New organizational and legal forms: which one to choose. Change of legal form: new regulations

Adoption of the Federal Law of May 5, 2014 No. 99-FZ "On Amendments to Chapter 4 of Part One of the Civil Code Russian Federation and on recognizing certain provisions of legislative acts of the Russian Federation as invalid" (hereinafter referred to as the Law) is the next stage in the reform of civil legislation. This time, the provisions of the Civil Code of the Russian Federation on legal entities have been changed.

The law came into force on September 1, 2014. From now on legal entities are created only in the organizational and legal forms provided for by the Civil Code of the Russian Federation as amended by the Law.

The provisions of the Civil Code of the Russian Federation, as amended by the Law, apply to legal relations that arose after September 1, 2014. For legal relations that have arisen before this moment, the provisions of the Civil Code of the Russian Federation, as amended by the Law, apply to those rights and obligations that arise after September 1, 2014.

Constituent documents, as well as the names of legal entities established before September 1, 2014, are subject to harmonization with the Civil Code of the Russian Federation as amended by the Law upon the first change in their constituent documents. At the same time, a change in the name of a legal entity does not require changes to the title and other documents containing its former name. The constituent documents of such legal entities, until they are brought into line with the Civil Code of the Russian Federation as amended by the Law, are valid in the part that does not contradict the specified norms. When registering changes in the constituent documents of such legal entities in connection with bringing these documents in line with the norms of the Civil Code of the Russian Federation as amended by the Law, no state duty is charged.

An innovation is the introduced division of all legal entities (both commercial and non-commercial organizations) into corporate and unitary ones, as well as the replacement of the concept of "obligatory rights" with the concept of "corporate rights".

Corporate legal entities (corporations) are legal entities whose founders (participants) have the right to participate (membership) in them and form their supreme body. In connection with participation in 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 of the Russian Federation.

Corporations include business partnerships and societies, peasant (farm) enterprises, economic partnerships, production and consumer cooperatives, public organizations, associations (unions), partnerships of property owners, Cossack societies included in State Register Cossack societies in the Russian Federation, as well as indigenous communities small peoples RF.

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

These include state and municipal unitary enterprises, foundations, institutions, autonomous non-profit organizations, religious organizations, public companies.

Change in organizational and legal forms

The names of organizational and legal forms in which legal entities are created have undergone significant changes. Many of the earlier existing forms were merged under a single name. However, the most popular form of creating a legal entity, as a limited liability company, has remained unchanged.

It should be taken into account that the re-registration of those legal entities that were created in the previous organizational and legal forms is not required. However, their constituent documents and names must be brought into line with the new norms of the Civil Code of the Russian Federation at the first time changes are made to them.

In general, changes in the names of organizational and legal forms in which legal entities can be created can be presented in the form of a table:

Before the adoption of the law	After the adoption of the Law
General partnership	General partnership
Faith partnership	Faith partnership
Limited Liability Company (LLC)	Limited Liability Company
Additional Liability Company (ALC)
Closed Joint Stock Company (CJSC)	Joint-Stock Company (public/non-public) (PJSC / NAO)
Open Joint Stock Company (OJSC)
Economic partnership	Economic partnership
Production cooperative	Production cooperative
Marketing (trading) consumer cooperative
	State and municipal unitary enterprise
consumer cooperative	consumer cooperative
Consumer society
Housing cooperative
Housing and construction cooperative
Garage cooperative
Horticultural, horticultural or dacha consumer cooperative
Mutual Insurance Society
credit cooperative
rental fund
Agricultural consumer cooperative
Public and religious organization (association)	religious organization
	Public organization
Political Party
Trade union (trade union organization)
Social movement
Organ of public initiative
Territorial public self-government
Private institution	Private institution
public institution
State institution (state / budgetary / autonomous)	government agency
State Academy of Sciences
municipal institution (state-owned / budgetary / autonomous)	municipal institution (state-owned / budgetary / autonomous)
Non-state pension fund
Public fund
Charitable Foundation
Association and Union	Association and Union
Non-commercial partnership
Association of employers
Association of trade unions
Association of cooperatives
Association of public organizations
Chamber of Commerce and Industry
Chamber of Notaries
Chamber of Lawyers
homeowners association	Association of property owners
Horticultural, horticultural or dacha non-profit partnership
	Autonomous non-profit organization
Cossack Society	Cossack Society
	Community of Indigenous Peoples of the Russian Federation
State Corporation
State company
Public law company

Changes in the procedure for creating legal entities

The Civil Code of the Russian Federation was supplemented by Article 50.1, dedicated to the decision to establish a legal entity. Previously, the procedure for making and the content of the decision to establish individual legal entities was determined by special laws.

Now the Civil Code of the Russian Federation establishes rules common to all legal entities:

• a legal entity may be created on the basis of a decision of the founder (founders) on the establishment of a legal entity;
• in the case of the establishment of a legal entity by one person, the decision is made by the founder alone; two or more founders - all founders unanimously;
• the decision shall contain information on the establishment of a legal entity, approval of its charter, on the procedure, amount, methods and terms for the formation of the property of a legal entity, on the election (appointment) of its bodies, as well as other information provided for by law;
• the decision on the establishment of a corporate legal entity shall also contain information on the results of voting of the founders on the establishment of the legal entity, on the procedure for the joint activities of the founders in the creation of the legal entity.

Significant changes have been made to the norms on constituent documents of legal entities (Article 52 of the Civil Code of the Russian Federation). Such changes include the following:

• Legal entities operate on the basis of charters, which are their only founding documents. The only exceptions are business partnerships, the founding document of which is a memorandum of association, to which the rules of the Civil Code of the Russian Federation on the charter are applied (clause 1, article 52 of the Civil Code of the Russian Federation).
• No more allowed general provisions about non-profit organizations of a certain type, on the basis of which they operate. Only for institutions, a rule has been established according to which, in cases provided for by law, it can act on the basis of a single model charter approved by its founder or a body authorized by him for institutions created to carry out activities in certain areas.
• For state registration of legal entities, model charters can be used, the forms of which are approved by the authorized state body in the manner established by the law on state registration of legal entities (clause 2, article 52 of the Civil Code of the Russian Federation).
• The founders (participants) of a legal entity have the right to approve the internal regulations and other internal documents of the legal entity that regulate corporate relations and are not constituent documents. internal documents of a legal entity may contain provisions that do not contradict the constituent document of a legal entity.

  Changes in the procedure for the activities of bodies of legal entities

  The provisions on the bodies of a legal entity (Article 53 of the Civil Code of the Russian Federation) are supplemented by an interesting provision: now the constituent document may provide that the authority to act on behalf of a legal entity is granted to several persons acting jointly or independently of each other. Information about this is subject to inclusion in the Unified State Register of Legal Entities (clause 1, article 53 of the Civil Code of the Russian Federation). The order of joint or independent actions of these persons and their competence should probably be established by special laws and constituent documents of legal entities. Practice will show how widely this opportunity will be used and how effective this mechanism will be.

  Practical difficulties may be fraught with the changes made to par. 1 p. 1 art. 53 of the Civil Code of the Russian Federation, which is now formulated as follows: "A legal entity acquires civil rights and assumes civil obligations through its bodies acting on its behalf (clause 1 of article 182 of the Civil Code of the Russian Federation) in accordance with the law, other legal acts and the constituent document. "The legislator, referring to clause 1 of article 182 of the Civil Code of the Russian Federation, actually equated the bodies of a legal entity with its representatives, which is not consistent with other norms of the Civil Code of the Russian Federation (for example, the rules on representation, invalidity of transactions made by representatives and bodies of legal entities).

  In addition, Art. 53 of the Civil Code of the Russian Federation, the following changes were made:

  • now a legal entity can acquire civil rights and assume civil obligations through its participants in cases established only by the Civil Code of the Russian Federation, and not by law, as provided for by the previous version (clause 2, article 53 of the Civil Code of the Russian Federation);
  • the obligation to act in the interests of the legal entity in good faith and reasonably is borne not only by the person who is authorized to act on its behalf, but also by members of the collegial bodies of the legal entity: supervisory or other board, board, etc. (Clause 3, Article 53 of the Civil Code of the Russian Federation);
  • clause 4 was added, according to which relations between a legal entity and persons that are part of its bodies are regulated by the Civil Code of the Russian Federation and laws on legal entities adopted in accordance with it;
  • the rules on the responsibility of the governing bodies of a legal entity are transferred from Art. 53 into a separate article (Article 53.1 of the Civil Code of the Russian Federation).

  The Civil Code of the Russian Federation includes a rule on affiliation (Article 53.2 of the Civil Code of the Russian Federation), however, it refers to the provisions of the law, according to which the presence or absence of relations of connection (affiliation) between persons is determined. At present, Art. 4 of the Law of the RSFSR dated March 22, 1991 No. 948-I "On Competition and Restriction of Monopoly Activities on commodity markets", according to which affiliation is determined.

  Changes in the order of liquidation of legal entities

  The most significant changes made to the rules on the liquidation of a legal entity are as follows:

  • for the forced liquidation of a legal entity, during the creation of which fatal gross violations were committed, it is necessary first to invalidate its state registration (subclause 1, clause 3, article 61 of the Civil Code of the Russian Federation);
  • additional grounds for the forced liquidation of a legal entity have been established (subparagraphs 1, 5, paragraph 3, article 61 of the Civil Code of the Russian Federation);
  • the issue with the costs of liquidation was resolved (clause 5, article 61, subparagraphs 2, 6, article 62 of the Civil Code of the Russian Federation);
  • an additional basis for exclusion of a legal entity from the Unified State Register of Legal Entities was established (clause 6, article 62 of the Civil Code of the Russian Federation);
  • established the basis for the compulsory liquidation of a legal entity by an arbitration manager (clause 5, article 62 of the Civil Code of the Russian Federation);
  • the case of the sale of the property of a liquidated legal entity without bidding is provided for (clause 4, article 63 of the Civil Code of the Russian Federation);
  • a procedure for the distribution of discovered property of a legal entity excluded from the Unified State Register of Legal Entities has been established (clause 5.2. Article 64 of the Civil Code of the Russian Federation);
  • installed additional measures to protect the rights of creditors of a liquidated legal entity (Article 64.1 of the Civil Code of the Russian Federation).

  The new wording of Article 61 of the Civil Code of the Russian Federation provides that the liquidation of a legal entity entails its termination without the transfer of its rights and obligations to other persons by way of universal succession. At the same time, from the moment the decision to liquidate the legal entity is made, the deadline for fulfilling its obligations to creditors is considered to have come.

  A legal entity is liquidated by a court decision:

  1) on a claim government agency or a local self-government body, to which the right to file a claim for the liquidation of a legal entity is granted by law, in the event that the state registration of a legal entity is recognized as invalid, including in connection with gross violations of the law committed during its creation, if these violations are irreparable;

  2) at the suit of a state body or local self-government body, to which the right to file a claim for the liquidation of a legal entity is granted by law, in the event that a legal entity carries out activities without an appropriate permit (license) or in the absence of mandatory membership in a self-regulatory organization or a certificate of admission to a certain type of work issued by a self-regulatory organization;

  3) at the suit of a state body or local self-government body, to which the right to file a claim for the liquidation of a legal entity is granted by law, in the event that the legal entity carries out activities prohibited by law, or in violation of the Constitution of the Russian Federation, or with other repeated or gross violations of the law or other legal acts;

  4) at the claim of a state body or local self-government body, to which the right to present a claim for the liquidation of a legal entity is granted by law, in the event of systematic implementation public organization, a charitable and other fund, a religious organization of activities that are contrary to the statutory goals of such organizations;

  5) at the suit of the founder (participant) of a legal entity if it is impossible to achieve the goals for which it was created, including if the implementation of the activities of a legal entity becomes impossible or significantly hampered;

  6) in other cases provided for by law.

  It was also established that non-execution of a court decision on the liquidation of a legal entity is the basis for the implementation of the liquidation of a legal entity by an arbitration manager at the expense of the property of a legal entity. If the legal entity does not have enough funds to cover the expenses necessary for its liquidation, these expenses are borne by the founders (participants) of the legal entity jointly and severally.

  It should be noted that sub. 1 p. 3 art. 61 of the Civil Code of the Russian Federation, forced liquidation of a legal entity is allowed not only in the event of unrecoverable gross violations upon its creation, but in other cases of recognition of its state registration as invalid.

  Article 62 of the Civil Code of the Russian Federation, which establishes the obligations of the person who made the decision to liquidate a legal entity, has been significantly supplemented. In particular, it includes the following provisions:

  • the founders (participants) of a legal entity or the body that made the decision to liquidate the legal entity are obliged to publish information on the adoption of the decision in the manner prescribed by law (Clause 1, Article 62 of the Civil Code of the Russian Federation);
  • the founders (participants) of a legal entity are obliged to take actions to liquidate the legal entity at the expense of the property of the legal entity, and if the property is insufficient, jointly and severally at their own expense (clause 2 of article 62 of the Civil Code of the Russian Federation);
  • the liquidation commission is obliged to act in good faith and reasonably in the interests of the liquidated legal entity, as well as its creditors (paragraph 1, clause 4, article 62 of the Civil Code of the Russian Federation);
  • in the event of non-fulfillment or improper fulfillment by the founders (participants) of a legal entity of the obligations for its liquidation, the interested person or the authorized state body shall have the right to demand in judicial order liquidation of a legal entity and appointment of an arbitration manager for this (clause 5, article 62 of the Civil Code of the Russian Federation);
  • if it is impossible to liquidate a legal entity due to the lack of funds for the expenses necessary for its liquidation, and the impossibility to impose these expenses on its founders (participants), the legal entity is subject to exclusion from the Unified State Register of Legal Entities in the manner prescribed by the law on state registration of legal entities.

  In paragraph 1 of Art. 62 of the Civil Code of the Russian Federation also includes a period for notifying the authorized state body of a decision on liquidation - three working days after the date of adoption of this decision (previously, paragraph 1 of Article 62 of the Civil Code of the Russian Federation spoke of an immediate notification, and the three-day period was established by paragraph 1 of Art. 20 of the Registration Law).

  Article 63 of the Civil Code of the Russian Federation, which establishes the procedure for liquidation, was supplemented by the following rules:

  • the interim liquidation balance sheet must additionally contain a list of claims satisfied by a court decision that has entered into legal force, regardless of whether such claims were accepted by the liquidation commission (clause 2, article 63 of the Civil Code of the Russian Federation);
  • in the event of initiation of insolvency (bankruptcy) proceedings against a legal entity, its liquidation, carried out in accordance with the rules of the Civil Code of the Russian Federation, is terminated and the liquidation commission notifies all creditors known to it. Claims of creditors in the event of termination of the liquidation of a legal entity upon initiation of a case on its insolvency (bankruptcy) are considered in the manner established by the legislation on insolvency (bankruptcy) (clause 3, article 63 of the Civil Code of the Russian Federation);
  • if the property of a legal entity is insufficient to satisfy the claims of creditors, for the sale of objects worth no more than one hundred thousand rubles (according to the approved interim liquidation balance sheet), bidding is not required (clause 4 of article 63 of the Civil Code of the Russian Federation);
  • if there is a dispute between the founders (participants) as to who should transfer the thing, it is sold by the liquidation commission at an auction (clause 8, article 63 of the Civil Code of the Russian Federation);
  • upon liquidation of a non-profit organization, the property remaining after the satisfaction of creditors' claims is directed in accordance with the charter of the non-profit organization for the purposes for which it was created, and (or) for charitable purposes, unless otherwise established by the Civil Code of the Russian Federation or other law (clause 8 of Art. 63 of the Civil Code of the Russian Federation).

  From paragraph 4 of Art. 63 of the Civil Code of the Russian Federation, the rule is excluded, according to which payments to creditors of the third and fourth priority are made after a month from the date of approval of the interim liquidation balance. Now these persons are subject to general rule on payments in order of priority from the date of approval of the interim liquidation balance sheet.

  The procedure for satisfying the claims of creditors of a liquidated legal entity, established in Art. 64 of the Civil Code of the Russian Federation.

  First of all, it should be noted that paragraph 1 of Art. 64 of the Civil Code of the Russian Federation is supplemented with a provision that the claims of creditors of any order are satisfied only after repayment of the current expenses necessary for the liquidation.

  The possibility of satisfying the claims of creditors even after the completion of the procedure for the liquidation of a legal entity has been introduced. This becomes possible if, after liquidation, any property of this legal entity is discovered.

  In the event that the property of a liquidated legal entity excluded from the Unified State Register of Legal Entities is discovered, the interested person or authorized state body has the right to apply to the court with an application for the appointment of a procedure for distributing the discovered property among persons entitled to it. Said property also includes claims of the liquidated legal entity against third parties, including those arising from a violation of the order of satisfaction of creditors' claims, as a result of which the interested person did not receive full execution. In this case, the court appoints an arbitration manager who is responsible for distributing the discovered property of the liquidated legal entity.

  An application for the appointment of a procedure for the distribution of the discovered property of a liquidated legal entity may be submitted within five years from the date of entering information on the termination of the legal entity into the Unified State Register of Legal Entities. The procedure for distributing the discovered property of a liquidated legal entity may be appointed if there are sufficient funds for the implementation of this procedure and the possibility of distributing the discovered property among interested parties.

  The procedure for distributing the discovered property of a liquidated legal entity is carried out in accordance with the rules of the Civil Code of the Russian Federation on the liquidation of legal entities.

  Also, a rule has been established in accordance with which the claims of creditors for compensation for losses in the form of lost profits, for the recovery of a penalty (fine, penalty fee), including for failure to fulfill or improper fulfillment of the obligation to make mandatory payments, are satisfied after satisfying the claims of creditors of the first, second , third and fourth lines.

  The new edition of the Civil Code of the Russian Federation includes Article 64.1, which establishes additional measures to protect the rights of creditors of a liquidated legal entity.

  In particular, it is provided that if the liquidation commission refuses to satisfy the creditor's claim or evades its consideration, the creditor, before the approval of the liquidation balance sheet of the legal entity, has the right to apply to the court with a claim to satisfy his claim against the legal entity being liquidated. If the court satisfies the claim of the creditor, the payment of the sum of money produced in the order of priority established by Art. 64 of the Civil Code of the Russian Federation (clause 1, article 64.1 of the Civil Code of the Russian Federation).

  Members of the liquidation commission (liquidator), at the request of the founders (participants) of the liquidated legal entity or at the request of its creditors, are obliged to compensate for the losses caused by them to the founders (participants) of the liquidated legal entity or its creditors, in the manner and on the grounds provided for by Art. 53.1 of the Civil Code of the Russian Federation (Clause 2, Article 64.1 of the Civil Code of the Russian Federation).

  In addition, the Civil Code of the Russian Federation was supplemented by Article 64.2, which establishes the grounds for the termination of an inactive legal entity. In accordance with paragraph 1 of Art. 64.2 of the Civil Code of the Russian Federation is considered to have actually ceased its activities and is subject to exclusion from the Unified State Register of Legal Entities in the manner prescribed by the Law on Registration, a legal entity that, during the twelve months preceding its exclusion from the register, did not submit reporting documents and did not carry out operations on at least one bank account(inactive legal entity).

  The exclusion of an inactive legal entity from the Unified State Register of Legal Entities entails the legal consequences provided for by the Civil Code of the Russian Federation and other laws in relation to liquidated legal entities (Clause 2, Article 64.2 of the Civil Code of the Russian Federation).

  The exclusion of an inactive legal entity from the Unified State Register of Legal Entities does not prevent the prosecution of a person authorized to act on behalf of a legal entity, members of the collegial bodies of a legal entity and persons determining the actions of a legal entity on the basis of Art. 53.1 of the Civil Code of the Russian Federation (Clause 3, Article 64.2 of the Civil Code of the Russian Federation).

Given that since September 1 this year, some changes have been made to the legislation, more precisely, CJSC and LLC have been abolished, for those who used these particular organizational and legal forms, many questions arose. Of course, many have not yet made changes to the charter of organizations, some do not even know when and what exactly they are required to do.

To find answers to all these questions, first of all, one should understand what this rule is connected with. The fact is that from the specified number the status will be determined as public joint stock company And non-public joint-stock company. However, the need for reorganization is not prescribed by law, nor does it imply any re-registration or closure of those legal entities that had exactly such statuses.

What should the owners of CJSC and LLC do?

First of all, it is necessary to amend the charter of companies and their names. And for this, familiarize yourself with the concepts of public and non-public joint-stock company. Public will be the one whose securities and / or shares will be placed by public subscription, that is, publicly or under these conditions, of course, in accordance with the laws governing the securities market. It is clear that if the name indicates that the company is a public joint stock company, it must comply with these requirements.

In turn, companies that were previously considered Company, according to the law, do not have the right to conduct an open subscription, then they are automatically equated to a non-public joint-stock company. By the way, there is no direct indication in the laws that the title should contain the term " non-public". That is, it is enough to remove the name of the type of society from the name, in this case, "closed". At the same time, companies that conduct (are going to conduct after registration) an open subscription for securities must indicate in the name that it is public.

It should also be noted that new law does not set the deadlines for making changes, both in the charter and in the name (name) of the company. However, according to the current legislation, this must be done at the first (nearest) change made to the constituent documents. But to make changes to the rest of the documents, where the former is written name of CJSC (LLC), such as, say, certificates of registration of rights, etc., are not required by law.

The question of using the seal of the organization also remains open. Since it must necessarily indicate the name of the organization, it can only be used until the changes mentioned earlier are made. In the future, it will have to be changed. After all, the name that is written in the constituent documents on the seal must be indicated necessarily, as well as the location of the company, no other data is required. However, one should also not forget that these changes (names in accordance with the new requirements) must also be reflected in the unified register of legal entities.

Some companies that have been so far CJSC (LLC), in organizational reports legal form reflected, indicating the corresponding code. On the this moment, changes regarding these data are also not spelled out in the law, which comes into force. If no changes are made to this classifier in the future, it can be recommended to follow the established procedure and continue to indicate the data that was indicated in previous periods, this will not become the basis for any negative consequences for the company itself. Of course, you should carefully monitor all possible additions and changes, and if any are adopted in the future, follow them. Now, it is important not to neglect the need to make appropriate changes in the constituent documents and determine what status the company is assigned as a result of the fact that a change in the organizational and legal forms of CJSC and LLC was introduced, indicate whether it belongs to public or non-public joint-stock companies.

• Is it possible to hold the founder of trust management liable?
• Can a person who is prohibited by law from participating in commercial organizations transfer a share in an LLC to trust management?
• The court of general jurisdiction left the claim without consideration, since the plaintiff did not comply with the pre-trial procedure. The appeal granted a private complaint due to procedural violations. What will happen to the case?
• One participant in the LLC transferred a share to the second participant in trust management. How to enter information about this in the Unified State Register of Legal Entities?
• Is it possible to appeal against the "refusal decision" in the order of supervision?

Question

An agreement has been concluded from the counterparty and a notice of a change in legal form has been received? Is it necessary to conclude an additional agreement on fixing changes to the preamble of the agreement. Thanks

Answer

It is not necessary to make changes to the concluded agreement by signing an additional agreement; in practice, a simple written notification of a change in details is common. But the parties may sign an additional agreement at their discretion.

“It is not required by law, but the parties can do it at their discretion.

The law establishes that an organization that has changed its name in connection with the reform of legal entities is not obliged to make changes:

• in legal documents;
• in other documents containing the former name of the organization.

Professional help system for lawyers, where you will find the answer to any, even the most complex question.

On September 1, 2014, serious changes to the Civil Code came into force, which significantly affected. This is how the classification of organizational and legal forms changed, their names, for example: JSC became PJSC, and CJSC just JSC; some of the forms were abolished altogether, like an additional liability company and other amendments. In connection with these innovations, the question arises of what organizational and legal form to choose in accordance with the new provisions of the Civil Code of the Russian Federation.

It should be noted that now all legal entities are divided into corporate and unitary organizations, and business entities, in turn, are divided into public and non-public. In addition, the list of non-profit organizations has become closed, a total of 11 such forms are indicated, but first things first.

Amended list of commercial organizations

The organizational and legal forms of enterprises have undergone significant changes, on the basis of which it is possible to create a commercial organization. It is necessary to point out two important moments things to consider when deciding to start a new company:

1. the creation of any additional liability companies (ALCs) is no longer allowed (clause 4, article 66 of the Civil Code of the Russian Federation);
2. Closed and open business companies were replaced by two other types: public (PJSC) and non-public (JSC and LLC).

According to the new provisions of the Civil Code of the Russian Federation, it can be said that the organizational and legal form of an LLC has not undergone major changes, but JSCs should be called differently. Now a new legal a person cannot be a JSC or CJSC, but only PJSC (public) or JSC (non-public), respectively. At the same time, existing closed and open JSCs do not need to be re-registered, and they can change their names when other changes are made to the Unified State Register of Legal Entities.

Legal entities: unitary and corporate

Since September 1, 2014, such concepts have been introduced for the classification of organizations as unitary and corporate enterprises. What type the company belongs to can be understood by the following signs: whether the founders are participants (members) of the company and whether they can form the supreme body (clause 1 of article 65.1 of the Civil Code of the Russian Federation). Therefore, if:

• founders can be participants (members), take part in meetings, form the supreme body, etc. - the organization is corporate (LLC, JSC, etc.);
• founders cannot be participants and do not take part - a unitary organization (SUE, MUP, etc.).

Corporate companies thus refer to corporations, which are all business entities, for example. Unitary are mostly state. enterprises in which the founder is just the state or municipal body, which is recorded in the name.

Business companies: non-public and public

As we have already noted, the amendments to the Civil Code of the Russian Federation divided business entities, which include LLCs and JSCs, into public and non-public ones. So, all LLCs became non-public. At the same time, such societies do not need to change anything either in the name, or in the charter, or in other documents. Non-public companies also include those joint-stock companies whose shares do not participate in open auctions, that is, former CJSCs. Now they should be called simply .

The same companies whose shares and other securities are held in open access on the market, refer to . At the same time, automatically all JSCs that meet the signs of publicity (this applies to former JSCs) became PJSCs.

Since joint-stock companies are now divided into other types, it would be logical to change their names, open joint-stock company, to public joint-stock company, etc. However, the law does not require mandatory bringing the charter in line with the law. And this can be done, as we have already noted, along with other amendments to the Unified State Register of Legal Entities.

By the way, the merger of LLCs and former CJSCs into one type of non-public companies is not accidental, experts have long noted their forced similarity. Since the shares of CJSC were not traded on the market, but were distributed among shareholders only on other grounds. Now, by the way, in the Civil Code of the Russian Federation, participants in a non-public JSC do not have a pre-emptive right to purchase shares.

Members of PJSC and JSC: rights and obligations

The new provisions of the code provide for increased requirements specifically for public companies. As for non-public ones, on the contrary, they have more freedom in corporate relations. Let's take a closer look at what are the features of the rights and obligations for PJSC in the updated code (Article 97 of the Civil Code of the Russian Federation):

• in the name it is necessary to prescribe that the joint-stock company is public;
• obligatory creation of a collegial management body (number of members - at least 5);
• the register of shareholders should be maintained by a special registrar organization that has the appropriate license;
• for shareholders, the maximum number of shares owned, as well as the maximum number of votes that can be granted to him, cannot be prescribed;
• the charter cannot stipulate the need to obtain someone's consent to the alienation of shares;
• no one can have the pre-emptive right to purchase shares, except for the situations described in paragraph 5. Art. 97 of the Civil Code of the Russian Federation;
• all PJSCs need to regularly disclose information about themselves in the securities market;
• the scope of the rights of PJSC participants is determined by the shares they own in the authorized capital;
• management of a PJSC can only be carried out within the framework of existing legislation and clauses that contradict it cannot be spelled out in the charter, for example, to expand the competences of the meeting of shareholders, which are not characteristic of them by law, etc.

Let's now compare the rights and obligations of non-public JSCs:

• in the name for non-public joint-stock companies it is necessary to leave only the phrase "joint stock company";
• the register of shareholders must be maintained by a special registrar organization that has the appropriate license;
• must be audited annually (by an independent auditor) financial reporting a company, the initiator of which can be a shareholder with a share (total) in the authorized capital of at least 10%;
• the rights of JSC participants can be distributed disproportionately to their shares in the authorized capital, that is, the ratios may be different;
• it is possible to make changes to the management procedure of the joint-stock company if there is a unanimous consent of the participants;

What provisions can be written in the charter of a non-public JSC

Non-public JSCs, unlike PJSCs, have the opportunity to prescribe in the charter provisions (by unanimous decision of the participants) that differ from those approved Russian legislation concerns the management of society. So, in particular, you can:

1. To give a collegial governing body (supervisory board) or execution (board) the right to consider issues that are prescribed by law for the general meeting of shareholders (GMS), for example. This can be done in addition to decisions on the following issues:

• amending the existing charter or adopting a new version of it;
• approval of the number and composition of the company's management bodies, if their formation is within the competence of the GMS;
• election of members of management bodies and early termination of powers;
• clarifying or determining the number, par value and category of shares and the rights granted by them;
• disproportionate increase authorized capital that occurs due to a change in the shares of its participants or the admission of other persons as participants;
• approval of internal regulations and other non-constituent documents.

2. The supervisory board of a joint-stock company can be partially or fully assigned the functions of the board, which may exclude the creation of this body in the company.

3. Behind the sole executive body of JSC ( CEO) it is possible to fix (transfer) the functions of the board.

4. The company, represented by its members, may refuse to create an audit commission or prescribe situations when it still needs to be done.

5. The AO can itself prescribe the procedure for convening, preparing and holding the GMS, as well as making decisions by it. The main thing is that these provisions do not contradict the law: they do not impede the presence of participants, obtaining information, etc.

6. It is possible to establish rules regarding the conduct, the number of participants, etc., regarding the supervisory board and the board.

7. It is allowed to prescribe the pre-emptive right to acquire a share in the authorized capital of an LLC or shares in a JSC, and it is also possible to set the maximum share in the authorized capital of an LLC.

8. For the general meeting of shareholders, those issues that it is not obliged to consider by law can be attributed.

In addition, the statute non-public society both LLC and JSC can make provisions that differ from the general established procedure for this document if there is express permission for their inclusion in the existing law. So you can write:

• the requirement to expel a member of the company in court (with payment of the full actual value of the share due to him), if his actions harmed the company or hindered its work.
• restrictions regarding the maximum number of shares, votes, etc. for one shareholder.

What organizational form to choose in connection with changes in the Civil Code of the Russian Federation

The most significant issue for companies, and especially joint-stock companies, was the choice: whether to keep former form or choose another. For example, instead of a CJSC, become an LLC, etc. Initially, there was even an opinion that it was necessary to transform a CJSC into an LLC. However, as it turned out later, all this is not necessary. And you can bring the charter in line with the amendments to the Civil Code by making changes according to the standard procedure. And this can be done along with the introduction of other amendments to the Unified State Register of Legal Entities.

Thus, in particular, an open joint-stock company can retain its form of a joint-stock company and the status of an open company, which has been transformed into a public one. Therefore, all OJSCs that meet the definition of publicity, that is, their shares are traded on the market, automatically become PJSCs. As well as those joint-stock companies, in the name of which there is an indication of publicity. However, if the shares are no longer in the public domain and there is no indication of publicity in the name, such a company can no longer be considered a public JSC.

As for the former CJSCs, they can also retain their former form without making major changes, but only by removing the word "closed" from the name. If their shares are publicly available or if they add the word “public” to the name, then they can become PJSC, that is, change their type.

If the former CJSC or OJSC no longer wants to be a joint-stock company, then it can be transformed into an LLC or a business partnership, but not into an NPO or a unitary enterprise, since this possibility has been excluded from September 1, 2014 from the Civil Code of the Russian Federation.

In any case, management will have to decide which organizational form to choose, based on the situation. And if there is a need to change something, then, therefore, it is necessary to move in this direction. We hope that our article about the changes in the Civil Code and the features of new JSCs and LLCs will help you make the right decision.

See also:

The most important feature of the classification of an economic entity in a market economy is the division of an economic entity on the basis of the organizational and legal forms of enterprises that are regulated by the state through Civil Code RF (GK RF).

The Civil Code introduces the concepts of "commercial organization" and "non-commercial organization".

A commercial organization pursues profit as the main goal of its activities. A non-profit organization does not pursue profit as the main goal of its activities, and if it makes a profit, then it is not distributed among the participants of the organization (Fig. 2.2).

Rice. 2.2. The structure of organizational and legal forms of organizations

Table 2.1. definitions of organizational and legal forms are formulated.

Table 2.1.

Structure of organizational and legal forms

Name of legal form	Definition
Commercial organizations	Organizations whose main goal is to make a profit and distribute it among the participants
Business partnerships	Commercial organizations in which contributions to the share capital are divided into shares of the founders
General partnership	A partnership, the participants of which (general partners) on behalf of the partnership are engaged in entrepreneurial activity and are liable for its obligations not only with their contributions to the share capital, but also with their property
Faith partnership	A partnership in which, along with general partners, there is at least one participant of a different type - a contributor (limited partner), who does not participate in entrepreneurial activities and bears risk only within the limits of his contribution to the share capital.
Business companies	Commercial organizations in which contributions to the authorized capital are divided into shares of the founders
Limited Liability Company (LLC)	A business company, the participants of which are not liable for its obligations and bear the risk only within the limits of their contributions to the authorized capital of the LLC.
Additional Liability Company (ALC)	A business company, the participants of which jointly and severally bear subsidiary (full) liability for its obligations with their property in the same multiple for all of the value of their contributions to the authorized capital of the ALC.
Open Joint Stock Company (OJSC)	A business company, the authorized capital of which is divided into a certain number of shares, the owners of which can alienate their part without the consent of other shareholders. Shareholders bear risk only to the extent of the value of their shares
Closed Joint Stock Company (CJSC)	A joint-stock company whose shares are distributed only among its founders or other predetermined circle of persons. Shareholders of a CJSC have a pre-emptive right to acquire shares sold by its other shareholders. Shareholders bear risk only to the extent of the value of their shares
Production cooperatives	Voluntary association of citizens on the basis of membership for joint production or other economic activity based on personal labor participation and the association of property share contributions by its members (to the cooperative's share fund)
Unitary enterprises	A unitary enterprise is recognized as an enterprise that is not endowed with the right of ownership of the property assigned to it by the owner. Only state and municipal enterprises can be unitary
State (state) enterprise	Unitary enterprise based on law operational management and created on the basis of property in federal (state) ownership. A state-owned enterprise is created by decision of the Government of the Russian Federation
municipal enterprise	A unitary enterprise based on the right of economic management and created on the basis of state or municipal property. It is created by decision of the authorized state body or local self-government body
Non-Profit Organizations	Organizations that do not pursue the goal of making a profit and do not distribute the profits received among the participants
consumer cooperative	Voluntary association of citizens and legal entities on the basis of membership in order to meet the material and other needs of the participants, carried out by pooling property shares by its members. Provides 2 types of membership: member of the cooperative (with the right to vote); associate member (has the right to vote only in certain cases provided for by law)
Funds	An organization that does not have membership, established by citizens and (or) legal entities on the basis of voluntary property contributions, pursuing social, charitable, cultural, educational or other socially useful goals. The right to engage in entrepreneurial activities to achieve their goals (including through the creation of business companies and participation in them)
Institutions	An organization created by the owner to carry out managerial, socio-cultural or other functions of a non-commercial nature and financed by him in whole or in part

Business partnerships

In accordance with the current legislation in the Russian Federation, two types of business partnerships can be formed: general partnership And fellowship of faith(limited partnership).

A partnership is recognized as full, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with their property (Article 69 of the Civil Code of the Russian Federation).

It follows from this that such a partnership is a contractual association, since it is created and operates on the basis of a constituent agreement, which is signed by all participants in the partnership. Therefore, when registering a full partnership, the presentation of the Articles of Association to the registration chamber is not required, since this document is not provided for by the current legislation for commercial organizations of this type.

The law imposes certain requirements on the content of the memorandum of association. The provisions of the law are obligatory and the participants in a general partnership must strictly follow the relevant legal provisions when drawing up the memorandum of association.

The memorandum of association of a general partnership shall contain information that is common to all legal entities, as well as information that reflects the specifics of the general partnership. The first group of information includes: the procedure for joint activities to create a partnership; conditions for the transfer of his property to him and participation in his activities; location; address and others. To the second group: the size and composition of the share capital; the size of the shares of each of the participants in the share capital; provisions on the responsibility of participants for violation of obligations to make contributions and others.

A feature of a general partnership is that for its formation it is necessary to have a share capital. It is necessary, firstly, in order for a general partnership to be registered, since the existence of such a condition is directly provided for by the current regulations on the procedure for registering legal entities. The share capital performs the role of authorized capital and amounts to at least 100 minimum monthly wages. Secondly, the share capital of a general partnership forms its property base, without which the entrepreneurial activity of the partnership is impossible or will be difficult. Thirdly, the share capital plays the role of a guarantee for creditors, that is, those persons who enter into various property relations with a general partnership, concluding agreements with it. Therefore, in case of non-fulfillment of its obligations, the collection of debts will be directed primarily to property in the form of share capital, which is assigned to the general partnership as a legal entity. Fourthly, the presence of share capital is necessary so that the participants have clear guidelines for the distribution of profits and losses, since they are divided in proportion to the share of each of the participants in the share capital.

A full partnership can unite both individuals and legal entities. However, a citizen can be a participant in a general partnership only if certain conditions are met, which are established by law. It's about that a citizen, before he exercises his right to become a member of a general partnership, must obtain the status of an individual entrepreneur by registering in the appropriate manner. As for legal entities, only commercial organizations can be full partners, while non-commercial ones do not have such a right.

In addition to the already indicated distinguishing features of a full partnership, it should also be emphasized that the members of such an association are obliged to participate in its activities with their personal labor. Therefore, in its essence, a general partnership is primarily an association of persons, and then property.

Internal relations in partnership

Internal relations in a full partnership are determined by the memorandum of association. They are based on mutual trust due to the peculiarities of the legal status of a general partnership. The management of the partnership is carried out by common agreement of all its participants.

The memorandum of association may define individual cases where decisions on specific issues may be taken by majority vote. Each of the participants in a general partnership has one vote, regardless of its share in the share capital. At the same time, the current legislation gives the right to the members of the partnership to change this general rule and reflect in the memorandum of association a different procedure for establishing the number of votes.

A general partnership has the status of a legal entity, therefore it is considered by law as a single subject of business and other legal relations. Legal entities acquire civil rights and assume civil obligations through their bodies. As for the general partnership, these functions are performed by its participants, since special management bodies are not formed in the partnership. On behalf of a general partnership, when concluding transactions, each of the participants may act separately, unless the constituent documents establish that its participants conduct business jointly, or the conduct of business is entrusted to one or several participants. Depending on the way in which the case is handled, there are different legal consequences.

First, when business is conducted jointly, then the consent of all participants in the partnership is required for the completion of each transaction.

Secondly, if the affairs are entrusted to one or some of the participants, then the rest can make transactions only on the basis of a power of attorney from those persons who are entrusted with the conduct of affairs.

Power of attorney – a written authorization issued by one person to another for representation before third parties.

A participant in a full partnership is granted the right to withdraw, and he cannot be deprived of it. When leaving the partnership, the rest of its participants must be warned six months before the actual exit. In addition, a participant may be expelled from the partnership, but only by a court decision and on the basis of the request of the other partners. However, there must be serious reasons for this: a gross violation of their duties and a unanimous decision to expel. When leaving the partnership, a person has the right to pay him the value of a part of the partnership's property in proportion to his share in the share capital. Instead of payment, he may be given property in kind. But this requires an agreement between the one who leaves the partnership and the rest of the participants.

Termination of a partnership

The termination of a partnership can be due to various reasons. It terminates its activities after the expiration of the term, if it was created for a certain period. Also, the action of the partnership is terminated if the purpose for which it was created is achieved. The partnership will cease to operate due to the inappropriateness of further business activities. This requires the general consent of all participants. A general partnership can be transformed into a limited partnership, or into a business company, or into a production cooperative. From the moment of transformation, it ceases to be valid.

A general partnership is liquidated if one of the partners left the membership, or died, or was declared incompetent (clause 21, article 76 of the Civil Code of the Russian Federation). However, even if these circumstances occur, the partnership may continue its work if the founding agreement expressly provides for such a possibility. A general partnership is subject to liquidation when the only participant remains in it, as well as on general grounds: by a court decision in the event of carrying out activities without an appropriate permit (license), when it is required, due to the recognition of the partnership as bankrupt, and others.

General partners are liable for obligations with their property, and limited partners risk only their contributions. The right to conduct business on behalf of the partnership belongs only to general partners.

Faith partnership is a contractual association. The main document that regulates relations in a partnership is the memorandum of association. The legislation states that the memorandum of association is signed only by general partners, which is why they manage the affairs of the partnership. Depositors are not entitled to influence the management of cases in any way, to challenge the correctness of the management decisions made in court. The main duty of the investor is the timely contribution to the share capital. The fact of making a contribution is confirmed by a special document - a certificate of participation. This document confirms not only that the contribution has been made, but also that the person is a partner in a limited partnership as a limited partner.

Investors bear not only obligations, but also have rights. Since a limited partnership is a commercial organization, they are entitled to receive a part of the profit due to them for a share in the share capital. They also have the right to supervise the business activities by reviewing the annual accounts and balance sheets of the partnership. In addition, they have the right to withdraw from the partnership at the end of fiscal year and get your input. It follows from this that they do not have the right to receive a share in the property upon exit, in contrast to general partners.

Termination of the activities of a limited partnership has a number of features. Firstly, the partnership is liquidated if not a single contributor remains in its composition. Secondly, in the event of the liquidation of the partnership, the limited partners have the priority right to receive contributions from the remaining property. The legislation also provides for other features of the liquidation of a limited partnership (Article 86 of the Civil Code of the Russian Federation).

The company name serves as an individualization of the partnership. According to the law, it must contain either the names of all general partners and the word "limited partnership" or "limited partnership", or the name of one general partner with the addition of the words "and company", and also indicating the type of partnership. If the name of the investor is indicated in the company name of the partnership, he becomes a general partner with all the legal and organizational consequences arising from this provision.

Limited and additional liability companies

A limited liability company (LLC) is a commercial organization, the authorized capital of which is divided into shares in the amounts determined by the constituent documents.

Members of an LLC are not liable for its obligations and bear the risk of losses within the limits of the value of their contributions. A limited liability company (hereinafter referred to as the Company) may be established by one or more persons. The legislation stipulates the maximum number of founders, the excess of which entails the obligation to transform it into a joint-stock company, or liquidation if the issue of transformation is not resolved within a year.

Modern legislation more strictly regulates relations arising from the establishment and activities of commercial organizations of this type. As practice has shown, on the one hand, such societies have most widespread in entrepreneurial activity, and on the other hand, it is in such societies that various financial abuses are quite common.

This should also include one more restriction in the legislation: an LLC cannot be established by a business company consisting of one person.

The company must have a corporate name consisting of the name and the words "limited liability". For example: "Limited Liability Company Builder".

Such a society involves, first of all, the pooling of capital for the purpose of engaging in entrepreneurial activity, and therefore the personal participation of the founders in its work is not necessary. But, as practice shows, the relationship between the members of the company is much closer and more trusting than in a joint-stock company.

When registering an LLC, the relevant documents must be submitted: the memorandum of association and the Articles of Association. If the founder is one person, then it must provide only the charter, approved by him. In other cases, constituent documents are approved and signed by the founders. It follows from this that the law classifies LLC as a statutory company.

Constituent documents must contain the necessary information that characterizes the company as commercial organization having the status of a legal entity: location, purpose of activity and others, as well as information reflecting the specifics of the company. In particular, they should indicate: the size of the authorized capital and the size of the shares of each of the participants, the procedure for making contributions.

The authorized capital of an LLC must not be less than the amount of 100 minimum wages established by the legislation of the Russian Federation as of the date of submission of constituent documents for registration. The law requires that at the time of registration of an LLC, at least 50% of the authorized capital must be paid up. The rest is paid by the participants during the first year of work. Failure to pay the authorized capital on time entails various negative legal consequences both for the LLC as a whole and for its individual participants.

Participants who have not made contributions to the authorized capital in full are jointly and severally liable for the obligations of the company. The legislator did not accidentally establish such rules. After all, the authorized capital is not only a necessary material base for the activities of an LLC, but also must guarantee the interests of its creditors, without misleading them regarding the financial and other material capabilities of a particular company with which they (creditors) enter into various legal relations that follow from the concluded contracts. On the whole legal regime The authorized capital of an LLC is determined by the Civil Code of the Russian Federation and special legislation on limited liability companies.

According to the current regulations, a company after its registration is obliged to notify its creditors of each case of a decrease in the authorized capital and register its decrease in the prescribed manner. Creditors also have the right to demand early performance of obligations and compensation for losses. In addition, the company is allowed to increase the authorized capital, but under one very important condition: after all participants have made their contributions in full (Article 90 of the Civil Code of the Russian Federation).

Members of the company do not have ownership rights to the property of the LLC. Their rights extend only to a share in the authorized capital. By virtue of this, a member of the company may sell or otherwise assign (donate) his share in the authorized capital to other members of the company. This right of a participant cannot be limited by anyone, it is unconditional, since it concerns the internal relationships of the participants in the society. Otherwise, the possibility of alienating a share in the authorized capital by a third party, that is, one that is not part of the participants, is regulated. In principle, the legislation does not prohibit a participant (participants) from making such transactions. However, this issue is finally regulated only by the charter of the company. Consequently, the charter may contain a rule prohibiting the alienation of a share by a third party, or a rule that allows the sale of a share in the authorized capital to third parties. Depending on what norm is written in the charter, these are the legal consequences.

A limited liability company is a legal entity. The management of the company's affairs is carried out through bodies of a legal entity specially formed for this purpose. The basic principles of the organization and activities of the governing bodies of an LLC are established by the Civil Code of the Russian Federation. In more detail questions of the organization of management should be regulated by the special law.

In accordance with the Civil Code of the Russian Federation, management bodies should be formed in the company: general meeting participants; executive body (director, president and others); audit committee.

The general meeting of the company's participants is the supreme governing body, which has its own exclusive competence. This means that on issues referred to the exclusive competence of the general meeting, no management body can make any decisions. If such decisions are made, they will not have legal effect. Moreover, such issues not only cannot be considered by other management bodies on their own initiative, but they cannot even be transferred, delegated by the general meeting to the executive body, for example, a director or directorate.

The following issues are assigned to the exclusive competence of the general meeting by legislation: changing the charter of the company, as well as the size of the authorized capital; formation of other governing bodies of the company; resolving issues of reorganization and liquidation of the company and others.

Issues related to the competence of the general meeting are determined by legislative acts. Members of the company when drawing up the charter must follow the requirements of the law.

The management bodies of the company can be both collegiate and sole. The General Assembly is a collegiate body. Quantitative composition executive bodies determined by the articles of association of the company. From Art. 91 of the Civil Code of the Russian Federation it follows that the sole management body can be elected both from among the members of the company and from third parties. The legal status of the sole executive body is determined along with civil legislation, and also by labor legislation: an employment agreement (contract) must be concluded with the director (president, etc.). The employment agreement-contract defines the rights and obligations of the director, the duration of the contract, incentives and liability for misconduct committed in the performance of labor duties, additional grounds for his dismissal. Order of conclusion employment contract and its termination is regulated by Art. 15 - 40, 254 of the Code of Labor Laws of the Russian Federation (Labor Code of the Russian Federation). In addition, civil law defines the conditions of activity and the responsibility of the person acting on behalf of the organization, and such a person in many cases is the head. He must act in the interests of the company he represents in good faith and reasonably, and is obliged, at the request of the founders, to compensate for the losses of the company, unless otherwise provided by law or contract.

Termination of activities of a limited liability company

Termination of the company's activities is possible due to its reorganization or liquidation.

The reorganization of a limited liability company can be carried out both by decision of its founders, and by force. Legislation defines the following forms of company reorganization: merger, accession, division, separation, transformation. During the transformation, succession occurs, that is, the transfer of part of the rights to newly formed legal entities in accordance with the separation balance sheet and the deed of transfer. Reorganization in the form of transformation means a change in the legal form. So, an LLC can be transformed into a joint-stock company or a production cooperative (Article 92 of the Civil Code of the Russian Federation).

A limited liability company is considered to be reorganized, except for cases of reorganization in the form of affiliation, from the moment of state registration of newly emerged legal entities.

When a company is reorganized in the form of a merger with another legal entity, the company is considered reorganized from the moment an entry is made in the unified state register of legal entities on the termination of the activities of the accommodating legal entity.

The liquidation of an LLC is carried out in accordance with Art. 61-65 of the Civil Code of the Russian Federation. These rules are common to all legal entities.

To carry out the liquidation of a legal entity, a liquidation commission is created, which carries out all the necessary measures. The liquidation of a legal entity is considered completed, and the legal entity ceased to exist, after making an entry about this in the unified state register of legal entities (Article 63 of the Civil Code of the Russian Federation). Issues related to insolvency (bankruptcy) are regulated in detail by the special Law of the Russian Federation “On the insolvency (bankruptcy) of enterprises”.

Additional Liability Company (ALC) – a commercial organization, the participants of which, unlike LLC, jointly and severally bear subsidiary liability for its obligations in the amount of a multiple of the value of their contributions to the authorized capital.

An additional liability company has a number of common features and features, in comparison with LLC. What these societies have in common is:

An additional liability company may be established by one or more persons;

The authorized capital of the ALC is also divided into shares, the amount of which is determined by the constituent documents.

In all other respects, the norms of the law applicable to LLCs apply to an additional liability company, with a number of exceptions that are due to the specific features of this organization. Firstly, in contrast to an LLC, participants in a company with additional liability jointly and severally bear subsidiary liability with their property in the same multiple for all of the value of contributions determined by the constituent documents of the company. Secondly, in the event that one of the participants becomes insolvent (bankrupt), his liability for the obligations of the company is distributed among the other participants in proportion to their contributions. The constituent documents may also provide for a different procedure for the distribution of responsibility.

Joint stock companies

The concept of a joint-stock company is disclosed in paragraph 1 of Art. 96 of the Civil Code of the Russian Federation and paragraph 1 of Art. 2 of the Federal Law of the Russian Federation "On joint-stock companies Oh".

Joint-Stock Company - a commercial organization with an authorized capital divided into a certain number of equal shares, the rights to which are fixed in securities- promotions.

Stock- a security certifying the obligatory rights of a shareholder to a share in the authorized capital of a joint-stock company .

As a rule, the authorized capital of a joint-stock company is divided into a large number of shares and the right to each such share is fixed in a security - shares.

The concept of "shareholder" means a citizen or legal entity that owns shares and is registered in the register of shareholders of the company. One share reflects the right to one share in the authorized capital. Acquisition of a share from a joint-stock company (purchase) means that the purchaser contributes the value of the share to the authorized capital of the joint-stock company. The value of a share, equal to the amount of money contributed to the authorized capital, is called par value of a share, it is indicated on the paper itself.

After the purchase of a share, the acquirer applies to the joint-stock company with a request to make changes in the register (list) of shareholders of this company so that the register contains new owner shares instead of the previous one and, as soon as such changes are made, the acquirer becomes a full shareholder.

A share, like a security, can be sold by the shareholder himself. In this case, the price of the share being sold may be different from its nominal price. If the joint-stock company is doing well, the price of its shares rises, and then they are sold at a price much higher than their nominal value. Well, if things go badly, the joint-stock company is on the verge of insolvency (bankruptcy), then the shares can be sold at a price below their face value. In such cases, shareholders are already trying to get rid of securities and save at least some amount of their money. The difference between the nominal value of shares and the one at which it is sold by the shareholders themselves is called exchange rate difference.

As a general rule, anyone can purchase as many shares as possible based on their purchasing power. At the same time, the charter of a joint-stock company may establish limits on the number of shares owned by one shareholder. Thus, the law does not establish restrictions, however, the shareholders themselves have the right to establish such a rule for their company. It allows, for example, to preserve elements of democracy in the decision-making process. If there are no such limits and one shareholder or several shareholders have a large number of shares - a controlling stake, then all the threads of control pass to him or to them.

This is due to the fact that when voting, it is not the number of shareholders themselves that is taken into account, but the number of shares, and the principle applies - one share - one vote. Therefore, it is likely that the decision will be made in favor of a narrow circle of shareholders owning the majority of shares, while shareholders with a small number of shares, despite their numerical superiority, will not be able to influence the decision.

A joint-stock company is a legal entity and owns separate property recorded on an independent balance sheet, can acquire and exercise property and personal non-property rights on its own behalf, incur obligations, be a plaintiff and defendant in court.

The Company is independently responsible for its obligations. Shareholders bear the risk of losses associated with the activities of the company, within the value (nominal) of their shares.

Dividends – part of the net profit of the company, paid to the shareholder according to the number of shares owned by him.

A joint stock company has the right to engage in any type of activity not prohibited by federal law. Certain types of activities, the list of which is also established by federal law, may be carried out by a company only on the basis of a special permit (license).

The founding document of a joint-stock company is the charter, the requirements of which are binding on all shareholders. When developing the charter, the shareholders include in it only such rules that do not contradict the current legislation. The charter of a joint-stock company must contain, in particular, the following information: the name of the company, location, the amount of the authorized capital and the procedure for its formation, the rights and obligations of shareholders, and others.

Types of joint-stock companies

Legislation defines two types of joint stock companies: an open joint stock company (OJSC) and a closed joint stock company (CJSC).

In an open joint stock company, shareholders have the right to alienate their shares without the consent of other shareholders. Such a company has the right to conduct an open subscription for shares issued by it and their free sale. Thus, an unhindered change of shareholders is possible in an open joint-stock company.

In a closed joint-stock company, shares are distributed in advance only among its founders or other predetermined circle of persons. Such a company is not entitled to conduct an open subscription for shares issued by it, or otherwise offer them for purchase to an indefinite circle of persons. Shareholders of a closed joint stock company have the right to sell their shares, however, all other shareholders have a pre-emptive right to acquire them, at the price of offering them to another person. The procedure and term for exercising the pre-emptive right is determined by the charter. At the same time, the term for exercising the pre-emptive right cannot be less than 30 and more than 60 days from the moment the shares are offered for sale. If none of the shareholders agrees to their acquisition at the appropriate price, the shares may be sold to other persons.

The number of shareholders of closed joint stock companies must not exceed fifty. This number includes both individuals and legal entities. If this number is exceeded, a closed joint-stock company must be transformed into an open one within a year. If the number of shareholders is not reduced to fifty, the company is subject to liquidation in court.

The procedure for creating a joint-stock company

A joint-stock company may be created by founding anew and by reorganizing an existing legal entity. For example, as a result of the transformation of a production cooperative or a limited liability company into a joint-stock company.

The creation of a joint-stock company by founding is usually carried out in two stages. The content of the first is that the founders enter into an agreement between themselves on the establishment of a joint-stock company. This agreement determines the procedure for their implementation of activities to establish a company, the size of the authorized capital, the types of shares to be placed among the founders, the amount and procedure for their payment, etc. This agreement is not a constituent document of the company, since it performs an auxiliary role. With this agreement, the founders clothe in a contractual form all the preparatory work for the creation of the company.

After all the preparatory work has been carried out, the charter of the company has been developed, the second stage of the creation of a joint-stock company begins. The founders at the general meeting decide on the establishment of a joint-stock company and approve its charter. At the same time, on such issues as the establishment of a company, the approval of the charter and some others, the decision is made by the founders unanimously.

However, it is not enough just to decide on the creation of a society. A joint stock company is considered established as a legal entity from the moment of its state registration. It is from this moment that the society acquires the right to carry out entrepreneurial activities.

The founders of the company may be citizens and (or) legal entities.

State bodies and local self-government bodies cannot act as founders of a joint-stock company, unless otherwise established by federal law. This is explained by the fact that with the participation of these bodies in the activities of the company, conditions for unfair competition will be created, since a company with the participation of state bodies and local governments will naturally have greater business opportunities than a company where there are no such participants.

Production cooperative

Production cooperative(artel) is a voluntary association of citizens on the basis of membership for joint production activities or other economic activities based on personal labor participation and the association of property shares by its members (participants) (Article 107 of the Civil Code of the Russian Federation).

A production cooperative can be engaged in various economic activities: the production of industrial and agricultural products, trade, and consumer services. Each participant in a production cooperative is obliged to participate by personal labor in the work of the cooperative, which is one of its important features. Therefore, it is no coincidence that the production cooperative is also officially referred to as an artel.

The main document on the basis of which the production cooperative operates is the charter. It is approved by the general meeting of members of the cooperative, for the establishment of which at least five people are required.

The charter of a production cooperative should contain the following data: location, management procedure, the amount of share contributions, the procedure for the participation of members of the cooperative in its work, and much more. The property of a production cooperative is owned by it and is divided into shares. Management bodies are created in the production cooperative. The supreme body is the general meeting of its members. The current management of the affairs of the cooperative can be carried out by the board and the chairman. A supervisory board may be created in a production cooperative if the number of members of the cooperative is more than fifty. The competence of the management bodies of a production cooperative is determined by law and the charter

Competence – a set of rights and obligations that the management body of a legal entity has to solve the problems facing it.

According to paragraph 3 of Art. 110 of the Civil Code of the Russian Federation, the exclusive competence of the general meeting includes:

changing the charter of the cooperative;

formation of other governing bodies;

admission and exclusion from members of the cooperative and others.

Exclusive competence is a competence that can only be exercised by the supreme management body of a legal entity.

Termination of membership in a production cooperative can occur both at the request of a member of the cooperative, and in the event of his exclusion, as well as on other grounds (for example, in the event of death).

State and municipal unitary enterprises

unitary enterprise- a commercial organization that does not have ownership of the property assigned to it. The property of this enterprise is indivisible, which means the impossibility and inadmissibility of its distribution by shares, shares, including between employees. In this form, state and municipal enterprises can be created, and therefore their property is state and municipal property. The enterprise in relation to the property assigned to it has the right of economic management or operational management.

The concepts of "the right of economic management" and "the right of operational management" require more detailed consideration.

Right of economic management- the right of an enterprise (state or municipal) to own, use and dispose of property, but within certain limits, which are established by the Civil Code of the Russian Federation.

The enterprise is not entitled to dispose of immovable property without the consent of the owner: sell, lease it, give it as a pledge. Real estate means: land and everything that is closely connected with the earth: buildings, structures. The company has the right to dispose of the rest of the property independently, at its own discretion.

The right of operational management - the right to dispose of property, both immovable and movable, only with the consent of the owner.

Property on the right of operational management is assigned to the created unitary enterprises, which are called "state". They can be established by decision of the Government of the Russian Federation on the basis of federally owned property (federal state enterprise). Such an enterprise is liquidated and reorganized only by decision of the Government of the Russian Federation. In the constituent documents of the enterprise, it must be indicated that it is state-owned.

Non-Profit Organizations – legal entities whose purpose is to meet the social, cultural and other non-material needs of citizens.

The legal status of non-profit organizations is determined by the Civil Code of the Russian Federation and special legislation on various types non-profit organizations.

More specifically, a non-profit organization is an organization that does not have profit making as the main goal of its activities and does not distribute the profits received among the participants (Clause 1, Article 50 of the Civil Code of the Russian Federation and Clause 1, Article 2 of the Law of the Russian Federation “On Non-Commercial Organizations” ").

Legal entities related to non-profit organizations are formed in the form of consumer cooperatives, public or religious organizations, charitable and other foundations.

consumer cooperative

consumer cooperative- a voluntary association of citizens and legal entities on the basis of membership in order to meet the material and other needs of the participants, which is carried out by combining property contributions by its members. Consumer cooperatives by the nature of their activities are very diverse: housing construction, garage, gardening and others. Members of a consumer cooperative, as well as a production cooperative, may be minors who have reached the age of 16 years.

Currently, the Law of the Russian Federation “On Agricultural Cooperatives” has been adopted and is in force, where there are articles that determine the status and procedure for the work of consumer cooperatives in rural areas. Consumer cooperatives, like other non-profit organizations, have the right to engage in entrepreneurial activities, but the income received, unlike other non-profit organizations, is distributed among the members of the cooperative. consumer cooperative- an association of persons on the basis of membership in order to meet their own needs for goods and services, the initial property, which consists of share contributions. Citizens who have reached the age of 16 and legal entities can be shareholders of a consumer cooperative. Participants in consumer cooperatives can be both citizens and legal entities, and the presence of at least one citizen is mandatory, otherwise the cooperative will turn into an association of legal entities.

Consumer cooperatives include: housing-construction, dacha-building, garage-building, housing, dacha, garage, gardening cooperatives, as well as homeowners' associations and some other cooperatives

Consumer cooperatives have a number of distinctive features:

A consumer cooperative is created and operates to meet the material and other needs of its members;

A cooperative may carry out certain types of entrepreneurial activities, the income from which may be distributed among the members of the cooperative or go to other needs determined by its general meeting.

A consumer cooperative is created and operates on the basis of the following principles:

Voluntary entry into the consumer society and exit from it;

Mandatory payment of entrance and share fees;

Democratic management of the consumer society (one shareholder - one vote, mandatory accountability to the general meeting of the consumer society of other management bodies, control bodies, free participation of the shareholder in the elected bodies of the consumer society);

Mutual assistance and provision by shareholders participating in the economic or other activities of a consumer cooperative, economic benefits;

Limitations on the amount of cooperative payments (cooperative payments are a part of the income of a consumer cooperative distributed among shareholders in proportion to their participation in the economic activities of a consumer cooperative or their share contributions, unless otherwise provided by the charter of a consumer cooperative);

Availability of information about the activities of the consumer society for all shareholders;

The widest involvement of women in participation in management and control bodies;

Concerns about raising the cultural level of shareholders.

The only constituent document of a consumer cooperative is its charter, which is approved supreme body- general meeting of members of the cooperative. The name of a consumer cooperative must contain an indication of the main purpose of the cooperative, as well as the word "cooperative" or the words "consumer society" or "consumer union".

The property of a consumer cooperative belongs to it by the right of ownership, and the shareholders retain only rights of obligation to this property. A consumer cooperative is liable for its obligations with its property; it is not liable for the obligations of shareholders. The losses of the cooperative are covered by additional contributions.

Funds

Funds are created by citizens or citizens and legal entities jointly, or only by legal entities. As a non-profit organization, the foundation aims to meet non-material needs. For example, consumer protection funds can be created. The Fund may use the property assigned to it only to achieve the goals specified in the charter. The property belongs to him by right of ownership. This includes not only the property that the foundation acquires as a result of its activities, but also the property transferred to it by the founders. Foundations, like other non-profit organizations, can engage in entrepreneurship. In this case, the fund is subject to the general rules that determine the procedure for the entrepreneurial activities of non-commercial legal entities. To carry out entrepreneurial activities, funds create business companies or take part in them (for example, they act as shareholders of an open or closed company, establish limited liability companies, etc.). However, charitable foundations have the right to participate in economic companies only as their sole members (Article 12 of the Law on Charitable Activity).

One of the peculiarities of the foundation's legal status is that the foundation is obliged to publish annual reports on the use of its property. Internal control over the work of the fund is carried out by the Board of Trustees, which operates on a voluntary basis. It is created on the basis of the charter approved by the founders of the fund.

It is necessary to note the features of the process of liquidation of the fund. It can be liquidated only on the basis of a court decision. To make such a decision, the application of interested parties is necessary. This is, firstly, and, secondly, there must be grounds that are directly provided for in the law: if the fund's property is not enough to fulfill its goals and the probability of obtaining such property is illusory; if the fund deviates in its activities from the goals specified in the charter, and others (Article 119 of the Civil Code of the Russian Federation). Other grounds for the liquidation of the fund must be expressly stated in the law. In accordance with Art. 65 of the Civil Code of the Russian Federation, a fund may be recognized by a court decision as insolvent (bankrupt) on a general basis.

Institutions

A legal entity created by the owner for the purpose of performing non-commercial functions is recognized as such. It is fully or partially funded by the owner. Institutions are government bodies, law enforcement agencies (police, tax police), educational institutions (schools, academies, universities) and others. In other words, with the help of institutions, management functions are implemented and general educational services are provided.

The institution's rights to property are rather limited. It (property) is assigned to the institution on the basis of the right of operational management. What is the essence of the right of operational management, you already know. For its obligations, the institution is liable only in cash, but in no case in property. If the institution does not have sufficient Money in order to pay off debts, then the owner should come to his aid as an additional (subsidiary defendant).

The constituent document of the institution is the charter, which is approved by the owner of the property. The name of the institution indicates the owner of the property and the nature of the activities of the institution.

According to the legislation, non-profit organizations can be created in other organizational and legal forms. These can be non-profit partnerships, autonomous non-profit organizations. Religious organizations are also classified as non-profit organizations by law. The procedure for the creation and operation of religious organizations is established by special legal acts of the Russian Federation.

In conclusion, we note that a thorough knowledge of the legislation on commercial and non-profit organizations creates conditions not only for the qualified activities of entrepreneurs, but is also an integral part of any activity of a citizen.

Organizational and legal forms of non-profit organizations.