The adoption of this Law may be regarded as a certain “compensation” of fered by the authority for the introduction, from the year 2006 onward, of a new procedure for the registration and control of the activity of not for profit organiza tions operating in the territory of Russia. The changes in the conditions and proce dure for registration, as well as in the reporting procedure had an obvious political goal – to impose limitations on the actual or hypothetical influence of foreign or ganizations on this country’s domestic political situation; however, at the same time they complicated the activity of many not for profit organizations in Russia, which has no relation to politics but is financially supported by foreign beneficiaries. This provoked sharp criticism on the part of civil society both in Russia and in the West.
The existing tax regime prior to the adoption of this Law did not favor the crea tion of stable sources of income for not for profit organizations in the form of in comes from investments of an organization’s own or received funds. Firstly, this had to do with the taxation levied on the funds proper being received by a not for Annexs profit organization for purposes of investing (that is, the formation of capital), and secondly, the incomes received by a not for profit organization from investing. The main innovation in the sphere of taxation introduced by the Law on target capital is that the not for profit organizations forming and using their target capital are ex empt from the payment of the profits tax with regard to the incomes received from their target capital. Another important issue has also been resolved in favor of not for profit organizations – that of donations designed to form target capital, which are not to be levied by the profits tax, either.
It is established that target capital should be created for a period of no less than 10 years, and the funds constituting target capital must always be transferred to an asset manager for investing. During that period, the incomes from the in vestment of target capital may be used. Target capital is to be managed by a spe cially created collegial agency (a council for the use of target capital), where repre sentatives of a not for profit organization itself constitute no more than one third of members; two thirds of the council must be independent, formed from representa tives of the recipients of the income generated by target capital, donors (or their representatives), citizens and representatives of juridical persons, merited by soci ety or having authority and (or) achievements in the spheres corresponding to the goals of a given not for profit organization. If a donor has contributed more than % of capital (balance sheet value of property constituting target capital), the donor or its representative have the right (but not the duty) to demand that the donor or the donor’s its representative should be made member of the council for the use of target capital.
The new Law offers a form of supporting the activity of not for profit organiza tions, which is sufficiently transparent for both the State and civil society. In other words, it provides the private persons and corporations prepared to provide finan cial support to not for profit organizations mostly in the socio cultural sphere with a transparent mechanism guaranteeing the use of such donations in accordance with their declared purpose. Thus not for profit organizations are granted with op portunities for creating a source of long term and guaranteed incomes, enabling them to implement long term programs. At the same time certain limitations are imposed on the range of not for profit organizations authorized to have their own target capital, as well as on the directions for applying the incomes generated by it.
The owners of target capital may be only those not for profit organizations that have the organizational legal form of a fund, an autonomous not for profit organi zation, a public organization, a public fund or a religious organization. State corpo rations, political parties and social movements cannot be recipients of incomes from target capital. Target capital may be formed for purposes of using the income generated by it in the spheres of education, science, health care, culture, physical culture and sports (with the exception of professional sport activity), art, archives, social aid (or support). The formation of target capital and the use of the income generated by it for other purposes is not recognized as the formation of target capital and the use of the income generated by it. That is, in addition to the tradi tional spheres of charity, this list does not include such activities as protection of RUSSIAN ECONOMY IN trends and outlooks human rights and freedoms of a person and citizen, environment protection, pro tection of fauna, etc. The Law introduces a number of important requirements and limitations for not for profit organizations in the part relating to the formation of a target capital and its investment.
For example, the Law envisages the minimum size of target capital has being equal to 3 million roubles. This is associated with the fact that investing a lesser sum was viewed as not feasible due to rather high costs of such an investment.
Thus, within the period of two months from the day on which the sum of money re ceived by a not for profit organization for purposes of forming its target capital will become equal to 3 million roubles, the not for profit organization will be obliged to transfer the money to trust management by an asset manager. From the day of the transfer of funds to trust management the target capital is recognized as having been formed. If during one year from the day of the coming to the account of a not for profit organization of the first donation earmarked for the formation of target capital the total sum of received donations does not exceed 3 million roubles, or if during that period a council for the use of target capital is not created, the not for profit organization will not have the right to transfer the donations to trust manage ment. In this case no target capital is formed, and the not for profit organization before the end of the financial year, during which the period established for the formation of target capital has expired, will be obliged to return the received money to the donor, if not otherwise provided for by the donation agreement, or if the money is received by the not for profit organization in the procedure of inheri tance. Thus, the donations that have not been used to form target capital and have not been returned to donors may be spent on a not for profit organization’s charter goals.
It is established that a not for profit organization has no right to allocate its own money to the formation of its target capital or to the replenishment of its al ready formed target capital. That is, target capital may be formed only from dona tions (in the form of money denominated in national or foreign currency).
The rules for determining the objects of investments, in order to minimize risks, have been introduced. The resources of target capital can be placed in Rus sian and foreign government securities, shares, bonds, Russian mortgage securi ties, stakes in pension investment funds, and deposits; besides, investments can be made in immovable assets, but no immovables may be accepted as a donation.
The possibility of receiving substantial incomes from target capital and the tax priveleges granted to not for profit organizations require that they pursue a policy aimed at limiting the financing of administrative costs. In the Law it is envisaged that a not for profit organization (the owner of target capital) may use it, to cover its administrative and managerial costs associated with the formation of target capital and the activity funded by the income generated by target capital, in the amount equal to no more than 15 % of the income from the trust management of property constituting target capital, or no more than 10 % of the sum of income from target capital received during a reporting year. Such costs are recognized, in particular, as the lease of premises, buildings and structures, the cost of acquisition of fixed Annexs assets and expendable materials, the cost of audit, and the payment of salaries to the staff of a not for profit organization, the costs of management of a not for profit organization or its separate structural subdivisions, and the costs of the ac quisition of administrative services for managing a not for profit organization or its separate structural subdivisions.
The new institution may undoubtedly have a positive influence on the devel opment of the non government not for profit sector of the national economy of this country, but because of its complexity and the overall very low level of development of the practices of trust management the scope of applying the new mechanism will, most probably, remain rather narrow in the foreseeable future.
The adoption of Part IV of the RF Civil Code From 1 January 2008, Part IV of the RF Civil Code comes into force7, which regulates relations in the sphere of intellectual property. It is established that Part IV of the RF CC is to be applied to the legal relations that have arisen after its com ing into force. In respect to the legal relations that arose prior to the coming into force of Part IV of the RF CC it is applied to those rights and responsibilities which will arise after its coming into force.
Part IV of the Civil Code combines all the norms 8 relating to objects of intellec tual property – works of science, literature, the arts, software, databases, inven tions, useful models, industrial models, achievements in selection, phonograms and other objects. This Part of the RF CC contains only one section – Section VII entitled “Rights to the results of intellectual activity and the means of individualiza tion”. This Part of the RF CC incorporates not only the existing norms in the sphere of intellectual property, but also a number of new norms.
Thus, legislation is amended by the notion of “secret of production” (know how). This is understood as information of any character (industrial, technical, eco nomic, organizational and other), including on the results of intellectual activity in the sphere of science and technologies, as well as information concerning meth ods of professional performance that have real or potential commercial value due to their being unknown to third parties, to which third parties have no legal free ac cess and in respect of which the holders of such information have established the regime of commercial secret. The keeper of a production secret enjoys an exclu sive right to its use. The specific features of an agreement of an alienation of the right to a production secret and the corresponding license agreement are deter Federal laws: “Civil Code of the Russian Federation (Part IV)” of 18 December 2006, No 230 FZ and “On the entry into force of Part IV of the Civil Code of the Russian Federation” of 18 December 2006, No 231 FZ.
From the moment of the enactment of the new part of the RF CC, a number of normative acts pre viously regulating the relations in this sphere are recognized to be null and void, namely: the Civil Code of the Russian Soviet Federative Socialist Republic, the RF Laws “On author’s right and related rights”, “On trademarks, service marks, and names of places of origin of goods”, “On legal protec tion of computer programs and databases”, “On legal protection of topologies of integral microcir cuits”, “On achievements in selection”, the RF Patent Law; and some other normative acts.
RUSSIAN ECONOMY IN trends and outlooks mined. The relations between an employee and employer associated with the crea tion of a corporate production secret are regulated.
To all the rights to the results of intellectual activity and the means of individu alization recognized as equal to such rights (e. g., a business name and a trade mark) a generalized term is applied – that of “intellectual rights” (Article 1226 of the RF CC). The notion of intellectual rights incorporates the exclusive right (which is a property right), personal non property rights (copyright, the right to a name), as well as other rights (e. g., the right of descent and the right of access).
In the RF CC some provisions have been included establishing the require ments to the content of a business name as an object of rights in the sphere of intellectual property. It is envisaged that an exclusive right to a business name arises from the day of State registration of a juridical person and is terminated at the moment of the exclusion of a business name from the Unified State Register of juridical persons as a result of the termination of a juridical person or the change of its business name. A direct ban is imposed on the disposal of the exclusive right to a business name, including by means of its alienation or by granting the right of its use to another person.
The legal regime for commercial designation, which is also used for purposes of an enterprise’s individualization, is subject to detailed regulation. This designa tion can be used not only by commercial juridical persons, but also by not for profit organizations engaged in entrepreneurial activity, as well as by individual entrepre neurs. It should be noted that a commercial designation does not require registra tion and must not be included in a mandatory procedure in the Unified Sate Regis ter of juridical persons, in contrast to a business name. The exclusive right to a commercial designation may be transferred to another person only as part of the enterprise for the individualization of which this designation is applied.
The notion of a commercial designation is broader than that of a business name. A business name or its separate components can be used by a possessor of right as part of the commercial designation owned thereby (Article 1476 of the RF CC). The business name incorporated into commercial designation is protected independently of the protection of commercial designation.
The list of works which are not objects of copyright has been made more pre cise. These are news programs, TV feature programs, transport timetables, etc., official documents of international organizations, as well as their official translations (Article 1259 of the RF CC). It is established that copyright is extended to a part of a work, its title, as well as a character depicted in a work.
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