Civil Code of the Russian Federation Article 66. Basic provisions on business partnerships ah and societies
(see text in the previous edition)
1. Business partnerships and companies are recognized as 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.
The scope of powers of participants in a business company is 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 of 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 the organizational and legal form of a full partnership or a limited partnership (limited partnership).
4. Business companies can be created in the organizational and legal form of a joint stock company or a limited liability company.
5. Participants in general partnerships and complete comrades in partnerships of faith there may be individual entrepreneurs and commercial organizations.
Participants business entities and investors in limited partnerships can be citizens and legal entities, as well as public legal entities.
6. Government bodies and local government bodies do not have the right to participate on their own behalf in business partnerships and companies.
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 employees (national enterprises), as well as the rights and obligations of their participants are determined by the laws governing the activities of such organizations.
Introduction _________________________________________________3
Chapter 1 Basic provisions of business partnerships
1.1 The concept of business partnerships _________________ 5
1.2 Basic rights and obligations of participants
business partnerships__________________________ 6
Chapter 2 Types of business partnerships
2.1 Full partnership________________________________9
2.2 Partnership on Faith________________________________12
Conclusion ________________________________________________ 15
List of sources and literature used ____________ 16
Introduction
With the advent of new legislation on business partnerships - the Civil Code Russian Federation 1994 - a need arose to comprehend it. Business partnerships are one of the oldest forms of joint venture organization. At the same time, legal status partnerships in Russia have changed over time. Such changes in the legal status of partnerships were largely determined by the legal doctrine adopted by the legislator. In the pre-revolutionary law of Russia and during the NEP, business partnerships were recognized as legal entities, which indicated
continuity of continental legal doctrine. In the early 90s of the 20th century in Russia, general partnerships were not recognized as legal entities, but with the introduction of the Civil Code of the Russian Federation in 1994, general and limited partnerships again began to be recognized as legal entities.
The changing attitude of the state towards business partnerships speaks of the relevance of such organizational legal form and the need to study it. IN pre-revolutionary Russia partnerships were considered as the main organizational and legal forms of involving private individuals in commercial turnover. This attitude was partially preserved in the period of the 20-30s of the 20th century, when intensive restoration of the economy destroyed after the war was required. In the period from the 30s to the early 90s of the 20th century, business partnerships were practically not used in Russia, since the possibility of their use was supplanted by the monopoly participation in the economic sphere of various kinds of state business organizations. With the beginning of the development of reforms in Russia, in the early 90s, the need for the formation of a market arose again, which created a need to supplement the existing organizational and legal forms of joint ventures.
Business partnerships have traditionally been viewed as
the initial forms of involving private individuals in entrepreneurial activities, and this understanding of them was confirmed by the Civil Code of the Russian Federation of 1994, where business partnerships, quite traditionally, open the list of organizational and legal forms for carrying out commercial activities provided for by the Civil Code.
The instability of legislation regulating the legal status of business partnerships during the above period gave rise, in turn, to an urgent need for theoretical research partnerships Monographic works devoted to the study of the legal status of partnerships are mostly outdated and could not provide answers to many practical questions. Works of such authors as K. Gareis, V.Ya. Maksimov, N.G. Vavin, V.Yu. Worms et al. were
written at the end of the last - beginning of the current century and based on
existing legislation and practice at that time, which did not allow
use them in in full. There are currently no modern monographic studies based on the current Russian legislation and law enforcement practice devoted to the study of the legal status of business partnerships, which indicates the relevance of the study of business partnerships.
Chapter 1. Basic provisions of business partnerships
1.1 The concept of business partnerships
Business partnerships are a generic concept that denotes several independent types of commercial legal entities, the common thing for which is that their authorized (share) capital is divided into shares. This is what distinguishes business partnerships from other commercial organizations.
The Civil Code of the Russian Federation provides for a fairly wide range of legal forms of collective management, which corresponds to both modern international standards, and domestic economic realities. The organizational and legal forms of business partnerships are capable of serving the interests of both individual businessmen and small family groups
Business partnerships in Russian legislation are understood as contractual associations of several persons for joint management entrepreneurial activity under a common name .
Main character of any partnership - a general partner - bears unlimited liability for the obligations of the company with all his property. Therefore, in partnerships, the founders, as a rule, take personal part in the affairs of the enterprise. For the same reason, a person can be a general partner in only one partnership. The circle of founders is usually narrow, due to personal and trusting relationships between them. The fundamental provisions determining the possible composition of business partnerships are contained in paragraph 4 of Art. 66 Civil Code. Entrepreneurship is always associated with increased property risk, therefore the legislator considers the legal status of citizens and non-profit organizations incompatible with the status of a general partnership.
So, in business partnerships “a) personal participation is gradually reduced as the capitalist element increases; b) the amount of responsibility decreases as the capitalist element strengthens.”
Like any commercial organization, a business partnership must have an authorized capital that forms the property basis of its activities and guarantees the interests of creditors. Authorized capital– this is a fixed constituent documents and the amount of all contributions, estimated in rubles, that the founders decided to combine when creating legal entity. The authorized capital of business partnerships is traditionally called share capital , since such enterprises are based on an agreement between the founders (and not on the charter), adding together their contributions for commercial activity.
1.2 Basic rights and obligations of participants in business partnerships
Basic rights and obligations of participants in business partnerships in general view enshrined in Art. 67 of the Civil Code and may be supplemented in the constituent documents.
Participants of a business partnership have the right:
Participate in the management of the affairs of the partnership;
Receive information about the activities of the partnership and get acquainted with its accounting books and other documentation in the manner established by the constituent documents;
Take part in the distribution of profits;
To receive, in the event of liquidation of the partnership, part of the property remaining after settlements with creditors, or its value.
Participants in a business partnership may have other rights provided for by the Civil Code and the constituent documents of the partnership.
Participants in a business partnership are obliged to:
Make contributions in the manner, amounts, methods and within the time limits provided for by the constituent documents;
Do not disclose confidential information about the activities of the partnership.
Participants in a business partnership may also bear other responsibilities provided for by its constituent documents.
The rights and obligations listed above apply to participants in all business partnerships. In addition to these rights and obligations, legislation, as well as the provisions of the Civil Code on general and limited partnerships, may provide for additional rights and obligations of participants. For example, general partners are obliged to participate in the activities of the partnership (Article 73 of the Civil Code). The list of rights and obligations of the participants of the partnership may be expanded by its constituent documents. It is possible to restrict the right to participate in the management of a partnership for investors in a limited partnership (clause 2 of Article 84 of the Civil Code).
The established rights and obligations are specified in relation to certain types of business partnerships. Special rules provide for cases of restriction of the right to participate in the distribution of profits. Thus, business partnerships are deprived of the right to distribute profits among participants if the cost net assets the partnership will turn out to be lower than the size of the authorized (share) capital (clause 2 of article 74 of the Civil Code).
Failure of a participant in a business partnership to fulfill his duties may entail certain adverse consequences for him. In business partnerships, gross failure by a participant to fulfill his duties may lead to his exclusion from the organization (clause 2 of Article 76 of the Civil Code).
Norms Art. 67 of the Civil Code are imperative in nature, therefore it is impossible to deprive a participant of any of the listed rights or relieve them of obligations.
Chapter 2. Types of business partnerships
Moving on to the consideration of the legal situation individual species business partnerships, one drawback of legal regulation should be noted - the lack of comprehensiveness of regulation, weak integration civil law with other branches of law and legislation. Why should entrepreneurs create business partnerships and take on such a heavy burden of full property liability if neither administrative nor tax legislation in any way pushes them to do so?
2.1 General partnership
A business partnership, the participants of which jointly and severally bear subsidiary (additional) liability for its obligations with all their property, is called a full partnership. It arises on the basis of an agreement between several participants (general partners), which can only be entrepreneurs - individual or collective.
NOU VPO IVESEP
Faculty of Law
Department of Civil Law Disciplines
TEST
in commercial law
Subject: Legal status of business partnerships
Option No. 2 Topic No. 9
Saint Petersburg
2011
Content
Introduction……………………………………………………………………….3
1. The concept of business partnerships……………………………………4
2. The purpose and subject of the activities of partnerships…………………………………5
3. Management and conduct of partnership affairs……………………………………7
4. Rights, duties and responsibilities of participants in business partnerships…………………………………………………………………… ………………….8
5. Distribution of profits and losses of the partnership………………………..10
6. Change in composition, withdrawal of participants from a business partnership………………………………………………………………… …………………11
7. Transformation and liquidation of a business partnership…………….14
Conclusion…………………………………………………………………….17
References……………………………………………………………19
Introduction
Most people have been associated with one organization or another for almost their entire adult life, being their employees or coming into contact with them. The relevance of the work lies in the fact that nowadays it is difficult to find people in modern society who do not belong to any organization. The vast majority of society members belong to one or more organizations. These organizations may be industrial, educational or research, public or private, large or small, temporary or permanent. It is important to emphasize that there are a wide variety of organizations. It is obvious that each organization is a rather complex technical, economic and social system, reflecting its individuality and specificity.
1. The concept of business partnerships
The Civil Code of the Russian Federation provides for various forms of commercial legal entities. For business partnerships, clause 2 of article 66 of the Civil Code of the Russian Federation, two forms are defined - general partnership and limited partnership (limited partnership).
A full partnership is recognized as a partnership whose participants (general partners) are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with all the property belonging to them (Article 69 of the Civil Code of the Russian Federation).
Partnership of Faith- this is a partnership that includes two types of participants: general partners who carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with all their property (who are entrepreneurs by status), and investors who do not participate in the management of the affairs of the partnership and bear the risk of losses, related to the activities of the partnership within the limits of the amounts of contributions made by them (Article 82 of the Civil Code of the Russian Federation). Investors can be citizens and legal entities.
In accordance with paragraph 4 of Article 66 of the Civil Code of the Russian Federation, participants in general partnerships and general partners in limited partnerships can be individual entrepreneurs and (or) commercial organizations.
The common historical origin of the partnerships determined some of their similarities:
- the purpose of the partnership is to derive profit from joint activities;
- a partnership is a voluntary association of at least two participants;
- the partnership is united on the basis of a constituent agreement concluded in writing and signed by all full participants(Article 70, 83 of the Civil Code of the Russian Federation);
- partners combine their property assets (money, movable and immovable property);
- partners take personal part in the activities of the partnership (this can be the production of work, the provision of services, the implementation of management activities).
2. Purpose and subject of activity of partnerships
As noted above, partnerships are classified as commercial organizations, i.e. their main goal is to make a profit (Clause 1, Article 50 of the Civil Code of the Russian Federation). Recognition of a legal entity commercial organization entails legal consequences provided for by current legislation (Article 426 of the Civil Code of the Russian Federation).
Most commercial organizations have general legal capacity, i.e. have civil rights and bear civil responsibilities necessary to carry out any type of activity not prohibited by law. It should be taken into account that legal entities can engage in certain types of activities only if they have a license - a special permit to conduct certain types of activities, the list of which is determined only by law (Article 49 of the Civil Code of the Russian Federation).
Articles of Association
Due to the fact that a partnership is a contractual association, the main document defining its activities is the constituent agreement. The articles of association are a written document signed by the partners of the partnership. It should be noted that only general partners put their signatures on the constituent agreement. Investors of a limited partnership do not sign the constituent agreement (Clause 1, Article 83 of the Civil Code of the Russian Federation), and their relations with the partnership are formalized by a certificate of contribution.
The foundation agreement of a partnership (both full and limited) must contain the following basic information (clause 2 of article 52, clause 2 of article 70, clause 2 of article 83 of the Civil Code of the Russian Federation):
- name of the partnership;
Location of the partnership;
The subject and goals of the partnership’s activities;
The procedure for managing the activities of the partnership;
Conditions on the size and composition of the partnership's share capital;
The total amount of contributions made by investors (only for limited partnership);
The size and procedure for changing the shares of each participant in the share capital;
The size, composition, terms and procedure for making contributions by the participants of the partnership;
Responsibility of participants for violation of obligations to make contributions;
Rights and obligations of partnership participants;
Conditions and procedure for distribution of profits and losses between participants;
The procedure for the withdrawal of participants from the partnership.
The Civil Code of the Russian Federation imposes special requirements for the name of partnerships. Thus, in accordance with paragraph 3 of Article 69 of the Civil Code of the Russian Federation, the corporate name of a general partnership must indicate either the names (titles) of all its participants and the words “full partnership” (for example, “The Savelyev Brothers”, PT). In the case of a large number of participants, the Civil Code of the Russian Federation allows the use of the names (names) of one or more participants with the addition of the words “and company” and the words “full partnership” (for example, “Savelyev and K”, PT). The company name of a limited partnership (clause 2 of Article 82 of the Civil Code of the Russian Federation) indicates the names (name) of only full participants and the words “limited partnership” or “limited partnership”.
3. Management and conduct of partnership affairs
General partnership
Management of the affairs of a general partnership in accordance with Article 71 of the Civil Code of the Russian Federation is carried out by common agreement of all participants.
Conducting the affairs of a general partnership can be carried out in three options (Article 72 of the Civil Code of the Russian Federation).
1. Each participant in a general partnership independently conducts business activities on behalf of the partnership. At the same time, his actions must be fully consistent with the general interests of the partnership. According to Article 73 of the Civil Code of the Russian Federation, a participant does not have the right to carry out transactions on his own behalf and in his own interests or in the interests of third parties that are similar to those that form the subject of the activities of the general partnership.
2. Participants in a general partnership jointly conduct the affairs of the partnership, i.e. all transactions on behalf of the partnership are made on the basis of a joint decision of all participants.
3. The affairs of a general partnership are conducted by one participant on behalf of the partners. In this case, the remaining participants do not take part in the affairs of the partnership, and if they make transactions, then only on the basis of the power of attorney of the participant who manages the affairs.
It must be emphasized that the type of management chosen by the participants of the general partnership must be reflected in the constituent agreement.
Limited partnership (limited partnership)
The minimum number of participants in a limited partnership is two, of which one participant is a general partner, the other is an investor. The maximum number of participants in a limited partnership is not limited, however, the peculiarities of relationships in a partnership suggest the use of such an organizational and legal form for organizations with a small number of participants.
For a limited partnership, as for a general partnership, there are three options for conducting business activities (see the above options for a general partnership). It should be taken into account that only general partners have the right to manage the affairs of a limited partnership. Investors do not have the right to participate in the management of affairs and act on behalf of the limited partnership as a whole. However, a limited partnership may grant the investor the right, on the basis of a power of attorney, to perform any actions on behalf of the partnership.
However, it cannot be said that investors do not take any part in the activities of the partnership. They can express their personal opinion on issues of the partnership’s activities, get acquainted with the reporting documentation of the limited partnership, etc.
4. Rights, duties and responsibilities of participants in business partnerships
General partnership
From an analysis of the provisions of the Civil Code of the Russian Federation on the rights and obligations of a business partnership or company, as well as on a general partnership, one can draw a conclusion about the basic rights of its participants, including:
Receiving a share of profit distributed among participants in proportion to the participant’s contribution to the share capital (Clause 1, Article 74 of the Civil Code of the Russian Federation);
Participation in the management of the partnership (Article 71 of the Civil Code of the Russian Federation);
Obtaining the necessary information about the activities of the partnership (clause 3 of article 71 of the Civil Code of the Russian Federation);
Receipt of part of the partnership’s property remaining after settlements with creditors, or its value in the event of liquidation of the partnership (Clause 1, Article 67 of the Civil Code of the Russian Federation);
The right to act on behalf of the partnership in accordance with its constituent documents (Clause 1, Article 72 of the Civil Code of the Russian Federation);
The right to leave the partnership at any time with receipt of the value of part of the partnership’s property, proportional to its share in the partnership’s share capital (Clause 1, Article 77 of the Civil Code of the Russian Federation);
The right to transfer your share to other participants and third parties in the manner prescribed by the Civil Code of the Russian Federation and the constituent documents of the general partnership (Article 79 of the Civil Code of the Russian Federation);
The right to demand in court the exclusion of any of the participants from the partnership if there are serious grounds for this (Clause 2 of Article 76 of the Civil Code of the Russian Federation).
The main responsibilities of a participant in a general partnership are:
Participation in the activities of a general partnership (Clause 1, Article 73 of the Civil Code of the Russian Federation);
Fulfillment of the requirements of the founding agreement of the partnership (clause 1 of Article 73 of the Civil Code of the Russian Federation);
Maintaining confidentiality regarding information about the activities of the partnership (clause 2 of Article 67 of the Civil Code of the Russian Federation);
Making at least half of your contribution to the joint capital of the partnership by the time of its registration and the rest of the contribution within the time limits established by the constituent agreement (Clause 2 of Article 73 of the Civil Code of the Russian Federation).
A general partnership is liable for its obligations with all its property. In case of its deficiency, the participants bear joint liability for the obligations of the partnership, i.e. The creditor of the partnership may present property claims in full simultaneously to all participants or to one or some of them.
In accordance with Article 69 of the Civil Code of the Russian Federation, participants in a general partnership are liable for its obligations with all the property belonging to them, i.e. The liability of participants is not limited.
Partnership of Faith
Due to the fact that the liability of general partners in a limited partnership is similar to the liability of participants in a general partnership (clause 2 of Article 82 of the Civil Code of the Russian Federation), the main attention should be paid to the liability of participants - investors. Based on clause 1 of Article 82 of the Civil Code of the Russian Federation, the liability of participants - depositors is limited to the limits of the amounts of deposits made by them. In this case, one should take into account the provisions of clause 4 of Article 82 of the Civil Code of the Russian Federation, which states that the inclusion of the investor’s name in the company name of a limited partnership entails an increase in the amount of his liability to full, so as not to mislead creditors about the limits of his liability.
5. Distribution of profits and losses of the partnership
General partnership
As follows from Article 74 of the Civil Code of the Russian Federation, each member of a general partnership participates in the distribution of profits and losses in proportion to his contribution. From this general position there may be deviations. In this case, these deviations must be provided for either by the constituent agreement or by an additional agreement between the participants of the general partnership. That is, exceptions to the provisions of Article 74 of the Civil Code of the Russian Federation regarding the procedure for distributing profits and losses are established only by mutual agreement of the partners.
The rules for the distribution of profits and losses, different from the rules enshrined in the Civil Code of the Russian Federation, may, for example, look like this: the constituent agreement provides that part of the profit received by the partnership for the year is divided in proportion to the contributions of the partners, and the other part - equally.
Participants have the right to provide any other methods. Nevertheless, it should be taken into account that the Civil Code of the Russian Federation contains a mandatory rule according to which it is not permitted under any circumstances to exclude any of the participants of the partnership from participating in the distribution of profits or losses.
Partnership of Faith
As for limited partnerships, for general partners the conditions for distribution of profits and losses are similar to those stated above. Investors, in accordance with clause 2 of Article 85 of the Civil Code of the Russian Federation, also have the right to receive part of the partnership’s profit due to their share in the share capital, in the manner provided for in the constituent agreement. However, investors in a limited partnership have a significant advantage over general partners - they bear the risk of losses associated with the activities of the partnership, within the limits of the amounts of contributions made by them.
6. Change of composition, withdrawal of participants from a business partnership
The composition of participants in a general partnership is given primary attention. This is explained by the fact that each of the participants in the partnership conducts, in fact, independent economic activities and at the same time acts on behalf of the partnership. Accordingly, all participants in the partnership are liable with their property for the actions of any of them.
Thus, the trust relationship in a general partnership is important. The participants of the partnership are far from indifferent to who is part of the partnership.
A participant’s membership in a general partnership may be terminated in the following cases:
- voluntary withdrawal from the partnership (Article 77 of the Civil Code of the Russian Federation);
- death;
- recognition of him as missing, incompetent or partially capable;
- recognition as insolvent (bankrupt) or opening of reorganization procedures against a participant by a court decision (due to his insolvency);
- termination of a legal entity participating in the partnership due to its liquidation or reorganization;
- demands of a participant’s personal creditor for the allocation of a part of the partnership’s property corresponding to this participant’s share in the partnership’s share capital for the purpose of foreclosure on this property (Article 80 of the Civil Code of the Russian Federation).
In order for the partnership to continue its activities with a new composition, it is necessary that such an opportunity be provided for in the constituent agreement or in a separate agreement of the participants. In this case, the change in composition is reflected in the constituent agreement by introducing appropriate amendments to it.
The exclusion of a participant from a general partnership can only take place if there are serious grounds for it. In the Civil Code of the Russian Federation, these grounds mean, in particular, a gross violation by a participant of his duties and his inability to conduct business wisely. There may be other grounds that the court deems sufficient. This norm, paragraph 2 of Article 76 of the Civil Code of the Russian Federation, contains evaluative categories that give the court the opportunity, when considering a particular case, not only to be guided by the formal requirements of the law, but to proceed from the principles of reasonableness and fairness. This approach is explained by the fact that it helps protect the rights of the excluded participant.
The procedure for expulsion from a limited partnership is special. It is possible to exclude only a general partner, but not an investor, at the will of other participants. His participation is mainly of a property nature and no grounds for exclusion can be found.
Article 77 of the Civil Code of the Russian Federation regulates the procedure for the withdrawal of a participant from a general partnership. It should immediately be noted that the law provides for the nullity of any agreement between partners on the renunciation of the right to withdraw.
In case of withdrawal from the partnership, a participant has the right to demand payment of the value of a part of the partnership’s property corresponding to the share of this participant in the share capital. By the constituent agreement or agreement of the retiring participant with the remaining participants, payment of the value of property can be replaced by the delivery of property in kind (clause 2 of Article 76 of the Civil Code of the Russian Federation).
The amount of the part of the property or its share due to the retiring participant is determined by the balance sheet drawn up at the time of the participant’s departure (Clause 1, Article 78 of the Civil Code of the Russian Federation).
It should be taken into account that the value of the share is not equal to the value of the contribution made by the participant to the share capital. It represents the same percentage of the total value of the partnership's assets as the percentage of the share capital attributable to the participant's share.
7. Transformation and liquidation of a business partnership
In practice, a general partnership is not durable. Main reason its instability lies in disagreements between the participants, which can arise on any occasion: on management, investment, sales and other issues.
As mentioned above, the activities of the partnership are terminated due to the withdrawal from it or the death of at least one member.
Nevertheless, the Civil Code of the Russian Federation provides as indisputable grounds for the liquidation of a general partnership such as a decision on this by the participants themselves, a court decision on the liquidation of the partnership due to improper registration or carrying out activities prohibited by law, or the commission of gross violations of the law. Other circumstances (for example, the withdrawal or death of one of the participants, recognition as absent, incompetent, etc.) may serve as a basis for changing the composition of the participants in the general partnership and continuing its existence.
Liquidation of a general partnership occurs on the grounds that are specified in Article 61 of the Civil Code of the Russian Federation and are common to all legal entities:
- by decision of its founders (participants) or a body of a legal entity authorized by the constituent documents, including in connection with the expiration of the period for which the legal entity was created, with the achievement of the purpose for which it was created, or with the court invalidating the registration of a legal entity in connection with violations of the law or other legal acts committed during its creation, if these violations are of an irreparable nature;
- by a court decision in the case of carrying out activities without proper permission (license) or activities prohibited by law, or with other repeated or gross violations of the law or other legal acts, as well as in other cases provided for by the Civil Code of the Russian Federation;
- the partnership is also liquidated in accordance with Article 65 of the Civil Code of the Russian Federation due to its recognition as insolvent (bankrupt).
A limited partnership can also undergo changes in its composition and be liquidated, which occurs according to the rules established by law for a general partnership. However, you should pay attention to the following differences.
The death of a general partner ends his personal participation, which does not pass to his heirs. The death of an investor does not in any way affect the structure of the partnership; only persons are replaced if the deceased has heirs and they want to join the partnership. In any case, the partnership is maintained if at least one general partner and one investor remain.
A limited partnership is also 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.
Investors of a limited partnership have a priority right over general partners to receive their contributions from the property of the partnership remaining after satisfying the claims of creditors in the event that the limited partnership is liquidated.
Conclusion
It should be noted that such organizational and legal forms as general partnership and limited partnership are very rare in the practice of Russian entrepreneurship. This is primarily due to the fact that these forms do not establish limits on the liability of their participants for the debts of the partnership. It is not profitable for individual entrepreneurs to create a legal entity that does not limit their liability for the obligations of the partnership, and the legislator does not establish any privileges for general partnerships.
Another reason is that, in accordance with our law, only commercial legal entities and citizen entrepreneurs can be general partners. Ordinary citizens are deprived of this opportunity, while throughout the world general partnerships are created mainly in the field of small and medium-sized businesses (they are organized by doctors, lawyers and other persons providing paid services).
It should be noted that before the revolution, general partnerships were widespread in Russia. Currently, enterprises with such an organizational and legal form operate in all developed countries. General partnerships and the partners themselves usually have a good business reputation and enjoy the trust of their partners. All over the world, partnerships are supported by the state, they are provided with tax benefits and loans, since the guarantee of money return is the unlimited joint and several liability of partners for the company’s debts.
Thus, the spread of this organizational and legal form, the use of which by unscrupulous persons is unlikely and extremely difficult, is possible with the introduction of some changes to the current legislation, namely: to grant the right to participate in partnerships of this type to ordinary citizens who do not have the status of an entrepreneur, and also to establish specially for such partnerships preferential taxation and lending regime.
At the same time, it should be noted the advantages of such organizational and legal forms as general partnership and limited partnership, which undoubtedly include a flexible structure and the absence of special management bodies.
HT(association of persons, i.e. there is personal involvement ) - a lump of an organization with share capital divided into contributions from the founders. 2 forms: 1)general partnership - A legal entity whose participants, general partners, in accordance with the agreement concluded between them, engage in personal activity on behalf of the partnership and bear subsidiary liability for its obligations with the property belonging to them for the obligations of the partnership 2) partnership of faith(limited partnership) - HT, where, along with the participants who carry out PD on behalf of HT and are liable for HT’s obligations with their property (general partners), there are 1 or several participant-investors (limited partners) who bear the risk of losses associated with HT’s activities within amounts of deposits made by them and do not take part in the implementation of HT PD.
T on faith uses the rules of the Civil Code about full T, if this does not contradict the rules of the Civil Code about TNV. Only HA are regulated! No right to issue shares!!! HT from 1 person is possible in cases provided by law.
Uch. Document- have a contract. Brand name: 1) the names or titles of all participants (general partners - for TNV) and the words “PT” (“TNV” / “limited partnership”) OR 2) the name of one or more participants (general partner for TNV) with “and company” and “PT” (“TNV”/ “KT”). If the name of the investor is included in the FI, then he becomes a general partner.
WITH masonry capital- through contributions from the founders. When a participant registers - at least 1/2 of the contribution, the rest - within the established time frame (otherwise 10% per annum on the unpaid part of the contribution and reimbursement of losses).
HT participants: M.B. Individual entrepreneur and com org. In PT - only full comrades, in TNV - comrade + investor. Face m.b. participant only 1 PT, because is liable for the obligations of PT with all its property. PT participant not m.b. full comrade at TNV. and vice versa: face m.b. full comrade only in 1 TNV. Investors in HT institutions with the permission of the owner, unless otherwise Z. The law may limit/prohibit the participation of certain categories of citizens in HT. HT m.b. founders of other HT (excl: Civil Code, laws). Investors in TNV may be citizens and legal entities (excl: state bodies and local self-government).
Full comrades:A) rights: 1) participate in the management of HT’s affairs (TNV investors - by proxy) 2) information about HT’s activities, get acquainted with its books/other documentation 3) take part in the distribution of profits 4) upon liquidation of HT, receive part of the property remaining after settlements with creditors /price. B) Responsibilities: 1) make contributions in the order, amount, methods and time frames according to UD 2) confidentiality.
Investors have no right(for TNV):A)participate in the management and conduct of affairs b) act on behalf of T except by proxy c) challenge the actions of general partners in the management and conduct of affairs. The investor is obliged to make a contribution (certificate of participation). Rights: a) to receive part of the profit on his share b) to get acquainted with annual reports and balances c) to leave T at the end of the f year and receive his contribution d) to transfer the share / part, there is a PP for the purchase of a share in front of 3rd parties .
Conversion: HT and societies of one type may be transformed into HT and societies of another type or into production cooperatives - by decision general meeting participants. When transforming an HT into an HT, each general partner who has become a member of the company bears subsidiary liability for 2 years with all his property for the obligations transferred to the HT from the HT. Alienation by a former partner of his shares (shares) does not relieve him of such liability.
Distribution of profits and losses: in proportion to the shares in the share capital, unless otherwise agreed upon by the shareholder or other agreement (you cannot exclude someone from the profit). If the value of net assets is less than the size of the insurance company, then profit is not distributed until the value of the net assets exceeds the size of the insurance company.
Responsibility: Participants jointly and severally bear subsidiary responsibility with their property for the obligations of the partnership. A participant in the PT, who was not its founder, is liable on an equal basis with other participants for obligations that arose before his entry into the PT. The retiree is liable for obligations that arose before his departure on an equal basis with the others for 2 years from the date of approval of the report on the activities of the PT for the year in which he left the partnership. Participants cannot provide in their agreement elimination of of the participants from liability; if such an agreement is concluded, it will be void.
Share: transfer possible. Foreclosing on a participant's share in the insurance company is possible only if there is insufficient property to cover debts (allocation of property/payment of cost) and terminates his participation in the HT.
Control- by general agreement of all participants or by a majority vote (if in the agreement). Each participant has 1 vote.
Business management- this is a representation of the PT in relations with 3 persons: c) each has the right to act on behalf of the PT (usually, if b and c are not specified in the agreement) b) joint (for a transaction, the consent of all) c) instructions to 1 or several participants (the rest - by proxy). In relations with 3 persons, he does not have the right to refer to the UD, where the powers of the participants are limited (except: the 3rd person knew).
Exit from PT(Yes): but: warning at least 6 months in advance, early notice only for good reason, denial of the right to exit is void. Consequences of disposal: 1) the cost of part of the property is paid or in kind (according to the balance!) 2) if there is death, then the heir or legal successor enters into the PT only with the consent of the others. If something happens to a participant, the PT can continue activities if provided for in the participant's contract or agreement.
Exception(judicial): grossly (degree of guilt, consequences) violates his duties or carries out affairs unreasonably.
Liquidation: 1)FOR PT: a) on general grounds b) if there is 1 participant left, but it is possible to transform into an HT within 6 months c) something happens to 1 of the participants, unless the contract or agreement stipulates that the partnership continues its activities 2) For TNV: a) if there are no investors left, but it is possible to convert the TNV into a full T (During liquidation, investors have a priority right over general partners to receive contributions from the remaining property. The remaining property is distributed in proportion to the shares in the company's capital, unless otherwise agreed by contract or agreement