Many of us wanted to do business, but in the 90s this concept was closely connected with banditry and crime. From here came fear and a sense of insecurity with this type of employment. But in our time, crime has stepped aside, and now competent legal regulation and protection of business is everywhere carried out. Therefore, this type of activity at the present stage in terms of legislative regulation is quite safe.
Definition
The essence of legal protection of business is to ensure the legitimate rights of the enterprise, as well as to guarantee the observance of the rights and obligations of employees, managers and competitors. All these activities should be carried out at the minimum cost to the company for the implementation of these processes, as well as for services that deal with legal protection.
The implementation of the protection process
The legal security service should constantly monitor the functioning of the enterprise, as well as check the current activities of a legal and financial nature. To prevent unnecessary financial expenditures, it is necessary to monitor compliance with regulatory and legislative acts of the state under whose jurisdiction the business is conducted.
Direction of protection
The protection of the rights of small businesses should go both to internal factors and to external ones.
- Internal factors can be considered flaws in the legal sphere of the enterprise, which may entail financial losses of various kinds. Such circumstances include the poor qualification of the legal department, lack of knowledge of all aspects of the enterprise and the laws of the market. Also, this may include financial errors of the department (poorly prepared development plan), incorrectly prepared accounting statements or errors in tax and social payments.
- External This group of factors includes relations with various business partners, suppliers, competitors and the state. There is a risk of violation of the law in relations with the state, errors and inaccuracies in supply contracts or business relations, as well as incorrect relations with competitors. Since many enterprises are ready for anything, there is a great opportunity to undergo black PR from competitors. It is also important to monitor compliance with antitrust laws.
Legal regulation of business by the state
The constitution of the Russian Federation states that any person may engage in entrepreneurial activity within the framework of current legislation. The business protection department also provides:
- Ensuring equal rights during registration of a legal entity and the impossibility of refusal due to inexpediency.
- Equality of any legal entities in rights, regardless of size, scope and form of organization.
- The same rights to enter the market, as well as labor, financial and material resources.
- Ensuring open, fair competition and preventing monopolies.
- Compliance with international rules and laws of business.
Contractual protection
In the conditions of entrepreneurial activity, there is always a need for the company to interact with other market participants. Most often this is done in the form of contracts with other legal entities and individuals or the state. The documentation always spells out the responsibilities and rights of all participants.There is also a certain danger that arises in violation of the terms of the contract. Legal assistance may be required to provide economic protection for businesses from this danger. Contracts may be concluded for obligations related to property (lease, sale, leasing), as well as for obligations related to the provision of services and any creative activity.
Contract preparation
All preparatory activities can be divided into three stages:
- Training. At this stage, it is important to determine all the main points of your future contract, its importance, advantages and disadvantages. The civil code of the Russian Federation contains a clause stating that no one can force an entrepreneur to conclude an agreement; this is a free decision. The main activity at this stage is also collecting information about the future partner. After that, an analysis of the reliability of the future contractor and the potential risks for the possible protection of the interests of the business is carried out. At this stage, it is also necessary to foresee a possible breakdown of the agreement and its potential consequences.
- The process of forming the contract. At this stage, the formation of the document itself is carried out. It must be spelled out: the subject of your transaction, its price, terms of payment and delivery. Mandatory presence of legal addresses of the company, their details and signatures of the parties. The preparation of the contract is best entrusted to specialists.
- Signing a contract. Depending on the nature of the transaction, the agreement can be concluded both orally and in writing. Some transactions require notarization. The entrepreneur is obliged to fulfill all the conditions of the contract that are spelled out in it. In case of failure to fulfill the conditions, businessmen violate the law on the protection of small businesses and fall under civil procedural measures. This does not apply to factors that are independent of the entrepreneur; natural disasters can be attributed here.
Consequences of breach of obligations
In case of non-fulfillment of their obligations, the parties may decide everything by mutual agreement or apply to the court. The first case can be attributed to defective products, which the buyer simply returns to the supplier, and he delivers better ones to him. The second case can be attributed to the situation in which the supplier does not agree with the fault on the product, and the buyer is forced to go to court. In the case of a trial, most often, the court decides to pay a penalty for past due obligations. This is provided either by law or by contract.
Legal protection in a competitive environment
The biggest disaster for any entrepreneur is the "unfair game" of firms that engage in similar activities. The legislation of many countries, including the Russian Federation, does not allow the monopolization of the market and the creation of unfair competition. The law provides for about 5 types of violations of this type, but in reality there are much more. If the entrepreneur finds a case of infringement of rights, he has the right to contact the Antimonopoly Service with evidence of violation of the law. If his complaints are confirmed, then the entrepreneur can go to court to recover losses incurred as a result of competition. It is important to protect against competitors not only material assets, but also intellectual and labor property. These include patents, inventions, new technologies, trademarks and new product designs, as well as valuable workforce.
Businessman civil rights
Civil rights of entrepreneurs in the Russian Federation are provided for by Article 12 of the Civil Code of the Russian Federation, which includes:
- Recognition of the law.
- In case of loss of rights or their violation, restoration of the rights of the entrepreneur.
- Challenging transactions, contracts, as well as local government decisions.
- Compensation for losses, compensation, forfeit and moral harm.
- Termination of various legal relations in case of violation of the law or the rights of one of the parties.
Forms of protection of rights
- Jurisdictional. In case of legal protection of a business, an entrepreneur appeals to the legislative or judicial authorities, which take measures to restore the rights of a legal entity and compensate for possible losses. An entrepreneur may file a lawsuit, complaint or statement.
- Extrajudicial. In this case, the entrepreneur solves the issue of protecting his interests independently, without appeal to state bodies. The parties to the contract personally decide the issue of damages and payment of the penalty.
Penalty is a very popular option for damages. Its size is determined by the degree of losses incurred by the injured party, and it can also be prescribed in the contract in advance and not depend on the losses incurred. This is most often done in cases where the terms of the contract are violated. Alternatively, the injured party may require that more work be performed than is provided for in the contract.
It is much more difficult to protect small businesses in the field of intellectual property. Controversial situations occur when several firms claim the same invention, trademark or patent. In this case, the court must figure out who was the first to register this property as his own. Such disputes are most often resolved in a jurisdictional form. If, due to illegal actions, the reputation of the company has suffered, the violator can pay the moral damage caused to the legal entity.
One option for protection is the restoration of property rights. In this case, all property and property is returned from illegal possession to the original owner.
The protection of the rights of an entrepreneur is not only in cases of interaction with another legal entity. A popular remedy is the suppression of violations of rights by local governments. Often the legal service resorts to the possibility of canceling an act of a state body in case it violates the rights of a legal entity. If the local government issues an act that interferes with the free access of the entrepreneur to various types of resources, the entrepreneur may apply to the antimonopoly service, and through the court I can declare this document invalid.
To protect his interests, an entrepreneur may appeal to a court of general jurisdiction or to arbitration. It depends on the nature of the claim.
Types of ships
The arbitral tribunal is engaged in cases related to the termination, amendment or termination of the contract, with the true recognition of ownership of all forms, as well as questions about the compensation of various kinds of losses. Cases may be considered in the arbitration court of cities, territories, republics and other regions.
The court of general jurisdiction considers cases related to violation of laws and the rights of an entrepreneur by third parties.
A case in court can be submitted both by the legal entity itself and by a representative. Most often, it is considered within two months, but in case of difficult situations, the period can be increased. If a representative acts on behalf of a legal entity, then he needs a power of attorney, and if a lawyer or law office, then a legal consultation warrant is needed.
After consideration of the case, the court makes a decision, which is implemented within 1 month after its adoption, in exceptional cases, this period may be extended. This happens in cases where the guilty party does not have time to implement the penalty within the time period established by the court.