According to Article 8 of the Law, a joint stock company can be created:
By establishing again;
By reorganizing an existing legal entity, merger, accession,
separation, selection, transformation.
The company is considered created from the moment of its state registration.
The creation of a joint stock company is the result of its expression of will
founders. According to Article 10, the founders of the company are citizens and
(or) legal entities that decided to establish it. It is specifically stated
What government bodies and local governments cannot act
founders of companies, unless otherwise established federal laws. Right
to be founders of joint stock companies is provided for federal and other
bodies for managing state property during the privatization of state
"On the privatization of state property and the basics of the privatization of municipal
property in Russian Federation".
The number of founders of an open joint stock company is not limited (so
the same as the number of its shareholders), which creates favorable conditions for attracting
in its authorized capital of significant capital and, therefore,
ensuring a wide range of activities
Industrial, commercial and other.
The number of closed type founders (as well as the number of shareholders) is not
may exceed fifty. In the previous chapter we gave a negative assessment
such a limitation regarding the number of shareholders of a closed company. All that has been said
there can be fully attributed to the restrictions established in relation to
number of founders. The only small consolation here is the fact that
that limiting the number of founders provides the advantage of selection, visibility
and solidarity of the personal composition of the founders and the closed joint stock
society. This circumstance has known value as an essential
factor of stability of internal relations in society between participants, their
in general, a unified position in resolving the most important issues for society.
The founder of the company can be one individual or entity.
An exception is made only for business companies consisting of one person.
Such business companies cannot be founders (shareholders) of joint stock companies.
open and closed societies.
Before the creation of society, i.e. before its state registration, its founders,
United by a common goal, they act by entering into certain relationships with various
legal entities and individuals, exclusively on their own behalf. That's why,
according to paragraph 3 of Article 10 of the Law, they bear joint liability for
obligations related to the creation of a company and arising before the state
registration of this company.
After state registration, the company can assume responsibility
for the obligations of its founders, but only subject to subsequent approval
their actions general meeting shareholders. Please note that joint liability
of the founders arises after the conclusion of a written agreement between them on the creation
society in accordance with the requirement of paragraph 5 of Article 9.
Such an agreement determines the procedure for the implementation by the founders of joint
activities to establish a company, the size of the company’s authorized capital, categories
and type of shares to be placed among the founders, their size and order
payments, rights and obligations of founders to create a company. It is important to note,
that the contract is not founding document society.
If necessary, the founders have the right to include other conditions in the agreement,
that do not contradict the law, for example, distribute among the founders
responsibilities for creation of society. It would be useful to establish property
liability of the founders for failure to fulfill obligations assumed under the contract:
delay in covering the costs of creating a company, paying for shares,
by their actions or inaction, losses to other founders.
In general, the relationship between the founders can be considered as a relationship
partners in a simple partnership created and operating in accordance with the articles
1014 - 1054 Civil Code of the Russian Federation. Under a simple partnership agreement (agreement on joint
activity) two or more persons (comrades) undertake to unite their
contributions and act together without forming a legal entity to extract
profit or achieving another goal that does not contradict the law.
Therefore, it may be useful for the founders of the company to use the contained
in the above articles of the Civil Code of the Russian Federation the rules governing rights and obligations
comrades, the nature of their relationships with other persons, etc., including them
in the agreement on the establishment of the company. However, it must be remembered that
the agreement on the establishment of a company must meet the requirements contained in chapters
27 - 29 Civil Code of the Russian Federation.
In pursuance of the agreement concluded between the founders of the company, they carry out
preparatory work: develop the necessary for registration of the company
documentation, including its constituent document - the charter of the company, is rented
providing for this purpose the necessary means that have a strictly intended purpose.
Part of these funds, spent on the acquisition of various types of property,
may later be taken into account as a contribution to the capital of the company, however
only by decision of the constituent assembly. At the same time, the founders do
each contribution to the authorized capital of the future company, paying for the acquired
their shares, in the manner provided for in Article 34 of the Law, and based on the fact that
which is at least 50% authorized capital must be paid at the time of registration
society.
After this, the constituent assembly itself is convened, before which stand
three tasks.
1. Make a decision to establish a company. In case of establishment of a company
one person, legal or natural, the decision is made by him alone
2. Approve the composition of the company - its constituent document (clause 2 of article 9).
3. Elect the management bodies of the company (clause 2, article 9).
The decision to establish a company must reflect the voting results
founders and the decisions they made on these three issues - the establishment of the company,
approval of its charter, election of management bodies of the company - considered
by the constituent assembly precisely in the above sequence.
According to paragraph 3 of Article 9, the decision to establish a company, approve
its charter, as well as approval of the monetary valuation of securities and other things
or property rights or other rights having a monetary value contributed by each
by the founder as payment for the shares of the company, accepted by the founders
unanimously. At the same time, the election of management bodies of the company, according to
paragraph 4 of Article 9, is carried out by three-quarters of the votes of the founders of the company,
which represent shares to be placed among the founders of the company.
Regarding the creation of joint stock companies with the participation of foreign investors,
then it is carried out, in accordance with paragraph 6 of Article 9 of the Law, in accordance with
Federal laws of the Russian Federation on foreign investment. Foreign legal
And individuals has the right to take part in the creation of joint stock companies in
1991 "On the registration of enterprises with foreign investment."
A company can be created by establishing again and by reorganizing an existing legal entity (merger, division, spin-off, transformation).
There are two ways to create a joint stock company:
By establishing again; in this case, the subject himself, and his rights and obligations arise;
By reorganizing an existing or existing legal entity; in this case, it is necessary to resolve issues related to succession and compliance with the rights of creditors during the reorganization process.
The creation of a company by incorporation is carried out by decision of the founders (founder). The decision to establish a company is made by the constituent meeting. If a company is founded by one person, the decision on its establishment is made by that person alone.
The decision to establish a company must reflect the voting results of the founders and the decisions they made on the issues of establishing the company, approving the company’s charter, and electing the company’s management bodies.
The decision to establish a company, approve its charter and approve the monetary value of securities, other things or property rights or other rights with a monetary value contributed by the founder in payment for the shares of the company is adopted by the founders unanimously.
The election of the company's management bodies is carried out by the founders with a three-quarters majority of votes, which represent the shares to be placed among the founders of the company.
The founders of the company enter into a written agreement between themselves on its creation, which determines the procedure for their implementation joint activities on the establishment of the company, the size of the authorized capital of the company, 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 to create the company. The agreement on the establishment of a company is not the constituent document of the company.
In the case of the establishment of a company by one person, the decision on establishment must determine the size of the authorized capital of the company, categories (types) of shares, the size and procedure for their payment.
The founders of the company are citizens and (or) legal entities who made the decision to establish it.
Number of founders open society not limited. The number of founders of a closed company cannot exceed fifty.
A company cannot have another founder (shareholder) economical society consisting of one person.
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Joint-Stock Company- this is an economic association (commercial structure), which is registered and operates according to certain rules, and its authorized capital is distributed into a certain number of shares. The main task is to generate capital for conducting certain business activities.
Joint-Stock Company(JSC), or rather its activities are regulated by the Civil Code of the Russian Federation, the Arbitration Code of Russia, the Law of the Russian Federation “On Joint-Stock Companies” and other acts and laws.
The history of the emergence of a joint stock company as a structure
It is believed that the origin of joint stock companies as a form began in the 15th century, with the formation of the Genoese Bank of St. George. It was with him that the era of such formations began. The task of the newly created institution was to service government loans. Moreover, its founders were the Maons - formations of creditors who lent money to the state, and the latter paid them back with the right to receive a portion of the profits from the treasury.
Many of the operating principles of the Genoese Bank coincided with the current characteristics of the joint-stock company:
- capital of a financial institution was divided into several main parts, which were distinguished by free circulation and alienability;
- bank management- a meeting of participants who met annually to adopt important decisions. Each proposal was put to a vote. main feature is that officials of the financial institution did not have the right to participate in the meeting. Role executive body served as a council of protectors, which consisted of 32 members;
- bank participants received interest payments on their shares. At the same time, the size of dividends directly depended on the level of profitability of the bank.
Since the beginning of the 16th century, new markets have been actively opening in Europe, the growth of trade volumes is accelerating, and industry is developing. Old forms of communities (guilds, maritime partnerships) could no longer protect the rights of participants in the transaction and new economic needs. This is how colonial companies appeared in Holland, England and France. In fact, the colonial states began to attract funds from outside for further development of the lands.
1602- formation of the East India Company. Its essence is the unification of already existing organizations in Holland. Each company had its own shares of participation, therefore the number of representatives in the governing bodies also varied. Over time, the shares of each of the participants received the name “shares” - documents confirming the right to own part of the share. But massive speculation in stocks has forced the government to pass several strict restrictions on the misuse of capital by companies.
Almost simultaneously with the structure described above, the English version of the East India Company arose. Its feature is an annual meeting of participants to resolve key issues by voting. Only those participants who owned more capital than the percentage specified in the charter had a vote. Leadership was entrusted to the council, which consisted of 15 members elected by the meeting.
In the 18th century After several failed attempts, John Law succeeded in creating his own bank. Subsequently, it was he who became one of the active participants in the creation of the West India Company. A few years later, other organizations in France joined it. In fact, a powerful monopoly was formed in the market, which ensured a stable flow of income to the treasury and economic growth. But this couldn't last forever. Low dividends became the impetus for the massive sale of shares of the newly formed structure. The price of securities decreased, and then completely collapsed. This caused serious damage to the country's economy.
In 1843 The first law on joint stock companies appeared in Germany. Since the beginning of the 1860s, the number of such societies has amounted to several dozen. Subsequently (in 1870, 1884) new laws concerning joint-stock companies were developed.
In 1856-1857 In England, the first legislative acts appeared that obligated newly registered communities to undergo the registration procedure, have their own charter, indicate the goals of their activities, and so on. At the same time, established companies were allowed to issue only registered shares.
In 1862 all acts and norms of England relating to joint-stock companies were collected into one law. Subsequently, it did not change, but was only supplemented with new points.
Other countries (including the United States) used already accumulated experience when creating joint-stock companies.
The essence of a joint stock company
A joint stock company is a legal entity, an organization of several market participants. The peculiarity of the structure is as follows:
- JSC participants have limited liability, which does not exceed the amount of their “infusions” into the company’s authorized capital;
A joint stock company bears full responsibility to its shareholders in terms of fulfilling obligations (including timely payment of dividends);
The entire amount of the authorized capital is equally divided by the number of issued shares of the joint-stock company. In this case, the holders are the participants of the joint-stock company, and not its founders;
The formation of the authorized capital occurs through investments of participants. In this case, the contributions made come to the full disposal of the newly created structure;
The JSC operates without a time limit, unless contrary conditions are specified in the charter of the newly created structure;
A joint stock company has the right to carry out any types of activities that are not prohibited by law. At the same time, in some areas, a JSC can operate only on the basis of an obtained license;
The newly created organization is required to publish an annual report, loss and income accounts, balance sheet and other data that are provided for by law (all these issues are discussed in Article 92 of the Federal Law “On Joint-Stock Companies);
The JSC receives the right to organize representative offices, branches, subsidiaries, and so on. At the same time, you can open your own branches even outside the state.
Types of joint stock companies
Today there are two main types of such organizations:
1. Open joint-stock companies (OJSC)- these are formations in which shareholders have the right to alienate (sell) shares without the consent of other shareholders. At the same time, the JSC itself can distribute issued shares freely, without any restrictions. The total number of shareholders and founders of a JSC is not limited. If the state (municipal formation, subject of the Russian Federation) acts as the founder of the company, then such a company can only be open - JSC. The only exceptions are small structures that are formed on the basis of privatized companies.
TO distinctive features OJSC can be classified as:
The number of participants is unlimited;
- the amount of authorized capital - from 1000 minimum wages and above;
- shares are distributed by open subscription;
- securities can be freely sold and purchased (without prior approval);
- education undertakes to issue and publish a report, loss accounts, profitability accounts, and balance sheet every year.
2. Closed joint-stock companies (CJSC)- these are formations where issued shares can be distributed only within the formation (among the founders or a strictly defined circle of people). At the same time, open subscription for closed joint-stock companies is prohibited. In closed joint stock companies, shareholders have the right to be the first to purchase securities.
The distinctive features of the JSC include:
The number of participants should not exceed fifty people;
- the amount of the authorized capital should not be more than 100 minimum wages determined at the legislative level;
- issued shares are distributed only among the founders (options for placement among other persons are possible, but only after approval);
- current shareholders have the right to be the first to buy shares of the CJSC;
- closed society may not publish any reports at the end of each year.
Differences between a joint stock company
Modern joint-stock companies differ significantly from the following entities:
1. From business partnerships. JSC is an association of capitals of several participants, and HT is an association of capitals of participants and a group of persons who implement joint projects within the framework of one association. In addition, in HT participants assume upon themselves full responsibility on education obligations. JSC does not provide for such liability.
2. From companies with limited liability(OOO). Common features LLC and JSC are the common capital of the participants, which is formed through their investments in a common cause. But a joint stock company has several characteristic features:
- the minimum amount of authorized capital for a joint-stock company is established at the legislative level (as well as the number of participants). For an LLC, this value is the “ceiling”;
- all participants of the joint-stock company receive shares, which can be disposed of at their own discretion (sell or buy on the stock market). In a simple community, the authorized capital is divided into contributions;
- the procedure for inclusion and exclusion from an LLC (JSC) differs;
- each shareholder of a joint stock company has equal rights and obligations regarding the operation of the structure. In a simple society, each participant can have his own obligations.
- the management structure of a JSC is much more complex than that of an LLC.
3. From production cooperatives. The following features are worth highlighting here:
- participants of the cooperative are responsible for the obligations of the cooperative (that is, general liability). In a joint-stock company, each participant is responsible within the limits of his contribution;
- cooperative members may be expelled for failure to fulfill obligations or violation of norms. In a JSC, no one has the right to deprive a participant of shares under any circumstances;
- a cooperative involves the formation of a community of people and their investments, and a joint-stock company is simply an association of investments.
Creation of a joint stock company
To organize your own joint stock company you need to go through several stages:
1. Economically justify the future structure. That is, first you need to form an idea for future formation. All members of society must clearly understand the tasks assigned to them, development prospects, potential profitability, and so on. Special attention should focus on the following issues:
Is JSC best shape for the chosen area of activity. Here you need to take into account that joint stock companies are better suited for large businesses;
- Is it possible to obtain the necessary funds in other ways (for example, get a loan from a bank). Here you need to take into account financial feasibility and potential benefits;
- determine the required amount of capital.
2. JSC organization. At this stage the following work is carried out:
A founding agreement is concluded, which stipulates the main activities and characteristics of the business. Moreover, the responsibility of each participant directly depends on the volume of investments made. The founders cannot oblige the JSC to carry out any transactions with third parties; they are prohibited from acting on behalf of the company;
A meeting of founders is held, where the charter of the joint-stock company is adopted by voting, the valuation of property is approved, and issues of issuing shares are discussed. Management bodies are also formed by the joint-stock company and elected at the meeting. The applicant passes if more than ¾ of all participants vote “for”;
The authorized capital is formed - the minimum amount of funds of the joint-stock company, which in case of anything will guarantee the protection of the interests of creditors. For a joint stock company, the size of the authorized capital must be at least 1000 times the minimum salary, established laws at the time of registration of the JSC. From the moment of registration, more than half of the shares must be purchased. The rest is due within a year.
3. Registration of the institution at the level of government agencies.
Any joint stock company can be liquidated, that is, it ceases to exist as a legal entity. There are several liquidation options:
1. Voluntary liquidation. In this case, the corresponding decision is made at a meeting of shareholders. In this case, the desire to liquidate the JSC is accepted directly by the participants. The process occurs in the following order:
The meeting makes a decision on liquidation;
- the decision is transferred to the state registration authority, which makes the appropriate note. From this moment on, making any changes to the JSC documents is prohibited;
- a liquidation commission is appointed. If one of the participants was a representative of the state, then there must be a representative;
- the commission does everything possible to identify all creditors and receive current debt;
- requests of JSC creditors are satisfied;
- the remaining property is distributed among shareholders.
2. Forced liquidation of the company and liquidation of the company similar in essence. In our case, the JSC ceases to exist after the court decision is made. In essence, the cessation of the structure’s activities in a general economic format is the will of the market. Reasons for liquidation of a joint stock company may be as follows:
Carrying out activities by the JSC that are not specified in the license or for which there is no appropriate permit;
- violation of laws when performing work;
- performing activities that are prohibited by law;
- violations during registration and their identification by the court. In this case, the latter must recognize the invalidity of all registration documents;
- bankruptcy of a joint-stock company, which is also recognized in court.
Advantages and disadvantages of a joint stock company
From positive traits JSC can be distinguished:
The fact of combining capital is not limited to any limits. A JSC can have any number of investors (even small ones). This feature allows you to quickly raise funds to implement your plans;
At the time of buying a certain number shares, the future shareholder himself makes a decision on the level of risk that he assumes. At the same time, his risk will be limited solely by the amount of investment. In the event of bankruptcy of a joint-stock company, the holder of securities can lose only that part of the funds that no more than invested;
Sustainability. As a rule, joint stock companies are stable formations. If one of the shareholders leaves the JSC, then the organization continues its activities;
Professional management. Capital management is a function of professional managers, not of each shareholder individually. Thus, you can be sure of a competent investment of capital;
Possibility of refund. Shares can be sold in whole or in part at any time;
Various types of profit. Income can be obtained in different ways - from receiving dividends, selling shares, lending securities, and so on;
Kudos. Today, joint stock companies are respected structures, and their members have high social and economic importance;
Availability of capital. JSC always has the opportunity to attract additional funds by issuing loans at favorable interest rates or issuing shares.
Disadvantages of a joint stock company:
A joint-stock company is an open structure, which obliges it to publish reports annually, disclose its profits, and so on. All this - Additional Information for competitors;
Possibility of reducing control over the flow of shares. Often the free sale of securities can lead to sudden changes in the composition of participants. As a result, control over the JSC may be lost;
Conflict of interest. When managing a society, there may be different views on further development structures of managers and shareholders. The task of the former is to correctly redistribute income to preserve society, and the task of shareholders is to obtain the greatest profit.