as for self-education.

13. Organs state power and educational authorities can create non-standard educational institutions of the highest category for children, adolescents and young people who have shown outstanding abilities.

Excessive financing of such educational institutions is carried out at the expense of the founder.

The criteria for the selection of such children, adolescents and young people in these educational institutions are determined by the founder and brought to the attention of the public.

14. Engaging students, pupils of civil educational institutions without the consent of students, pupils and their parents (legal representatives) to work not provided for by the educational program is prohibited.

15. Coercion of students, pupils to join public, socio-political organizations (associations), movements and parties, as well as forced involvement in the activities of these organizations and participation in campaigns and political actions are not allowed.

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. It includes the sale and leasing of fixed assets and property of an institution, trade in goods and equipment, the provision of intermediary services, equity participation in the activities of other institutions and organizations, the acquisition of shares, bonds, other securities and the receipt of income from them, as well as maintaining other non-sales operations that generate income.

An educational institution may also conduct income-generating activities for the sale of products, works and services. Moreover, this activity refers to entrepreneurial activity only to the extent that the income received from it is not reinvested directly in this educational institution and (or) for the immediate needs of ensuring, developing and improving the educational process in this institution, including staff salaries.

An educational institution in its entrepreneurial activity is equated to an enterprise and is subject to the legislation in the field of entrepreneurial activity. At the same time, the question of why the income-generating activity of an educational institution is subject to a different legal assessment depending on the direction of reinvestment of the funds received is of practical interest.

Experts consider the criterion of reinvestment controversial. While agreeing that it can be used in taxation in order to establish a preferential tax regime, they admit that this is hardly justified from a civil law point of view. “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 counterparties of the institution, it does not matter for what purposes the income from sales contracts, works, services and other income-generating activities listed in paragraph 2 of Art. 47 of the Law "On Education", however, the regulation of relations on homogeneous transactions will be different. So, if a transaction is concluded for the purpose of directly reinvesting income from it in educational activities, then it does not require recognition of the status of an entrepreneur for an educational institution and does not apply to it the effect of 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 for 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 as any entrepreneur acting on the terms 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 common grounds- 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 deals with the same counterparty” 74 .

It should 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 Profit Tax of Enterprises and Organizations” provided that budgetary institutions and other non-profit organizations that have income from entrepreneurial activities pay tax on the excess of income over expenses received from such activities. Taxable income is reduced by amounts directed 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 wages) in this educational institution. During the validity period 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 relief, which 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 culture is no less important than in education. However, the legislator established such preferential treatment only for educational institutions. It is also interesting that for citizens-entrepreneurs engaged in individual pedagogical activities, such tax exemption mechanisms were not applied, although they also worked in the field of education and satisfied the needs of citizens in additional educational services.

Chapter 25 of the Tax Code of the Russian Federation does not mention the reinvestment of income in education. It can be concluded that the 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 means income from the sale of goods (works, services) both of own production and previously purchased (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). Features of determining income from sales 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 records of such income and expenses are kept, otherwise they are included in the taxable base. Targeted funding includes 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 Science Foundation (Article 251 of the Tax Code of the Russian Federation). The taxpayer reduces the income received by the amount of expenses incurred. These can be expenses associated with the production and sale (in particular, with the provision of services), expenses for the maintenance and operation, repair and maintenance of fixed assets and other property, for Scientific research, wages, etc. Thus, any organization, by 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 regulations 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 enshrines the general rules for resolving conflicts of tax rules contained in this code and other regulations. A normative legal act on taxes and fees is recognized as 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 restricts the rights of taxpayers or prohibits their actions permitted by the code; contradicts the general principles and (or) literal sense specific provisions of the code and in other cases. Recognition of a normative act as contradicting the Tax Code of the Russian Federation is carried out in a judicial proceeding, unless otherwise provided by the code itself. Since the norms of the Law on Education do not contain provisions that contradict tax code, they are subject to application, which is confirmed by the established judicial practice. Educational institutions do not pay income tax, provided that 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 the income they receive directly to the needs of education, to improve the educational process, therefore, there is almost complete reinvestment.

The activities of an educational institution in the sale of products, works and services provided for by its charter are classified as entrepreneurial only to the extent that the income received from it is not reinvested directly in 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 making a profit from the use of property, the sale of goods, the performance of work or the provision of services by persons duly registered.

An institution is a non-profit organization that does not pursue the main goal of making a profit. They can carry out entrepreneurial activity only insofar as it serves to achieve the goals for which they were created, and corresponding to these goals (Article 50 of the Civil Code of the Russian Federation). Thus, there is a duality in the legal status of an institution, which is due to 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 the provision of paid services.

In our opinion, the activity of an educational institution in the provision of paid educational services does not meet all the signs of entrepreneurship, since it is carried out by a special entity - an institution, for whose obligations the owner-founder bears subsidiary responsibility.

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, the civil law does not contain a definition of a service. E.G. Shablova proposes to define a service as “a way to satisfy an individual need of a person, which is not associated with the creation (improvement) of a thing or object of intellectual property, is achieved as a result of activities permitted by the current legal order on a reimbursable basis” 76 . As you can 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 makes it difficult to determine 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, meeting needs is much more difficult than the definition and formalization, for example, of indicators of the quality of a product (product). The variability of the quality of a service 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 the improvement of the legal basis for certification of services and the development of legal models of the conditions for quality in a 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 a person’s demand for providing educational needs” and emphasizes such differences from goods as intangibility, the inseparability of a service (its production and consumption usually occur at the same time), etc. 78 . The main thing to consider when determining the quality of an educational service is that it cannot be provided 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 (as far as the service meets the requirements of the state educational standard); psychological (whether she finds herself in conditions of psychological comfort, excluding violence against the personality of the student); hygienic (whether it turns out to be 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 which the very formulation of the question of the quality of service would be meaningless.

Educational services can be provided in various modes. They may turn out to be legal entities that are not subjects of educational relations. For example, a commercial organization retails computer equipment and offers customers who do not have user skills a training course on how to use the purchased computer. Similar services may be offered by consulting, auditing and other firms. Training in this case is not mandatory and is a kind of additional service.

Educational services in the proper sense of the word are provided only by entities endowed with special legal capacity, for example, citizens engaged in individual pedagogical activities and having the status of an entrepreneur. Recently, services such as tutoring, the activities of a home teacher or tutor have become in demand. This activity in terms of the implementation of 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. The regulation of pedagogical relations is carried out in full accordance with the Law on Education. But, unlike the educational activities of commercial and non-commercial legal entities, this activity is recognized as entrepreneurship, regardless of the direction of income reinvestment.

Paid educational services can be provided by both state and municipal and non-state educational institutions. But the volume of such services in these types of educational institutions varies. Yes, Art. 45 of the Education Act provides state and municipal institutions the right to provide paid additional educational services that are not provided for by the relevant educational programs and educational standards. This can be 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 and individuals, but the recipient of the 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 to his budget. The educational institution has the right to appeal the specified action of the founder to the court. Non-state educational institution has the right to charge fees for educational services, including tuition 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 Law on Education).

The legal regulation of paid services also differs depending on the subsystem of education they are in - general or professional. Rendering rules paid educational services in the field of preschool and general education approved by the 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 pedagogical activities. At the same time, state and municipal institutions may 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 should be fixed 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, the teaching of special courses and cycles of disciplines, tutoring, classes in in-depth study of subjects and other services. The decrease in the established occupancy of classes (groups), their division into subgroups in the implementation of basic educational programs cannot be attributed to paid educational services; implementation of basic general education, general education programs of an advanced level and orientation 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, allotted in the main educational programs.

The by-law reproduces the general rule for the provision of paid educational services in state and municipal institutions which lies in the fact that they cannot be provided in exchange for or as part of the main educational activities (within the framework of the main educational programs (curricula) and state educational standards), financed from the relevant budget.

If an additional educational service is provided for a fee, then the requirements for the content of educational programs, special courses are determined by agreement of the parties and may be higher than 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 on 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 for the right to conduct educational activities and certificates of state accreditation with their details. The consumer should be aware of the level and focus of the implemented basic and additional educational programs, the forms and terms of their development, as well as the list of educational services provided and their cost. In addition, he should be explained the procedure for admission and requirements for applicants and provided information on the form of the document issued upon completion of training. At the request of the consumer, the charter of a state or municipal educational institution, non-state educational organization, other local regulations, basic and additional educational programs, etc.

When providing paid educational services, state and municipal institutions, non-state educational organizations are required to comply with the curriculum established by them, agreed with local governments, and the schedule of classes.

Legal relations between the performer and the consumer of paid educational services arise on the basis of an agreement concluded between them. writing agreements. It should contain indications of the parties to the contract, conditions that determine 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 with the contractor, the other - with the consumer.

Approximate form of the contract approved by the federal education authority. Thus, an 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, he is referred to in the agreement as a consumer and he is assigned certain educational process. Parents (other legal representatives) of the student are called customers. The approximate form of the contract contains a list of rights and obligations of the contractor, customer and consumer. So, executor is obliged to organize and ensure the proper performance of services in conditions that meet sanitary and hygienic requirements; show respect for the personality of the consumer, protect him from all forms of physical and psychological violence. An educational institution is obliged to keep a place for a student in case of illness, treatment, quarantine, vacation

parents, holidays and in other cases of absenteeism for good reasons. The educational process should be organized taking into account the individual characteristics of the student. The contractor must notify the customer of the inappropriateness of providing the consumer with educational services in the amount stipulated by the contract, due to its individual characteristics that make it impossible or pedagogically inappropriate to provide these services.

Customer is obliged to pay a fee for the services provided in a timely manner, inform the head of the institution about the change in the contact phone number and place of residence, as well as about the good reasons for the absence of the student in the classroom, 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 the proper perception of educational services, in an amount corresponding to their 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 the classes indicated in the curriculum, perform tasks in preparation for classes, observe academic discipline and generally accepted norms behavior, in particular, show respect for teachers, administration and technical staff and other students, do not infringe on their honor and dignity, take care of the property of the institution.

The 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 by the agreement and the legislation of the Russian Federation.

Consumer, having discovered the shortcomings of the educational services provided to him, has the right, at his choice demand:

a) free provision of educational services, including the provision of educational services in full in accordance with educational programs, curricula and contract;

b) a corresponding reduction in the cost of the provided educational services;

c) reimbursement of expenses incurred by him to eliminate the shortcomings of the provided educational services on his own or by third parties.

If the shortcomings 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 did not start the provision of educational services in a timely manner or if during the provision of educational services it became obvious that it would not be carried out on time, as well as in case of delay in the provision of educational services, the consumer has the right, at his choice:

a) assign a new term to the contractor, during which the contractor must begin the provision of educational services and (or) complete the provision of educational services;

b) entrust the provision of educational services to third parties at a reasonable price and require the contractor to reimburse the costs incurred;

c) demand a reduction in the cost of educational services;

d) cancel the contract.

Almost everything stated above can be attributed to paid educational services provided in the system. vocational education. Letter of the Ministry of General and Vocational 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 educational activities provided for by the state educational standards of secondary and higher vocational education, including the elimination of academic debt, retake control works, colloquia, tests, course and state examinations, laboratory, practical work, industrial (professional) and research practices, are among the main activities of vocational education institutions.

Also, they cannot be considered as paid services conducting 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, recovery, psychological certification. Therefore, charging for all of the above services is not allowed.

The state regulates paid educational services in the system of vocational education, including through their quotas, provided for in paragraph 10 of Art. 41 of the Law on Education. State and municipal educational institutions of secondary vocational and higher vocational education have the right to carry out, in excess of the tasks (target figures) financed at the expense of the founder, for the admission of students, training and retraining of skilled workers (workers and employees) and specialists of the appropriate level of education under contracts with physical and (or ) by legal entities with payment by them of the cost of education. Admission of students to such institutions for training specialists in the field of jurisprudence, economics, management, state and municipal government at paid basis cannot be more than 50 percent of the enrollment of students in each area of ​​training (specialty). At the same time, admission to paid training foreign citizens is not limited. We emphasize that before June 28, 2002, when the Federal Law of June 25, 2002 on amendments to educational legislation came into force, this quota was 25%. So, quotas apply only to state and municipal institutions that provide training in the most prestigious areas and specialties (jurisprudence, economics, management, state and municipal administration) under contracts with citizens and non-governmental organizations.

N.N. Tarusina regards this quota as “an unconditional and flagrant restriction of the legal capacity of a state university; restriction of the constitutional right to higher education of one's choice and on a competitive basis. In addition, the law on freedom of competition is violated. She concludes that the quota of educational services in this case is "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, so over the past few years, the educational services market has been experiencing an increased, if not rush, demand for these areas of training. The volume of paid services provided by state universities in these specialties has increased dramatically, and revenues from their provision have begun to exceed, and in some cases replace, budget funding. Therefore, these restrictions are rarely implemented 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 education with funding from the budget have been reduced. One of the basic laws of the market worked - demand creates supply. Universities began to accept commercial education, often violating the licensing requirements for the maximum number of students. In many cases, this led to a deterioration in the quality of educational services, exacerbated the problem of lack of study space, library stock, places in hostels, 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 professional 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 ensure the quality of educational services, while at the same time maintaining the number of state-funded 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 contribute to the optimization of the situation (although, of course, one should not exaggerate its effectiveness). In the context of the revival of industrial enterprises in our country, specialists in technical professions are becoming more and more in demand, so the demand for humanitarian and technical specialties will level off in the coming years, and there will be no need for quotas for educational services.

Analyzing the problems that arise in the provision of paid educational services, one cannot avoid 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 its disposal, often directing them past clients, that is, not only to reimburse the costs of training a particular student (listener) (improvement of the material base, additional payments to employees who are not related with the organization educational process). This contradicts the very essence of the contract and is the basis for the relevant out-of-court or judicial civil law claims of the customer” 83 . The quality of the service may be reduced as a result.

The development of paid educational services should be facilitated not only by improving their quality, but also by providing certain tax incentives individuals and legal entities that 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 the training and retraining of personnel on a contractual basis with educational institutions are taken into account when income is reduced when taxed on profits. For this, the following conditions must be met:

1) educational services are provided by Russian educational institutions that have received state accreditation (having a license) or foreign ones that have the appropriate status;

2) training or retraining is carried out by employees on the staff;

3) the training program contributes to the improvement of qualifications and more efficient use of a specialist in this organization within the framework of the taxpayer's activities. Expenses associated with the organization of entertainment, recreation or treatment, as well as expenses associated with 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.

Individuals are provided with social tax deduction in the amount paid by them in the tax period for their education in educational institutions, as well as for the education of their children under the age of 24 in full-time education in educational institutions. Such a deduction is made in the amount of actually incurred expenses for this education, 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 submission by the taxpayer of documents confirming his actual expenses for education. Social tax deduction is provided for the period of study of these persons in an educational institution, including academic leave, drawn up in the prescribed manner in the learning process. The basis for its submission is a written application of the taxpayer, submitted to the authority of the Ministry of Taxes and Dues 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 taxpaying parent and tuition fees (in the form approved by the order of the Ministry of Taxes and Duties, agreed with the Ministry of Education of September 27, 2001), as well as copies of the agreement with the educational institution, payment documents , confirming the deposit or transfer of funds under this agreement and the child 's birth certificate 84 .

Questions to control

How are educational institutions funded?

What is the significance for the financing of an educational institution of the fact that it state accreditation?

Is it possible to privatize educational institutions? Give comments on the 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 peculiarities of taxation of educational institutions known to you.

How do you feel about the problem of quotas for educational services?

Theme 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.

Documents about education.

/Article New law"On Education": what's new for private educational organizations from September 01, 2013?

The new law "On Education": what's new for private educational organizations from September 01, 2013?

On September 01, 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 No. 3266-1 of July 10, 1992 “On Education” and the Federal Law of August 22, 1996 No. 125-FZ “On Higher and Postgraduate Vocational Education” become invalid. Now the activities of all educational organizations, including higher and postgraduate professional education, are regulated by one law. Kololeeva Svetlana Viktorovna, Head of Corporate Practice, tells about the main provisions of the new law regarding private educational organizations (institutions) law firm"Justa Aura".

1. The main change is the expansion of the circle of persons entitled to engage in educational activities

Let us remind you that according to the previous Law of the Russian Federation “On Education”, educational activity was not entrepreneurial, and only non-profit organizations (non-state educational private institutions, autonomous non-profit organizations, etc.) could carry it 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) grants 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 is excluded).

In Art. 2 of the law contains the main concepts used in it. Now organizations that carry out educational activities are divided into two groups: educational organizations and organizations that provide 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, 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 carrying out, on the basis of a license, along with the main activity, educational activities as an additional type of activity."

Part 1 of Art. 31 of the law, educational organizations are classified as organizations engaged in educational activities scientific organizations, 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" includes commercial organizations. However, the right of commercial organizations to conduct educational activities is limited by a closed list of ongoing educational programs - in accordance with Part 5 of Art. 31 of the law, they have the right to carry out educational activities according to programs vocational training, educational programs preschool education and additional educational programs.

So, commercial organizations have the right to implement the following educational programs: vocational training, preschool education, childcare (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, in the form of a commercial organization, a general educational organization cannot be created (primary general, basic general and secondary general education(clause 2, part 2, article 23 of the law); a professional educational organization (secondary vocational education (clause 3, part 2, article 23 of the law) and an educational organization of higher education (clause 4, part 2, article 23 of the law).

However, one should once again pay attention to the definition contained in paragraph 18 of Art. 2 of the law, - the 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, 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 a license is not required. 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 of the law, individual entrepreneurs, by their legal status, are equated to organizations engaged in educational activities, unless otherwise provided by law.

2. Changed types of educational organizations

The law provides for six types of educational organizations: preschool, general education, professional, higher education, additional education, additional professional education. A professional educational organization implements the program of secondary vocational education as the main goal of its activities, however, as additional goals, the right to teach in 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, also all the programs of a professional educational organization listed above.

The indication by the legislator of specific additional types of educational activities that an educational organization is entitled to carry out is aimed at eliminating uncertainty in law enforcement, and therefore is positive side law.

3. Simplified requirements for the charter of an educational organization

In the previous Law of the Russian Federation "On Education" Art. 13 provided for a large list of information that was mandatory included in the charter. Now Art. 25 of the law establishes that, along with the provisions of the charter provided for by 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 12.01.1996 No. : type of educational organization; information about the founder, founders; types of educational programs indicating the level of education and (or) focus; the structure and competence of the governing 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: general meeting(conference) of employees (in a professional educational organization and an organization of higher education - a general meeting (conference) of employees 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 fixed 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 its non-compliance entails administrative responsibility.

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 (which means that the obligation of the educational organization to have a website is also introduced), in particular:

on the date of creation of the educational organization, on the founder, founders;

on the structure and management bodies of the educational organization;

on the number of students in ongoing educational programs at the expense of budget allocations and under education 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 personal composition 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 exercises, libraries, sports facilities, means of education and upbringing, on the conditions of nutrition and health protection of students, on access to information systems and information and telecommunication networks, about electronic educational resources to which students have access);

about the quantity vacancies for admission (transfer) for each educational program;

on the receipt of financial and material resources and on their expenditure at the end of the financial year.

Also on the website of the educational organization should be posted: charter, license, certificate of state accreditation; a plan of financial and economic activities, 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 the approval of the cost of education for each educational program, instructions from the bodies implementing 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 introduction of appropriate changes to them.

On the one hand, the introduction of the principle of openness is positive moment aimed at ensuring the observance of the rights of consumers (entrants and students). On the other hand, for the educational organizations themselves, this is rather a negative point, because they have 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 it) and 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 the 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: 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, a violation of the principle of openness will be qualified under Part 2 of Art. 5.57 of the Code of Administrative Offenses of the Russian Federation.

6. All previously created educational organizations are obliged to
bring their names and charters in line with the new law by 01.01.2016.

The names should include an indication of the type of educational organization. For example, if earlier there was a NIGHT OF VET, then under the new law it is a NIGHT OF VET (or NCHU of VET); NIGHT DPO - NCHU ODPO.

7. The obligation to reissue licenses has been established.

In order to bring educational activities in line with the new law, previously issued licenses for educational activities and certificates of state accreditation are reissued before 01/01/2016.

8. A special rule on the reorganization of educational organizations has been excluded.

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 of article 34). Whereas part 2 of Art. 17 of the Federal Law of January 12, 1996 No. 7-FZ “On Non-Commercial Organizations”, it is allowed to transform a private institution into a business entity. That is, the law provided for a special procedure for the reorganization of private educational institutions.

In the new law, the norm on reorganization - Part 10 of Art. 22 - sounds like this: "An educational organization is reorganized or liquidated in the manner prescribed by civil law, taking into account the specifics 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 entity). 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 is not entitled to implement these educational programs. However, for example, a private institution of additional or additional professional education can be transformed 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 professional education.

9. The rule on the fate of the property of an educational organization has been retainedin the event of its liquidation.

The legal norm, according to which, upon liquidation of an educational organization, its property, after satisfying the requirements 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. An independent assessment of the quality of education is being introduced(Article 95 of the law) and public accreditation organizations engaged in educational activities (Article 96 of the law). However, they are voluntary and do not entail any legal consequences; are carried out by specialized organizations on the initiative of an educational organization.

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