The USA Journals Volume 03 Issue 04-2021
119
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
119-124
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-18
I
MPACT
F
ACTOR
2021:
5.
952
‘
ABSTRACT
In the given article was analyzed the legal basis for organizing the activities of non-governmental non-
profit organizations, describes the methods and process of their establishment, defines the legal
concepts of the organizational and legal form and registration of non-governmental non-profit
organizations, and elaborates scientifically based proposals and recommendations for improving
legislation in this area.
KEYWORDS
Non-governmental non-profit organization, creation, founder, member, participant, initiator, legal
entity, reorganization, organizational and legal form, registration, constituent documents.
INTRODUCTION
After Uzbekistan gained independence,
significant work has been done to expand the
participation of non-governmental non-profit
organizations in all spheres of public life. Legal
guarantees for the activities of public
associations are enshrined in the Constitution
of the country [1]. A legislative framework has
been created that meets the generally
Legal Basis Of The Formation Of The Activities Of Non-
Governmental Non-Profit Organizations In Uzbekistan
Shirinov J.J.
Applicant For The Tashkent State University Of Law, Uzbekistan
Journal
Website:
http://usajournalshub.c
om/index,php/tajpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
The USA Journals Volume 03 Issue 04-2021
120
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
119-124
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-18
I
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F
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2021:
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952
recognized
norms
and
principles
of
international law, aimed at creating the
necessary conditions for the effective
operation of non-governmental non-profit
organizations. More than 200 acts of
legislation have been adopted in the
development of civil society institutions.
Thus, in 2009, a special Law “On Non-State
Non-Commercial Organizations” was adopted.
In accordance with item 15 of this Law, a non-
governmental non-profit organization is
considered to be created from the moment of
its state registration [2].
Before the state registration of a non-
governmental non-profit organization, there
are important stages that are not disclosed in
detail in national legislation. In particular, the
very
process
of
establishing
a
non-
governmental non-profit organization is not
regulated in detail.
Uzbekistan's national legislation defines
“founders”, “members”, “participants” and
“initiators” as subjects authorized to create
non-governmental non-profit organizations.
However, the main difference between these
listed subjects and who of them can become a
true founder was not reflected in the laws.
Some legal scholars have critically analyzed the
fact that in the legislation regulating the
activities of non-governmental non-profit
organizations, the concepts of “participant”
and “member of an organization” do not differ
from each other, but are used as synonyms [3].
According
to
N.V.
Kozlova,
public
organizations and political parties have their
founders and members, but do not have
members. On the other hand, mass social
movements, public foundations and public
institutions have only their founders and
participants and do not have members [4].
Having studied the scientific views of a number
of scientists, one can draw conclusions:
Firstly, in the process of creating a non-
governmental non-profit organization, there
are no members, therefore, membership is
determined after the official establishment of
the organization;
Secondly, a non-governmental non-profit
organization is created only by its founders;
Thirdly, only non-governmental non-profit
organizations in the form of public associations
can be created by a “group of initiative
citizens”.
One of the methods of creating non-
governmental non-profit organizations is the
reorganization of a legal entity. Reorganization
of a legal entity is a set of actions that have
legal significance, as a result of which one or
more new legal entities are simultaneously
created or one or more existing legal entities
are terminated.
Thus, in contrast to the traditional method,
when
a
non-governmental
non-profit
organization
is
created
through
reorganization, inheritance law arises. In this
case, only a legal entity can act as the subject
of reorganization. This means that some non-
governmental non-profit organizations cannot
be created through the reorganization of a
legal entity.
For example, it is known that a public
association is created only on the initiative of
individuals. Thus, the creation of a non-
governmental non-profit organization in the
form of a public association through the
reorganization of a legal entity is impossible.
The USA Journals Volume 03 Issue 04-2021
121
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
119-124
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-18
I
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2021:
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952
When
a
non-governmental
non-profit
organization is created by the decision of the
majority of the founders, the protocol
(decision) of the constituent assembly is a legal
document confirming the fact of the creation
of the organization, the approval of its
constituent documents and the formation of
governing
bodies.
Consequently,
the
constituent assembly must be held and
formalized properly within the framework of
the law.
However, in practice, difficulties arise, since
the laws do not spell out general requirements
for holding a constituent assembly. In
particular, in practice, state registration of non-
governmental non-profit organizations is
denied due to incorrect execution of the
protocol (decision) of the constituent
assembly. Therefore, the law must establish
general requirements for the registration of
the
constituent
assembly
of
a
non-
governmental non-profit organization.
The choice of organizational and legal form is
important when creating a legal entity. After
all, it is the organizational and legal form of a
legal entity that is one of the main criteria for
dividing it into commercial and non-
commercial organizations. In accordance with
item 40 of the Civil Code of the Republic of
Uzbekistan, a legal entity can be an
organization
pursuing
profit-making
(commercial organization) as the main goal of
its activities, or not setting profit-making as
such a goal (non-commercial organization) [5].
Although the term “legal form” is often used in
legislation to refer to a legal entity, there is no
legal definition of this term. According to some
researchers, the organizational and legal form
of a legal entity is a set of certain features and
characteristics that distinguish it from one
group of common features and distinguish one
group of legal entities from another [6]. The
organizational and legal form of a legal entity
shows its organizational structure, the method
of forming property, and the peculiarities of
participation in civil law relations [7].
According
to
V.M.
Kameneva,
the
organizational and legal form of a legal entity is
a set of specific features that make it possible
to identify it. Such signs may include the
purpose and subject of the organization's
activities, the subject composition of the
founders (participants, members) and their
rights to the property of a legal entity, as well
as the procedure for using (distributing)
property [8].
According to R. Utkin, the organizational and
legal form of non-profit organizations is a set
of features inherent in a certain group of
organizations and necessary for their existence
in the legal field: the purpose of the
organization, relationships with persons
participating in its activities [9].
In order to define the concept of the
organizational and legal form of a non-
governmental non-profit organization, let us
analyze its constituent features.
In particular, the focus is on the goal of a non-
governmental, non-profit organization. If the
purpose of an organization is to protect the
interests of its members, coordinate their
activities, such organizations are created in the
form of public associations, associations
(unions) and other corporate forms.
Another important feature that helps to
determine the organizational and legal form of
a non-governmental non-profit organization is
the legal status of the founders of the
organization, which states that if the founders
The USA Journals Volume 03 Issue 04-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
April 30, 2021 |
Pages:
119-124
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-18
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2021:
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are legal entities, such an organization can be
formed in the form of an association (union) or
institution.
Another
important
feature
of
the
organizational and legal form of a non-
governmental non-profit organization is the
subjective structure of the organization. If an
organization has membership and all members
are individuals, such an organization can be
formed in the form of a public association.
The next important feature of a non-
governmental non-profit organization is the
peculiarities of property relations. For
example, most non-governmental non-profit
organizations do not require authorized capital
to establish. However, the creation of public
funds requires the availability of initial funds. In
addition,
for
some
membership-based
organizations, membership fees are identified
as one of the sources of property formation,
and the public fund and public organization do
not have membership fees [10].
Based on the foregoing, the following
definition is proposed: the organizational and
legal form of a non-governmental non-profit
organization is a set of signs reflecting the
purpose of the organization's activities, its
subjective structure (membership or non-
membership) and property relations, as well as
clarifying the legal status of its founders.
It remains difficult to determine the
organizational and legal form of some non-
governmental non-profit organizations in
Uzbekistan. For example, if only natural
persons are united, such an organization can
be created in the form of a public association,
if only legal entities are united - in the form of
an association of legal entities.
However, the organizational and legal form of
a non-governmental non-profit organization,
which consists of an association of both
individuals and legal entities, and also
coordinates their activities as a member,
protects their rights and legitimate interests,
remains undisclosed.
Therefore, it is proposed to legislatively
consolidate the "association of individuals and
legal entities" as a new organizational and legal
form of a non-governmental non-profit
organization.
Legal entities in the form of "institutions" are
formed as two types, that is, "state" and "non-
state". Therefore, it is not recommended to
use the same legal form for both sectors
(government and non-government). In this
regard, it is proposed to name an institution in
the form of a non-governmental non-profit
organization as a “public institution”.
In addition, since a public institution is not a
corporate organization, the law should clearly
state that such a non-governmental non-profit
organization is not membership-based. In this
regard, we propose to define a public
institution as a non-governmental non-profit
organization that has no membership, formed
by an individual and (or) legal entity or several
persons to perform social, cultural and other
functions of a non-profit nature.
In practice, depending on the founder of an
organization in the form of an association
(union), it is determined whether it belongs to
a particular type of legal entity. For example,
an association (union) created by non-profit
organizations is registered as a non-
governmental
non-profit
organization.
However, associations (unions) created by
commercial organizations are not included in
The USA Journals Volume 03 Issue 04-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
April 30, 2021 |
Pages:
119-124
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-18
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the register of non-governmental non-
commercial
organizations.
Although,
according to item 77 of the Civil Code of the
Republic of Uzbekistan, an association (union)
created by a commercial organization is also a
non-commercial organization [5].
Therefore, an association (union) created by
legal
entities,
including
commercial
organizations, must also be registered as a
non-governmental non-profit organization.
In our opinion, the state registration of a non-
state non-profit organization is the fact of
confirmation of the recognition by the state of
a new subject of law by entering the relevant
information into the state register by the
authorized state div.
The main goals of state registration are:
"filtering" from the appearance of destructive
subjects; statistical accounting of non-
governmental non-profit organizations; the
legitimacy of their activities.
An important role is played by the issue of
payment of state fees for state registration of
non-state non-profit organizations.
According to some scientists, the state fee paid
for state registration should be divided into
two parts. The first part is the state fee for the
examination of documents, which is paid
before
submitting
documents
to
the
registration authority. The second part is the
state fee for state registration, which is paid
before the organization is included in the
Unified State Register of Legal Entities after a
positive decision of the registering authority
[11].
In accordance with Article 3 of the Law of the
Republic of Uzbekistan "On State Duty", the
state duty is a mandatory payment charged for
the commission of legally significant actions
and (or) the issuance of documents by
authorized institutions and (or) officials [12].
In our opinion, the collection of a state duty
before a decision on state registration of a non-
state non-profit organization is made does not
fully comply with the principle of fairness.
Because the state fee should be charged for
the commission of actions that have legal
significance. Therefore, it is proposed to
introduce into practice the payment of state
fees after the registration authority makes a
decision to register a non-state non-profit
organization.
In most cases, registration of a non-
governmental non-profit organization is
denied due to deficiencies in the constituent
documents. However, in practice, the
registration
authority
reveals
further
shortcomings in the re-submitted documents.
That is, since the flaws in the documents were
not fully indicated at the first refusal, they will
be
revealed
during
the
subsequent
examination. This creates bureaucratic barriers
for state registration of a non-governmental
non-profit organization.
Therefore, it is necessary to consolidate at the
legislative level the norm according to which
shortcomings in the submitted documents,
which were not indicated in a timely manner
due to the fault of the registering authority,
cannot be the basis for repeated refusal of
state registration of a non-governmental non-
profit organization.
REFERENCES
1.
Constitution of the Republic of Uzbekistan
¬ Tashkent - "Uzbekistan" - 2017.
2.
Law of the Republic of Uzbekistan "On
non-governmental
non-profit
The USA Journals Volume 03 Issue 04-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
April 30, 2021 |
Pages:
119-124
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-18
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organizations" // Bulletin of the Oliy Majlis
of the Republic of Uzbekistan, 1999, No. 5,
item 115
3.
Sh.M. Asyanov, M.Sh. Kulikova, A. Isaeva //
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Kameneva V.M. "Legal regulation of the
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9.
R.V. Utkin Organizational and legal forms
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Modern concept and prospects // Bulletin
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J. Shirinov Theoretical and legal issues of
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Kokoreva O.M., Legal regulation of state
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