Palmistry 

Corporate and unitary legal entities. Corporate rights of legal entities

The concept of corporate legal entities is known to the legislation of all developed countries. This division makes it possible to regulate in a general way not only the management structure and status (competence) of the bodies of corporate commercial and non-profit organizations, but also a number of their internal relations that cause disputes in practice (the possibility of challenging the decisions of general meetings and other collegiate bodies, the conditions for withdrawal or exclusion from number of participants, etc.). The allocation of corporations as a special type of legal entities made it possible to fix directly in GC general norms concerning the status (rights and obligations) of both the corporations themselves and their members. It should be noted that there is no similar "general part" relating to unitary legal entities in the Civil Code.

GC The Russian Federation, as one of the new classification criteria for the division of legal entities, proposes the division of legal entities into legal entities of a corporate type, based on the principles of membership (corporations) and non-corporate (unitary). The right of membership in the Civil Code of the Russian Federation is understood as the right of participants in a legal entity to participate in the management of corporations. Corporations include all commercial legal entities, with the exception of unitary enterprises.

In the theory and practice of developed countries, general ideas about corporate and unitary legal entities have been developed. Thus, a corporation (from Latin corporatio - association) is defined as a set of persons united to achieve common goals, carry out joint activities and form an independent subject of law - a legal entity.

A unitary (from Latin unitus - united, united) is a commercial organization that is not endowed with the right of ownership to the property assigned to it by the owner. The property of a unitary enterprise is indivisible and cannot be distributed among contributions (shares, shares), including between employees of the organization.

Thus, in relation to all corporations (including non-commercial ones), uniform rights of their participants and uniform rules for managing them are established. Corporations are opposed to unitary legal entities whose founders do not become their participants and do not acquire membership rights in them. In addition, their authorized capital is not divided into parts.

Both commercial and non-commercial organizations, both business companies and partnerships, can be corporate. The fact that non-profit organizations also belong to corporate organizations indicates the influence of European corporate law on Russian legislation (in Anglo-American law, as you know, only business corporations are considered corporations - analogues of business entities).

The supreme body of the corporation in accordance with Art. 65.3 The CC is the general meeting of its members. In non-profit corporations and production cooperatives with more than one hundred members, the highest body may be a congress, conference or other representative (collegiate) body determined by their charters in accordance with the law. The competence of this body and the procedure for making decisions by it are determined in accordance with the Civil Code law and the charter of the corporation.

As noted in the literature, the structure of the bodies of business companies as corporate organizations in the new Civil Code as a whole remained the same: a meeting of shareholders (participants) as the supreme body of the company, a supervisory board (or other board). At the same time, in the logic of the legislator, the supervisory board is increasingly acquiring the functions of a shareholder control body. Yes, in paragraph 4 of Art. 65.3 The Civil Code of the Russian Federation directly states that this collegial body controls the activities of the executive bodies of the corporation and performs other functions assigned to it by law or the charter of the corporation. It is important to emphasize the following restriction on membership in supervisory boards: persons exercising the powers of the sole executive bodies of corporations and members of their collegial executive bodies cannot make up more than one quarter of the composition of the collegial management bodies of corporations and be their chairmen. Idea project of the law on amendments to the Civil Code of the Russian Federation N 47538-6, adopted in the first reading on April 27, 2012, on the prohibition of membership in the supervisory board of a person exercising the powers of the sole executive body, did not pass, which seems to be generally correct for medium-sized businesses, where shareholders (participants) often perform the functions of the sole executive body *(20) .

In any corporation, the exclusive competence of the supreme body of the corporation includes:

determination of priority areas of the corporation's activities, principles of formation and use of its property;

approval and amendment of the charter of the corporation;

determining the procedure for admission to the membership of the corporation and exclusion from the number of its participants, unless such procedure is determined by law;

formation of other bodies of the corporation and early termination of their powers, if the charter of the corporation in accordance with the law does not refer this authority to the competence of other collegiate bodies of the corporation;

approval of annual reports and accounting (financial) statements of the corporation, if the charter of the corporation, in accordance with the law, this authority is not assigned to the competence of other collegiate bodies of the corporation;

making decisions on the creation of other legal entities by the corporation, on the participation of the corporation in other legal entities, on the creation of branches and on the opening of representative offices of the corporation, except in cases where the charter of a business company in accordance with the laws on business companies, the adoption of such decisions on these issues is within the competence other collegiate bodies of the corporation;

making decisions on the reorganization and liquidation of the corporation, on the appointment of a liquidation commission (liquidator) and on the approval of the liquidation balance sheet;

election of the audit commission (auditor) and appointment of an audit organization or an individual auditor of the corporation.

The law and the founding document of a corporation may include the resolution of other issues within the exclusive competence of its supreme body. The last provision is important, since earlier the competence of the general meeting of shareholders had to strictly correspond to what is written in Art. 48 Federal Law "On joint-stock companies". Thus, it was impossible to go beyond it.

In addition to the supreme body, a sole executive body (director, general director, chairman, etc.) is created in the corporation, and in cases provided for GC, other law or charter of the corporation - a collegial executive body (management board, directorate, etc.), as well as another collegial body accountable to the supreme body of the corporation. Their competence includes the solution of all issues, except for those that are within the exclusive competence of the general meeting. In addition, along with the above-mentioned bodies, a council controlling the activities of these bodies can be formed in it.

Members of the collegial management body of the corporation have the right to receive information about the activities of the corporation and get acquainted with its accounting and other documentation, demand compensation for losses caused to the corporation ( article 53.1), dispute the transactions made by the corporation on the grounds provided for by article 174 Civil Code or laws on corporations of certain organizational and legal forms, and demand the application of the consequences of their invalidity, as well as demand the application of the consequences of the invalidity of void corporation transactions in the manner prescribed by paragraph 2 of article 65.2 GK.

It is important to note that the charter of a corporation may provide for the granting of the powers of the sole executive body to several persons acting jointly, or the formation of several sole executive bodies acting independently of each other ( paragraph three of paragraph 1 of article 53). Both an individual and a legal entity may act as the sole executive body of a corporation.

In the cases stipulated GC, another law or the charter of the corporation, a collegial executive body (board, directorate, etc.) is formed in the corporation.

The introduction of the specified articles creates the basis for the emergence of special relations between the members of the corporation, as well as between the corporation itself and its members. These relationships are called corporate. The very appearance of corporate legal entities can be considered as a development of the general provision of the new edition Art. 2 Civil Code of the Russian Federation on corporate relations as an independent component of the subject of civil law regulation.

The special role of corporate relations is mentioned in paragraph 1 of Art. 2 Civil Code, which established that civil law regulates relations related to participation in corporate organizations or their management (corporate relations). The need for a separate mention of corporate relations as a component of the subject of civil law is due to the fact that corporate legal relations are a special group of relations. These are legal relations between a corporation and its participants, different from legal obligations, the content of which is reduced to providing the participants of the corporation with a legally secured opportunity to manage the affairs of the corporation in any form and participate in the property results of its activities. Consequently, the object of corporate relations is participation in the corporation itself.

Important are the provisions paragraph 2 of Art. 65.1 The Civil Code, according to which, in connection with participation in a corporate organization, its participants acquire corporate (membership) rights and obligations in relation to the legal entity they have created, with the exception of cases provided for by the Civil Code. These rights, in accordance with Art. 65.2 The GCs are as follows:

participate in the management of a corporation (with the exception of business partnerships, which have a special management procedure)

in cases and in the manner prescribed by law and the constituent document of the corporation, to receive information about the activities of the corporation and get acquainted with its accounting and other documentation;

appeal against the decisions of the bodies of the corporation, entailing civil law consequences, in cases and in the manner prescribed by law;

claim, acting on behalf of a corporation ( article 182, paragraph 1), compensation for losses caused to the corporation ( article 53.1);

challenge, acting on behalf of a corporation ( article 182, paragraph 1), transactions made by it on the grounds provided for article 174 of this Code or laws on corporations of certain organizational and legal forms, and require the application of the consequences of their invalidity, as well as the application of the consequences of the invalidity of void corporation transactions.

Members of a corporation may also have other rights provided for by law or the founding document of the corporation.

Particular attention should be paid to the right of a member of any corporation to appeal against decisions of its bodies that entail civil law consequences (that is, not related to relations that go beyond civil law relations (for example, decisions of bodies of public organizations regarding the main scope of their activities), as well as its right to demand compensation for losses caused to the corporation by persons authorized to act on its behalf, or by members of its collegiate bodies, or by persons who actually determine its actions.This right establishes a mechanism for applying the rules provided for Art. 53.1 The Civil Code of the Russian Federation, which proclaims the responsibility of the listed persons for losses caused by them to a legal entity.

One of the unsettled issues is the above-mentioned right of a corporation member to information about the corporation's activities (familiarization with the minutes of general meetings, accounting documents, etc.). It seems that this right should belong to any member of any corporation, regardless of the size of his contribution to the capital of the corporation, however, as indicated above, this should be specifically stipulated in the charter of the corporation or should be specifically provided for by law. However, the legislator limited this right to cases and procedures established by law or the charter. Thus, it is quite possible that the charter will state that only those participants who have a certain number of shares have the right to information.

Obligations of a member of a corporation in accordance with paragraph 4 of Art. 65.2 The GCs are as follows:

participate in the formation of the property of the corporation in the required amount in the manner, manner and within the time limits provided for by this Code, other law or the constituent document of a corporation;

not to disclose confidential information about the activities of the corporation;

participate in the adoption of corporate decisions, without which the corporation cannot continue its activities in accordance with the law, if its participation is necessary for the adoption of such decisions;

not to take actions knowingly aimed at causing harm to the corporation;

not to take actions (inaction) that significantly impede or make it impossible to achieve the goals for which the corporation was created.

Members of the corporation may also bear other obligations stipulated by law or the founding document of the corporation.

Particular attention should be paid to the provisions paragraph 4 of Art. 65.2 The Civil Code provided for the obligation not to take actions (inaction) that significantly impede or make it impossible to achieve the goals for which the corporation was created. In the latter case, we can talk about both the goal associated with making a profit, and not having such a goal.

As already noted, the difference between unitary legal entities and corporate ones is that property in unitary legal entities is not divided into parts and there is no membership in them. These include state and municipal unitary enterprises, foundations, institutions, autonomous non-profit organizations, religious organizations, as well as public companies.

The question of the need for the existence of such an organizational and legal form as unitary enterprises was one of the most discussed. IN clause 6.3 The concept of the development of civil legislation noted the futility of this organizational and legal form of a legal entity and the desirability of its gradual replacement with other types of commercial organizations, including business companies with 100% or other decisive participation of public legal entities in their property. It was also stated there that "based on the real needs of the federal state, it seems acceptable to maintain in the future only federal state-owned enterprises for certain especially important areas of the economy."

However, the legislator did not make such drastic changes. State and municipal unitary enterprises were retained, however, instead of the right of economic management, property is assigned to them on the basis of the right of operational management or economic management.

§ 3. Corporate agreement

In the new GC for the first time the concept of a corporate contract was disclosed. Corporate agreements have been included in Russian legislation relatively recently, although the need for this is long overdue. Their inclusion is caused by the need to provide participants of business companies with additional opportunities arising from the fact of owning a block of shares or shares in the authorized capital of business companies.

Among the reasons, one can also note the excessive overregulation of relations between participants in economic companies. As it was rightly noted in the literature, European joint-stock legislation, including Russian, is traditionally characterized, on the one hand, by the predominance of imperative norms, and, on the other hand, by the almost complete absence of any regulation of shareholders' relations. *(21) .

The need for legislative consolidation of a corporate agreement was also mentioned in the Concept for the Development of Civil Legislation. Yes, in paragraph 4.1.11 section III of the Concept for the development of civil legislation, it was noted that "it seems appropriate to establish in GC general rules on the possibility of concluding mutual agreements by participants in economic companies, known to many foreign legal orders as "shareholder agreements". Their subject may be: coordinated voting of participants on any issues, including candidates for the corporate management bodies; the right or obligation to sell or redeem one participant's shares of another participant or the pre-emptive right to purchase them; prohibition to transfer shares (shares) to third parties; obligation to transfer to other parties to the agreement dividends or other payments received in connection with the right to participate in the corporation.

This was discussed in more detail in the Concept for the Development of Legislation on Legal Entities. In paragraph 1.2 of paragraph 3 of subsection 6 of section 2 of the Concept, it was noted that the possibility of concluding "shareholder agreements" by participants in corporations is recognized by the law of many foreign countries. At the same time, various conceptual approaches to the mentioned agreements are presented in foreign legal orders. There are few restrictions under English law as to what may be the subject matter of an agreement between shareholders (participants). In France or Germany, the legislator takes a much tougher approach to regulating shareholder agreements, limiting the discretion of their parties.

At the CIS level, the admissibility of such agreements is provided paragraph 4 of Art. 3 Model Legislative Provisions for the CIS Member States on the Protection of Investor Rights in the Securities Market (adopted on April 14, 2005 by the Interparliamentary Assembly of the CIS Member States).

In this regard, in paragraph 2.1 of paragraph 3 of subsection 6 of section 2 of the Concept, it was proposed to establish in GC general rules on the admissibility and content of such agreements between participants in any economic companies (corporations), and not just limited liability companies. This will bring Russian legislation closer to the most developed foreign legal orders, and to some extent will avoid the transition of some entrepreneurs from Russian to foreign jurisdictions.

Meanwhile, in the absence of legal regulation, contracts that are essentially corporate have become quite widespread in our country. Moreover, in practice, informal corporate agreements are sometimes concluded, i.e. without complying with the statutory form and notifying the competent state authorities. The terms and conditions they contain may conflict GC RF, law"On joint-stock companies", law"On Limited Liability Companies" and the charters of the relevant legal entities. To achieve judicial protection in case of violation of the terms of such agreements in such cases can be quite difficult. In particular, B. Berezovsky, who insisted on the existence of such an agreement with R. Abramovich, could be convinced of this, but he failed to prove this in the High Court of England and lost the case.

The concept of a corporate agreement is closely related to the concept of corporate relations and corporate legal entities. For the first time in the Civil Code, the legislator established that the subject of civil law are also relations related to participation in corporate organizations or their management (corporate relations). Yes, in paragraph 1 of Art. 2 The Civil Code in its latest edition states that civil law regulates relations related to participation in corporate organizations or their management (corporate relations).

In accordance with the specified articles there are two types of relationships. In particular, we are talking about relations related to the “right to participate” in a corporation (meaning the rights of each member of the corporation, both property and non-property), and the concept of corporate includes the corresponding obligations between the founders (participants) and the corporation itself. as a legal entity.

The need for a separate mention of corporate relations as a component of the subject of civil law is due to the fact that corporate legal relations are a special group of relations. These are legal relations between a corporation and its participants, different from legal obligations, the content of which is reduced to providing the participants of the corporation with a legally secured opportunity to manage the affairs of the corporation in any form and participate in the property results of its activities. Consequently, the object of corporate relations is participation in the corporation itself.

As for corporate legal entities, they are known to the legislation of all developed countries. The division of legal entities into corporate and unitary ones makes it possible to regulate in general terms not only the management structure and competence of the bodies of corporate commercial and non-profit organizations, but also a number of their internal relations that cause disputes in practice (the possibility of challenging decisions of general meetings and other collegiate bodies, the conditions for withdrawal or exclusion from the number of participants, etc.). Therefore, it is quite natural for them to appear in the new GC. At the same time, the allocation of corporations as a special type of legal entities made it possible to fix directly in the Civil Code the general rules regarding the status (rights and obligations) of both the corporations themselves and their participants.

Thus, the fundamental feature of any corporation is the presence of membership, which gives the members of the corporation special rights and creates the basis for the emergence of special relations between the members of the corporation, as well as between the corporation and its members. These relationships are called corporate. As for the corporate agreement, it formalizes the relations between the participants of corporate legal entities.

Before the adoption of a new GC the possibility of concluding contracts that are essentially corporate, was provided Art. 32.1 Federal Law No. 208-FZ of December 26, 1995 "On Joint Stock Companies", paragraph 3 of Art. 8 Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies", paragraph 4 of Art. 3 Model legislative provisions for the CIS member states on the protection of investors' rights in the securities market. So, according to paragraph 3 of Art. 8 of the Law on Limited Liability Companies, the founders (participants) of the company have the right to conclude an agreement on the exercise of the rights of participants in the company, according to which they undertake to exercise their rights in a certain way and (or) refrain from exercising these rights, including voting in a certain way at the general meeting of participants company, agree on the option of voting with other participants, sell a share or part of a share at a price determined by this agreement and (or) upon the occurrence of certain circumstances, or refrain from alienating a share or part of a share until certain circumstances occur, as well as perform other actions in concert related to management company, with the creation, operation, reorganization and liquidation of the company.

In the first case, such agreements are called shareholder agreements, and in the second - agreements on the exercise of the rights of participants in a limited liability company. The need to use shareholder agreements is associated with the objective impossibility of resolving many relations that develop between shareholders through the constituent documents of a joint stock company. Similar problems arise between members of a limited liability company.

However, there are differences between corporate contracts and shareholder agreements. So, in the shareholder agreement there is no focus on the emergence of legal relations with the participation of third parties, which, as will be shown below, is typical for a corporate agreement.

However, it should be borne in mind that the term "corporate agreement" itself was introduced only by a new GC. By concluding this agreement, the parties usually pursue such goals as acquiring the ability of a person or group of persons to influence the activities of the company, exercise additional control over it, prevent hostile takeovers, raider attacks, etc.

In the Civil Code, a corporate agreement is defined as follows. According to paragraph 1 of Art. 67.2 Members of a business company or some of them have the right to conclude an agreement between 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 refrain (refuse) from exercising them, including voting in a certain way at the general meeting of participants in the company, to coordinately carry out other actions to manage the company, to acquire or alienate shares in its authorized capital (shares) at a certain price or upon the occurrence of certain circumstances, or to refrain from alienating shares (shares) until the occurrence of certain circumstances.

When concluding a corporate agreement, one should take into account the changes that have occurred in the joint-stock legislation. federal law dated May 05, 2014 N 99-FZ, it was found that paragraph 3 of Art. 32.1 The Law on Joint Stock Companies has become invalid. In the said paragraph, it was said that the shareholder agreement must be concluded in respect of all shares owned by the party to the shareholder agreement. Thus, at present, a shareholder agreement can be concluded not in relation to all, but in relation to a certain number of shares owned by a shareholder.

It follows from the definition of a corporate agreement that the subject of a corporate agreement is an agreement aimed at exercising or refraining from exercising corporate rights in a manner specified in the agreement.

The legal nature of this agreement is not entirely clear. A corporate agreement should be recognized as a kind of civil law transaction, and in particular an agreement between two or more persons, which implies the application of general provisions on the agreement and (contractual) obligations to such an agreement. At the same time, this agreement undoubtedly has its own specifics, arising from the fact that it regulates a special group of civil legal relations - corporate legal relations.

For example, this specificity lies in the fact that the effect of a corporate agreement indirectly extends to the company within which it is concluded, as well as to other members of the company that are not parties to this agreement. This specificity stems mainly from the multiplicity of persons involved in such relations, and therefore giving rise to extremely specific contractual constructions that do not fit into traditional contractual models focused on the emergence of bilateral obligations.

It is impossible not to pay attention to the fact that this agreement is similar to the agreement on joint activities (simple partnership), but it does not completely coincide with it. This similarity lies in the fact that, unlike conventional treaties, the number of its participants can be more than two. In addition, it provides for the commission by its participants of joint actions aimed at achieving a common goal.

However, unlike a simple partnership agreement, a characteristic feature of a corporate agreement is the presence in it of elements of an agreement in favor of a third party ( Art. 430 Civil Code), which are combined with the possibility of imposing certain obligations on this person. Such persons who did not participate in the conclusion of a corporate agreement, but have certain obligations, can be called creditors of participants in a corporate agreement.

At the same time, in relation to a corporate agreement, one can speak of the absence of property relations related to making contributions to joint activities. In addition, when concluding a corporate agreement, there is no representation. At the same time, the participation of all shareholders, for example, in a general meeting, is not necessary for the implementation of joint activities.

A feature of corporate agreements is that they cannot change the corporate structure, the procedure for making corporate decisions and other corporate rules established based on third parties that are not parties to the shareholders' agreement. Their terms may not be contrary to legislative, including antitrust, prohibitions, the nature of the relationship, or the public interest.

The subject of a corporate agreement, as follows from the above definition, contains a non-exhaustive list of obligations of the parties to the agreement, which includes, first of all, such as:

Coordinated implementation of other actions to manage the company;

Acquisition or alienation of a share in its authorized capital (shares) at a certain price and (or) upon the occurrence of certain circumstances, or refraining from alienating a share (shares) until certain circumstances occur.

In the same time article 67.2 The Civil Code provides for a corporate agreement a number of restrictions or, in other words, conditions that cannot be included in a corporate agreement.

Yes, in accordance with paragraph 2 of Art. 67.2 A CC corporate agreement cannot oblige its participants to vote in accordance with the instructions of the company's bodies, determine the structure of the company's bodies and their competence. The terms of a corporate agreement that contradict the rules of this clause are void.

The presence of such a rule is obviously due to the fact that, like any other civil law contract, a corporate contract implies a lack of subordination between the parties, and the implementation of instructions to vote in accordance with the instructions of the company's bodies indicates the presence of vertical relationships. In the same way, the definition of the structure of the organs of society and their competence goes beyond the framework of horizontal relations.

At the same time, the corporate agreement may provide for the very obligation to take part in voting on certain issues. Yes, according to par. 3 p. 2 art. 67.2 The CC 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 charter of the company of provisions that determine the structure of the company's bodies and their competence, if in accordance with the Civil Code and laws on business companies it is allowed to change the structure of the company's bodies and their competence by the company's charter .

There is a special form for a corporate agreement. In particular, it must be concluded by drawing up one document signed by the parties ( paragraph 3 of Art. 67.2 Civil Code of the Russian Federation). The presence of such a clarification is due to the fact that, in accordance with paragraph 2 of Art. 434 The Civil Code for the written form of the contract established two varieties:

by drawing up one document signed by the parties;

by exchanging documents by postal, telegraph, teletype, telephone, electronic or other communication, which makes it possible to reliably establish that the document comes from the party under the contract.

In this case, we are talking about only one type of writing. Obviously, this is due to the need to specify all the terms of the contract as accurately as possible, and in the case of concluding a contract by exchanging documents, this is not always possible.

The legislator does not say anything about the consequences of non-compliance with the form of the transaction established by law. Consequently, we can only talk about such a consequence as the impossibility to refer to the testimony of witnesses.

Some attention to Art. 67.2 The Civil Code is devoted to the informational obligations of the participants in the corporate agreement. In particular, this refers to their obligation to inform the public about the very fact of concluding such an agreement.

Disclosure of information on the securities market is necessary so that market participants are informed about each other's actions, so that they make decisions based on their assessments of real facts, and not relying on guesswork, rumors and conjectures. In this regard, in paragraph 4 of Art. 67.2 The Civil Code establishes that the participants in a business company that have entered into a corporate agreement are required to notify the company of the fact of concluding a corporate agreement, while its contents are not required to be disclosed. In case of failure to fulfill this obligation, the participants of the company who are not parties to the corporate agreement are entitled to demand compensation for the losses caused to them.

It should be noted that, in itself, knowledge of the existence of a concluded corporate agreement is not enough, which gives. The main thing is to know its content, and the legislator has not resolved this issue clearly enough.

The information obligation to disclose the content of a corporate agreement will differ depending on whether it is a public joint-stock company or a non-public company. According to paragraph 1 of Art. 66.3 A public corporation is a joint-stock company whose shares and securities convertible into its shares are publicly placed (by open offering) or publicly traded on the terms and conditions established by laws about securities. The rules on public companies also apply to joint-stock companies, the charter and company name of which contain an indication that the company is public. Accordingly, companies that do not meet these requirements are non-public.

At the same time, information about the corporate agreement concluded by the shareholders of a public joint stock company must be disclosed within the limits, in the manner and on the terms provided for law about joint-stock companies. Obviously, we are talking about the fact that the said law will be amended accordingly, which will provide for such limits, procedures and conditions.

With regard to corporate agreements concluded by participants in a non-public company, then, as a general rule, information about the content of a corporate agreement is not subject to disclosure and is confidential. However, otherwise may be established by a special law.

According to paragraph 5 of Art. 67.2 The Civil Code of the corporate agreement does not create obligations for persons not participating in it as parties. In doing so, reference is made to Art. 308 GK. According to item 3 of this article, the obligation does not create obligations for persons not participating in it as parties (for third parties). In cases stipulated by law, other legal acts or by agreement of the parties, an obligation may create rights for third parties in relation to one or both parties to the obligation. Thus, in this case, the provisions of paragraph 3 of Art. 308 of the Civil Code, but not completely, since in this case nothing is said that third parties may have rights.

Third parties are understood as both persons who act as representatives of the parties, and persons who participate on the side of the debtor or creditor. At the same time, an obligation cannot create obligations for third parties, but only gives rise to rights in cases provided for by law,

This rule is specified in Art. 430 GK "Contract in favor of a third party". In particular, we are talking about an agreement under which it is established that the debtor is obliged to perform performance not to the creditor, but to a third party specified or not specified in the contract, who has the right to demand from the debtor the performance of the obligation in his favor.

Thus, the difference paragraph 5 of Art. 67.2 GC from Art. 308 The Civil Code lies in the fact that the latter still allows the possibility of creating rights for third parties in relation to one or both parties to the obligation, but only in cases expressly provided for by law.

Enough detail in paragraph 6 of Art. 67.2 The Civil Code refers to the consequences of a violation of a corporate agreement in cases where, at the time the relevant decision was made, all participants in the business company were parties to the corporate agreement.

In such cases, its violation may be the basis for invalidating the decisions of the bodies of the economic company at the claim of the party to the corporate agreement. This can be regarded as an additional sanction, which was not provided for in any law about joint-stock companies, nor law on limited liability companies. In practice, the only measure of liability for violation of, for example, a shareholder agreement is an attempt to recover proven damages from the violating party.

At the same time, violation of a corporate agreement, in which not all participants of the economic company participate, does not entail the recognition of the relevant decision of the meeting of participants as invalid.

However, as noted in the same paragraph of Art. 67.2 According to the Civil Code, the recognition of the decision of the body of the economic company as invalid does not in itself entail the invalidity of the transactions of the economic 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 claim of a participant in a corporate agreement only if the other party to the transaction knew or should have known about the restrictions provided for by the corporate agreement. It seems that such a short story is aimed at protecting the economic turnover.

It is impossible not to pay attention to the fact that this rule coincides with the rule provided for the disposal of joint property by one of the co-owners. Yes, according to paragraph 3 of Art. 253 Each of the participants in joint ownership has the right to make transactions on the disposal of common property, unless otherwise follows from the agreement of all participants. A transaction made by one of the participants in joint ownership related to the disposal of common property may be declared invalid at the request of the other participants on the grounds that the participant who made the transaction does not have the necessary powers only if it is proved that the other party to the transaction knew or obviously should have know about it.

It is interesting to note that the Law on Joint Stock Companies resolves the issue of the consequences of recognizing a violation of a shareholders' agreement somewhat differently. According to par. 2 p. 4 art. 32.1 of the Law on Joint Stock Companies, a shareholder agreement is binding only on its parties. A contract entered into by a party to a shareholder agreement in violation of the shareholder agreement may be declared invalid by a court at the suit of the interested party to the shareholder agreement only in cases where it is proved that the other party under the agreement knew or obviously should have known about the restrictions provided for by the shareholder agreement. At the same time, the violation of the shareholders' agreement cannot be the basis for invalidating the decisions of the company's bodies.

In some cases, a corporate agreement may contradict the charter of a business entity. In such cases. parties to a corporate agreement are not entitled to refer to its invalidity. Thus, in this case, we are talking about the fact that the norms of a corporate agreement, first of all, do not contradict the law.

The adoption of such a rule is quite legitimate, since, as noted in the literature, there was previously a completely different practice, when the courts absolutely clearly expressed the position according to which the agreement between the participants should not contradict both the law and the charter of the economic company *(22) .

Situations are possible when a participant in a business company who has entered into a corporate agreement ceases to be such (for example, sells its shares or share to third parties). In Art. 67.2 of the Civil Code, the problem of withdrawal of a participant (party to a corporate agreement) from a business entity is resolved. As stated in paragraph 8 of Art. 67.2 The Civil Code of the Russian Federation, the termination of the right of one party to a corporate agreement to a share in the authorized capital of a business entity (shares) does not entail the termination of the corporate agreement in relation to its other parties, unless otherwise provided by this agreement.

It is allowed to conclude special agreements between the so-called third parties (primarily creditors of the company's participants) and the participants of the economic company, according to which the latter, in order to ensure the legally protected interest of such third parties, undertake to exercise their corporate rights in a certain way or refrain (refuse) from exercising them, including voting in a certain way at the general meeting of the company's participants, coordinating other actions to manage the company, acquiring or alienating shares in its authorized capital (shares) at a certain price or upon the occurrence of certain circumstances, or refraining from alienating shares (shares) until certain circumstances.

It is easy to see that such an agreement on the subject resembles a corporate agreement. Therefore, the rules on the corporate agreement will apply to it. The difference between the two treaties lies in the composition of its participants.

The law resolves issues of correlation between agreements on the establishment of a business entity and corporate agreements. The rules on a corporate agreement shall accordingly apply to an agreement on the establishment of a business entity, unless otherwise provided by law or follows from the nature of the relationship between the parties to such an agreement ( paragraph 10 of Art. 67.2 GK).

The agreement on the establishment of a business entity is as follows. In accordance with this agreement, the founders undertake to create a legal entity, determine the procedure for joint activities to create it, the conditions for transferring their property to it and participating in its activities.

Thus, agreements on the establishment of a business company and corporate agreements have some common features, but they do not completely coincide.

In accordance with § 2 Ch. 4 of the Civil Code of the Russian Federation, legal entities that are commercial corporate organizations can be created in the organizational and legal forms:

  • economic partnerships and companies: a limited liability company, a joint-stock company, a general partnership, a limited partnership;
  • peasant (farm) households;
  • economic partnerships;
  • production cooperatives.

Business partnerships and companies (Art. 66-104 of the Civil Code of the Russian Federation). Such associations are usually called companies or firms in European law, and corporations in American law. A partnership is an association of persons; society is an association of persons and capitals.

Business partnerships and companies corporate commercial organizations are recognized with the authorized (share) capital divided into shares (contributions) of the founders (participants). The property created at the expense of the contributions of founders (participants), as well as produced and acquired by a business partnership or company in the course of its activity, belongs to the business partnership or company by the right of ownership.

The scope of powers of participants in a business partnership is determined in proportion to their shares in the company's charter capital.

One of the innovations of Law No. 99-FZ is the possibility for participants of a business company to conclude corporate contract. Participants of a business company that have concluded a corporate agreement are obliged to notify the company of the fact of concluding a corporate agreement, while its contents are not required to be disclosed. In case of failure to fulfill this obligation, the participants of the company who are not parties to the corporate agreement are entitled to demand compensation for the losses caused to them.

If a corporate agreement defines a different scope of powers of a participant in a non-public joint-stock company than in proportion to its share in the authorized capital, information about the existence of such an agreement and the scope of powers of the company's participants provided for by it must be entered in the Unified State Register of Legal Entities.

Business partnerships may be created in the organizational and legal form of a full partnership or limited partnership (limited partnership). Members of partnerships can be individual entrepreneurs and commercial organizations. Contributors in limited partnerships can be citizens and legal entities, as well as public legal entities.

Business companies may be created in the organizational and legal form of a joint-stock company or a limited liability company. Members of economic companies may be citizens and legal entities, as well as public legal entities.

State bodies and bodies of local self-government are not entitled to participate on their own behalf in business partnerships and companies.

Institutions may be participants in economic companies and investors in limited partnerships with the permission of the owner of the property of the institution, unless otherwise provided by law.

Participant's contribution of a business partnership or company, its property may include: cash, things, shares (shares) in the authorized (share) capital of other business partnerships and companies, state and municipal bonds, exclusive, other intellectual rights subject to monetary value.

In accordance with Art. 66.3 of the Civil Code of the Russian Federation public is a joint-stock company, the shares and securities of which, convertible into its shares, are publicly placed (by open subscription) or publicly traded on the terms established by the laws on securities.

A limited liability company and a joint stock company that does not meet the criteria specified in paragraph 1 of Art. 66.3 of the Civil Code of the Russian Federation, are recognized non-public.

The economic society is recognized child if the main economic partnership or company, by virtue of the predominant participation in its authorized capital, or in accordance with the agreement concluded between them, or otherwise has the ability to determine the decisions taken by such a company.

A subsidiary company is not liable for the debts of the main economic partnership or company.

The main business partnership or company is jointly and severally liable with the subsidiary for transactions concluded by the latter in pursuance of instructions or with the consent of the main business partnership or company, with the exception of some cases expressly provided for in Art. 67.3 of the Civil Code of the Russian Federation.

In case of insolvency (bankruptcy) of a subsidiary due to the fault of the main economic partnership or company, the latter bears subsidiary liability for its debts.

Economic partnerships and companies of the same type may transform into business partnerships and companies of another type or into production cooperatives by decision of the general meeting of participants in the manner prescribed by the Civil Code of the Russian Federation and laws on business companies.

Article 68 of the Civil Code of the Russian Federation contains a direct ban on the reorganization of business partnerships and companies into non-profit organizations, as well as into unitary commercial organizations.

General partnership a business partnership is recognized, the participants of which, being entrepreneurs (registered in this capacity), firstly, carry out entrepreneurial activities on behalf of the partnership and, secondly, are jointly and severally liable for its obligations with all their property.

The entrepreneurial activity of the participants (general partners) is considered to be the activity of the partnership itself. For the obligations of the partnership, any of the participants (entrepreneurs) is liable with all his property, including those not transferred to the partnership in the form of a contribution. The partnership is based on trust. Personal participation in the affairs of the partnership is expected. The founding document is the memorandum of association. Simple voting: one participant - one vote.

General partners are liable for the obligations of their partnership only if it lacks its own funds (subsidiarily), but the liability of general partners is of a joint and several nature.

In limited partnership (partnership in faith) distinguish two groups of participants (Article 82 of the Civil Code of the Russian Federation):

  • 1) full comrades carry out entrepreneurial activities on behalf of the partnership, while being jointly and severally liable with all their personal property for its debts (they, as it were, constitute a full partnership within a limited partnership);
  • 2) limited partners (depositors) they only make contributions to property and are liable only within the limits of their contribution (in fact, they bear only the risk of losing the contribution). They do not participate directly in the entrepreneurial activities of the partnership and its management. They retain only the right to receive income (dividend), to information about the activities of the partnership and the liquidation quota. In matters of the use of property, they are forced to rely on full partners, trusting them, therefore this type of partnership is often called a partnership in faith.

The business name of a limited partnership indicates the name of all or one of the general partners (with the addition of the words "and company, limited partnership" or "limited partnership").

Peasant (farm) economy - 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 association of property contributions by members of a peasant (farm) economy.

The property of a peasant (farm) economy belongs to him by the right of ownership.

A citizen can be a member of only one peasant (farm) economy established as a legal entity.

Members of a peasant (farm) economy bear subsidiary liability for its obligations (Article 68.1 of the Civil Code of the Russian Federation).

Limited Liability Company(LLC) - association of capitals. The personal participation of its members in the affairs of the society is not required. The authorized capital is divided into shares of participants. There is no liability of the founders for the company's debts. The property is owned by the LLC.

The number of participants in an LLC should not exceed 50. Otherwise, it is subject to transformation into a joint-stock company within a year, and after this period - liquidation in court, if the number of its participants does not decrease to the specified limit. The founding document of an LLC is its charter.

Participants are liable for the company's debts to the extent of the value of their shares.

The supreme body of the company is the general meeting of participants in the company; The director is only the executive body.

The size of the authorized capital of the company must be at least 10 thousand rubles.

In more detail, the activities of an LLC are regulated by the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”.

Joint-Stock Company(JSC) is an association of capitals. The authorized capital is divided into a certain number of equal shares, which are expressed in securities - shares. Full equality of shares - all shares are equal at par.

In accordance with Art. 66.3 of the Civil Code of the Russian Federation, joint-stock companies are of two types: public(a joint stock company whose shares are publicly placed by public offering or publicly traded on the securities market) and non-public.

A public company has the right to place shares by means of an open subscription. Shares of a non-public company may not be placed by open subscription or otherwise offered for purchase to an unlimited number of persons.

In accordance with the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies” (hereinafter referred to as the JSC Law), the minimum authorized capital of a public company should be 100 thousand rubles. The minimum authorized capital of a non-public company should be 10 thousand rubles.

In a public JSC, information about the corporate agreement must be publicly disclosed.

Participation of a shareholder in a company is formalized only by shares. This makes the participation of the shareholder in the company anonymous. But even if there are registered shares, the exercise of the rights of a shareholder and their transfer (assignment) to other persons is possible only by presenting or transferring the shares themselves as securities.

When withdrawing from the JSC, the shareholder cannot demand from the company any payments due to his share - he receives only compensation for the alienated shares from his counterparty - the acquirer, i.e. and the withdrawal from the joint-stock company itself can be carried out only by alienating (for example, selling) shares to another person.

Thus, the joint-stock company is guaranteed against a decrease in its property due to the withdrawal of participants from it.

This is the advantage of joint-stock companies in comparison with other forms of companies.

A joint-stock company must maintain a register of shareholders (Article 44 of the JSC Law). There are governing bodies - director (management); if the number of participants is more than 50, then by law a supervisory board (board of directors) must be created.

A joint-stock company is created by the decision of the founders who approve its charter, which is the only constituent document of a joint-stock company (Article 98 of the Civil Code of the Russian Federation, clause 1 of Article 11 of the JSC Law).

The memorandum of association is concluded, but is valid only at the stage of the creation of a joint-stock company, before its state registration, and by its nature is an agreement on the creation of a joint-stock company.

The General Meeting of Shareholders has the highest competence, which is determined directly by law (Article 48 of the JSC Law).

The meeting of shareholders makes decisions on the following issues:

  • on changing the charter of the company, the size of the authorized fund;
  • on the reorganization and liquidation of the company;
  • on the election of the supervisory board, executive body, auditor, etc.;
  • on approval of annual reports and balance sheets of the company and distribution of profits and losses;
  • on some major transactions.

These issues (by law) cannot be referred to the executive body (supervisory board) for decision.

A production cooperative (artel) is a voluntary association of citizens on the basis of membership for joint production or other economic activities (processing, marketing, performance of work, consumer services) based on their personal labor and other participation and the association of property share contributions by its members (participants) . The law and the charter of a production cooperative may provide for the participation of legal entities in its activities. A production cooperative is a corporate commercial organization.

Members of a production cooperative shall bear subsidiary liability for the obligations of the cooperative.

Article 7 of the Federal Law of May 8, 1996 No. 41-FZ “On Production Cooperatives” allows participation in cooperatives not by personal labor, but exclusively by property contributions. Such "financial" participants help to strengthen the property base of the cooperative. But their number cannot exceed 25% of the number of ordinary members.

The main document is the charter. The supreme body is the general meeting, which has exclusive competence. Supervisory boards can be created in large (more than 50 members) cooperatives. The executive body of the cooperative is the board and its chairman. The capital is divided into shares.

The law limits the transfer of a share to third parties with the obligatory consent of other members of the cooperative. Participation in one cooperative, as a rule, excludes the possibility of participation in another.

Economic partnership is a commercial organization created by two or more persons, in the management of which the participants of the partnership, as well as other persons, participate in the limits and to the extent that are provided for by the agreement on the management of the partnership.

The activity of business partnerships is regulated by the Federal Law of December 3, 2011 No. 380-FZ “On Business Partnerships”.

Partnership participants are not liable for the obligations of the partnership and bear the risk of losses associated with the activities of the partnership, within the limits of the amounts of their contributions.

A partnership may have civil rights and bear civil obligations necessary to carry out any type of activity not prohibited by federal laws, if this does not contradict the subject and goals of the partnership.

The Partnership is not entitled to issue bonds and other issuable securities.

Partnership participants can be citizens and (or) legal entities. A partnership cannot be established by one person or become a partnership with one member later on. Otherwise, it is subject to reorganization.

The founding document of the partnership is the charter of the partnership.

Since 2014, in the civil legislation of the Russian Federation, there has been a division of commercial and non-commercial enterprises into corporate and unitary ones. In this article we will tell you what applies to unitary legal entities. How are corporations different? More on this later.

The difference between corporate legal entities and unitary

A corporation is understood as a set of persons whose purpose of association can be considered to be the achievement of common goals, the implementation of joint activities. In this case, the association of persons forms an independent subject of legal relations - a legal entity.

In legal practice, over time, a general idea of ​​the types and legal personality of a legal entity has been developed.

The concept denoting a corporate legal entity is known to the legislative systems of all developed countries.

Such a division helps to regulate in general not only the management structure and competence of the bodies of a corporate commercial and non-profit organization, but also a number of internal relationships that cause disputes in legal practice (for example, challenging decisions of meetings or other collegiate bodies, conditions that determine withdrawal from membership participants, etc.).

Unitary legal entities include commercial enterprises that do not own the property that is assigned to them. Corporations were singled out as special forms of formation of a legal entity, and this contributed to the consolidation in the Civil Code of general norms regarding the status of corporate enterprises themselves and their participants. It must be said that there are no similar general rules that relate to unitary enterprises in civil law. In the Russian civil legislation, a new classification criterion has been identified for the division of corporate enterprises, which are based on the membership of participants and unitary organizations. Corporate-type legal organizations are enterprises that are based on the membership of participants.

From the participants of the corporation, the main governing body of the legal entity is formed - the general meeting. Participation in a corporation gives its members the appropriate membership rights and obligations in relation to the formed legal entity. In the form of a corporate enterprise, enterprises of both a commercial and non-commercial nature can be created. Corporations include all commercial legal entities, with the exception of only unitary enterprises.

Unitary legal entities are legal entities whose founders do not become their participants and do not acquire membership rights in them.

Corporation types

In addition, some non-profit organizations can also be attributed to the same type:

  • consumer cooperatives;
  • public organizations;
  • associations (unions);
  • associations of property owners;
  • Cossack societies included in the relevant state register;
  • communities of indigenous peoples.

Based on this, the misconception that a consumer cooperative is a unitary legal entity can hardly be true. With regard to all corporate organizations, including non-profit ones, uniform rights are established for their participants and the same management rules. If the founders of a legal entity do not become members, then this enterprise is classified as a unitary legal entity. The right of ownership to the property fixed by the owner does not pass to the unitary enterprise. The property assigned to him is considered indivisible. It cannot be distributed among contributions or shares, even among employees of the organization. Unitary enterprises of the state and municipal type fall into the category of such organizations according to the list.

Types of unitary institutions

Unitary legal entities include various types:

  • public, charitable and other foundations;
  • state institutions (including state academies of sciences), municipal and private (including public) institutions;
  • autonomous non-profit organizations;
  • religious organizations;
  • public law companies.

Unitary legal entities

As we noted above, organizations whose property cannot be divided into parts are classified as unitary legal entities. The list of such institutions, we repeat, can be represented by state and municipal enterprises, various foundations, autonomous non-profit organizations, religious organizations, as well as public law companies. There is no such thing as "membership" in them.

Is transformation possible?

Specialists have long noted that the existence of such an organizational and legal form as a unitary enterprise is futile from the point of view of the development of civil legislation. It also stipulated its gradual replacement by another type of commercial organization, including business companies. It is also noted that in the future, in order to meet the needs of the federal state, only federal state institutions in especially important economic areas should remain.

But the legislators did not go for such drastic changes, leaving unitary enterprises of both state and municipal types, giving them not the right to manage property, but the right to operational management or economic management. As mentioned above, legal entities whose founders do not become their participants are unitary.

Corporate legal entities

The supreme body of the corporation under the civil legislation of the Russian Federation is called the general meeting of participants. In some non-profit organizations, where the number of participants exceeds one hundred people, the supreme body may be in the form of a congress, conference or other collegiate body determined by their charters in accordance with the law.

Functions of the supreme body

In any corporate organization, the highest body considers the following issues:

  • determining the main activities of the organization, as well as the acquisition and use of property;
  • approval and amendment of the charter of the corporate organization;
  • determining the rules for admission to the membership of the corporation and exclusion from the membership of its participants, unless such rules are determined by law;
  • formation of other bodies of the enterprise, as well as early termination of their powers;
  • approval of the annual report and accounting (financial) reports of the corporation, if in the charter or in accordance with the legislation of the Russian Federation these powers are not referred to the competence of other bodies of the organization;

  • making decisions on the creation by the participants of the corporation of other legal organizations, the participation of the corporation in other legal entities, the creation of branches and the opening of representative offices of the organization;
  • making decisions on the reorganization and liquidation of the enterprise, forming the composition of the liquidation commission, as well as approving the liquidation balance sheet;
  • election of the audit commission and appointment of auditors of the legal entity.

Can the highest corporate body function alone?

The competence of the supreme collegial body may be expanded by Russian legislation and the charter to include other issues of the corporation. Corporate legal entities must comply with all regulations. This is important because prior to this, the possibilities for shareholders' meetings strictly corresponded to those specified in the provisions of the Federal Law "On Joint Stock Companies". It was impossible to go beyond this law. In addition to the fact that the supreme authority is being formed in the corporation, the sole executive body is also being created (in the person of the director, general director, chairman, etc.).

And in the event that the Civil Code, another law or the charter of the organization provides for the creation of a collegial body (board, directorate, etc.), then it is formed as accountable to the supreme body of the corporation. Corporate legal entities often also form a board that controls the activities of all these bodies.

Other conditions for exercising powers

An important point should be noted: the corporate charter may provide for special conditions for granting the powers of the executive body to several citizens who can act jointly, and it is also possible to form several sole executive bodies that can act without coordinating their decisions among themselves. Such a body can be represented by both an individual and a legal entity.

The introduction of these rules forms the basis for the emergence of a special kind of relationship among the participants in the corporation. These relationships are called corporate. In itself, the emergence of corporations is considered by experts as a development of the general provisions of the new edition of Article 2 of the Civil Code of the Russian Federation. Also important is clause 2 of article 65.1 of the Civil Code of the Russian Federation, according to which the participants in a corporate organization acquire membership rights and obligations in relation to a registered legal entity.

Legal Exceptions

The only exceptions are cases specified in the Civil Code of the Russian Federation. These rights apply to:

  • participation in the management of a corporate organization (with the exception of business partnerships, which have special management rules);
  • obtaining information about the activities of a legal entity, familiarization with accounting reports and other documents within the framework provided for by civil laws and constituent documentation;
  • appeal against decisions of the bodies of the corporation, the application of which will lead to the onset of civil law consequences;
  • actions on behalf of the corporation to compensate for the damage caused to the corporation;
  • challenging transactions legally.

Members of the corporation may also be granted other rights provided for by legislative acts or the charter.

Requirements for corporate members

In addition to rights, members of the corporation are also vested with obligations, which include:

  • participation in the formation of property;
  • non-disclosure of confidential information about the work of the corporation;
  • participation in making strategic decisions for the corporation;
  • the impossibility of performing actions that are knowingly aimed at causing harm to corporate interests;

Members of a corporation may also be vested with other obligations in accordance with legislative and constituent documents.

The legal personality of the considered types of legal entities is determined by their place in the economic system.