1. Economic partnerships and societies are recognized corporate commercial organizations with authorized (share) capital divided into shares (contributions) of founders (participants). Property created through the contributions of founders (participants), as well as produced and acquired by a business partnership or company in the course of its activities, belongs by right of ownership to the business partnership or company.
Scope of powers of participants economic company determined in proportion to their shares in authorized capital society. A different scope of powers of participants in a non-public business company may be provided for by the company’s charter, as well as a corporate agreement, provided that information about the existence of such an agreement and the scope of powers of company participants provided for by it is entered into the unified state register legal entities.
2. In the cases provided for by this Code, a business company may be created by one person, who becomes its sole participant.
A business company cannot have as its sole participant another business company consisting of one person, unless otherwise established by this Code or another law.
3. Business partnerships can be created in organizational terms legal form general partnership or limited partnership (limited partnership).
4. Business companies can be created in a legal form joint stock company or societies with limited liability.
5. Participants in general partnerships and general partners in limited partnerships can be individual entrepreneurs and commercial organizations.
Participants in business companies and investors in limited partnerships can be citizens and legal entities, as well as public legal entities (Article 125).
6. State bodies and local self-government bodies do not have the right to participate on their own behalf in business partnerships ah and societies.
Institutions may be participants in business companies and investors in limited partnerships with the permission of the owner of the institution’s property, unless otherwise provided by law.
Participation may be prohibited or limited by law individual categories persons in business partnerships and companies.
Business partnerships and companies may be founders (participants) of other business partnerships and companies, except for cases provided for by law.
7. Features of the legal status of credit organizations, insurance organizations, clearing organizations, specialized financial companies, specialized project finance companies, professional participants in the securities market, joint-stock investment funds, investment fund management companies, mutual funds and non-state pension funds, non-state pension funds and other non-credit financial organizations, joint-stock companies of employees (people's enterprises), as well as the rights and obligations of their participants are determined by the laws governing the activities of such organizations.
Contributions to the property of a business partnership or company
1. The contribution of a participant in a business partnership or company to its property may be cash, things, shares (shares) in the authorized (joint) capital of other business partnerships and companies, state and municipal bonds. Such a contribution may also include exclusive and other intellectual rights and rights under license agreements subject to monetary value, unless otherwise provided by law.
2. The law or the constituent documents of a business partnership or company may establish the types of property specified in paragraph 1 of this article, which cannot be contributed to pay for shares in the authorized (share) capital of the business partnership or company.
Basic provisions on the authorized capital of a business company
1. The minimum amount of authorized capital of business companies is determined by the laws on business companies.
The minimum amounts of the authorized capital of business companies carrying out banking, insurance or other activities subject to licensing, as well as joint-stock companies using an open (public) subscription for their shares, are established by laws that determine the features of the legal status of these business companies.
2. When paying for the authorized capital of a business company, funds must be contributed in an amount not lower than the minimum amount of the authorized capital (clause 1 of this article).
The monetary valuation of a non-monetary contribution to the authorized capital of a business company must be carried out by an independent appraiser. Participants in a business company do not have the right to determine the monetary value of a non-monetary contribution in an amount exceeding the amount of the valuation determined by an independent appraiser.
3. When paying for shares in the authorized capital of a limited liability company not in cash, but with other property, the participants of the company and an independent appraiser, in the event of insufficient property of the company, jointly and severally bear subsidiary liability for its obligations within the amount by which the valuation of the property contributed to the authorized capital is overestimated , within five years from the date state registration company or making appropriate changes to the company’s charter. When contributing to the authorized capital of a joint stock company, do not Money, and other property, the shareholder who made such payment, and the independent appraiser, in the event of insufficiency of the company’s property, jointly and severally bear subsidiary liability for its obligations to the extent of the amount by which the property contributed to the authorized capital is overvalued, within five years from the date of state registration of the company or introducing appropriate amendments to the company's charter.
The rules of this paragraph on the liability of a company participant and an independent appraiser do not apply to business companies created in accordance with the laws on privatization through the privatization of state or municipal unitary enterprises.
4. Unless otherwise provided by laws on business companies, the founders of a business company are required to pay at least three quarters of its authorized capital before the state registration of the company, and the rest of the authorized capital of the business company - during the first year of the company’s activity.
In cases where, in accordance with the law, state registration of a business company is allowed without advance payment of three quarters of the authorized capital, the company's participants bear subsidiary liability for its obligations that arose before the full payment of the authorized capital.
Rights and obligations of a participant in a business partnership and company
1. A participant in a business partnership or company, along with the rights provided for participants in corporations by paragraph 1 of Article 65.2 of this Code, also has the right:
take part in the distribution of profits of a partnership or company of which he is a member;
receive, in the event of liquidation of a partnership or company, part of the property remaining after settlements with creditors, or its value;
demand the exclusion of another participant from a partnership or company (except for public joint-stock companies) in judicial procedure with payment to him of the actual value of his share of participation, if such a participant, through his actions (inaction), caused significant harm to the partnership or society or otherwise significantly impedes its activities and the achievement of the goals for which it was created, including by grossly violating his duties provided for by law or constituent documents of a partnership or company. Waiver or limitation of this right is void.
Participants in business partnerships or companies may have other rights provided for by this Code, laws on business companies, and the constituent documents of the partnership or company.
2. A participant in a business partnership or company, along with the responsibilities provided for participants in corporations by paragraph 4 of Article 65.2 of this Code, is also obliged to make contributions to the authorized (share) capital of the partnership or company of which he is a participant, in the manner, in amounts, in ways that provided for by the constituent document of a business partnership or company, and contributions to other property of the business partnership or company.
Participants in business partnerships and societies may bear other obligations provided for by law and their constituent documents.
Features of management and control in business partnerships and companies
1. Management in a general partnership and limited partnership is carried out in the manner established by Articles 71 and 84 of this Code.
2. The exclusive competence of the general meeting of participants of a business company, along with the issues specified in paragraph 2 of Article 65.3 of this Code, includes:
1) change in the size of the authorized capital of the company, unless otherwise provided by laws on business companies;
2) making a decision to transfer the powers of the sole executive body of the company to another business company (management organization) or individual entrepreneur(manager), as well as approval of such a management organization or such a manager and the terms of the agreement with such managing organization or with such a manager, if the company’s charter does not include the resolution of these issues within the competence of the company’s collegial management body (clause 4 of Article 65.3);
3) distribution of profits and losses of the company.
3. The adoption of a decision by the general meeting of participants of a business company and the composition of the company participants present at its adoption are confirmed in relation to:
1) a public joint-stock company by a person maintaining the register of shareholders of such a company and performing the functions of a counting commission (clause 4 of Article 97);
2) a non-public joint-stock company by notarization or certification by a person maintaining the register of shareholders of such a company and performing the functions of the counting commission;
3) a limited liability company by notarization, unless another method (signing of the protocol by all participants or part of the participants; using technical means to reliably establish the fact of a decision; in another way that does not contradict the law) is not provided for by the charter of such a company or by a decision of the general meeting members of the company, adopted by the members of the company unanimously.
4. To check and confirm the correctness of the annual accounting (financial) statements, a limited liability company has the right, and in cases provided for by law, is obliged to annually engage an auditor who is not connected by property interests with the company or its participants (external audit). Such an audit can also be carried out at the request of any of the company's participants.
5. To check and confirm the accuracy of the annual accounting (financial) statements, a joint stock company must annually engage an auditor who is not connected by property interests with the company or its participants.
In cases and in the manner prescribed by law and the company's charter, an audit of the accounting (financial) statements of a joint-stock company must be carried out at the request of shareholders whose total share in the authorized capital of the joint-stock company is ten percent or more.
Corporate agreement
1. Participants in a business company or some of them have the right to conclude an agreement among themselves on the exercise of their corporate (membership) rights (corporate agreement), in accordance with which they undertake to exercise these rights in a certain way or to refrain (refuse) from exercising them, including vote in a certain way at the general meeting of the company's participants, coordinately carry out other actions to manage the company, acquire or alienate shares in its authorized capital (shares) at a certain price or upon the occurrence of certain circumstances, or refrain from alienating shares (shares) until the occurrence of certain circumstances.
2. A corporate agreement cannot oblige its participants to vote in accordance with the instructions of the company’s bodies, or to determine the structure of the company’s bodies and their competence.
The terms of the corporate agreement that contradict the rules of the first paragraph of this paragraph are void.
A corporate agreement may establish the obligation of its parties to vote at the general meeting of the company's participants for the inclusion in the company's charter of provisions defining the structure of the company's bodies and their competence, if in accordance with this Code and the laws on business companies, changes in the structure of the company's bodies and their competence are allowed by the company's charter .
3. A corporate agreement is concluded in writing by drawing up one document signed by the parties.
4. Participants in a business company who have entered into a corporate agreement are required to notify the company of the fact of concluding a corporate agreement, but its contents are not required to be disclosed. In case of failure to fulfill this obligation, the company's participants who are not parties to the corporate agreement have the right to demand compensation for losses caused to them.
Information about a corporate agreement concluded by shareholders of a public joint stock company must be disclosed within the limits, in the manner and under the conditions provided for by the law on joint stock companies.
Unless otherwise provided by law, information on the content of the corporate agreement concluded by the participants non-public company, is not subject to disclosure and is confidential.
5. A corporate agreement does not create obligations for persons not participating in it as parties (Article 308).
6. Violation of a corporate agreement may be grounds for invalidating a decision of a body of a business company on a claim by a party to this agreement, provided that at the time the body of the business company made the corresponding decision, all participants in the business company were parties to the corporate agreement.
Recognizing a decision of a body of a business company as invalid in accordance with this paragraph does not in itself entail the invalidity of transactions of the business company with third parties made on the basis of such a decision.
A transaction concluded by a party to a corporate agreement in violation of this agreement may be declared invalid by a court at the request of a party to the corporate agreement only if the other party to the transaction knew or should have known about the restrictions provided for by the corporate agreement.
7. The parties to a corporate agreement do not have the right to refer to its invalidity in connection with its contradiction to the provisions of the charter of the business company.
8. Termination of the right of one of the parties to a corporate agreement to a share in the authorized capital (shares) of a business company does not entail the termination of the corporate agreement in relation to its remaining parties, unless otherwise provided by this agreement.
9. Creditors of the company and other third parties may enter into an agreement with the participants of the business company, according to which the latter, in order to ensure the legally protected interests of such third parties, undertake to exercise their corporate rights in a certain way or to abstain (refuse) from exercising them, including voting in a certain way at the general meeting of the company's participants, coordinately carry out other actions to manage the company, acquire or alienate shares in its authorized capital (shares) at a certain price or upon the occurrence of certain circumstances, or refrain from alienating shares (shares) until the occurrence of certain circumstances. The rules on corporate agreements apply to this agreement accordingly.
10. The rules on a corporate agreement respectively apply to the agreement on the creation of a business company, unless otherwise established by law or follows from the essence of the relationship between the parties to such an agreement.
Transformation of business partnerships and societies
1. Business partnerships and companies of one type may be transformed into business partnerships and companies of another type or into production cooperatives by decision of the general meeting of participants in the manner established by this Code and the laws on business companies.
2. When transforming a partnership into a company, each general partner who has become a participant (shareholder) of the company shall, for two years, bear subsidiary liability with all his property for the obligations transferred to the company from the partnership. Alienation by a former partner of his shares (shares) does not relieve him of such liability. The rules set out in this paragraph are respectively applied when transforming a partnership into a production cooperative.
3. Business partnerships and companies cannot be reorganized into non-profit organizations, as well as to unitary commercial organizations.
General partnership
Basic provisions on general partnership
1. A partnership is recognized as a full partnership, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with the property belonging to them.
2. A person can be a participant in only one general partnership.
3. The corporate name of a general partnership must contain either the names (titles) of all its participants and the words " general partnership", or the name (name) of one or more participants with the addition of the words "and company" and the words "full partnership".
Memorandum of association for a general partnership
1. A general partnership is created and operates on the basis of a constituent agreement. The constituent agreement is signed by all its participants.
2. The founding agreement of a general partnership must contain, in addition to the information specified in paragraph 2 of Article 52 of this Code, conditions on the size and composition of the partnership’s share capital; on the size and procedure for changing the shares of each participant in the share capital; on the size, composition, timing and procedure for making contributions; on the responsibility of participants for violation of obligations to make contributions.
Management in a general partnership
1. Management of the activities of a general partnership is carried out by general agreement of all participants. The founding agreement of a partnership may provide for cases when a decision is made by a majority vote of the participants.
2. Each participant in a general partnership has one vote, unless the constituent agreement provides for a different procedure for determining the number of votes of its participants.
3. Each participant in the partnership, regardless of whether he is authorized to conduct the affairs of the partnership, has the right to receive all information about the activities of the partnership and get acquainted with all documentation on the conduct of affairs. Waiver of this right or its limitation, including by agreement of the participants of the partnership, is void.
Conducting general partnership affairs
1. Each participant in a general partnership has the right to act on behalf of the partnership, unless the constituent agreement establishes that all its participants conduct business jointly, or the conduct of business is entrusted to individual participants.
When conducting the affairs of a partnership jointly by its participants, the consent of all participants of the partnership is required for each transaction.
If the management of the affairs of a partnership is entrusted by its participants to one or some of them, the remaining participants, in order to carry out transactions on behalf of the partnership, must have a power of attorney from the participant (participants) who is entrusted with the management of the affairs of the partnership.
In relations with third parties, the partnership does not have the right to refer to the provisions of the constituent agreement that limit the powers of the partnership participants, except in cases where the partnership proves that the third party at the time of the transaction knew or should have known that the participant of the partnership did not have the right to act on behalf of the partnership .
2. The authority to conduct the affairs of the partnership granted to one or more participants may be terminated by the court at the request of one or more other participants of the partnership if there are serious grounds for this, in particular due to a gross violation by the authorized person (persons) of his duties or his revealed inability to prudent conduct of business. Based on a court decision, the necessary changes are made to the founding agreement of the partnership.
Responsibilities of a participant in a general partnership
1. A participant in a general partnership is obliged to participate in its activities in accordance with the terms of the constituent agreement.
2. A participant in a general partnership is obliged to make at least half of his contribution to share capital partnership before its state registration. The rest must be paid by the participant within the time limits established by the constituent agreement. If this obligation is not fulfilled, the participant is obliged to pay the partnership ten percent per annum on the unpaid part of the contribution and compensate for the losses caused, unless other consequences are established by the constituent agreement.
3. A participant in a general partnership does not have the right, without the consent of the other participants, to carry out transactions on his own behalf in his own interests or in the interests of third parties that are similar to those that constitute the subject of the partnership’s activities.
If this rule is violated, the partnership has the right, at its own choice, to demand from such participant compensation for losses caused to the partnership or the transfer to the partnership of all benefits acquired through such transactions.
Distribution of profits and losses of a general partnership
1. Profits and losses of a general partnership are distributed among its participants in proportion to their shares in the joint capital, unless otherwise provided by the constituent agreement or other agreement of the participants. An agreement to exclude any of the partnership participants from participating in profits or losses is not permitted.
2. If, as a result of losses incurred by the partnership, the value of its net assets becomes less than the size of its share capital, the profit received by the partnership is not distributed among the participants until the value of net assets exceeds the size of the share capital.
Responsibility of participants in a general partnership for its obligations
1. Participants in a general partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership.
2. A participant in a general partnership who is not its founder is liable equally with other participants for obligations that arose before his entry into the partnership.
A participant who has left the partnership is liable for the obligations of the partnership that arose before the moment of his withdrawal, equally with the remaining participants, for two years from the date of approval of the report on the activities of the partnership for the year in which he left the partnership.
3. The agreement of the participants of the partnership to limit or eliminate liability provided for in this article is void.
Changing the composition of participants in a general partnership
1. In cases of the withdrawal or death of any of the participants in a general partnership, the recognition of one of them as missing, incapacitated, or of limited legal capacity, or insolvent (bankrupt), the opening of reorganization procedures against one of the participants by a court decision, the liquidation of a participant in the partnership a legal entity or a creditor of one of the participants forecloses on part of the property corresponding to his share in the share capital, the partnership may continue its activities if this is provided for by the founding agreement of the partnership or an agreement of the remaining participants.
2. Participants in a general partnership have the right to demand in court the exclusion of any of the participants from the partnership by unanimous decision of the remaining participants and if there are serious grounds for this, in particular due to a gross violation of his duties by this participant or his revealed inability to conduct business wisely.
Withdrawal of a participant from a general partnership
1. A participant in a general partnership has the right to leave it by declaring his refusal to participate in the partnership.
Refusal to participate in a general partnership established without specifying a period must be declared by the participant at least six months before the actual withdrawal from the partnership. Early withdrawal from participation in a general partnership established for a certain period is allowed only by good reason.
2. An agreement between participants in a partnership to waive the right to leave the partnership is void.
Consequences of withdrawal of a participant from a general partnership
1. A participant who has retired from a general partnership is paid the value of a part of the partnership’s property corresponding to the share of this participant in the share capital, unless otherwise provided by the constituent agreement. By agreement of the retiring participant with the remaining participants, payment of the cost of part of the property may be replaced by the delivery of property in kind.
The part of the partnership's property due to the retiring participant or its value is determined by the balance sheet drawn up, with the exception of the case provided for in Article 80 of this Code, at the time of its retirement.
2. In the event of the death of a participant in a general partnership, his heir may enter into a general partnership only with the consent of the other participants.
A legal entity that is a legal successor of a reorganized legal entity participating in a general partnership has the right to join the partnership with the consent of its other participants, unless otherwise provided by the founding agreement of the partnership.
Settlements with an heir (successor) who has not entered into the partnership are made in accordance with paragraph 1 of this article. The heir (legal successor) of a participant in a general partnership is liable for the obligations of the partnership to third parties, for which, in accordance with paragraph 2 of Article 75 of this Code, the retired participant would be liable, within the limits of the property of the retired participant of the partnership transferred to him.
3. If one of the participants leaves the partnership, the shares of the remaining participants in the share capital of the partnership increase accordingly, unless otherwise provided by the constituent agreement or other agreement of the participants.
Transfer of a participant’s share in the share capital of a general partnership
A participant in a general partnership has the right, with the consent of its remaining participants, to transfer his share in the share capital or part thereof to another participant in the partnership or to a third party.
When a share (part of a share) is transferred to another person, the rights that belonged to the participant who transferred the share (part of the share) are transferred to him in full or in the corresponding part. The person to whom the share (part of the share) is transferred is liable for the obligations of the partnership in the manner established by the first paragraph of paragraph 2 of Article 75 of this Code.
The transfer of the entire share to another person by a participant in the partnership terminates his participation in the partnership and entails the consequences provided for in paragraph 2 of Article 75 of this Code.
Foreclosure of a participant's share in the share capital of a general partnership
Foreclosure of a participant's share in the joint capital of a general partnership for the participant's own debts is permitted only if there is insufficient other property to cover the debts. Creditors of such a participant have the right to demand from the general partnership the allocation of a part of the partnership’s property corresponding to the debtor’s share in the share capital in order to foreclose on this property. The part of the partnership's property subject to division or its value is determined according to the balance sheet drawn up at the time the creditors present the demand for division.
Foreclosure of property corresponding to the share of a participant in the joint capital of a general partnership terminates his participation in the partnership and entails the consequences provided for in paragraph two of paragraph 2 of Article 75 of this Code.
Liquidation of a general partnership
A general partnership is liquidated on the grounds specified in Article 61 of this Code, as well as in the case when the only participant remains in the partnership. Such a participant has the right, within six months from the moment when he became the sole participant of the partnership, to transform such a partnership into a business company in the manner established by this Code.
A general partnership is also liquidated in the cases specified in paragraph 1 of Article 76 of this Code, unless the founding agreement of the partnership or the agreement of the remaining participants stipulates that the partnership will continue its activities.
Partnership of Faith
Basic provisions on limited partnership
1. A limited partnership (limited partnership) is a partnership in which, along with the participants who carry out business activities on behalf of the partnership and are liable for the obligations of the partnership with their property (general partners), there are one or more participants - investors (limited partners) who bear the risk losses associated with the activities of the partnership, within the limits of the amounts of contributions made by them and do not take part in the implementation of the partnership entrepreneurial activity.
2. The position of general partners participating in a limited partnership and their responsibility for the obligations of the partnership are determined by the rules of this Code on participants in a general partnership.
3. A person can be a general partner in only one limited partnership.
A participant in a general partnership cannot be a general partner in a limited partnership.
A general partner in a limited partnership cannot be a participant in the general partnership.
The number of limited partners in a limited partnership should not exceed twenty. Otherwise, it is subject to transformation into a business company within a year, and after this period - to liquidation in court, if the number of its limited partners does not decrease to the specified limit.
4. The company name of a limited partnership must contain either the names (titles) of all general partners and the words “limited partnership” or “limited partnership”, or the name (title) of at least one general partner with the addition of the words “and company” and the words "limited partnership" or "limited partnership".
If in brand name limited partnership, the name of the investor is included, such investor becomes a general partner.
5. The rules of this Code on general partnerships are applied to a limited partnership to the extent that this does not contradict the rules of this Code on limited partnerships.
Memorandum of association for a limited partnership
1. A limited partnership is created and operates on the basis of a constituent agreement. The memorandum of association is signed by all general partners.
2. The founding agreement of a limited partnership must contain, in addition to the information specified in paragraph 2 of Article 52 of this Code, conditions on the size and composition of the partnership’s share capital; on the size and procedure for changing the shares of each of the general partners in the share capital; on the size, composition, timing and procedure for making deposits, their responsibility for violating the obligations to make deposits; on the total amount of deposits made by investors.
Management of a limited partnership and conduct of its affairs
1. Management of the activities of a limited partnership is carried out by the general partners. The procedure for managing and conducting the affairs of such a partnership by its general partners is established by them in accordance with the rules of this Code on General Partnership.
2. Investors do not have the right to participate in the management and conduct of the affairs of the limited partnership, or to act on its behalf except by proxy. They do not have the right to challenge the actions of their general partners in managing and conducting the affairs of the partnership.
Rights and obligations of a limited partnership investor
1. An investor in a limited partnership is obliged to make a contribution to the share capital. Making a contribution is certified by a certificate of participation issued to the investor by the partnership.
2. An investor in a limited partnership has the right:
1) receive part of the partnership’s profit due to its share in the share capital, in the manner prescribed by the constituent agreement;
2) get acquainted with the annual reports and balance sheets of the partnership;
3) upon completion financial year leave the partnership and receive your contribution in the manner prescribed by the founding agreement;
4) transfer your share in the share capital or part thereof to another investor or a third party. Depositors enjoy a preferential right over third parties to purchase a share (part thereof) in relation to the conditions and procedure provided for in paragraph 2 of Article 93 of this Code. The transfer of the entire share to another person by the investor terminates his participation in the partnership.
The founding agreement of a limited partnership may also provide for other rights of the investor.
Liquidation of a limited partnership
1. A limited partnership is liquidated upon the departure of all investors participating in it. However, general partners have the right, instead of liquidation, to transform the limited partnership into a general partnership.
A limited partnership is also liquidated on the grounds of liquidation of a general partnership (Article 81). However, a limited partnership is maintained if at least one general partner and one investor remain in it.
2. When a limited partnership is liquidated, including in the event of bankruptcy, investors have a priority right over general partners to receive contributions from the property of the partnership remaining after satisfaction of the claims of its creditors.
The property of the partnership remaining after this is distributed among the general partners and investors in proportion to their shares in the joint capital of the partnership, unless a different procedure is established by the constituent agreement or agreement of the general partners and investors.
Business partnerships are commercial organizations with shared capital divided into shares (contributions) of the founders (participants).
The main features of a business partnership are the following.
Firstly, a partnership is a voluntary, contractual association of several persons. Constituent document partnership is only a contract. Secondly, the purpose of such an association is to make a profit from joint activities on behalf of the partnership. Therefore, thirdly, partnership presupposes a combination of property and personal forces. A participant in a partnership can contribute both his property and his personal labor to the partnership. In this case, participation in personal labor is not provided for by law, but may occur. In any case, the participant must, according to the agreement, take some part in the activities of the partnership, otherwise his participation in the profits cannot be justified.
The Civil Code of the Russian Federation distinguishes between two forms of business partnership: general partnership and limited partnership.
A full partnership is a partnership whose participants, in accordance with an agreement concluded between them, engage in entrepreneurial activities on behalf of the partnership and are liable for its obligations with the property belonging to them. This is a union of persons who are responsible for each other with their property. Legal status full partnership is determined only by the norms of the Civil Code of the Russian Federation.
Participants in a general partnership (full partnerships) can only be individual entrepreneurs and (or) commercial organizations. They can also be full partners in a partnership of faith.
The business name of a general partnership must contain either the names (titles) of all its participants and the words “full partnership,” or the name (title) of one or more participants with the addition of the words “and company” and the words “general partnership.”
A general partnership, in addition to the features common to partnerships, is characterized by two more main features: the entrepreneurial activity of its participants (general partners) is considered the entrepreneurial activity of the partnership itself, and for the obligations of the partnership, the general partners jointly and severally bear subsidiary liability with all their property (Clause 1, Article 75 Civil Code of the Russian Federation).
In this case, the liability of general partners is joint and several, i.e. full comrades are responsible for each other. In addition, a participant who has left the partnership is liable for the obligations of the partnership that arose before the moment of his departure, on an equal basis with the remaining participants for two years from the date of approval of the report on the activities of the partnership for the year in which he left (Article 75 of the Civil Code).
A general partnership is created and operates on the basis of a constituent agreement, which is the only constituent document of a general partnership. The minimum number of participants in a general partnership is two.
A general partnership can be established without specifying a period or for a specific period, which must be reflected in the constituent agreement.
The Civil Code of the Russian Federation does not establish minimum sizes share capital.
A participant in a general partnership is obliged to make at least half of his contribution to the share capital by the time of state registration of the general partnership. The rest is paid within the time limits specified in the constituent agreement. If a participant does not fulfill his obligation to make a contribution to the pooled capital, he is obliged to pay the partnership 10% per annum on the unpaid portion of the contribution and compensate for the losses caused. This is the rule enshrined in Art. 73 of the Civil Code of the Russian Federation, is dispositive in nature, since other consequences of failure to fulfill this obligation by a participant in a general partnership may be established by the constituent agreement.
Management of the activities of a general partnership is carried out by general agreement of all participants. However, the memorandum of association may provide for cases where the decision is made by a majority vote of the participants.
By general rule Each participant in a general partnership has one vote. But the constituent agreement may also provide for a different procedure for determining the number of votes of its participants.
The conduct of affairs of a general partnership is carried out as follows. As a general rule, each participant in a general partnership has the right to act on behalf of the partnership. At the same time, the constituent agreement may establish the following options for conducting the affairs of a general partnership. Firstly, it can be established that all its participants conduct business together. Secondly, the constituent agreement may provide that the conduct of affairs is entrusted to individual participants. Regardless of whether the general partner is authorized to conduct the affairs of the partnership, he has the right to familiarize himself with all documentation on the conduct of affairs.
When conducting the affairs of a partnership jointly by its participants, the consent of all participants of the partnership is required for each transaction.
If the management of the affairs of a partnership is entrusted by its participants to one or some of them, the remaining participants, in order to carry out transactions on behalf of the partnership, must have a power of attorney from the participant (participants) who is entrusted with the management of the affairs of the partnership.
Since general partners are engaged in entrepreneurial activities on behalf of the partnership, they do not have the right, without the consent of the other participants, to carry out transactions on their own behalf and in their own interests or in the interests of third parties that are similar to those that constitute the subject of the partnership’s activities. If this rule is violated, the partnership has the right, at its choice, to demand from such participant compensation for losses caused to the partnership or the transfer to the partnership of all benefits acquired through such transactions (Clause 3 of Article 73 of the Civil Code of the Russian Federation).
A participant in a general partnership has the right to participate in the distribution of profits. The profits and losses of a general partnership are distributed among its participants in proportion to their shares in the share capital. A different procedure for the distribution of profits and losses may be determined in the constituent agreement. However, the exclusion of any of the general partners from participation in profits or losses is not permitted.
A participant in a general partnership has the right to leave the partnership in the manner prescribed by Art. 77 Civil Code of the Russian Federation. A participant must declare his refusal to participate in a general partnership at least six months before the actual withdrawal from the partnership, if the partnership was founded without specifying a period. If a general partnership was established for a certain period, then early refusal to participate in it is allowed only for a good reason.
A participant who has left the partnership is liable for the obligations of the partnership that arose before the moment of his withdrawal, on an equal basis with other participants of the partnership, for two years from the date of approval of the report on the activities of the partnership for the year in which he left the partnership.
A leaving comrade may demand that the remaining comrades settle accounts with him. Such retiring general partner is paid the value of a part of the partnership’s property corresponding to his share in the share capital. At the same time, by agreement of the retiring participant with the remaining participants, payment of the value of the property may be replaced by the delivery of property in kind. The part of the partnership property due to the retiring participant or its value is determined by the balance sheet at the time of his departure.
The share of a general partner in the joint capital of the partnership may be levied against the partner's own debts and only if there is insufficient other property to cover the debts. Creditors of such a partner have the right to demand the allocation of a part of the partnership’s property corresponding to the debtor’s share in the share capital in order to foreclose on this property.
Foreclosure of property corresponding to a partner's share in the joint capital terminates his participation in the partnership. In this case, the partner who has left the partnership in this way is liable for the obligations of the partnership for two years from the date of approval of the report on the activities of the partnership for the year in which he left the partnership (Clause 2 of Article 75 of the Civil Code of the Russian Federation).
Since a general partnership is of a personal-trust nature, a general partner does not have the right to transfer his participation in the general partnership without the consent of the other partners. The person to whom the share (part of the share) is transferred is liable equally with other participants for obligations that arose before his entry into the partnership. For the partner himself, who has transferred the entire share to another person, participation in the partnership is terminated, and the consequences provided for in paragraph 2 of Art. 75 of the Civil Code of the Russian Federation.
In the event of the death of a participant in a general partnership, his heir may enter into a general partnership only with the consent of the other participants. This rule is imperative in nature and cannot be changed by the constituent agreement (clause 2 of article 78 of the Civil Code). Entry into a general partnership of a legal entity - the legal successor of a reorganized legal entity participating in the partnership - is permitted with the consent of its other participants, unless otherwise provided by the founding agreement of the partnership.
If the heirs (successors) have not entered into the partnership, settlements are made with them in the same manner as with the retiring partner. In this case, the heirs (legal successors) of a general partner are liable for the obligations of the partnership to third parties for which the retired participant would be liable, within the limits of the property of the retired general partner transferred to them (Clause 2 of Article 78 of the Civil Code of the Russian Federation).
Participants in a general partnership have the right to demand in court the exclusion of any of the general partners from the partnership if the decision of the remaining partners to exclude is made unanimously by them and there are serious grounds for exclusion. Such grounds, in particular, are a gross violation by a general partner of his duties or his revealed inability to conduct affairs wisely.
A general partnership is liquidated according to the general principles of liquidation of a legal entity. It is also liquidated in the case when the only participant remains in the partnership. At the same time, such a participant has the right, within six months from the moment he became the sole participant of the partnership, to transform such a partnership into a business company.
When transforming a general partnership into a company, a general partner who has become a participant (shareholder) of the company, for two years, bears subsidiary liability with all his property for the obligations transferred to the company from the partnership. Alienation by a former partner of his shares (shares) does not relieve him of such liability.
A general partnership is liquidated if the composition of the participants in the general partnership changes. The composition of the participants of the partnership may change if any of the general partners leaves or dies, if one of them is recognized as missing, incompetent or partially capable or insolvent (bankrupt), if a creditor of one of the participants applies for foreclosure on part of the property corresponding to his share in the warehouse capital. At the same time, the founding agreement of the partnership or the agreement of the remaining partners may provide that in the event of a change in the composition of participants, the general partnership will continue its activities.
A limited partnership is a partnership in which, along with the participants who carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with their property (general partners), there are one or more participant-investors (limited partners) who bear the risk of losses, related to the activities of the partnership, within the limits of the amounts of contributions made by them and do not take part in the partnership’s business activities (Clause 1 of Article 82 of the Civil Code of the Russian Federation)
A partnership of faith is characterized by the following features. There is a dual responsibility in it: some participants (general partners) are liable for the obligations of the partnership with all their property, and other participants (investors) bear the risk of losses within the limits of the amounts of their contributions. On behalf of the limited partnership, only general partners conduct business activities.
Investors in a limited partnership can be citizens and legal entities. However, government bodies and local governments cannot be investors in a limited partnership, unless otherwise provided by law. Institutions may be investors in such partnerships only with the permission of the owner, unless otherwise provided by law.
Within a limited partnership, a general partnership is formed from participants with unlimited liability, to which the rules established for a general partnership apply. Accordingly, the legal status of general partners participating in a limited partnership and their liability for obligations are determined by the provisions of the Civil Code on participants in a general partnership.
The business name of a limited partnership must contain either the names of all general partners and the words “limited partnership” or “limited partnership,” or the name (title) of at least one general partner with the addition of the words “and company” and the words “partnership.” on faith" or "limited partnership". If the company name of a limited partnership includes the name of an investor, then such investor becomes a general partner with all the ensuing legal consequences.
The constituent document of a limited partnership is only the constituent agreement, which is in writing and signed only by all general partners. It contains the same conditions that are contained in the memorandum of association of the general partnership. In addition, the founding agreement of a limited partnership contains a condition on the total amount of contributions made by investors (Article 83 of the Civil Code of the Russian Federation). However, investors do not sign the memorandum of association. Their duty is to make a contribution to the share capital, which is certified by a certificate of participation issued to the investor by the partnership after its state registration.
An investor in a limited partnership has the right to receive part of the profit due to his share in the share capital. He can get acquainted with the annual reports and balance sheets of the partnership. In this case, the personal participation of investors is not only not assumed, but is directly excluded: the investor is completely removed from managing the activities of the partnership, which is carried out only by general partners. An investor can participate in the management and conduct of the affairs of a limited partnership and act on its behalf only by proxy, i.e., as a trustee. At the same time, the investor does not have the right to challenge the actions of the general partners in managing and conducting the affairs of the partnership.
Thus, by making a contribution to the share capital, the investor fully trusts (hence the name - limited partnership) to the general partners acting on behalf of the partnership. This form of partnership, like a general partnership, has a personal-trust character. But if in a general partnership the participants trust each other, because bear joint responsibility for each other, then in a limited partnership it is necessary, on the one hand, the trust of the general partners in each other, and on the other, the trust of the investors in the general partners.
An investor in a limited partnership has the right to leave the limited partnership only at the end of the financial year and receive his contribution in the manner specified in the founding agreement. He can transfer his share (part of the share) to another investor or a third party. In this case, investors enjoy the preemptive right to purchase a share (part thereof).
When a limited partnership is liquidated, including in the event of its bankruptcy, investors have a priority right over general partners to receive contributions from the property of the partnership remaining after the claims of its creditors have been satisfied.
If there is not a single investor left in the limited partnership, the limited partnership is liquidated. However, general partners have the right not to liquidate it, but to transform the limited partnership into a general partnership.
A limited partnership is maintained even when at least one general partner and one investor remain in it. At the same time, the founding agreement of a limited partnership is signed only by general partners. That's why minimal amount two full comrades. If only one general partner remains, then there is no constituent agreement. There is no agreement between the general partner and the investor; there is a certificate of participation, which is issued to the investor by the partnership itself as a legal entity. Thus, a limited partnership must have at least two general partners and one investor.
A limited partnership, as well as a general partnership, can be transformed into business companies or into a production cooperative. This transformation of partnerships has one peculiarity, namely that during the transformation, each general partner who has become a participant in the company (shareholder) or a member of the cooperative, for two years bears subsidiary liability with all his property for the obligations transferred to the company or production cooperative from the partnership . The alienation of the shares (shares, share) belonging to him does not relieve the former partner from such liability.
Economic partnerships commercial organizations with an authorized capital divided into shares of founders (participants) are recognized. Property created through the contributions of founders (participants), as well as produced and acquired by a business partnership in the course of its activities, belongs to it by right of ownership.
Business partnerships can be full or limited.
Full A partnership is recognized, the participants of which (general partners), in accordance with the agreement concluded between them, engage in entrepreneurial activities on behalf of the partnership and jointly and severally bear subsidiary liability with their property for the obligations of the partnership. A person can be a member of only one general partnership. A general partnership is created and operates on the basis of a constituent agreement. The constituent agreement is signed by all its participants.
Management of the activities of a general partnership is carried out by general agreement of all participants. The founding agreement of a partnership may provide for cases when a decision is made by a majority vote of the participants. Each participant in a general partnership has one vote, unless the constituent agreement provides for a different procedure for determining the number of votes of its participants. Moreover, each participant in a general partnership has the right to act on behalf of the partnership, unless the founding agreement establishes that all its participants conduct business jointly or that the conduct of business is entrusted to individual participants.
Limited partnership A partnership is recognized in which, along with participants who carry out business activities on behalf of the partnership and are liable for the obligations of the partnership with all their property (general partners), there are one or more participants (investors, limited partners) who bear the risk of losses associated with the activities of the partnership, in within the limits of the amounts of contributions made by them and do not take part in the partnership’s business activities. The position of general partners participating in a limited partnership and their responsibility for the obligations of the partnership are determined by the legislation on participants in a general partnership. A person can be a general partner in only one limited partnership. A participant in a general partnership cannot be a general partner in a limited partnership. A general partner in a limited partnership cannot be a participant in the general partnership.
A limited partnership is created and operates on the basis of a constituent agreement. The memorandum of association is signed by all general partners. The management of the activities of a limited partnership is carried out by the general partners. The procedure for managing and conducting the affairs of such a partnership by its general partners is established by them in accordance with the legislation on general partnerships. Investors do not have the right to participate in the management of the affairs of a limited partnership. They can act on his behalf only by proxy. They do not have the right to challenge the actions of their general partners in managing and conducting the affairs of the partnership.
The legislation on a general partnership applies to a limited partnership, since this does not contradict the legislation on a limited partnership.
Economic society recognized commercial organization, the authorized capital of which is divided into shares (shares) of its participants.
Economical society:
owns separate property created through the contributions of the founders (participants), as well as produced and acquired by the business company in the course of its activities;
bears independent responsibility for its obligations, can, on its own behalf, acquire and exercise property and personal non-property rights, perform duties, and be a plaintiff and defendant in court;
may have civil rights, corresponding to the goals of the activity provided for in its charter, as well as the subject of activity, if it is specified in the charter, and bear the responsibilities associated with this activity. A business company can engage in certain types of activities, the list of which is determined by legislative acts, only on the basis of a special permit (license);
acquires civil rights and assumes civil responsibilities through its bodies acting in accordance with the legislation and charter;
in accordance with the law, can create legal entities, as well as be part of legal entities (for example, be part of a concern, create unitary enterprises, etc.);
in accordance with legislative acts, may participate in the creation of financial, industrial and other economic groups, holdings in the manner and under the conditions determined by the legislation on such groups, holdings, as well as be part of them.
There are three types of business companies established by law: limited liability companies, additional liability companies and joint stock companies (open and closed).
Limited Liability Company A company founded by two or more persons is recognized, the authorized capital of which is divided into shares of sizes determined by the charter. Participants in a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of their contributions. The number of participants in such societies cannot exceed fifty. The constituent document of a limited liability company is the charter approved by its founders.
Company with additional liability A business company with a number of participants of no more than fifty, the authorized capital of which is divided into shares of sizes determined by the charter, is recognized. Participants of such a company jointly and severally bear subsidiary liability for its obligations with their property within the limits determined by the charter of the company, but not less than the amount established by legislative acts, in proportion to the contributions of these participants in the authorized capital of the company with additional liability (Decree No. 1 established such a limit in the amount of not less than 50 basic units). As a general rule, the legislation on a limited liability company applies to a company with additional liability to the extent that it is not otherwise provided for by legislative acts.
The Civil Code separately identifies subsidiaries And dependent business entities that do not represent separate species organizational and legal form of commercial legal entities. A business company is recognized as a subsidiary if another (main) business company or partnership, due to its predominant participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise has the opportunity to determine the decisions made by such company. A business company is recognized as dependent if another business company has a share in the authorized capital (shares) of this company in an amount corresponding to twenty or more percent of the votes of the total number of votes that it can use at the general meeting of participants of such a company.
The legal status of business companies is determined by the norms of the Civil Code, Decree No. 1, Law of the Republic of Belarus dated December 9, 1992 N 2020-XII “On Business Companies”, special legislation on securities (for example, Law of the Republic of Belarus dated March 12, 1992 N 1512 -XII “On securities and stock exchanges”), other regulatory legal acts.
Joint stock company A company is recognized whose authorized capital is divided into certain number shares having the same par value. Participants in a joint stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of the shares they own.
The authorized capital of a joint-stock company is made up of the nominal value of shares. The constituent document of a joint stock company is its charter, approved by the founders.
A joint stock company can be open or closed.
A joint stock company, the participant of which can alienate shares belonging to him without the consent of other shareholders to an unlimited number of persons, is recognized as an open joint stock company. Such a joint-stock company has the right to conduct an open subscription for the shares it issues and freely sell them under the conditions established by the legislation on securities.
A share is a perpetual issue-grade security, indicating a contribution to the authorized capital of a joint-stock company and certifying, in accordance with the legislation and the charter of the joint-stock company, the rights of its owner to participate in the management of this company, to receive part of its profit in the form of dividends and part of the property remaining after settlement with creditors, or its value in the event of liquidation of the joint stock company.
The number of shareholders of an open joint stock company is not limited.
A joint stock company, the participant of which can alienate shares belonging to him only with the consent of other shareholders and (or) to a limited circle of persons, is recognized as a closed joint stock company. Such a joint stock company does not have the right to conduct an open subscription for the shares it issues or otherwise offer them for acquisition to an unlimited number of persons.
The number of participants in a closed joint stock company should not exceed fifty. Otherwise, it is subject to reorganization within one year, and after this period - to liquidation in court, if the number of participants is not reduced to fifty.
For such business companies, the minimum size of authorized capital is legally established: 100 basic units - for closed joint-stock companies; 400 basic units - for open joint-stock companies (Decree No. 1).
It should be noted that according to Art. 17 of the Law of the Republic of Belarus dated July 12, 2013 N 56-Z “On auditing activities” for joint-stock companies that are obliged, according to the legislation of the Republic of Belarus, to publish an annual report for public information, a mandatory audit of the annual individual and consolidated (if compiled) is carried out annually. accounting (financial) statements.
Business partnerships and societies. Business partnerships and companies are organizational and legal forms of commercial organizations, the difference of which is manifested in the fact that business partnerships are primarily a combination of the professional experience of entrepreneurs, while business companies are primarily an association (concentration) of the capital of various individuals.
Business partnerships as a union of professional experience of entrepreneurs should not be confused with the union of labor (production) abilities of citizens, which is possible within the framework of a production cooperative. Speaking about business partnerships as a combination of professional experience in the field of entrepreneurial activity, it should be taken into account that the named organizational and legal form does not exclude the pooling of capital. In a business partnership, the pooling of professional experience is the primary goal of the association of entrepreneurs, which does not prohibit the pooling of capital of the named persons.
In turn, for business companies the primary purpose of the association is the concentration of capital, the presence of which also does not exclude the association of the professional experience of entrepreneurs.
The named differences between business partnerships and companies are significant and predetermine the features of the legal regulation of the relevant aspects of the legal status of a business partnership and company, which will be indicated below.
Economic partnerships. The legal status of business partnerships is determined by the norms of Art. 66-86 Civil Code of the Russian Federation.
Business partnerships can be created in the form of a general partnership and limited partnership (limited partnership) (Clause 3, Article 66 of the Civil Code of the Russian Federation).
Full partnership An organization is recognized whose participants (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with the property belonging to them (Clause 1 of Article 69 of the Civil Code of the Russian Federation).
From the above legal definition of a general partnership, the following essential features can be identified.
Firstly, the participants of a general partnership, called general partners, can only be persons who are engaged in entrepreneurial activities, i.e. individual entrepreneurs and (or) commercial organizations (Part 5 of Article 66 of the Civil Code of the Russian Federation). The establishment of this rule is predetermined by the peculiarity of a business partnership as an association of professional experience in the field of entrepreneurial activity. If a business partnership is an association of professional experience of entrepreneurs, then, consequently, only entrepreneurs can unite within the framework of a business partnership.
Secondly, a general partnership is a commercial organization operating on the basis of an agreement concluded between general partners, which is called the constituent agreement (Article 70 of the Civil Code of the Russian Federation). Since a general partnership operates solely on the basis of an agreement concluded between its participants, the minimum number of general partners cannot be less than two persons.
Third, since a business partnership is a union of professional efforts of general partners, the management of the activities of a general partnership is carried out directly by the indicated persons by general agreement. Each participant in a general partnership has one vote, unless the constituent agreement provides for a different procedure for determining the number of votes of its participants. Each participant in the partnership, regardless of whether he is authorized to conduct the affairs of the partnership, has the right to familiarize himself with all documentation on the conduct of affairs. Waiver of this right or its limitation, including by agreement of the participants of the partnership, is void.
Fourth Since a business partnership is an association of professional participants in business activities, the legislator places increased demands on the liability of general partners for the obligations of the business partnership created by him. Participants in a general partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership. It should be noted here that the subsidiary liability of participants in a business partnership for its obligations is not an exception to the rule that a commercial organization is a collective form of entrepreneurial activity that allows the owner (person) capital to limit part of their property from business risks. IN in this case either an individual entrepreneur who, being the owner (person) of capital, did not want to limit part of his property from entrepreneurial risk and carries out entrepreneurial activities in an individual form, or a commercial organization that represents a collective form of entrepreneurial activity, and therefore protects part of the property of the owner (person) of capital from business risks.
The minimum separate property that guarantees the rights of creditors of a general partnership is called share capital, the size of which is determined by the constituent agreement (clause 2 of Article 70 of the Civil Code of the Russian Federation). It should be noted that the law does not establish a minimum amount of share capital.
The legislation also establishes special requirements for the business name of a general partnership. So, according to the norms of paragraph 3 of Art. 69 of the Civil Code of the Russian Federation, the corporate name of a full partnership must contain either the names (names) of all its participants and the words “full partnership”, or the name (name) of one or more participants with the addition of the words “and company” and the words “full partnership”.
Unlike a general partnership, a limited partnership is a partnership in which, along with general partners, there are one or more participants - investors (limited partners) who bear the risk of losses associated with the activities of the partnership, within the limits of the amounts of contributions made by them and do not take part in the partnership’s business activities.
Thus, a limited partnership is essentially an association of persons (general partners) and capital (investors’ capital), which, in fact, determines the features of its legal status. Unlike a general partnership, the features of a limited partnership are determined by the features of the legal status of its participants-investors and the features of the use of their contributions. A limited partnership, in a certain sense, can be considered a type of general partnership, in which, along with general partners, there is one or more participant-investors 11.
The business name of a limited partnership must contain either the names of all general partners and the words “limited partnership” or “limited partnership,” or the name (title) of at least one general partner with the addition of the words “and company” and the words “partnership.” on faith" or "limited partnership". If the business name of a limited partnership includes the name of an investor, such investor becomes a general partner.
Concluding the consideration of the peculiarities of the legal status of business partnerships, it should be noted that the considered organizational and legal form is of little demand from entrepreneurs. Thus, according to the website of the Federal Tax Service of the Russian Federation 12 as of 02/01/2013, out of 3,858,006 commercial organizations included in the Unified State Register of Legal Entities, 888 (0.02%) are business partnerships, of which 353 are general partnerships, 535 are limited partnerships.
Economic societies. Business companies can be created in the organizational and legal form of a joint stock company or a limited liability company (clause 4 of article 66 of the Civil Code of the Russian Federation).
Despite the fact that the above-mentioned organizational and legal forms of business companies are associations of capital, there is a qualitative difference between them, which is manifested in the idea that a joint-stock company will be an association of capital of persons between whom there are no trust (fiduciary) relationships 13. while a limited liability company is an association of capital of persons between whom there is a trust (fiduciary) relationship. It is this circumstance that primarily determines the features of the legal status of a joint-stock company and a limited liability company. When regulating the legal generation of a joint stock company, the legislator tries to formalize (regulate) its activities as much as possible, especially related to the adoption of certain management decisions, which, on the one hand, makes it possible to protect the interests of persons whose association is based on a lack of trust, on the other hand, it limits the said society in the efficiency of decision-making. When regulating the legal status of a limited liability company, the legislator, on the contrary, tries to simplify as much as possible the procedure for making certain decisions by persons whose union is based on trust, which allows the named organizational and legal form of business companies to quickly make decisions.
Business societies are the most common organizational and legal form of commercial organizations. Thus, according to the website of the Federal Tax Service of the Russian Federation 14 as of 02/01/2013, out of 3,858,006 commercial organizations included in the Unified State Register of Legal Entities, 3,774,363 (97.8%) are business companies, of which 3,604,539 are limited and additional liability companies, 169,823 – joint stock companies as open ones.
Limited liability companies. The legal status of a limited liability company is determined by the provisions of Art. 66-68, 87-94 of the Civil Code of the Russian Federation, as well as the norms of the Federal Law “On Limited Liability Companies” dated 02/08/1998 No. 14-FZ 15 (hereinafter referred to as the LLC Law).
A limited liability company is a business company whose authorized capital is divided into shares; Participants in a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of the shares they own (Clause 1, Article 87 of the Civil Code of the Russian Federation).
From the above definition, the following features can be identified that characterize a limited liability company (hereinafter referred to as LLC):
The authorized capital (the minimum amount of property guaranteeing the rights of its creditors) of an LLC is divided into shares.
Participants in a limited liability company are not liable for its obligations. This means that if the company fails to fulfill its obligations, the fulfillment of these obligations or liability for the LLC’s failure to fulfill these obligations cannot be assigned to its participants. For example, if an LLC has debt under a loan agreement and a supply agreement, then neither the bank nor the supplier has the right to demand the fulfillment of these obligations from the LLC participants.
Participants bear the risk of losses associated with the activities of the company, within the limits of the value of their shares. This feature is closely related to the risky nature of business activity and means that in the event of an unprofitable business activity of an LLC, its participants only risk losing the property assigned to the LLC, which determines the value of their shares. For example, if an LLC, whose property amounts to 50,000 rubles, has a debt under a loan agreement of 100,000 rubles, then in the event of a bank foreclosure for 50,000 rubles, the participants of this LLC will suffer losses only within the value of their shares, the total amount of which is 50 000 rubles. Its participants do not bear any other risks of losses associated with the activities of the company.
Participants of the society can be citizens and legal entities. State bodies and local government bodies do not have the right to act as participants in companies, unless otherwise provided by federal law. A company can be founded by one person, who becomes its sole participant. A company cannot have another business company consisting of one person as its sole participant (clauses 1 and 2 of Article 7 of the LLC Law).
The number of participants in the company should not be more than fifty. If the number of participants in the company exceeds the established limit, the company must be transformed into an open joint-stock company or a production cooperative within a year. If within the specified period the company is not transformed and the number of participants in the company does not decrease to the limit established by this paragraph, it is subject to liquidation in court at the request of the body carrying out state registration of legal entities, or other state bodies or local government bodies, which have the right to present such a requirement is provided by federal law (clause 3 of article 7 of the LLC Law). Here you should pay attention to the fact that the numerical limitation of LLC participants is due to the idea that an LLC is an association of capital of persons between whom there is a trust (fiduciary) relationship. Consequently, since the named relations cannot exist between an indefinite circle of participants in legal relations, the legislator establishes a quantitative expression of the persons between whom the existence of trust (fiduciary) relations is possible. If the number of LLC participants exceeds the figure specified by the legislator, then it is considered that there are no trust (fiduciary) relationships between these persons. Consequently, actual relations cease to correspond to their legal form. To bring these relations into conformity with the legal form, the legislator requires the transformation of LLC into organizational and legal forms, which in to a greater extent correspond to the case when there is a merger of capital of persons between whom there is no trust (fiduciary) relationship.
The creation of an LLC is usually carried out through its establishment, which can also be divided into three stages: preparation of documents necessary for registration, registration of the LLC with the competent government agency and formation of the authorized capital. When establishing an LLC, its founders enter into an agreement among themselves on the establishment of a limited liability company, which determines the procedure for their joint activities to establish the company, the size of the authorized capital of the company, the size of their shares in the authorized capital of the company and other conditions established by the Law on LLC.
When establishing an LLC, for its registration it is necessary to develop:
b) constituent document.
A) The decision to establish a company is made by the meeting of the founders of the company. If a company is founded by one person, the decision on its establishment is made by that person alone (Clause 1, Article 11 of the LLC Law).
The decision to establish a company must reflect the voting results of the company’s founders and the decisions they made on the issues (Clause 2, Article 11 of the LLC Law):
- institutions of society,
- election or appointment of management bodies of the company,
- education audit commission or election of an auditor of the company, if such bodies are provided for by the company’s charter or are mandatory in accordance with the LLC Law.
unanimously. The election of the company's management bodies, the formation of the audit commission or the election of the company's auditor and the approval of the company's auditor are carried out by a majority at least three quarters votes from total number votes of the founders of the company (clauses 3 and 4 of Article 11 of the LLC Law).
b) The constituent document of an LLC is its charter (Clause 1, Article 12 of the LLC Law).
Full and abbreviated company name of the company;
Information about the location of the company;
Information on the composition and competence of the company's bodies, including on issues that constitute the exclusive competence of the general meeting of the company's participants, on the procedure for making decisions by the company's bodies, including on issues on which decisions are made unanimously or by a qualified majority of votes;
Information on the size of the authorized capital of the company;
Rights and obligations of company participants;
Information on the procedure and consequences of the withdrawal of a company participant from the company, if the right to leave the company is provided for by the company’s charter;
Information on the procedure for transferring a share or part of a share in the authorized capital of the company to another person;
Information on the procedure for storing company documents and on the procedure for the company providing information to company participants and other persons;
Other information provided for by the LLC Law.
After approval of the company's charter, changes to it can only be made by decision of the general meeting of the company's participants (clause 4 of article 12 of the LLC Law).
Making a decision to create an LLC and approving the charter of the LLC completes the first stage of establishing the LLC, after which follows According to the provisions of Art. 13 of the Law on LLC, the company is subject to state registration with the body that carries out state registration of legal entities, i.e. in the Federal Tax Service (FTS of Russia), in the manner established by the federal law on state registration of legal entities, i.e. Federal Law “On state registration of legal entities and individual entrepreneurs” 08.08.2001 No. 129-FZ.
The final stage of establishing an LLC is
The size of the authorized capital of the company must be no less than ten thousand rubles. The size of the share of a company participant in the authorized capital of the company is determined as a percentage or as a fraction.
Payment for shares in the authorized capital of a company can be made in money, securities, other things or property rights or other rights with a monetary value.
The peculiarity of the formation of the authorized capital of an LLC is that it begins before the registration of the company. So, according to the norms of paragraph 2 of Art. 16 of the Law on LLC at the time of state registration of the company, its authorized capital must be paid by the founders at least half. The remaining part is payable by each founder of the company within the period determined by the agreement on the establishment of the company or in the case of the establishment of the company by one person by the decision on the establishment of the company and cannot exceed one year from the date of state registration of the company (Clause 1 of Article 16 of the LLC Law) .
Meanwhile, in practice, cases are not uncommon when founders do not fully pay for their shares within the period established for this. The question arises about the consequences of such violations? The answer to the question posed is contained in paragraph 3 of Art. 16 of the Bankruptcy Law, according to which in case of incomplete payment of a share in the authorized capital of the company within the period determined by law, the unpaid part of the share passes to the LLC. Such part of the share must be sold by the LLC within one year from the date of transfer of the share in the authorized capital of the company to the company. If the LLC fails to sell the share transferred to it unpaid by the founder within the specified period, then the said share in the authorized capital of the company must be redeemed, and the size of the authorized capital of the company must be reduced by the nominal value of this share (clause 5 of Article 24 of the LLC Law) .
The authorized capital of an LLC can change either upward or downward. In this case, an increase in the authorized capital of the company is allowed only after its full payment. An increase in the authorized capital of a company can be carried out at the expense of the company’s property, and (or) at the expense of additional contributions of the company’s participants, and (or), if this is not prohibited by the company’s charter, at the expense of contributions from third parties accepted into the company. The company has the right, and in cases provided for by the LLC Law, is obliged to reduce its authorized capital. A decrease in the authorized capital of a company can be carried out by reducing the nominal value of the shares of all participants in the company in the authorized capital of the company and (or) redeeming shares owned by the company.
LLC as a legal entity has its own system of bodies that participate in the formation and expression of the will of society in legal relations.
General meeting of company participants
The general meeting of company participants may be regular or extraordinary. Next general meeting of the company's participants is carried out within the time limits specified by the company's charter, but not less than once a year. The next general meeting of the company's participants is convened by the executive body of the company. An extraordinary general meeting of the company's participants is held in cases determined by the company's charter, as well as in any other cases if the holding of such a general meeting is required by the interests of the company and its participants.
All company participants have the right to attend the general meeting of company participants, take part in the discussion of agenda items and vote when decisions are made. Each company participant has at the general meeting of company participants a number of votes proportional to his share in the authorized capital of the company, with the exception of cases provided for by the LLC Law.
The competence of the general meeting of company participants includes determining the main directions of the company’s activities, as well as making decisions on participation in associations and other associations of commercial organizations; changing the company's charter, including changing the size of the company's authorized capital; the formation of the executive bodies of the company and the early termination of their powers, as well as the adoption of a decision on the transfer of powers of the sole executive body of the company to the manager, approval of such a manager and the terms of the agreement with him, if the company’s charter does not include the resolution of these issues within the competence of the board of directors (supervisory board) of the company; election and early termination of powers of the audit commission (auditor) of the company; approval of annual reports and annual balance sheets; making a decision on the distribution of the company’s net profit among the company’s participants; making a decision on the company’s placement of bonds and other issue-grade securities; making a decision on the reorganization or liquidation of the company; appointment of a liquidation commission and approval of liquidation balance sheets.
It should be noted that issues referred to the exclusive competence of the general meeting of the company's participants cannot be attributed by the company's charter to the competence of other management bodies of the company.
Which is not a mandatory body of the LLC and may be provided for by the company’s charter. The optional creation of a board of directors (supervisory board) is also due to the fact that an LLC is an association of capital of persons connected by trust (fiduciary) relationships, which makes it possible to simplify the management system of the LLC.
The board of directors (supervisory board) of the company, like the general meeting of LLC participants, is the will-forming body of the LLC. The procedure for the formation and activities of the board of directors (supervisory board) of the company, as well as the procedure for terminating the powers of members of the board of directors (supervisory board) of the company and the competence of the chairman of the board of directors (supervisory board) of the company are determined by the charter of the company.
Management of the current activities of the company is carried out sole executive body of the company (CEO, President and others ) or the sole executive body of the company and the collegial executive body of the company (board, directorate and others). The executive bodies of the company are accountable to the general meeting of the company's participants and the board of directors (supervisory board) of the company.
Joint-Stock Company. The legal status of a joint stock company is determined by the provisions of Art. 66-68, 96-104 of the Civil Code of the Russian Federation, as well as the norms of the Federal Law “On Joint-Stock Companies” dated December 26, 1995 No. 208-FZ 16 (hereinafter referred to as the JSC Law).
A joint stock company is a business company whose authorized capital is divided into a certain number of shares; Participants in a joint stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of the shares they own (clause 1 of Article 96 of the Civil Code of the Russian Federation).
From the above definition it follows that the legal (formal) difference between a JSC and an LLC comes down to the fact that a joint-stock company’s authorized capital is divided into a certain number of shares, while an LLC’s authorized capital is divided into shares. This legal (formal) difference is predetermined by the economic difference between LLC, as an association of capital of persons between whom there is a trust (fiduciary) relationship, and JSC, as an association of capital, between which there are no such relations. Unlike a share, a share is a security, the use of which allows you to speed up the civil circulation of the rights of company participants among an unlimited number of persons and attract additional capital in a shorter time.
The founders of the company can be citizens and (or) legal entities. State bodies and local government bodies cannot act as founders of a company, unless otherwise established by federal law. A company can be founded by one person, who becomes its sole participant. A company cannot have another business company consisting of one person as its sole founder (shareholder), unless otherwise established by federal law (clauses 1 and 2 of Article 10 of the JSC Law).
The creation of a joint stock company, as a rule, is carried out through its establishment, which can also be divided into three stages: preparation of documents necessary for registration, registration of the joint stock company with the competent government body and formation of the authorized capital. When establishing a joint stock company, its founders enter into a written agreement among themselves on its creation, which determines the procedure for their joint activities in establishing the company, the size of the authorized capital of the company, the categories and types of shares to be placed among the founders, the amount and procedure for their payment, the rights and obligations of the founders creation of society. The agreement on the creation of a company is not a constituent document of the company and is valid until the end of the term specified in the agreement for payment of shares to be placed among the founders (Clause 5, Article 9 of the Law on JSC).
When establishing a JSC, for its registration it is necessary to develop:
a) a decision to create a legal entity in the form of a protocol, agreement or other document in accordance with the legislation of the Russian Federation;
b) constituent document.
A) The decision to establish a JSC is made constituent assembly , while the decision to establish an LLC is made meeting of founders . If a company is founded by one person, the decision on its establishment is made by that person alone (Clause 1, Article 9 of the Law on JSC).
The decision to establish a company must contain the voting results of the founders and the decisions they made on the issues of establishing the company and approving the company’s charter (clause 2 of article 9 of the JSC Law):
- institutions of society,
- approval of the company’s charter,
- election of management bodies of the company,
- election of the audit commission (auditor) of the company,
Decisions on the establishment of a company and approval of its charter are made by the founders of the company unanimously. The election of the management bodies of the company and the audit commission (auditor) of the joint-stock company is carried out by the founders of the company by a majority of three quarters of the vote, which represent shares to be placed among the founders of the company (Clause 4, Article 9 of the JSC Law).
b) The constituent document of a JSC is its charter (Clause 1, Article 11 of the Law on JSC).
The company's charter must contain:
Full and abbreviated "company names" of the company;
Location of the company;
Type of society (open or closed);
Number, par value, categories (ordinary, preferred) shares and types of preferred shares placed by the company;
Rights of shareholders - owners of shares of each category (type);
The size of the authorized capital of the company;
The structure and competence of the company’s management bodies and the procedure for their decision-making;
The procedure for preparing and holding a general meeting of shareholders, including a list of issues, decisions on which are taken by the company’s management bodies by a qualified majority of votes or unanimously;
Information about branches and representative offices of the company;
Other provisions provided for by the JSC Law and other federal laws.
After approval of the company's charter, changes to it can be made by decision of the general meeting of shareholders, with the exception of cases provided for in paragraphs 2-6 of Art. 12 of the Law on JSC (clause 1 of Article 12 of the Law on JSC).
Making a decision to create a JSC and approving the charter of the JSC completes the first stage of establishing a JSC, after which follows stage of state registration of the company. According to the provisions of Art. 13 of the Law on JSC, the company is subject to state registration with the body that carries out state registration of legal entities, i.e. in the Federal Tax Service (FTS of Russia), in the manner established by the federal law on state registration of legal entities, i.e. Federal Law “On state registration of legal entities and individual entrepreneurs” 08.08.2001 No. 129-FZ.
The final stage of establishing a JSC is formation of its authorized capital, i.e. the minimum amount of his property guaranteeing the interests of his creditors.
The minimum authorized capital of an OJSC must be at least thousand times the minimum wage established by federal law on the date of registration of the company (Article 26 of the Law on JSC). According to Article 5 of the Federal Law “On the Minimum Wage” dated June 19, 2000 No. 82-FZ 17, the base amount used to calculate taxes, fees, fines and other payments, the amount of which, in accordance with the legislation of the Russian Federation, is determined depending on the minimum wage labor, as well as payments for civil obligations established depending on the minimum wage, is one hundred rubles.
The authorized capital of the company is made up of the nominal value of the company's shares. The company's shares are usually divided into ordinary shares, which provide the owner (shareholder) with the right to participate in the general meeting of shareholders with the right to vote on all issues within its competence, as well as the right to receive dividends, and in the event of liquidation of the company - the right to receive part of its property (Article 31 of the Law on JSC), and preferred shares that do not provide the owner (shareholder) with voting rights at the general meeting of shareholders, unless otherwise established by the Law on JSC (Article 32 of the Law on JSC).
The par value of all ordinary shares of the company must be the same. Company obliged places ordinary shares and has the right place one or more types of preferred shares. The par value of the issued preferred shares must not exceed 25 percent of the authorized capital of the company.
JSC shares can also be divided into outstanding shares, which means shares acquired by shareholders, and announced shares, i.e. shares that the company has the right to place in addition to the placed shares (Article 27 of the Law on JSC).
Payment for shares distributed among the founders of the company upon its establishment may be made in money, securities, other things or property rights or other rights that have a monetary value.
At least 50 percent of the company's shares distributed upon its establishment must be paid for within three months from the date of state registration of the company. The rest is payable within a year from the date of state registration of the company, unless a shorter period is provided for in the agreement on the creation of the company. A share owned by the founder of the company does not provide voting rights until it is fully paid for, unless otherwise provided by the charter of the company (Clause 1, Article 34 of the Law on JSC).
In the practice of creating a joint stock company, there may also be cases when the founders do not fully pay for the shares within the period established for this. In such a situation, ownership of the shares, the placement price of which corresponds to the unpaid amount (the value of the property not transferred in payment for the shares), passes to the company, which is obliged, within one year from the date of their acquisition, to make a decision to reduce its authorized capital or in order to pay authorized capital on the basis of a decision of the board of directors (supervisory board) of the company to sell the acquired shares at a price not lower than their market value. If the market value of shares is lower than their par value, these shares must be sold at a price not lower than their par value. If the shares are not sold by the company within one year after their acquisition, the company is obliged to make a decision within a reasonable time to reduce its authorized capital by redeeming such shares (Clause 1, Article 34 of the JSC Law).
The authorized capital of a joint-stock company can change either upward or downward. In this case, an increase in the authorized capital of the company is allowed only after its full payment. The authorized capital of a company can be increased by increasing the par value of shares or placing additional shares. The company has the right, and in cases provided for by the Law on JSC, is obliged to reduce its authorized capital. The authorized capital of a company may be reduced by reducing the par value of shares or reducing their total number, including by purchasing part of the shares, in cases provided for by the Law on JSC.
JSC as a legal entity has its own system of bodies that participate in the formation and expression of the will of society in legal relations.
The structure of LLC bodies is as follows:
General meeting of shareholders of the company- the highest governing body of the company, which is exclusively a will-forming body.
The JSC is obliged to hold an annual general meeting of shareholders annually, within the time limits established by the company's charter, but no earlier than two months and no later than six months after the end of the financial year. Issues must be resolved at the annual general meeting of shareholders about:
- election of the board of directors (supervisory board) of the company,
- the audit commission (auditor) of the company,
- approval of the company’s auditor,
- approval of annual reports, annual financial statements, including profit and loss statements (profit and loss accounts) of the company, as well as distribution of profits (including payment (declaration) of dividends, with the exception of profits distributed as dividends based on results first quarter, half year, nine months of the financial year) and losses of the company based on the results of the financial year.
At the annual general meeting of shareholders, other issues within the competence of the general meeting of shareholders may also be resolved. General meetings of shareholders held in addition to the annual meeting are extraordinary.
With the exception of cases established by federal laws, the right to vote at the general meeting of shareholders on issues put to vote is vested in:
- shareholders - owners of ordinary shares of the company;
- shareholders - owners of preferred shares of the company in cases provided for by the Law on JSC.
The competence of the general meeting of shareholders of a JSC is determined by the norms of Art. 48 of the Law on JSC. The main provisions relating to the competence of the general meeting of a joint-stock company include introducing amendments and additions to the charter of the company or approving the charter of the company in a new edition; reorganization of society; liquidation of the company, appointment of a liquidation commission and approval of interim and final liquidation balance sheets; determination of the quantitative composition of the board of directors (supervisory board) of the company, election of its members and early termination of their powers; determination of the quantity, par value, category (type) of authorized shares and the rights granted by these shares; increasing the authorized capital of the company by increasing the par value of shares or by placing additional shares, if the charter of the company in accordance with the Law on JSC, increasing the authorized capital of the company by placing additional shares is not within the competence of the board of directors (supervisory board) of the company; reducing the authorized capital of the company by reducing the par value of the shares, by acquiring a part of the shares by the company in order to reduce their total number, as well as by redeeming shares acquired or repurchased by the company; formation of the executive body of the company, early termination of its powers, if the company’s charter does not include the resolution of these issues within the competence of the board of directors (supervisory board) of the company, and others.
The decision of the general meeting of shareholders can be made without holding a meeting (joint presence of shareholders to discuss agenda items and make decisions on issues put to vote) by absentee voting. However, the general meeting of shareholders, the agenda of which includes issues on the election of the board of directors (supervisory board) of the company, the audit commission (auditor) of the company, approval of the auditor of the company, as well as issues of approval of annual reports, annual financial statements, including profit and financial statements losses (profit and loss accounts) of the company, as well as distribution of profits (including payment (declaration) of dividends, with the exception of profits distributed as dividends based on the results of the first quarter, half a year, nine months of the financial year) and losses of the company based on the results of the financial year .
Board of Directors (supervisory board) of the company carries out general management of the company's activities, with the exception of resolving issues referred to by the Law on JSC within the competence of the general meeting of shareholders.
If in an LLC the creation of a board of directors (supervisory board) is right company, then in a joint-stock company the creation of a board of directors (supervisory board) is its duty , except for the case if the company consists of less than fifty shareholders - owners of voting shares. In this case, the company’s charter may provide that the functions of the company’s board of directors (supervisory board) are performed by the general meeting of shareholders (paragraph 2, paragraph 1, article 64 of the JSC Law).
Members of the board of directors (supervisory board) of the company are elected by the general meeting of shareholders in the manner prescribed by the Law on JSC and the charter of the company for the period until the next annual general meeting of shareholders. Persons elected to the board of directors (supervisory board) of the company can be re-elected an unlimited number of times .By decision of the general meeting of shareholders, the powers of all members of the board of directors (supervisory board) of the company may be terminated early.
A member of the board of directors (supervisory board) of a company can only be an individual who may not be a shareholder of the company. The quantitative composition of the board of directors (supervisory board) of a company is determined by the charter of the company or a decision of the general meeting of shareholders, but cannot be less than five members. For a company with the number of shareholders - owners of voting shares of the company more than one thousand, the quantitative composition of the board of directors (supervisory board) of the company cannot be less than seven members, and for a company with the number of shareholders - owners of voting shares of the company more than ten thousand - less than nine members.
The chairman of the board of directors (supervisory board) of the company is elected by the members of the board of directors (supervisory board) of the company from among them by a majority vote of the total number of members of the board of directors (supervisory board) of the company, unless otherwise provided by the charter of the company. The board of directors (supervisory board) of the company has the right at any time to re-elect its chairman by a majority vote of the total number of members of the board of directors (supervisory board), unless otherwise provided by the charter of the company.
Management of the current activities of the company, as well as organizing the implementation of decisions of the general meeting of shareholders and the board of directors (supervisory board) of the company, is carried out by the sole executive body of the company (director, general director) or the sole executive body of the company (director, general director) and the collegial executive body of the company ( board, directorate). Executive bodies are accountable to the board of directors (supervisory board) of the company and the general meeting of shareholders.
Sole executive body of the company (director, CEO) without a power of attorney, acts on behalf of the company, including representing its interests, makes transactions on behalf of the company, approves staff, issues orders and gives instructions that are binding on all employees of the company.
By decision of the general meeting of shareholders, the powers of the sole executive body of the company can be transferred under an agreement to a commercial organization (management organization) or an individual entrepreneur (manager). The decision to transfer the powers of the sole executive body of the company to a management organization or manager is made by the general meeting of shareholders only upon the proposal of the board of directors (supervisory board) of the company.
Peasant (farm) economy. A peasant (farm) enterprise, created as a legal entity, is recognized as a voluntary association of citizens on the basis of membership for joint production or other economic activities in the field of agriculture, based on their personal participation and the association of property contributions by members of the peasant (farm) economy (paragraph 2 Clause 1 of Article 86.1 of the Civil Code of the Russian Federation).
The property of a peasant (farm) enterprise belongs to him by right of ownership.
A citizen can be a member of only one peasant (farm) enterprise created as a legal entity.
Production cooperative (artel)- A production cooperative (artel) is a voluntary association of citizens on the basis of membership for joint production or other economic activities (production, processing, marketing of industrial, agricultural and other products, performance of work, trade, consumer services, provision of other services), based on their personal labor and other participation and association of property share contributions by its members (participants). A production cooperative is a corporate commercial organization.
From the content of the above definition it follows that a production cooperative is an association, first of all, of the labor abilities of its members. Meanwhile, this organizational and legal form does not exclude the pooling of capital. For this reason, the law and constituent documents of a production cooperative may provide for the participation of legal entities in its activities.
The legal status of a production cooperative is determined by the norms of Art. 106.1-106.6 of the Civil Code of the Russian Federation, as well as the norms of the Federal Law “On Production Cooperatives” dated 05/08/1996 No. 41-FZ 18 (hereinafter referred to as the PC Law).
Speaking about a production cooperative, it should be taken into account that this organizational and legal form is not typical for the capitalist mode of production, within which the capitalist, i.e. the owner of capital has the right to participate with personal labor in his own entrepreneurial activity, but is not obliged to do so. At the same time, personal labor participation in the production activities of a production cooperative is the responsibility of its members, and not their right.
For this reason, a production cooperative (artel) is also not a widespread legal form of a commercial organization. According to the website of the Federal Tax Service of the Russian Federation 19 as of 02/01/2013, out of 3,858,006 commercial organizations included in the Unified State Register of Legal Entities, 17,958 (0.47%) are production cooperatives.
It is advisable to use a production cooperative as an organizational and legal form of a commercial organization in such areas of production activity in which intra-production specialization of labor is absent or weakly expressed. Such areas include, for example, the services of beauty salons, hairdressers, ateliers, shoemakers, etc.
As a rule, production cooperatives are created by establishing them. The number of members of the cooperative should not be less than five.
The founding document of a production cooperative is its charter, approved by the general meeting of its members.
The peculiarity of the formation of a PC mutual fund, which determines the minimum size of its property and guarantees the interests of its creditors, is that it begins before its registration. So, according to the norms of paragraphs 1 and 2 of Art. 10 of the Law on PC, a member of a cooperative is obliged to pay at least ten percent of the share contribution by the time of state registration of the cooperative. The rest of the share contribution is paid within a year after the state registration of the cooperative. The share contribution of a member of a cooperative can be money, securities, other property, including property rights, as well as other objects of civil rights.
The mutual fund must be fully formed during the first year of operation of the cooperative. The general meeting of members of the cooperative must announce a reduction in the size of the cooperative's mutual fund if, at the end of the second or each subsequent year, the value of the net assets is less than the value of the cooperative's mutual fund.
The highest governing body of the cooperative is general meeting of its members.
In a cooperative with more than fifty members, a supervisory board which exercises control over the activities of the executive bodies of the cooperative.
The executive bodies of the cooperative are the board and (or) its chairman. They carry out the ongoing management of the activities of the cooperative and are accountable to the supervisory board and the general meeting of members of the cooperative.
Unitary enterprise. The legal status of state and municipal unitary enterprises is determined by the norms of Art. 113-115 of the Civil Code of the Russian Federation and the Federal Law “On State and Municipal Unitary Enterprises” dated November 14, 2002 No. 161-FZ 20 (hereinafter referred to as the Law on UP).
A unitary enterprise is a commercial organization that is not endowed with the right of ownership to the property assigned to it by the owner.
A feature of a unitary enterprise that distinguishes it from other commercial organizations is its unitary nature, which presupposes the indivisibility and impossibility of distributing its property among deposits (shares, shares), including among the employees of the enterprise.
Only state and municipal enterprises can be created in the form of unitary enterprises.
Another feature of a unitary enterprise is that the property of a state or municipal unitary enterprise is respectively in state or municipal ownership and belongs to such an enterprise by the right of economic management or operational management, while the property of other commercial organizations belongs to them by right of ownership.
Unitary enterprises, depending on the owner of the property, are usually divided into:
- state unitary enterprises,
- municipal unitary enterprises.
At the same time, paragraph 4 of Art. 113 of the Civil Code of the Russian Federation establishes that the company name of a unitary enterprise must contain an indication of the owner of its property.
Depending on the type of limited property right (the right of economic management or the right of operational management), on the basis of which property is assigned to a unitary enterprise, unitary enterprises are divided into:
A unitary enterprise based on the right of economic management. Such enterprises can be created by the Russian Federation on the basis of federal property, by constituent entities of the Russian Federation on the basis of property of constituent entities of the Russian Federation, and by municipalities on the basis of municipal property.
A unitary enterprise based on the right of operational management. This type of unitary enterprise is also called a state-owned enterprise, which can also be created by the Russian Federation on the basis of federal property, by constituent entities of the Russian Federation on the basis of property of constituent entities of the Russian Federation, and by municipalities on the basis of municipal property.
The minimum amount of property of a unitary enterprise that guarantees the interests of its creditors is called the authorized capital of a state or municipal enterprise. The authorized capital of a state or municipal enterprise can be formed from money, as well as securities, other things, property rights and other rights that have a monetary value.
The size of the authorized capital of a state enterprise must be no less than five thousand minimum wages established by federal law on the date of state registration of the state enterprise. The size of the authorized capital of a municipal enterprise must be no less than one thousand minimum wages established by federal law on the date of state registration registration of a municipal enterprise (clause 3 of article 12 of the Law on UP).
The authorized capital of a state or municipal enterprise must be fully formed by the owner of its property within three months from the date of state registration of such an enterprise.
The body of a unitary enterprise is the head of the enterprise, who is appointed by the body authorized by the owner, unless otherwise provided by law, and is accountable to him (Clause 5 of Article 113 of the Civil Code of the Russian Federation).
General partnership – a business partnership, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities and bear jointly and severally subsidiary (additional) liability for its obligations with all their property.
In this case, personal property liability for the debts of the partnership is also borne by those participants who joined the partnership after its creation (including for obligations that arose before their entry into the partnership).
Participants who have left the partnership continue to be liable for all debts of the partnership that arose before the moment of their departure for two years from the date of approval of the annual report of the partnership for the year in which the retirement took place.
Participants in a general partnership can only be individual entrepreneurs and (or) commercial organizations. The number of participants in a general partnership cannot be less than two.
A participant in a general partnership is obliged to make at least half of his contribution to the joint capital of the partnership by the time of its registration. The rest must be paid by the participant within the time limits established by the constituent agreement.
The management of the affairs of the partnership, as a general rule, unless otherwise provided in the agreement, occurs unanimously, however, the participants can also agree that the decision is made by a majority vote of the partners. As a general rule, each participant usually has one vote, unless the constituent agreement provides for the dependence of the number of votes belonging to the participant on the size of his property contribution.
Each participant in a general partnership has the right to act on behalf of the partnership, unless the constituent agreement establishes that all its participants conduct business jointly, or the conduct of business is entrusted to individual participants.
Each partner participates in both the profits and losses of the partnership in proportion to their shares in the share capital, unless otherwise determined by agreement of the participants.
Withdrawal from a general partnership can be voluntary or forced. Refusal to participate in a general partnership established without specifying a period must be declared by the participant at least six months before the actual withdrawal from the partnership. Early refusal to participate in a general partnership established for a certain period is allowed only for a good reason. In case of forced withdrawal from the partnership, there must be a unanimous decision of the remaining participants and a court decision.
When leaving the partnership, a participant has the right to receive the cash equivalent of part of the property in proportion to his share in the share capital (and if this is provided for in the constituent agreement, then in kind). He also has the right, with the consent of other partners, to transfer his share in the share capital either to another partner or to a third party.
A general partnership is liquidated on general grounds, as well as in the case when the only participant remains in the partnership.
Partnership of Faith (limited partnership ) - a business partnership consisting of two categories of participants - general partners who jointly and severally bear subsidiary liability for its obligations with all their property, and fellow investors (limited partners) who are not liable for the obligations of the enterprise and bear the risk of losses associated with the activities of the partnership, within the amounts of deposits made by them (Article 82 of the Civil Code of the Russian Federation).
Investors can be any citizens (and not just entrepreneurs) and legal entities, with the exception of those specifically listed in the Civil Code of the Russian Federation (state bodies, local governments).
Limited partners are excluded from entrepreneurial activities and management of the partnership’s affairs. They only retain the right to receive income on their contribution. Limited partners have the right to get acquainted with annual report partnerships; withdraw from the partnership at the end of the financial year with receipt of your contribution or transfer the contribution in whole or in part to either another investor or a third party. The consent of full comrades is not required for this.
When an investor sells his share (part thereof) to a third party, the remaining investors of the partnership enjoy the right of first refusal (in proportion to the size of their shares in the share capital).
When a limited partnership is liquidated, investors have a priority right over general partners to receive their contributions from the property remaining after satisfying the claims of the partnership's creditors. If after this the partnership retains the remainder of its property, then they participate in its distribution on an equal basis with the general partners in accordance with their shares in the joint capital, unless a different procedure is established by the constituent agreement or agreement of the general partners and investors.
If all limited partners leave the partnership, it will be liquidated or converted into a general partnership. A limited partnership is maintained if at least one general partner and one investor participate in it.
Limited Liability Company (LLC) is recognized as a commercial organization, the authorized capital of which is divided into shares of predetermined sizes, formed by one or more persons who are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their contributions.
The legal status of a limited liability company is established by the Civil Code of the Russian Federation, as well as Federal law"On limited liability companies."
Participants in a limited liability company can be any citizens and legal entities, with the exception of state and municipal bodies. State and municipal unitary enterprises and institutions may participate in a limited liability company with the consent of the owner of their property. The society cannot have more than 50 members. Otherwise, it is subject to transformation into a joint-stock company within a year, and upon expiration of this period - to liquidation in court, if the number of its participants is not reduced to established by law limit.
The authorized capital of a limited liability company consists of contributions from the founders and cannot be less than 100 times the minimum wage on the day of its registration. The authorized capital of a limited liability company must be paid at least half by its participants at the time of registration of the company. The remaining unpaid portion of the company's authorized capital is subject to payment by its participants during the first year of the company's activity.
Supreme body management in a limited liability company is the general meeting of its participants. The current management of the company is carried out by an executive body (collegial or sole) accountable to the general meeting of founders.
The constituent documents of a limited liability company are the constituent agreement and the charter, and if the company is founded by one person, only the charter.
The scope of rights belonging to a specific participant in the company (the number of votes at the general meeting, the amount of dividends and the liquidation quota) is determined by the size of his share in the authorized capital.
A participant in a company who flagrantly violates his duties or who by his actions complicates the activities of the company may be expelled from it, but only through a judicial procedure. Participants of the company whose shares in the authorized capital are at least 10% have the right to raise this question.
Participants of the company enjoy the preemptive right to purchase the share of a participant (part thereof) retiring from the company in proportion to the size of their shares, unless the charter of the company or an agreement of its participants provides for a different procedure for the exercise of this right.
When a participant leaves the LLC, the company is obliged to pay him the actual value of his share, determined on the basis of the company’s financial statements for the year during which the application for withdrawal from the company was submitted, or, with the consent of the company participant, give him in kind property of the same value, and in case of incomplete payment of his contribution to the authorized capital of the company - the actual value of part of his share, proportional to the paid part of the contribution.
The company is obliged to make all payments to the retiring participant within six months from the end of the financial year during which the application for withdrawal from the company was submitted, unless a shorter period is provided for by the company's charter.
Additional liability company (ALC) is a commercial organization whose authorized capital is divided into shares of predetermined sizes, formed by one or more persons who jointly and severally bear subsidiary liability for its obligations with their property in an amount that is a multiple of the value of their contributions to the authorized capital (Article 95 of the Civil Code of the Russian Federation). Thus, the liability of participants in an ODO is limited, since collection of the company’s debts cannot be applied to all of their property.
In case of bankruptcy of one of the participants, his liability is distributed among the others in proportion to their contributions, unless otherwise established by the constituent documents. Otherwise, the status of this business company is similar to the status of a limited liability company, which entails the application of the relevant legal norms to it.
Joint-Stock Company (JSC ) – a commercial organization, the authorized capital of which is divided into a certain number of shares, formed by one or more persons who are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of the shares they own.
The legal status of a joint-stock company is determined by the Civil Code of the Russian Federation, as well as the Federal Law “On Joint-Stock Companies”.
Joint stock companies are divided into open (OJSC) and closed (COMPANY).
Open joint-stock companies have the right to sell shares to anyone, while closed joint-stock companies have the right to distribute shares only among the founders or other predetermined persons.
IN open society It is not allowed to establish the preemptive right of a company or its shareholder to acquire shares alienated by the shareholders of this company.
Shareholders closed society enjoy the preemptive right to purchase shares sold by other shareholders of this company at the offer price to a third party in proportion to the number of shares owned by each of them, unless the charter of the company provides for a different procedure for exercising this right.
The number of members of an OJSC is not limited. A CJSC may have no more than 50 participants. Shareholders can be any citizens and legal entities.
The minimum amount of the authorized capital of an OJSC must be at least 1000 times the minimum wage, and a CJSC - 100 times the minimum wage. The law requires payment of the first 50% of shares within three months from the date of state registration of the company. The remaining 50% of shares must be paid for within a year (Article 34 of the Federal Law “On Joint Stock Companies”).
The supreme management body of the joint-stock company – the general meeting of shareholders – has exclusive competence as defined by law.
In a joint stock company with more than 50 participants, a supervisory board must be created as a permanent body of shareholders that controls the managers (directors) of the company. The supervisory board (“board of directors”) of the company also has exclusive competence, determined by law and the charter of the company.
The executive body of a JSC can be sole (director, general director) or collegial (board, directorate). However, the company must always have a sole body, and a collegial one - in cases provided for by the charter. By decision of the general meeting, the powers of the executive body may be transferred to a hired manager (individual entrepreneur or commercial organization).
The legislator also defines such concepts as “ subsidiaries and dependent companies».
subsidiaries, if another (main) business company or partnership, by virtue of a predominant participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise has the opportunity to determine the decisions made by such company.
The economic company is recognized dependent, if another (participating, dominant) company has more than 20% of the voting shares of a joint stock company or 20% of the authorized capital of a limited liability company.
A company or partnership (referred to as the main one) that influenced the decisions of another company (subsidiary) due to a predominant participation in its authorized capital, in accordance with an agreement or on other grounds, bears joint and several liability with the subsidiary for transactions made as a result of such influence. In case of insolvency subsidiary company through the fault of the principal, the latter is subsidiarily liable for his debts.
Production cooperative. A production cooperative (artel) is a voluntary association of citizens for the joint conduct of business activities on the basis of their personal labor and other participation, the initial property of which consists of shares of members of the association who bear subsidiary liability for all its obligations in the manner and amount established by the charter and legislation on production cooperatives.
The specifics of the legal status of a production cooperative are enshrined in the Civil Code of the Russian Federation, as well as in the Federal Law “On Production Cooperatives”.
By the time of state registration, at least 10% of the cooperative's mutual fund must be paid. The rest is paid during the first year of operation of the production cooperative.
Participants in a cooperative can be citizens or legal entities (if provided for by the charter). The number of members of a production cooperative cannot be less than 5. The number of members of the cooperative who do not take personal labor participation in its activities is limited to 25% of the number of members participating in the work of the cooperative through personal labor (Article 7 of the Federal Law “On Production Cooperatives”).
The founding document of a production cooperative is the charter.
The highest governing body is the general meeting of members of the cooperative, which has exclusive competence.
In large cooperatives (with more than 50 members), supervisory boards can also be created as permanent bodies for monitoring the activities of their executive bodies by their members. In this case, the supervisory board also receives exclusive competence as determined by the charter of the cooperative.
The executive bodies of the cooperative are the board and its chairman. A collegial body is formed in a cooperative with more than 10 members, and the chairman of the cooperative simultaneously heads its board (Article 17 of the Federal Law “On Production Cooperatives”).
Payment of the value of a share or other property to a leaving member of the cooperative is made upon the end of the financial year and approval balance sheet cooperative, unless otherwise provided by the charter of the cooperative.
Since the alienation of a share to third parties entails the obligation to admit them to the cooperative, the law limits this possibility by requiring the mandatory consent of the cooperative to accept a new member and the right of other members of the cooperative to preemptively purchase the alienated share.
State and municipal unitary enterprises. One of the types of commercial organizations are also state and municipal unitary enterprises, the legal status of which is determined by the Civil Code of the Russian Federation, as well as the Federal Law “On State and Municipal Unitary Enterprises”.
According to paragraph 1 of Art. 2 of the said law unitary enterprise A commercial organization is recognized that is not vested with the right of ownership of the property assigned to it by the owner. Only state and municipal enterprises can be created in the form of unitary enterprises. The property of a unitary enterprise belongs by right of ownership to the Russian Federation, a constituent entity of the Russian Federation or a municipal entity.
On behalf of the Russian Federation or a subject of the Russian Federation, the rights of the owner of the property of a unitary enterprise are exercised by the authorities state power Russian Federation or government bodies of a constituent entity of the Russian Federation within the framework of their competence established by acts defining the status of these bodies.
On behalf of municipality The rights of the owner of the property of a unitary enterprise are exercised by local government bodies within the framework of their competence established by acts defining the status of these bodies.
State and municipal enterprises differ from commercial legal entities – property owners (business partnerships, societies and production cooperatives) – because :
They manage not their own property, but state or municipal property;
They do not have property rights, but limited real rights (the right of economic management, the right of operational management);
They are endowed with special (rather than general) legal capacity;
They are unitary, since their property cannot be distributed among deposits (shares, shares).
The following are created and operate in the Russian Federation: types of unitary enterprises :
Unitary enterprises based on the right of economic management:
Federal State Enterprise;
State enterprise of a constituent entity of the Russian Federation (state enterprise);
Municipal enterprise;
Unitary enterprises based on the right of operational management:
Federal government enterprise,
State-owned enterprise of a constituent entity of the Russian Federation,
Municipal government enterprise.
State-owned enterprises differ from other government and municipal enterprises because:
They are endowed with a limited real right of operational management, while other state enterprises have the right of economic management;
The right of operational management is much narrower than the right of economic management;
State-owned enterprises do not have the right to independently dispose of not only real estate, but even movable property;
Unlike other state-owned enterprises, they cannot be declared bankrupt;
State ( Russian Federation or a subject of the Russian Federation) bears additional liability for the obligations of state-owned enterprises if their property is insufficient;
In state-owned enterprises, an authorized capital is not formed.
Control questions
1. Define the concept of “legal entity”. What types of legal entities are established by the Civil Code of the Russian Federation?
2. How does a general partnership differ from a limited partnership?
3. Describe each type of business entity.
4. What requirements does the legislation impose on the formation of the authorized capital of a business company?
5. Name specific features production cooperative.
6. Define and name the types of state and municipal unitary enterprises.
7. What is the difference between state-owned enterprises based on the right of operational management and unitary enterprises based on the right of economic management?