An agreement for the provision of paid services under the close attention of tax authorities. Provision of services without registration of individual entrepreneurs - types of activity Type of activity provision of services

Topic No. 15: Legal regulation of activities related to the provision of services for a fee

Among the objects of civil rights, services are especially highlighted as an independent object of civil rights. Along with services, the legislator also distinguishes the category of “work”.

There is a discussion about this in the legal literature (the difference between works and services as objects of civil rights). Unity in this dispute has not yet been achieved; Gorod adheres to the following point of view: the difference lies in the legally significant elements that make up the content of the objects of civil rights. Such elements are actions and the result of these actions; For services, the action is legally significant, and the result is legally indifferent, and vice versa for works. In international practice, everything is absorbed into the category of services.

The activity of providing services for a fee is regulated by numerous regulations. The Constitution of the Russian Federation, the Civil Code of the Russian Federation and other laws and by-laws must be put at the forefront.

Ch. 39 of the Civil Code of the Russian Federation is devoted to the provision of paid services (see summary on civil law). Communication services, educational services, audit services, tourism services, medical services, etc. are not regulated by the Civil Code of the Russian Federation. To regulate such special types of services, it is necessary to refer to special regulations.

Under an agreement on the provision of paid services, the contractor undertakes, on the instructions of the customer, to provide certain services by performing certain actions or certain activities, and the contractor undertakes to pay for these services.

If an agreement mediates relations between entrepreneurs or with their participation, then, according to the cathedral concept, such an agreement should be classified as an entrepreneurial agreement. When services are provided by an entrepreneur, the contract acquires the characteristics of a public contract. The subject of the contract is the actions or activities of the contractor, developing in relation to a specific type of service.

Both the customer and the contractor have the right to refuse to fulfill the contract, but the customer has the right to do this subject to payment to the contractor for the expenses actually incurred by him, and the contractor - subject to full compensation for the losses caused to the customer.

An agreement for the provision of legal services for a fee is distinguished by its subject matter. These services can be provided either by a law firm or by an individual practicing lawyer. The subject of the contract is a set of actions that the service provider must perform on the instructions of the customer (service recipient). The nature of the actions can be very different: consultation, drawing up a document, giving an expert opinion, conducting a case in court. Different forms of payment are used: stage-by-stage, one-time, time-based. Success fees are not allowed.

The service is the result of direct interaction between two subjects: the customer (consumer) and the performer. It is also recognized as the result of the latter’s own activities, aimed at satisfying certain needs. In Russia, there are several options for classifying useful activities. Let us consider further what types of services exist today.

General classification

Human activity is embodied in specific goods or exists as a beneficial effect of his work. According to these criteria, tangible and intangible types of services are distinguished. For example, a tailor sews clothes. The transformation of material into a particular object acts as a service to this person. His activity, therefore, is material, since it is embodied in a specific product - clothing.

One of the most important features of services that exist today is considered to be a beneficial effect for the consumer. At the same time, both living labor and work embodied in a specific product have such an effect. This, in fact, determines the fundamental purpose of the entire service sector. It, in particular, consists of creating comfortable conditions for people during recreation, in transport, in a public or other place. The beneficial effect of an activity is a set of service properties that are aimed directly at satisfying certain human needs.

Economic types

In modern conditions, there are non-market and market types of services. The latter are available for a fee. Prices for such activities are set so that the performer can not only cover the costs incurred, but also receive income. Market types of services are thus equated to products and act as the object of a transaction. Non-market activities are carried out free of charge. Typically, they are socially oriented. Their financing is carried out from the budget or funds from public organizations (trade unions, parties and others). The consumers of such services are either households or society as a whole.

Important point

It should be noted that almost all existing types of services can be provided either for a fee (in whole or in part) or free of charge. Exceptions include the activities of government bodies (including law enforcement and defense institutions), charitable organizations and churches. The services of these entities are always provided free of charge. Today, in accordance with the recommendation of the UN Statistical Commission, any activity that is offered at an economically significant cost is recognized as paid.

Market types

In the modern economic system, much attention is paid to statistical analysis and forecasting. For the most successful implementation of this activity, it is necessary to carry out correct market segmentation. When solving this problem, it is advisable to use the following classification of paid useful activities of people:

Purchasing power

The most important factor that needs to be taken into account in the process of studying paid useful activities in Russia is the distribution of the population by average per capita income. The volume and structure of expenses for paid services directly depends on its size (other things being equal). According to statistics, low-income citizens refuse groups 5, 6 and 7. Moreover, due to the lack of necessary funds, they cannot allow full use of the proposals of categories 1-4. Thus, unable to pay for utilities, for example, the population accumulates debts.

Features of market segmentation

In theory, every citizen of the country has the opportunity to purchase any service from the first to the seventh group. In this regard, the entire population of the country can be considered as a set of clients that are subject to segmentation. But this procedure cannot be carried out across the entire market as a whole. It should be carried out for each group separately. In this case, the size of the segments will differ in one case or another. For example, the housing market lacks owner-occupied properties. Therefore, segmentation is carried out among users of rented space, for which citizens pay rent, and rented premises. The market for paid housing maintenance must be distinguished from the private real estate sector, where purchase and sale takes place. The latter operates according to different laws of trade turnover.

Paid transport services do not apply to some categories of citizens. These include, in particular, those who have the right to free travel (disabled people, pensioners, police officers and others). The international tourism sector primarily attracts high-income populations. Its part constitutes less than 10% of the total number of citizens of the country.

Significance and mass appeal

The most important today are:

1. Domestic services.
2. Passenger Transportation.
3. Connection.
4. Maintenance of children in preschool and school institutions.
5. Medical services.
6. Health improvement and sanatorium-resort treatment.
7. Sports and physical culture.
8. Legal services.
9. Financial services.
10. Tourist and excursion sphere.
11. Scientific field.

In the above list, services are arranged in descending order of priority for the population. This indicates that the first two groups have less elasticity from the size of the purchasing power of citizens.

Household sphere

In each group, consumers are offered a certain assortment. Household services include:

• Individual tailoring and repair of clothes and shoes.
• Funeral services.
• Repair of household appliances, radio-electronic equipment.
• Knitting and sewing of knitwear.
• Manufacturing and repair of jewelry and others.

Description

For each group, a certain characteristic is provided by which the consumer evaluates its importance:

1. The housing and communal services sector involves the provision of services for the repair of equipment and residential premises, the allocation of hired and rented space. This category also includes the cost of gas, electricity, heating, sewerage, water and other things.
2. Housing services. They include the direct receipt of rented space, for which citizens pay rent.
3. Communal sphere. It involves the supply of gas, electricity, heat, telephone, water, sanitary cleaning and so on.
4. The household sector includes a fairly wide range of activities - from repairing and sewing shoes and clothing items to photo studios and rental shops.
5. Passenger transportation involves the use of urban, intercity, and international transport to move people and luggage. They also include related activities of certain institutions: ticket sales at ticket offices, rest rooms at train stations, etc.
6. The provision of cultural services is carried out by theaters, cinemas, libraries, philharmonic societies, clubs and so on.
7. Preschool institutions include nurseries, children's homes, and kindergartens.
8. Paid educational and medical services involve the activities of private clinics and educational institutions, tutoring, etc.
9. The tourism and excursion sector offers reception and support for foreign and Russian tourists, including preparation of the necessary documentation, accommodation, meals, business and entertainment programs.
10. Financial organizations carry out both free and paid useful activities. The first includes opening and maintaining an account, deposits, the second includes currency exchange, storage of valuables, rental of safes, etc.
11. Legal services are provided by security companies, notaries, lawyers and others.

Market stability

The scope of some services, for example, household services, depends on the level of priority of certain types of services. Market stability is noted among technically complex activities that are almost impossible to carry out at home (repairing a bus, bulky equipment, etc.). The market for services that can be provided at home is subject to great fluctuations. These include, for example, shoe and clothing repair, hairdressers, and laundries.

Intangible activities

It acts as a special object of statistical research. When making calculations, the following services are included in the category of paid intangible activities:

• Household character.
• Transport and communications.
• Preschool institutions.
• Sports and physical education associations.
• Legal companies.
• Insurance, financial firms, etc.

Currently, the Russian Federation has a Service Classifier approved on January 1, 1994.

Government services

They are included in a separate category. This activity is carried out at the request of applicants within the framework of the powers established by regulations of the Russian Federation and constituent entities for the relevant structures. Government services are provided by:

1. Russian Government.
2. Extra-budgetary fund.
3. Executive structures of the regions of the Russian Federation.

This activity is carried out in accordance with the functions that are defined for these entities in the Constitution of the country, federal and regional laws.

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Shchukovskaya Olga Mikhailovna. Legal regulation of activities in the provision of legal services: Dis. ...cand. legal Sciences: 12.00.03: St. Petersburg, 2001 213 p. RSL OD, 61:01-12/748-0

Introduction

Chapter I. The concept of service and the obligation to provide services 11-55

1.1. Service as an economic and legal category 11-29

1.2. Obligations to provide services (distinction from obligations to perform work, legal and actual services, place of obligations to provide services in the system of civil obligations) 29-55

Chapter II. Legislation regulating the provision of legal services 56

2.1. Legislation on persons engaged in the provision of legal services 57-81

2.2. Legislation on legal advisers 81-90

Chapter III. Legal forms of activity for the provision of legal services 91-161

3.1. Organizational, legal and other forms of activity for the provision of legal services 91

3.2. Contractual forms of activity for the provision of legal services and their classification 114

3.3. Features of contracts for the provision of legal services 124-161

Chapter IV. Responsibility and protection of parties in obligations to provide legal services 162

4.1. Features of the responsibility of a lawyer-service provider 162-175

4.2. Material and procedural legal methods of protecting the rights and interests of the client-service recipient 175-188

Conclusion 189-190

Introduction to the work

Relevance of the research topic. In a broad sense, the activity of providing legal services is a certain area of ​​economic and social activity of subjects; it is an activity of a legal nature that serves to protect the rights and interests of citizens and organizations, implemented through various legal relations - civil, labor, administrative. Of scientific interest, in this case, are the problems of legal regulation of activities in the provision of legal services from the standpoint of clarifying its content, streamlining the procedure for its implementation and improving the contractual relations emerging in this regard.

Assessing the current state of legislation and conceptual developments in this area, it is necessary to recognize, first of all, the value of scientific ideas about the nature of services and the features of obligatory legal relations, the subject of which is the provision of services, which have been developed and reflected in the Civil Code of the Russian Federation. At the same time, the insufficiency of both the theoretical and practical basis in this matter reveals itself: despite the regulatory prerequisites, relations for the provision of services continue to be unreasonably mixed with others, in particular, contractual ones; the place of obligations to provide services in the system of civil obligations remains debatable; in contractual regulation, the peculiarities of relations that arise regarding the provision of legal services are not properly assessed; The regime for the provision of legal services turned out to be outside of legislative regulation.

This state of affairs does not correspond to the role that the activities of entities engaged in providing legal services to participants in civil transactions are intended to play in society, which does not contribute to the fullest possible realization of their subjective rights. There are no independent scientific works on the designated range of issues; the problem has not been studied previously at the system level. Meanwhile, the relevance of the topic is obvious.

Firstly, legal services, like law in general, are capable of exerting a controlling influence on the state of social relations of subjects, and the relations that develop regarding the provision of legal services cover both the private and public legal spheres. Secondly, the activity of providing legal services is heterogeneous both in terms of the content of legal relations that mediate it, and in terms of the status of professional participants in such relations. Thirdly, the development of legal obligations structures leads to an enriched understanding of the category of service and emerging contractual relationships regarding the provision of legal services. Fourthly, the activity of providing legal services requires legal regulation based on the use of normative and non-normative means of regulating the relations that arise in this case.

Object and subject of research. The factors listed above individualize both in a scientific and practical sense the activity of providing legal services and distinguish it from other objects of legal regulation. This gives grounds to take the activity of providing legal services as an object, and the legal regulation of relations that develop during the implementation of such activities as the subject of research.

The purpose of this research is to identify the problems and features of the legal regulation of activities in the provision of legal services, as well as the specifics of the activities of legal advisers; in assessing the content of current legislation for its adequacy for an effective regulatory impact on these relations, in developing ways and means of improving it; in a comparative analysis of the legal regulation of activities for the provision of legal services in Russia and the USA on issues of the procedure for carrying out this type of activity, legal forms of its organization, contractual regulation of legal relations, liability and protection of the rights of participants.

To achieve this goal, the main tasks are: analysis of the service phenomenon and obligations to provide services; development of a legislative approach to regulating the provision of legal services; study of organizational and contractual forms of such activities; identifying the characteristics of responsibility and ways to protect the rights of participants in relations arising in connection with the provision of legal services.

Methodological and theoretical foundations of the study. To reveal the research topic, general scientific methods (epistemological, historical, dialectical, system-structural, formal-logical and comparative analysis methods) and specific scientific methods (comparative legal, technical and legal) were used. The theoretical basis of the work was made up of the works of modern and pre-revolutionary scientists in the field of general theory of law, the theory of obligatory legal relations, works devoted to contracts for the provision of services; In addition, foreign legal and economic literature was used. The work is based on the works of such legal scholars as M.I. Braginsky, A.P. Vershinin, V.V. Vitryansky, G. Dernburg, B.D. Zavidov, N.P. Indyukov, O.S. Ioffe , A.Yu.Kabalkin, Yu.H.Kalmykov, A.V.Kligman, M.V.Krotov, K.K.Lebedev, M.V.Mints, V.F.Popondopulo, B.I.Putinsky, V V. Rovny, D. N. Safiullin, E. A. Sukhanov, I. V. Zhereshevsky, G. F. Shershenevich, E. D. Sheshenin and others. The work was carried out on the basis of Russian and foreign legislation, materials were used in it judicial practice, as well as legal practice of entities engaged in the provision of legal services.

The scientific novelty of the work lies in the fact that the dissertation is the first to conduct a comprehensive study of the legal regulation of activities in the provision of legal services; it substantively substantiates and formulates a number of theoretical provisions, conclusions and legislative proposals for improving the legal regulation of activities in the provision of legal services.

The following conclusions are made for the defense:

1. In the economic sense, a service is a product that can be sold through exchange for value, but at the same time, it has special properties, and therefore services are considered as independent objects of trade. In the legal sense, a service acts as an independent object of civil obligation legal relations, different from the relations that arise regarding the transfer of property and the performance of work. As a result of the study of the characteristics of a service, the concept of a service as an object of civil rights is given: a service is a type of good that serves as a means of satisfying needs through the implementation of activities (by performing actions) by one subject, the beneficial properties of which constitute the subjective interest of another subject and on which the latter has a right of claim arises.

2. An analysis of the development of obligations involving the provision of services allows us to conclude that it is necessary to distinguish the contract for the provision of services into an independent type. The provisions of this agreement should play the role of general rules in relation to the types of contracts for the provision of services (orders, commissions, transportation, storage, insurance, etc.), which would form a system of general and special rules on obligations of this type and, at the same time, would determine the place of obligations to provide services in the system of civil obligations.

3. The specific features of the activity of providing legal services provide grounds for applying the licensing regime to it. This regime should be based on a special procedure for acquiring the right to engage in private legal practice: accreditation of lawyers as subjects of the constitutional institution of legal assistance, and licensing of other persons engaged in the provision of legal services.

4. The goals of the activity for the provision of legal services determine its legal regime: entrepreneurial or non-profit, which corresponds to the corresponding organizational, legal and other forms, among which the organizational and legal form of bar associations is particularly highlighted as not coinciding with any of the forms provided for by law. It is proposed, firstly, to recognize at the legal level bar associations as an independent organizational and legal form of non-profit organizations; secondly, to establish a regime of special legal capacity for all legal entities engaged in the provision of legal services and created in any organizational and legal forms of commercial and non-profit organizations; thirdly, extend accreditation and licensing requirements to the founders of these entities.

5. Agreements for the provision of legal services serve as a legal form for organizing connections between participants in relations arising in connection with the provision of legal services. Based on such grounds as the nature of the relationships being served, the legal regime of the entities involved in the provision of legal services and the content of legal services, a classification of the characterized relationships is given. Among the legal obligations structures that can mediate relations regarding the provision of legal services, there are agreements for the provision of paid services (as the most acceptable and flexible form), assignments (for cases of representation), agency (by type of assignment) and trust management of property (in connection with legal protection of the management object). The conclusion is substantiated that all types of contracts for the provision of legal services are united by the fiduciary, personal trust nature of the emerging legally binding ties, which is manifested in the peculiarities of the emergence, change and termination of legal relations, in the rights and obligations, responsibility of the parties, in the personal way of fulfilling obligations to provide legal services.

6. A study of the grounds for the refusal of a lawyer-service provider to conclude and execute an agreement leads to the conclusion that there is a special legal basis for refusal of a conflict of interest; its essence is revealed, the need for legislative regulation of this issue is substantiated, rules on conflict of interests are formulated: the concept, the procedure for overcoming it, the grounds for refusal to conclude and execute an agreement are listed.

7. Identification of the features of the rights and obligations, responsibilities of the parties allows us to conclude that the lawyer-service provider is a strong party under the contract, capable of having a greater influence on its execution, the party who bears a greater burden of responsibilities, including responsibilities, associated with the primary opportunity to determine the nature and number of actions necessary to fulfill the contract.

8. Harm caused to the client-service recipient as a result of the provision of legal services is recognized as the basis for the liability of the lawyer-service provider. It is proposed to interpret harm as caused to life, health, property and resulting in the deprivation or significant violation of property and personal non-property rights of individuals or legal entities, and/or the unlawful assignment of responsibilities to them; The conclusion is that it is advisable to extend the rules on liability for causing harm to services (as well as goods and works) used for business purposes.

9. In order to fully restore the violated right of the client-service recipient, for the purpose of calculating the amount of damages, it is necessary to proceed not only from the price specified in the contract, the place and moment of fulfillment of the obligation to compensate for losses (bringing a claim, making a decision), but, at the same time, must also be applied rules on the price usually charged for similar services under comparable circumstances, which will allow the client-service recipient to turn to others for qualified legal services.

10. In order to truly restore the financial situation of the client-service recipient, violated as a result of the provision of legal services, it is necessary to introduce compulsory insurance of the risks of professional property liability of lawyers and other persons engaged in the provision of legal services, as an integral part of the regime of this type of activity.

11. Based on the above study of the forms and content of activities for the provision of legal services, it is concluded that such activities should become an independent object of legal regulation at the level of a special law.

The theoretical and practical significance of the study lies in the fact that the work sums up certain theoretical and practical knowledge in the field of providing legal services. The work is intended for the attention of legal scholars, including those involved in practical jurisprudence, in terms of their understanding of the conclusions of the work, critical assessment of its results and their application in the practice of concluding and executing contracts for the provision of legal services and dispute resolution, as well as, in the sense of further development of relations arising in the process of carrying out activities to provide legal services in general. The provisions, conclusions and proposals submitted for defense can be used to improve existing legislation in the preparation of new normative and methodological documents. The content of this dissertation research can form the basis for drawing up educational programs and special courses, practical classes in relevant civil and commercial legal disciplines, and also be the subject of independent attention of specialists.

Approbation of work. The study was carried out at the Department of Commercial Law of St. Petersburg State University, where it was reviewed and discussed. A number of provisions of the work are reflected in the author’s publications in special all-Russian and regional legal publications.

Work structure. The work consists of an introduction, four chapters and nine paragraphs, a conclusion and a bibliography.

Service as an economic and legal category

At the ordinary level, it is customary to identify services with the provision of some benefit. In an economic sense, the concept of service covers all relationships arising from the consumption of the results of unproductive labor and, from this point of view, the essence of a service is manifested in “a special form of equivalent exchange of the results of labor, qualified as a “service”, different from the form of exchange of goods and things” . In the special, legal sense, “service” is a narrower concept. Thus, from a public legal point of view, a service is a type of economic service aimed at creating benefits, satisfying the needs of other persons, with the exception of activities carried out on the basis of labor relations, and the results of which do not have material expression, are sold and consumed in the process of carrying out this activity. In the private legal sense, a service appears as an object of civil law and, thanks to this, relations for the provision of services become the subject of regulation by the law of obligations and this issue is reflected in the works of such authors as E.D. Shesheniy, O.S. Ioffe , M.V. Krotov, A.Yu. Kabalkin, N.P. Indyukov and others. Moreover, it was E.D. Sheshenin who first studied the service as an independent civil law phenomenon at the level of the subject of the obligation to provide services. A monographic study of obligations to provide services was undertaken by M.V. Krotov, having examined a wide range of problems: from the concept of service and analysis of the obligatory legal relationship for the provision of services, to their classification. In this work, the service will be considered as an object of civil rights and as a type of civil obligation.

The current Civil Code of the Russian Federation classifies services as objects of civil rights (Article 128 of the Civil Code of the Russian Federation), but, unlike other objects in this list (for example, securities - Article 142 of the Civil Code of the Russian Federation), it does not contain their legal definition. However, by giving services such a status, the legislator is already demonstrating his principled position in relation to services. In addition, in Article 2 of the Civil Code of the Russian Federation, giving the concept of entrepreneurial activity, it includes the thesis about the provision of services by the persons carrying out it.

The complexity of the concept of service reveals itself. Article 779 of the Civil Code of the Russian Federation describes a service, or rather, the subject of a contractual obligation to provide services for a fee, using the categories action and activity (to provide a service means “to perform actions”, to carry out an activity.) The essence of a service can be clarified through its characterization as a kind of intangible economic good, which came out of the expanded concept of a thing, formed in Roman law, and which began to embrace not only bodily and objects, but also the actions of other persons: with the development and complexity of economic turnover, the relative weight and significance of such unknown goods grows so much that legal-technical abstractions even begin crowd out bodily things (such an expansive understanding of things is also typical for foreign legal science).

Legislation on persons engaged in the provision of legal services

The range of entities engaged in the provision of legal services is limited to persons who are not burdened with official, administrative or other responsibilities, official and other subordination, namely: a) lawyers and b) other persons - privately practicing lawyers and law firms.

Being the main regulatory document regulating the activities of lawyers, the Regulations on the Bar of 1980 establishes, firstly, the status of institutions of the Bar - bar associations and their bodies, the rights and obligations of their members (lawyers), material, organizational and procedural guarantees of their activities; secondly, it determines the organizational forms of activity of lawyers - legal consultations; thirdly, it contains an open list of types of legal assistance to citizens and organizations provided by lawyers (including: giving consultations, explanations and certificates on legal issues, drawing up documents of a legal nature, representing the interests of civil plaintiffs, defendants, victims in judicial arbitration and other bodies, defense in criminal cases, providing defense in criminal proceedings as intended at the expense of the state (Article 49 of the Code of Criminal Procedure), providing free legal assistance in certain categories of cases and providing legal assistance at minimum rates to low-income citizens).

The legislative regulation of the activities of the legal profession in its current state is based on the following concepts. First, the task of the Bar is to provide legal assistance to citizens and organizations; this constitutes its subject of activity and, at the same time, its public duty (Article 1 of the Regulations on the Bar), which, unlike the court and the notary, is not related to the performance of administrative functions. Secondly, the composition of the Bar is formed from persons who voluntarily joined and were accepted as members of Bar institutions (bar associations) - lawyers, whose professional activity as specialists in the field of law is to provide legal assistance to citizens and organizations. As a consequence, thirdly, professional advocacy can only be carried out by a citizen of the Russian Federation who is a member of the relevant bar association, thereby acquiring a status that allows him to provide all types of legal assistance in all courts, state and other bodies and organizations throughout the Russian Federation and use the rights granted to him for this purpose. Fourth, by joining the collegium, a lawyer subjects himself to the control procedure and the norms of responsibility (disciplinary) that exist in the collegium. Fifth, the state, mainly represented by its executive body - the Ministry of Justice, reserves control powers on the activities of the legal profession through general and methodological guidance: it establishes the specifics of the procedure for organizing and operating bar associations, the procedure for paying for legal assistance, and gives consent to the creation of new collegiums, issues instructions and recommendations on these issues, etc. (Article 3, 31, 32 of the Regulations on the Bar).

Organizational, legal and other forms of activity for the provision of legal services

The legal regime of an activity is determined by the goals inherent in it, which, in turn, determines the organizational and legal position of the subject. If, from the position of fiscal legislation, the commercial or non-commercial status of a person is of fundamental importance, then for the creditor-service recipient, the determining factor here will be the quality of the services provided and the limits of responsibility of the service provider, therefore, the organizational and legal form goes beyond the external regulation of the activities of service providers, and also affects area of ​​relations, the subjects of which are the lawyer-service provider and the client-service recipient.

On the basis of the law, in the non-commercial activity regime, there are legal associations - bar associations, whose public function necessitates the application of an activity regime to it, which cannot depend on the accidents that await any other private activity, and the very existence of the legal profession is a guarantee of the exercise by persons of their constitutional right to qualified legal assistance. In other words, the need for stability of the system of legal assistance guaranteed by Article 48 of the Constitution of the Russian Federation (see Chapters I and II) forces us to apply a different legal regime of activity to legal services provided by lawyers (and to the institution of the legal profession as a whole) than to other subjects of private law.

The activities of lawyers are not classified as commercial both due to their content (fulfillment of a constitutional obligation), and due to the procedure for distributing funds received from payments for the provision of legal assistance and legal services, allocated for remuneration of lawyers, the maintenance of legal consultations, for deductions to colleges and, therefore, the lawyer does not make a profit from his activities and the regime of his property is different from that of an entrepreneur; in addition, the form of organization of the activities of lawyers and the internal structure are also determined by law, respectively, bar associations and legal consultations.

Through the provision of legal services, a person’s right to activities of a non-commercial and entrepreneurial nature can be realized - to entrepreneurial activity that systematically pursues the goal of making a profit (or business income), which represents for the subject of such legal service relations a direct subjective interest protected by law. When providing legal services in the mode of entrepreneurial activity, according to the definition of the law, for the subject such activity is independent, free, not burdened with any public, social, or official duties, and the representation and protection of the interests of third parties here constitute the subject and content of a certain type of entrepreneurial activity carried out at your own risk, aimed at generating profit (business income), according to clause 1 of article 2 of the Civil Code of the Russian Federation.

Introduction

2. Legal status of participants in the legal services market

2.1Lawyers and legal entities

2.2Law firms and other specialized legal organizations

2.3Individually practicing lawyers

2.4Notaries

3. Legal service in commercial organizations

3.1 Legal service as a structural unit of a commercial organization

3.2 Functional responsibilities of the organization’s legal adviser

4. Agreements for legal services and provision of legal services

4.1 Qualification of contracts for the provision of legal services

4.2. Types of contracts concluded by lawyers with clients

4.4 Payment for legal services

4.5 Responsibility of the parties under the contract for the provision of legal services for a fee

Conclusion

Bibliography

Introduction

At the moment, legal assistance is a promising, fast-growing area in law enforcement. In addition, the right to legal assistance is an important constitutional principle enshrined in the Constitution of the Russian Federation. Article 48 of the Constitution of the Russian Federation states: “everyone is guaranteed the right to receive qualified legal assistance; in cases provided for by law, legal assistance is provided free of charge” (Article 48, paragraph 1).

However, it should be noted that to date this area has not been well studied. The reason for this is that until recently the main forms of organizing legal assistance were the bar, the notary and legal (or legal advisory) services, which were created in enterprises, organizations and public associations to provide assistance to these enterprises, organizations or associations, respectively. Now a field has been created for new forms of legal activity, these are the notorious “other forms of providing legal assistance.” This is what textbooks call all other forms of providing legal services that do not relate to the legal profession and notary office. Unfortunately, it is impossible to give a more precise definition of these forms, since they represent a great variety of different forms of providing legal services, and their list is open. This creates confusion in the understanding of legal assistance.

This work is a modest attempt to systematize the forms of legal assistance, understand their meaning and functions, and bring at least some clarity to the concept of legal assistance and its significance in modern society. This is a very pressing problem, from my point of view, since, despite the novelty of many principles and forms of legal assistance, it (legal assistance) has taken root well in our country and now in any city you can find some form: a notary office , or the bar, or private legal advisory firms, or even private detective agencies and detectives who also provide legal services.

The need for legal assistance arises constantly and everywhere. There is practically no area of ​​life or human activity in which every person, not just a lawyer, needs to know and be able to apply certain legal norms. Whether we are talking about work or study, purchasing or selling goods, receiving services, the need to contact government or other bodies, participation in the activities of public organizations, elections to parliament, and so on - qualified assistance from a lawyer may be required everywhere. This is why legal assistance exists, which provides the population with assistance in understanding, comprehending the legislation and helping to use it for the benefit of the person who needs this help.

1. Concepts of legal services and activities for their provision

Legal services are services to assist individuals on legal issues. The provision of legal services is one of the types of legal practice that is objectively necessary in any society with a state structure.

Legal activity is on a par with other types of service activities, such as auditing, consulting, marketing, information, monitoring, appraisal and real estate activities. All these types of activities satisfy public demand for certain types of services accompanying the main - production - types of economic activity.

Legal activity is: state, non-state or private (commercial) activity of professional lawyers to provide qualified assistance to individuals and legal entities in understanding, correct use and compliance with the law, advice on legal issues and legal issues, which is aimed at protecting and promoting the implementation of rights and legal interests of citizens.

The need for strict government control over private legal practice is controversial. State control can be carried out in various ways, primarily through licensing and accreditation. Among lawyers, both scientists and practitioners, there are both supporters and opponents of licensing legal activities. Currently, to engage in legal practice, including the provision of paid legal services, a license is not required, since the current Federal Law of August 8, 2001 No. 128-FZ “On licensing of certain types of activities” does not prohibit the provision of paid legal services included in the list of activities subject to licensing.

The main professional participants in the legal services market are: lawyers and legal entities; law firms and other organizations specializing in the provision of legal services; individually practicing lawyers. Activities to provide legal services are also carried out by organizations that are not law firms, but in accordance with their statutory goals and objectives, provide legal assistance to their participants and other persons. Close to the activity of providing legal services is the activity of notaries, which contributes to the proper registration of transactions and other acts. Many commercial organizations have a full-time legal service, thanks to which the organization's needs for legal services are met.

There is no single general law in which the rules governing relations in the provision of legal services would be collected in the Russian legislative system. In the resolution of the Constitutional Court of the Russian Federation dated January 23, 2007 No. 1-P “In the case of verifying the constitutionality of the provisions of paragraph 1 of Article 779 and paragraph 1 of Article 7XI of the Civil Code of the Russian Federation in connection with complaints from the limited liability company “Corporate Security Agency” and a citizen V.V. Makeev" it is noted that "public relations regarding the provision of legal assistance as a separate subject of legal regulation are not highlighted in the current legislation - they are regulated by a number of regulatory legal acts, the system of which includes the norms of the Civil Code of the Russian Federation, in particular its Chapter 39 relating to obligations under a contract for the provision of paid services" (clause 3) In principle, it would be possible to raise the question of adopting a general Law on the fundamentals of state regulation of activities in the provision of legal services, similar in its focus to the current Laws "On valuation activities in the Russian Federation " and "On auditing activities", but it seems that this is not necessary, at least at the present time. In addition, the activities of some participants in the legal services market are based on special laws: Federal Law of May 31, 2002 No. 63-FZ “On advocacy and advocacy in the Russian Federation” (hereinafter referred to as the Law on Advocacy) and the Law of the Russian Federation of February 11, 1993 No. 44621 “Fundamentals of the legislation of the Russian Federation on notaries”.

The importance of legal services for entrepreneurs. Entrepreneurial activity is carried out on a certain legal basis. Compliance with legal regulations gives entrepreneurs the opportunity to successfully develop their business. On the contrary, violation of the requirements of legal norms entails undesirable consequences for entrepreneurs in the form, for example, of liability for obligations, and repeated or gross violations of the law can lead to the forced liquidation of an entrepreneur - a legal entity in the manner provided for in paragraph 2 of Art. 61 of the Civil Code of the Russian Federation, to administrative and criminal liability of individual entrepreneurs and officials of commercial organizations.

In order to avoid violations and follow the requirements of the law in everything, entrepreneurs turn to specialists with legal knowledge, i.e., practicing lawyers. Legal services for business are a natural, objectively determined phenomenon, one of the components of legal activity.

Legal assistance provided by lawyers to entrepreneurs is also called legal support, legal support, legal support. All of the listed terms are close in meaning and can be used in different contexts with the same semantic meaning: provision of consulting and other services to entrepreneurs by professional lawyers on legal issues of running a business. In a broader aspect, the term “legal services” is also used, which means the provision of various legal services to interested parties - clients, customers - on a contractual basis, involving constant or periodic interaction and cooperation between the contractor and the client.

Legal services are services to assist individuals on legal issues. The provision of legal services is one of the types of legal practice that is objectively necessary in any society with a state structure.

Legal activity is on a par with other types of service activities, such as auditing, consulting, marketing, information, monitoring, appraisal and real estate activities. All these types of activities satisfy public demand for certain types of services accompanying the main - production - types of economic activity.

Legal activity is: state, non-state or private (commercial) activity of professional lawyers to provide qualified assistance to individuals and legal entities in understanding, correct use and compliance with the law, advice on legal issues and legal issues, which is aimed at protecting and promoting the implementation of rights and legal interests of citizens Theory of State and Law: a textbook edited by A. S. Pigolkin. - Moscow: Yurayt-Izdat, 2005. - P. 61.

The need for strict government control over private legal practice is controversial. State control can be carried out in various ways, primarily through licensing and accreditation. Among lawyers, both scientists and practitioners, there are both supporters and opponents of licensing legal activities. Currently, to engage in legal practice, including the provision of paid legal services, a license is not required, since the current Federal Law of August 8, 2001 No. 128-FZ “On licensing of certain types of activities” Federal Law of August 8, 2001 . No. 128-FZ “On licensing of certain types of activities” // SZ RF. 2001. No. 33. Art. 3430. Activities for the provision of paid legal services are not included in the list of activities subject to licensing.

The main professional participants in the legal services market are: lawyers and legal entities; law firms and other organizations specializing in the provision of legal services; individually practicing lawyers. Activities to provide legal services are also carried out by organizations that are not law firms, but in accordance with their statutory goals and objectives, provide legal assistance to their participants and other persons. Close to the activity of providing legal services is the activity of notaries, which contributes to the proper registration of transactions and other acts. Many commercial organizations have a full-time legal service, thanks to which the organization's needs for legal services are met.

There is no single general law in which the rules governing relations in the provision of legal services would be collected in the Russian legislative system. In the resolution of the Constitutional Court of the Russian Federation dated January 23, 2007 No. 1-P “In the case of verifying the constitutionality of the provisions of paragraph 1 of Article 779 and paragraph 1 of Article 7XI of the Civil Code of the Russian Federation in connection with complaints from the limited liability company “Corporate Security Agency” and a citizen V.V. Makeev” it is noted that “public relations regarding the provision of legal assistance as a separate subject of legal regulation are not highlighted in the current legislation; they are regulated by a number of normative legal acts, the system of which includes the norms of the Civil Code of the Russian Federation, in particular its chapter 39 concerning obligations under a contract for the provision of paid services" (clause 3) Resolution of the Constitutional Court of the Russian Federation of January 23, 2007 No. 1-P "In the case of verifying the constitutionality of the provisions of paragraph 1 of Article 779 and paragraph 1 of Article 7ХI of the Civil Code of the Russian Federation Federation in connection with complaints from the limited liability company "Corporate Security Agency" // RG. 2007. February 2. In principle, it would be possible to raise the question of adopting a general Law on the fundamentals of state regulation of activities in the provision of legal services, similar in its focus to the current Laws “On Valuation Activities in the Russian Federation” and “On Auditing Activities”, but it seems that this is not the case necessary, at least for now. In addition, the activities of some participants in the legal services market are based on special laws: Federal Law of May 31, 2002 No. 63-FZ “On advocacy and the legal profession in the Russian Federation” Federal Law of May 31, 2002 No. 63-FZ “On advocacy and advocacy in the Russian Federation” // SZ RF. 2002. No. 23. Art. 2102. (hereinafter referred to as the Law on Advocacy) and the Law of the Russian Federation of February 11, 1993 No. 44621 “Fundamentals of the legislation of the Russian Federation on notaries” Law of the Russian Federation of February 11, 1993 No. 44621 “Fundamentals of the legislation of the Russian Federation on notaries” // Vedomosti RF. 1993. No. 10. Art. 357..

The importance of legal services for entrepreneurs. Entrepreneurial activity is carried out on a certain legal basis. Compliance with legal regulations gives entrepreneurs the opportunity to successfully develop their business. On the contrary, violation of the requirements of legal norms entails undesirable consequences for entrepreneurs in the form, for example, of liability for obligations, and repeated or gross violations of the law can lead to the forced liquidation of an entrepreneur - a legal entity in the manner provided for in paragraph 2 of Art. 61 Civil Code of the Civil Code of the Russian Federation (part one) dated November 30, 1994 N 51-FZ (adopted by the State Duma of the Federal Assembly of the Russian Federation on October 21, 1994), (as amended on December 27, 2009) // RG, N 238-239, December 8, 1994. of the Russian Federation, to administrative and criminal liability of individual entrepreneurs and officials of commercial organizations.

In order to avoid violations and follow the requirements of the law in everything, entrepreneurs turn to specialists with legal knowledge, i.e., practicing lawyers. Legal services for business are a natural, objectively determined phenomenon, one of the components of legal activity.

Legal assistance provided by lawyers to entrepreneurs is also called legal support, legal support, legal support. All of the listed terms are close in meaning and can be used in different contexts with the same semantic meaning: provision of consulting and other services to entrepreneurs by professional lawyers on legal issues of running a business. In a broader aspect, the term “legal services” is also used, which means the provision of various legal services to interested parties - clients, customers - on a contractual basis, involving constant or periodic interaction and cooperation between the contractor and the client.

The concept of legal support for entrepreneurial activity includes the focus of lawyers’ actions on:

compliance with the legality of the customer’s business activities;

implementation of the rights that constitute the content of the legal capacity of an entrepreneur and his subjective rights;

protection of the rights and legally protected interests of entrepreneurs from violations by any third parties;

restoration of the rights of entrepreneurs who have suffered from violations of Commercial (entrepreneurial) law: textbook in 2 volumes. T. 2. - 4th ed., revised. And additional / ed. V. F. Popondopulo. - M.: Prospect, 2009. - P. 313.

These tasks, which could be called legal tasks, are closely related to the goals of entrepreneurial activity: satisfying various social needs and systematically making a profit.

The named tasks correspond to the specifics of the subject of legal activity and determine the range of professional functional responsibilities of lawyers serving entrepreneurs. At the same time, the content of legal support cannot include tasks of a different nature, for example, economic, production-technological, managerial-organizational. Lawyers do not deal with solving economic or production and technological problems, but contribute to their solution by providing the necessary legal support for the entrepreneur’s activities in their implementation. For example, when the question is raised about the adoption of a particular scheme for transporting goods, lawyers analyze the proposed scheme from a legal point of view, assess its legality, and ensure that appropriate conditions are included in the content of the concluded agreements (contracts).