Business partnerships and societies. Features, forms, types, legal status of business partnerships. Abstract legal status of business partnerships

NOU VPO IVESEP
Faculty of Law
Department of Civil Law Disciplines

TEST
in commercial law

Subject: Legal status business partnerships

Option No. 2 Topic No. 9

Saint Petersburg
2011

Content
Introduction……………………………………………………………………….3
1. The concept of business partnerships……………………………………4
2. The purpose and subject of the activities of partnerships…………………………………5
3. Management and conduct of partnership affairs……………………………………7
4. Rights, duties and responsibilities of participants in business partnerships…………………………………………………………………… ………………….8
5. Distribution of profits and losses of the partnership………………………..10
6. Change in composition, withdrawal of participants from a business partnership………………………………………………………………… …………………11
7. Transformation and liquidation of a business partnership…………….14
Conclusion…………………………………………………………………….17
References……………………………………………………………19

Introduction

Most people have been associated with one organization or another for almost their entire adult life, being their employees or coming into contact with them. The relevance of the work lies in the fact that nowadays it is difficult to find people in modern society who do not belong to any organization. The vast majority of society members belong to one or more organizations. These organizations may be industrial, educational or research, public or private, large or small, temporary or permanent. It is important to emphasize that there are a wide variety of organizations. It is obvious that each organization represents a rather complex technical, economic and social system, reflecting its individuality and specificity.

1. The concept of business partnerships

The Civil Code of the Russian Federation provides for various forms of commercial legal entities. For business partnerships, clause 2 of article 66 of the Civil Code of the Russian Federation, two forms are defined - general partnership and limited partnership (limited partnership).
A full partnership is recognized as a partnership whose participants (general partners) are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with all the property belonging to them (Article 69 of the Civil Code of the Russian Federation).
Partnership of Faith- this is a partnership that includes two types of participants: general partners who carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with all their property (who are entrepreneurs by status), and investors who do not participate in the management of the affairs of the partnership and bear the risk of losses, related to the activities of the partnership within the limits of the amounts of contributions made by them (Article 82 of the Civil Code of the Russian Federation). Investors can be citizens and legal entities.
In accordance with paragraph 4 of Article 66 of the Civil Code of the Russian Federation, participants in general partnerships and general partners in limited partnerships can be individual entrepreneurs and (or) commercial organizations.

The common historical origin of the partnerships determined some of their similarities:

The purpose of the partnership is to make profit from joint activities;

a partnership is a voluntary association of at least two participants;

the partnership is united on the basis of a constituent agreement concluded in writing and signed by all full participants (Articles 70, 83 of the Civil Code of the Russian Federation);

partners combine their property assets (money, movable and immovable property);

partners take personal part in the activities of the partnership (this can be the production of work, the provision of services, the implementation of management activities).

It should be noted that the legal status of partnerships is established only by the Civil Code of the Russian Federation; more detailed regulation of their activities is not provided for by special legislation (as for business companies).

2. Purpose and subject of activity of partnerships

As noted above, partnerships are classified as commercial organizations, i.e. their main goal is to make a profit (Clause 1, Article 50 of the Civil Code of the Russian Federation). Recognition of a legal entity as a commercial organization entails legal consequences provided for by current legislation (Article 426 of the Civil Code of the Russian Federation).
Most commercial organizations have general legal capacity, i.e. have civil rights and bear civil responsibilities necessary to carry out any types of activities not prohibited by law. It should be taken into account that legal entities can engage in certain types of activities only if they have a license - special permission to conduct certain types of activities, the list of which is determined only by law (Article 49 of the Civil Code of the Russian Federation).
Memorandum of association
Due to the fact that a partnership is a contractual association, the main document defining its activities is the constituent agreement. The articles of association are a written document signed by the partners of the partnership. It should be noted that only general partners put their signatures on the constituent agreement. Investors of a limited partnership do not sign the constituent agreement (Clause 1, Article 83 of the Civil Code of the Russian Federation), and their relations with the partnership are formalized by a certificate of contribution.
The foundation agreement of a partnership (both full and limited) must contain the following basic information (clause 2 of article 52, clause 2 of article 70, clause 2 of article 83 of the Civil Code of the Russian Federation):
- name of the partnership;

Location of the partnership;

The subject and goals of the partnership’s activities;

The procedure for managing the activities of the partnership;

Conditions on the size and composition of the partnership's share capital;

The total amount of contributions made by investors (only for limited partnership);

The size and procedure for changing the shares of each participant in the share capital;

The size, composition, terms and procedure for making contributions by the participants of the partnership;

Responsibility of participants for violation of obligations to make contributions;

Rights and obligations of partnership participants;

Conditions and procedure for distribution of profits and losses between participants;

The procedure for the withdrawal of participants from the partnership.

The Civil Code of the Russian Federation imposes special requirements for the name of partnerships. Thus, in accordance with paragraph 3 of Article 69 of the Civil Code of the Russian Federation, the corporate name of a general partnership must indicate either the names (titles) of all its participants and the words “full partnership” (for example, “The Savelyev Brothers”, PT). In the case of a large number of participants, the Civil Code of the Russian Federation allows the use of the names (names) of one or more participants with the addition of the words “and company” and the words “full partnership” (for example, “Savelyev and K”, PT). The company name of a limited partnership (clause 2 of Article 82 of the Civil Code of the Russian Federation) indicates the names (name) of only full participants and the words “limited partnership” or “limited partnership”.

3. Management and conduct of partnership affairs

General partnership
Management of the affairs of a general partnership in accordance with Article 71 of the Civil Code of the Russian Federation is carried out by common agreement of all participants.
Conducting the affairs of a general partnership can be carried out in three options (Article 72 of the Civil Code of the Russian Federation).
1. Each participant in a general partnership independently conducts business activities on behalf of the partnership. At the same time, his actions must be fully consistent with the general interests of the partnership. According to Article 73 of the Civil Code of the Russian Federation, a participant does not have the right to carry out transactions on his own behalf and in his own interests or in the interests of third parties that are similar to those that form the subject of the activities of the general partnership.
2. Participants in a general partnership jointly conduct the affairs of the partnership, i.e. all transactions on behalf of the partnership are made on the basis of a joint decision of all participants.
3. The affairs of a general partnership are conducted by one participant on behalf of the partners. In this case, the remaining participants do not take part in the affairs of the partnership, and if they make transactions, then only on the basis of the power of attorney of the participant who manages the affairs.

It must be emphasized that the type of management chosen by the participants of the general partnership must be reflected in the constituent agreement.
Limited partnership (limited partnership)
The minimum number of participants in a limited partnership is two, of which one participant is a general partner, the other is an investor. The maximum number of participants in a limited partnership is not limited, however, the peculiarities of relationships in a partnership suggest the use of such an organizational and legal form for organizations with a small number of participants.
For a limited partnership, as for a general partnership, there are three options for conducting business activities (see the above options for a general partnership). It should be taken into account that only general partners have the right to manage the affairs of a limited partnership. Investors do not have the right to participate in the management of affairs and act on behalf of the limited partnership as a whole. However, a limited partnership may grant the investor the right, on the basis of a power of attorney, to perform any actions on behalf of the partnership.
However, it cannot be said that investors do not take any part in the activities of the partnership. They can express their personal opinion on issues of the partnership’s activities, get acquainted with the reporting documentation of the limited partnership, etc.

4. Rights, duties and responsibilities of participants in business partnerships
General partnership
From an analysis of the provisions of the Civil Code of the Russian Federation on the rights and obligations of a business partnership or company, as well as on a general partnership, one can draw a conclusion about the basic rights of its participants, including:

Receiving a share of profit distributed among participants in proportion to the participant’s contribution to the share capital (Clause 1, Article 74 of the Civil Code of the Russian Federation);

Participation in the management of the partnership (Article 71 of the Civil Code of the Russian Federation);

Obtaining the necessary information about the activities of the partnership (clause 3 of article 71 of the Civil Code of the Russian Federation);

Receipt of part of the partnership’s property remaining after settlements with creditors, or its value in the event of liquidation of the partnership (Clause 1, Article 67 of the Civil Code of the Russian Federation);

The right to act on behalf of the partnership in accordance with its constituent documents(Clause 1 of Article 72 of the Civil Code of the Russian Federation);

The right to leave the partnership at any time with receipt of the value of part of the partnership’s property, proportional to its share in the partnership’s share capital (Clause 1, Article 77 of the Civil Code of the Russian Federation);

The right to transfer your share to other participants and third parties in the manner prescribed by the Civil Code of the Russian Federation and the constituent documents of the general partnership (Article 79 of the Civil Code of the Russian Federation);

The right to demand in court the exclusion of any of the participants from the partnership if there are serious grounds for this (Clause 2 of Article 76 of the Civil Code of the Russian Federation).

The main responsibilities of a participant in a general partnership are:

Participation in the activities of a general partnership (Clause 1, Article 73 of the Civil Code of the Russian Federation);

Fulfillment of the requirements of the founding agreement of the partnership (clause 1 of Article 73 of the Civil Code of the Russian Federation);

Maintaining confidentiality regarding information about the activities of the partnership (clause 2 of article 67 of the Civil Code of the Russian Federation);

Making at least half of your contribution to the partnership capital by the time of its registration and the rest of the contribution within the time limits established by the constituent agreement (clause 2 of Article 73 of the Civil Code of the Russian Federation).

A general partnership is liable for its obligations with all its property. In case of its deficiency, the participants bear joint liability for the obligations of the partnership, i.e. The creditor of the partnership may present property claims in full simultaneously to all participants or to one or some of them.
In accordance with Article 69 of the Civil Code of the Russian Federation, participants in a general partnership are liable for its obligations with all the property belonging to them, i.e. The liability of participants is not limited.
Partnership of Faith
Due to the fact that the liability of general partners in a limited partnership is similar to the liability of participants in a general partnership (Clause 2 of Article 82 of the Civil Code of the Russian Federation), the main attention should be paid to the liability of participants - investors. Based on clause 1 of Article 82 of the Civil Code of the Russian Federation, the liability of participants - depositors is limited to the limits of the amounts of deposits made by them. In this case, one should take into account the provisions of clause 4 of Article 82 of the Civil Code of the Russian Federation, which states that the inclusion of the investor’s name in the company name of a limited partnership entails an increase in the amount of his liability to full, so as not to mislead creditors about the limits of his liability.

5. Distribution of profits and losses of the partnership
General partnership
As follows from Article 74 of the Civil Code of the Russian Federation, each member of a general partnership participates in the distribution of profits and losses in proportion to his contribution. From this general position there may be deviations. In this case, these deviations must be provided for either by the constituent agreement or by an additional agreement between the participants of the general partnership. That is, exceptions to the provisions of Article 74 of the Civil Code of the Russian Federation regarding the procedure for distributing profits and losses are established only by mutual agreement of the partners.
The rules for the distribution of profits and losses, different from the rules enshrined in the Civil Code of the Russian Federation, may, for example, look like this: the constituent agreement provides that part of the profit received by the partnership for the year is divided in proportion to the contributions of the partners, and the other part - equally.
Participants have the right to provide any other methods. Nevertheless, it should be taken into account that the Civil Code of the Russian Federation contains a mandatory rule according to which it is not permitted under any circumstances to exclude any of the participants of the partnership from participating in the distribution of profits or losses.
Partnership of Faith
As for limited partnerships, for general partners the conditions for distribution of profits and losses are similar to those stated above. Investors, in accordance with clause 2 of Article 85 of the Civil Code of the Russian Federation, also have the right to receive part of the partnership’s profit due to their share in the share capital, in the manner provided for in the constituent agreement. However, investors in a limited partnership have a significant advantage over general partners - they bear the risk of losses associated with the activities of the partnership, within the limits of the amounts of contributions made by them.

6. Change of composition, withdrawal of participants from a business partnership

The composition of participants in a general partnership is given primary attention. This is explained by the fact that each of the participants in the partnership conducts, in fact, independent economic activities and at the same time acts on behalf of the partnership. Accordingly, all participants in the partnership are liable with their property for the actions of any of them.
Thus, the trust relationship in a general partnership is important. The participants of the partnership are far from indifferent to who is part of the partnership.
A participant’s membership in a general partnership may be terminated in the following cases:

voluntary withdrawal from the partnership (Article 77 of the Civil Code of the Russian Federation);

recognition of him as missing, incompetent or partially capable;

recognition as insolvent (bankrupt) or opening of reorganization procedures against a participant by a court decision (due to his insolvency);

termination of a legal entity participating in the partnership due to its liquidation or reorganization;

demands of a participant’s personal creditor for the allocation of a part of the partnership’s property corresponding to this participant’s share in the partnership’s share capital for the purpose of foreclosure on this property (Article 80 of the Civil Code of the Russian Federation).

In accordance with general rule in the above cases, the partnership ceases its activities. This is due to the already mentioned special status of a general partnership as an organization based on the personal and trusting relationships of the participants.
In order for the partnership to continue its activities with a new composition, it is necessary that such an opportunity be provided for in the constituent agreement or in a separate agreement of the participants. In this case, the change in composition is reflected in the constituent agreement by introducing appropriate amendments to it.
The exclusion of a participant from a general partnership can only take place if there are serious grounds for it. In the Civil Code of the Russian Federation, these grounds mean, in particular, a gross violation by a participant of his duties and his inability to conduct business wisely. There may be other grounds that the court deems sufficient. This norm, paragraph 2 of Article 76 of the Civil Code of the Russian Federation, contains evaluative categories that give the court the opportunity, when considering a particular case, not only to be guided by the formal requirements of the law, but to proceed from the principles of reasonableness and fairness. This approach is explained by the fact that it helps protect the rights of the excluded participant.
The procedure for expulsion from a limited partnership is special. It is possible to exclude only a general partner, but not an investor, at the will of other participants. His participation is mainly of a property nature and no grounds for exclusion can be found.
Article 77 of the Civil Code of the Russian Federation regulates the procedure for the withdrawal of a participant from a general partnership. It should immediately be noted that the law provides for the nullity of any agreement between partners on the renunciation of the right to withdraw.
In case of withdrawal from the partnership, a participant has the right to demand payment of the value of a part of the partnership’s property corresponding to the share of this participant in the share capital. By the constituent agreement or agreement of the retiring participant with the remaining participants, payment of the value of property can be replaced by the delivery of property in kind (clause 2 of Article 76 of the Civil Code of the Russian Federation).
The amount of the part of the property or its share due to the retiring participant is determined by the balance sheet drawn up at the time of the participant’s departure (Clause 1, Article 78 of the Civil Code of the Russian Federation).
It should be taken into account that the value of the share is not equal to the value of the contribution made by the participant to the share capital. It represents the same percentage of the total value of the partnership's assets as the percentage of the share capital attributable to the participant's share.

7. Transformation and liquidation of a business partnership

In practice, a general partnership is not durable. main reason its instability lies in disagreements between the participants, which can arise on any occasion: on management, investment, sales and other issues.
As mentioned above, the activities of the partnership are terminated due to the withdrawal from it or the death of at least one member.
Nevertheless, the Civil Code of the Russian Federation provides as indisputable grounds for the liquidation of a general partnership such as a decision on this by the participants themselves, a court decision on the liquidation of the partnership due to improper registration or carrying out activities prohibited by law, or the commission of gross violations of the law. Other circumstances (for example, the withdrawal or death of one of the participants, recognition as absent, incompetent, etc.) may serve as a basis for changing the composition of the participants in the general partnership and continuing its existence.
Liquidation of a general partnership occurs on the grounds that are specified in Article 61 of the Civil Code of the Russian Federation and are common to all legal entities:

by decision of its founders (participants) or body legal entity, authorized to do so by the constituent documents, including in connection with the expiration of the period for which the legal entity was created, with the achievement of the purpose for which it was created, or with the court invalidating the registration of a legal entity in connection with violations of the law or other violations committed during its creation legal acts, if these violations are irreparable;

by a court decision in the case of carrying out activities without proper permission (license) or activities prohibited by law, or with other repeated or gross violations of the law or other legal acts, as well as in other cases provided for by the Civil Code of the Russian Federation;

the partnership is also liquidated in accordance with Article 65 of the Civil Code of the Russian Federation due to its recognition as insolvent (bankrupt).

In addition, a general partnership is liquidated in the cases provided for in paragraph 1 of Article 76 of the Civil Code of the Russian Federation, as well as if only one participant remains in it. In this case, such a participant is given a six-month period during which he can resolve the current situation by transferring, for example, part of his share to another person or transforming the general partnership into a limited liability company, an additional liability company or a joint stock company.
A limited partnership can also undergo changes in its composition and be liquidated, which occurs according to the rules established by law for a general partnership. However, you should pay attention to the following differences.
The death of a general partner ends his personal participation, which does not pass to his heirs. The death of an investor does not in any way affect the structure of the partnership; only persons are replaced if the deceased has heirs and they want to join the partnership. In any case, the partnership is maintained if at least one general partner and one investor remain.
A limited partnership is also liquidated upon the departure of all investors participating in it. However, general partners have the right, instead of liquidation, to transform the limited partnership into a general partnership.
Investors of a limited partnership have a priority right over general partners to receive their contributions from the property of the partnership remaining after satisfying the claims of creditors in the event that the limited partnership is liquidated.

Conclusion

It should be noted that such organizational and legal forms as general partnership and limited partnership are very rare in the practice of Russian entrepreneurship. This is primarily due to the fact that these forms do not establish limits on the liability of their participants for the debts of the partnership. It is not profitable for individual entrepreneurs to create a legal entity that does not limit their liability for the obligations of the partnership, and the legislator does not establish any privileges for general partnerships.
Another reason is that, in accordance with our law, only commercial legal entities and citizen entrepreneurs can be general partners. Ordinary citizens are deprived of this opportunity, while throughout the world general partnerships are created mainly in the field of small and medium-sized businesses (they are organized by doctors, lawyers and other persons providing paid services).
It should be noted that before the revolution, general partnerships were widespread in Russia. Currently, enterprises with such an organizational and legal form operate in all developed countries. General partnerships and the partners themselves usually have a good business reputation and enjoy the trust of their partners. All over the world, partnerships are supported by the state, they are provided with tax benefits and loans, since the guarantee of money return is the unlimited joint liability of partners for the company’s debts.
Thus, the spread of this organizational and legal form, the use of which by unscrupulous persons is unlikely and extremely difficult, is possible with the introduction of some changes to the current legislation, namely: to grant the right to participate in partnerships of this type to ordinary citizens who do not have the status of an entrepreneur, and also to establish specially for such partnerships preferential taxation and lending regime.
At the same time, it should be noted the advantages of such organizational and legal forms as general partnership and limited partnership, which undoubtedly include a flexible structure and the absence of special management bodies.

1.7. Recognizing a citizen as missing and declaring him dead.

1.10. Ownership rights of legal entities (concept, subjects, objects, methods of occurrence and implementation).

1.11. Concept and characteristics of a legal entity. Types of legal entities.

1.13. Formation and termination of legal entities. Legal capacity and capacity of legal entities.

1.15.Branches and representative offices. Methods of individualization of legal entities (company name, trademark, etc.).

1.16. State and municipal unitary enterprises as legal entities.

1.17. Legal status of business partnerships and companies.

1.20. Participation of the Russian Federation, constituent entities of the Russian Federation and municipalities in civil relations.

1.21. Civil regulation of personal non-property relations.

23.Securities (concept, classification, legal regime).

1.32. Suspension, interruption and restoration of the limitation period.

1. 34. Civil protection of honor, dignity and business reputation of citizens and organizations.

1.36. Methods of acquiring and terminating ownership rights.

1.37.Right of state and municipal property (concept, content, subjects, objects, methods of occurrence and implementation).

1.42.Right of economic management and operational management.

1.45. Acquisition of property rights by prescription of possession (acquisitive prescription).

1.46. Concept, elements and grounds for obligations.

1.47. Concept, content and types of contracts in civil law.

1.48. Procedure for concluding contracts. Resolution of pre-contractual disputes.

1.49. Public contract. Agreement of accession. Preliminary agreement.

1.50. Execution of obligations. Principles of fulfillment of obligations.

1.51. Plurality of persons and change of persons in an obligation.

1.52. Concepts and conditions of civil liability.

1.53. Fault and causation as conditions for civil liability.

1.54. Losses and their compensation under civil law. Moral damage and its compensation.

1.55. Methods of securing obligations (concept and classification).

1.56. Pledge as a way to ensure the fulfillment of obligations. Deposit and retention.

Page 17 of 57

17. Legal status of business partnerships and companies.

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

In cases provided for by the Civil Code, a business company can be created by one person, who becomes its sole participant.

The law may prohibit or limit the participation of certain categories of citizens in business partnerships and companies, with the exception of open joint-stock companies.

Business partnerships and companies may be founders (participants) of other business partnerships and companies, with the exception of cases provided for by the Civil Code and other laws.

A contribution to the property of a business partnership or company can be money, securities, other things or property rights or other rights that have a monetary value.

The monetary valuation of the contribution of a participant in a business company is made by agreement between the founders (participants) of the company and, in cases provided for by law, is subject to independent expert verification.

Business partnerships, as well as limited and additional liability companies, do not have the right to issue shares.

Participants in a business partnership or company have the right to: 1. participate in the management of the affairs of the partnership or company; 2. receive information about the activities of the partnership or company and get acquainted with its accounting books and other documentation in the manner established by the constituent documents; 3. take part in the distribution of profits; 4. in the event of liquidation of a partnership or company, receive part of the property remaining after settlements with creditors, or its value.

Participants in a business partnership or company are obligated to: 1. make contributions in the manner, amount, methods and timing, cat. provided for by the constituent documents; 2. not disclose confidential information about the activities of the partnership or company.

Business partnerships and companies of one type can be transformed into business partnerships and companies of another type or into production cooperatives by decision of the general meeting of participants.

When transforming a partnership into a company, each general partner who has become a participant (shareholder) of the company, for two years, bears subsidiary liability with all his property for the obligations transferred to the company from the partnership. Alienation by a former partner of his shares (shares) does not relieve him of such liability. These rules also apply when transforming a partnership into a production cooperative.

Historically, the first to be created business partnerships, involving the association, first of all, of persons, as well as capital. The participants of a business partnership, as a rule, are well acquainted with each other, the relationships between the participants of the business partnership are of a personal and confidential nature, the partners are required to personally participate in entrepreneurial activity business partnership. Participants in a business partnership bear subsidiary liability for the obligations of the business partnership.

Currently, Russian civil legislation provides for the existence of such types of business partnerships as general partnerships and limited partnerships.

Participants in general partnerships and general partners in limited partnerships can be individual entrepreneurs and (or) commercial organizations; investors in limited partnerships can be citizens and legal entities.

Government agencies and authorities local government does not have the right to act as investors in limited partnerships, unless otherwise established by law (as well as participants in business companies).

Business societies, in contrast to business partnerships, involve, first of all, the association of capital, and not persons, while the personal participation of participants in a business company in the entrepreneurial activities of the business company is usually not required, therefore the identity of the participant in the business company does not matter; citizens can be participants in the business company and legal entities. Participants in a business company are not liable for the company's obligations, risking only their contribution to its authorized capital.

Business companies can be created in the form of a joint stock company, a limited liability company or an additional liability company.

Civil Code of the Russian Federation Article 66. Basic provisions on business partnerships and companies

(see text in the previous edition)

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

The scope of powers of participants in a business company is determined in proportion to their shares in the authorized capital of the company. A different scope of powers of participants in a non-public business company may be provided for by the company’s charter, as well as a corporate agreement, provided that information about the existence of such an agreement and the scope of powers of company participants provided for by it is entered into the unified state register of legal entities.

2. In the cases provided for by this Code, a business company may be created by one person, who becomes its sole participant.

A business company cannot have as its sole participant another business company consisting of one person, unless otherwise established by this Code or another law.

3. Business partnerships can be created in organizational terms legal form general partnership or limited partnership (limited partnership).

4. Business companies can be created in the organizational and legal form of a joint stock company or a limited liability company.

5. Participants in general partnerships and general partners in limited partnerships can be individual entrepreneurs and commercial organizations.

Participants in business companies and investors in limited partnerships can be citizens and legal entities, as well as public legal entities.

6. State bodies and local government bodies do not have the right to participate on their own behalf in business partnerships and companies.

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

The law may prohibit or limit the participation of certain categories of persons in business partnerships and companies.

Business partnerships and companies may be founders (participants) of other business partnerships and companies, except for cases provided for by law.

7. Features of the legal situation credit institutions, insurance organizations, clearing organizations, specialized financial companies, specialized project finance companies, professional market participants valuable papers, joint-stock investment funds, investment fund management companies, mutual investment funds and non-state pension funds, non-state pension funds and other non-credit financial organizations, joint-stock companies of workers (national enterprises), as well as the rights and obligations of their participants are determined by the laws governing the activities of such organizations.

Business partnerships, societies, production cooperatives are associations of entities and their property. They are created to carry out various business activities. Let's take a closer look at them.

General information

A business company, business partnership, or cooperative is created to achieve a specific economic goal. Management in any of the associations is carried out by the general meeting. It acts as the highest administrative body. Cooperatives and business partnerships differ in the way they distribute income. In the first, it is carried out according to the labor contribution of each member, in the second, depending on the size of the contribution or share. Business partnerships and societies receive ownership of property that is received in the course of their activities. What these associations have in common is that the share (authorized) capital is divided into shares. Each of them belongs to a specific participant. The degree of participation in the distribution of final profits will depend on the size of the share. Business partnerships and societies are formed according to various rules. The procedure for the formation of associations is established in the Civil Code, as well as federal laws. Let us next consider the features of a business partnership.

Specifics of HT

Business partnerships are commercial organizations. They are formed by two or more persons to carry out joint entrepreneurial activities. Such an association cannot be created by one subject. Only commercial organizations and entrepreneurs act as participants. Cannot be members of these associations government agencies and local authorities, unless otherwise provided by law. The legal status of business partnerships is established in the Civil Code and the relevant Federal Laws.

Participants

They have certain capabilities and responsibilities. In particular, they have the right:

Participate in the administrative work of the association to one degree or another.
Receive information about the activities of the enterprise.
Participate in income distribution.
Receive part of the property remaining after settlements with creditors during liquidation.

Participants are required to make contributions to the authorized capital in the amount and manner established by the constituent documents, and also not to disclose confidential information relating to the work of the association.

Forms of business partnerships

The associations in question are contractual. That is, they are created on the basis of an agreement between the participants. The legislation provides for the following types of business partnerships:

Responsibility

General business partnerships are distinguished by the fact that in them the distribution of losses and profits is carried out in accordance with the participant’s share in the capital. Despite the protection of the interests of creditors by the property liability of the members of the association, they are liable for obligations subsidiarily. In this case, if the enterprise’s property is insufficient, the creditor can make a claim against all participants at the same time or against one of them. Vicarious liability is, therefore, joint and several and additional to the obligations of the association itself.

Disposal of shares

A participant in a general partnership can withdraw from it at any time. At the same time, he declares his refusal from further membership at least six months before the actual date of withdrawal. Upon departure, a participant is entitled to payment of the value of part of the association’s property, equal to his share in the capital. By agreement, it can be issued in kind rather than in cash. A participant can exchange, sell, or donate his share in the capital to another member of the association or a third party. To carry out this transaction, he must obtain the consent of other partners.

Features of liquidation

The legal status of business partnerships presupposes the presence of more than one member in the association. If there is only one participant left in it, it is subject to liquidation. At the same time, he is given a period of six months to transform the association. It can be reorganized into any economic company. The legislation also provides general grounds to dissolve the association. It is carried out according to the established procedure with the creation of a commission, drawing up a balance sheet, and settlements with creditors and members of society.

Control

Features of administration are determined in the Civil Code. The law establishes that the adoption of certain management decisions carried out by agreement of all participants of the association. Business partnerships are distinguished by the fact that, regardless of the size of the contribution, each member has only one vote. Exceptions to this rule may be established along with this memorandum of association.

Mandatory requirements

They relate to the constituent agreement and the name of the association, as well as the participation of the entity in other partnerships. The agreement must contain information about the size and composition of capital, the procedure and amount of changes in the shares of members. The agreement specifies the period, rules, amount of contributions, and also stipulates cases of prosecution for violation of obligations to make deposits. Business partnerships must have a corporate name. Legislation establishes the rules according to which the name of the association is chosen. To identify the enterprise and its members, it must contain the names or titles of all members or one or more members with the addition of the phrase “and company.” In addition, the name must include “business partnership”. The individual property liability of each member of the association determines the ban on his participation in other similar legal entities.

conclusions

Taking into account the above information, we can formulate the main characteristics that commercial business partnerships have:

The foundation agreement serves as the basis for the formation and implementation of the activities of the association.
Business societies do not have a charter.
Entrepreneurial activities are carried out by participants. This provision determines the specifics of the subject composition. Only commercial enterprises and entrepreneurs can be present in the partnership.
In addition to the association itself, its participants are also responsible for the obligations of the association.
A general partnership is a business enterprise. This means that it is formed to carry out entrepreneurial activities.

Limited partnerships

They are liable for the obligations of the association with their own property in the same amount. It is a multiple of the value of their deposits. The authorized capital of an ALC cannot be less than one hundred times the minimum wage. In this regard, such a society has great opportunities to ensure guarantees for the interests of creditors. A joint-stock company is an association whose authorized capital is divided into a specific number of shares. Securities certify the binding rights of its participants. The creation of a joint stock company is carried out according to the constituent procedure. However, the Federal Law "On joint stock companies" provides special and general rules for their formation. Special attention in the specified normative act is given to the creation of a joint-stock company through reorganization and transformation.

Founders

They can be either citizens or legal entities. The number of founders in a joint-stock company cannot be more than 50. They cannot be government agencies, as well as local government structures, unless otherwise provided by law. The acquisition of the rights of a legal entity coincides with the moment of state registration of the joint-stock company.

Key Points

The minimum amount of capital is established by law. For open joint-stock companies it is no less than 1000 times, and for closed joint-stock companies it is no less than one hundred times the minimum wage determined by the Federal Law at the time of registration of the association. CJSC and OJSC differ not only in size authorized capital. In these societies, the subject composition and status of participants are different. A closed joint stock company is a joint stock company whose securities are distributed only among the founders and among persons included in a pre-specified circle. Members of a closed joint stock company have a preemptive right to purchase shares that are sold by other shareholders. This provision is established in Art. 997 in part 2 of the Civil Code.

Competence of governing bodies

JSC is characterized by a three-tier management structure. It includes:

General meeting.
Supervisory board (board of directors). It is formed without fail in companies with more than 50 participants.
Executive agency. It can be collective or individual.

The General Meeting decides on:

Liquidation/reorganization of the company.
Decrease/increase in authorized capital.
Formation of the executive apparatus.
Approval of balance sheets, annual reports, loss and profit accounts, distribution of income and expenses, and so on.

The competence of the board of directors includes general management activities of the association. The only exceptions are issues that fall within the scope of the general meeting. The executive body manages the current activities of the enterprise. Participants are not liable for the obligations of the JSC and bear the risks associated with their activities within the limits of the shares they have.

Other associations

In addition to the above companies, there are affiliates and subsidiaries. The latter include such associations, the decisions of which are determined by another main partnership or company. This phenomenon occurs due to the predominant participation of the latter in the authorized capital of the subsidiary, on the basis of an agreement concluded between them or for other reasons. The parent company has the right to give binding instructions. In this case, the subsidiary is not liable for its debt. The parent company is jointly and severally liable for transactions concluded by the reporting enterprise in pursuance of the instructions received. If a subsidiary is insolvent due to the fault of a parent company, the latter is liable subsidiarily for the debts of the former. An association in which 20% of the voting shares of a joint-stock company or 20% of the authorized capital of an LLC belongs to another company is considered dependent. The boundaries of mutual participation, the number of votes that one legal entity can use at a general meeting, are established by law.

Business partnerships and societies. Business partnerships and societies are organizational and legal forms of commercial organizations, the difference of which is manifested in the fact that business partnerships are primarily a combination of the professional experience of entrepreneurs, while business companies are primarily an association (concentration) of the capital of various individuals.

Business partnerships as a union of professional experience of entrepreneurs should not be confused with the union of labor (production) abilities of citizens, which is possible within the framework of a production cooperative. Speaking about business partnerships as a combination of professional experience in the field of entrepreneurial activity, it should be taken into account that the named organizational and legal form does not exclude the pooling of capital. In a business partnership, the pooling of professional experience is the primary goal of the association of entrepreneurs, which does not prohibit the pooling of capital of the named persons.

In turn, for business companies the primary purpose of the association is the concentration of capital, the presence of which also does not exclude the association of the professional experience of entrepreneurs.

The named differences between business partnerships and companies are significant and predetermine the features of the legal regulation of the relevant aspects of the legal status of a business partnership and company, which will be indicated below.

Economic partnerships. The legal status of business partnerships is determined by the norms of Art. 66-86 Civil Code of the Russian Federation.

Business partnerships can be created in the form of a general partnership and limited partnership (limited partnership) (Clause 3, Article 66 of the Civil Code of the Russian Federation).

Full partnership An organization is recognized whose participants (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with the property belonging to them (Clause 1 of Article 69 of the Civil Code of the Russian Federation).

From the above legal definition of a general partnership, the following essential features can be identified.

Firstly, participants in a general partnership, called general partners, can only be persons who are engaged in entrepreneurial activities, i.e. individual entrepreneurs and (or) commercial organizations (Part 5 of Article 66 of the Civil Code of the Russian Federation). The establishment of this rule is predetermined by the peculiarity of a business partnership as an association of professional experience in the field of entrepreneurial activity. If a business partnership is an association of professional experience of entrepreneurs, then, consequently, only entrepreneurs can unite within the framework of a business partnership.

Secondly, a general partnership is a commercial organization operating on the basis of an agreement concluded between general partners, which is called the constituent agreement (Article 70 of the Civil Code of the Russian Federation). Since a general partnership operates solely on the basis of an agreement concluded between its participants, the minimum number of general partners cannot be less than two persons.

Third, since a business partnership is a union of professional efforts of general partners, the management of the activities of a general partnership is carried out directly by the indicated persons by general agreement. Each participant in a general partnership has one vote, unless the constituent agreement provides for a different procedure for determining the number of votes of its participants. Each participant in the partnership, regardless of whether he is authorized to conduct the affairs of the partnership, has the right to familiarize himself with all documentation on the conduct of affairs. Waiver of this right or its limitation, including by agreement of the participants of the partnership, is void.

Fourth Since a business partnership is an association of professional participants in business activities, the legislator places increased demands on the liability of general partners for the obligations of the business partnership created by him. Participants in a general partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership. It should be noted here that the subsidiary liability of participants in a business partnership for its obligations is not an exception to the rule that a commercial organization is a collective form of entrepreneurial activity that allows the owner (person) capital to limit part of their property from business risks. In this case, either an individual entrepreneur who, being the owner (person) of capital, did not want to limit part of his property from entrepreneurial risk and carries out entrepreneurial activities in an individual form, or a commercial organization that represents a collective form of entrepreneurial activity, will be held liable for subsidiary liability. and therefore protects part of the property of the owner (person) of capital from business risks.

The minimum separate property that guarantees the rights of creditors of a general partnership is called share capital, the size of which is determined by the constituent agreement (clause 2 of article 70 of the Civil Code of the Russian Federation). It should be noted that the law does not establish a minimum amount of share capital.

The legislation also establishes special requirements for the business name of a general partnership. So, according to the norms of paragraph 3 of Art. 69 of the Civil Code of the Russian Federation, the corporate name of a full partnership must contain either the names (names) of all its participants and the words “full partnership”, or the name (name) of one or more participants with the addition of the words “and company” and the words “full partnership”.

Unlike a general partnership, a limited partnership is a partnership in which, along with general partners, there are one or more participants - investors (limited partners) who bear the risk of losses associated with the activities of the partnership, within the limits of the amounts of contributions made by them and do not take part in the partnership’s business activities.

Thus, a limited partnership is essentially an association of persons (general partners) and capital (investors’ capital), which, in fact, determines the features of its legal status. Unlike a general partnership, the features of a limited partnership are determined by the features of the legal status of its participants-investors and the features of the use of their contributions. A limited partnership, in a certain sense, can be considered a type of general partnership, in which, along with general partners, there is one or more participant-investors 11.

The business name of a limited partnership must contain either the names of all general partners and the words “limited partnership” or “limited partnership,” or the name (title) of at least one general partner with the addition of the words “and company” and the words “partnership.” on faith" or "limited partnership". If the business name of a limited partnership includes the name of an investor, such investor becomes a general partner.

Concluding the consideration of the peculiarities of the legal status of business partnerships, it should be noted that the considered organizational and legal form is of little demand from entrepreneurs. Thus, according to the website of the Federal Tax Service of the Russian Federation 12 as of 02/01/2013, out of 3,858,006 commercial organizations included in the Unified State Register of Legal Entities, 888 (0.02%) are business partnerships, of which 353 are general partnerships, 535 are limited partnerships.

Economic societies. Business companies can be created in the organizational and legal form of a joint stock company or a limited liability company (clause 4 of article 66 of the Civil Code of the Russian Federation).

Despite the fact that the above-mentioned organizational and legal forms of business companies are associations of capital, there is a qualitative difference between them, which is manifested in the idea that a joint-stock company will be an association of capital of persons between whom there are no trust (fiduciary) relationships 13. while a limited liability company is an association of capital of persons between whom there is a trust (fiduciary) relationship. It is this circumstance that primarily determines the features of the legal status of a joint-stock company and a limited liability company. When regulating the legal generation of a joint stock company, the legislator tries to formalize (regulate) its activities as much as possible, especially related to the adoption of certain management decisions, which, on the one hand, makes it possible to protect the interests of persons whose association is based on a lack of trust, on the other hand, it limits the said society in the efficiency of decision-making. When regulating the legal status of a limited liability company, the legislator, on the contrary, tries to simplify as much as possible the procedure for making certain decisions by persons whose union is based on trust, which allows the named organizational and legal form of business companies to quickly make decisions.

Business societies are the most common organizational and legal form of commercial organizations. Thus, according to the website of the Federal Tax Service of the Russian Federation 14 as of 02/01/2013, out of 3,858,006 commercial organizations included in the Unified State Register of Legal Entities, 3,774,363 (97.8%) are business companies, of which 3,604,539 are limited and additional liability companies, 169,823 – joint stock companies as open ones.

Limited liability companies. The legal status of a limited liability company is determined by the provisions of Art. 66-68, 87-94 of the Civil Code of the Russian Federation, as well as the norms of the Federal Law “On Limited Liability Companies” dated 02/08/1998 No. 14-FZ 15 (hereinafter referred to as the LLC Law).

A limited liability company is a business company whose authorized capital is divided into shares; Participants in a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of the shares they own (Clause 1, Article 87 of the Civil Code of the Russian Federation).

From the above definition, the following features can be identified that characterize a limited liability company (hereinafter referred to as LLC):

The authorized capital (the minimum amount of property guaranteeing the rights of its creditors) of an LLC is divided into shares.

Participants in a limited liability company are not liable for its obligations. This means that if the company fails to fulfill its assumed obligations, the fulfillment of these obligations or liability for the LLC’s failure to fulfill these obligations cannot be assigned to its participants. For example, if an LLC has debt under a loan agreement and a supply agreement, then neither the bank nor the supplier has the right to demand the fulfillment of these obligations from the LLC participants.

Participants bear the risk of losses associated with the activities of the company, within the limits of the value of their shares. This feature is closely related to the risky nature of business activity and means that in the event of an unprofitable business activity of an LLC, its participants only risk losing the property assigned to the LLC, which determines the value of their shares. For example, if an LLC, whose property amounts to 50,000 rubles, has a debt under a loan agreement of 100,000 rubles, then in the event of a bank foreclosure for 50,000 rubles, the participants of this LLC will suffer losses only within the value of their shares, the total amount of which is 50 000 rubles. Its participants do not bear any other risks of losses associated with the activities of the company.

Participants of the society can be citizens and legal entities. State bodies and local government bodies do not have the right to act as participants in companies, unless otherwise provided by federal law. A company can be founded by one person, who becomes its sole participant. A company cannot have another business company consisting of one person as its sole participant (clauses 1 and 2 of Article 7 of the LLC Law).

The number of participants in the company should not be more than fifty. If the number of participants in the company exceeds the established limit, the company must be transformed into an open joint-stock company or a production cooperative within a year. If within the specified period the company is not transformed and the number of participants in the company does not decrease to the limit established by this paragraph, it is subject to liquidation in court at the request of the body carrying out state registration of legal entities, or other state bodies or local government bodies, which have the right to present such a requirement is provided by federal law (clause 3 of article 7 of the LLC Law). Here you should pay attention to the fact that the numerical limitation of LLC participants is due to the idea that an LLC is an association of capital of persons between whom there is a trust (fiduciary) relationship. Consequently, since the named relations cannot exist between an indefinite circle of participants in legal relations, the legislator establishes a quantitative expression of the persons between whom the existence of trust (fiduciary) relations is possible. If the number of LLC participants exceeds the figure specified by the legislator, then it is considered that there are no trust (fiduciary) relationships between these persons. Consequently, actual relations cease to correspond to their legal form. To bring these relationships into conformity with the legal form, the legislator requires the transformation of LLCs into organizational and legal forms that are more consistent with the case when there is a merger of capital of persons between whom there is no trust (fiduciary) relationship.

The creation of an LLC is usually carried out through its establishment, which can also be divided into three stages: preparation of documents necessary for registration, registration of the LLC with the competent government agency and formation of the authorized capital. When establishing an LLC, its founders enter into an agreement among themselves on the establishment of a limited liability company, which determines the procedure for their joint activities to establish the company, the size of the authorized capital of the company, the size of their shares in the authorized capital of the company and other conditions established by the Law on LLC.

When establishing an LLC, for its registration it is necessary to develop:

b) constituent document.

A) The decision to establish a company is made by the meeting of the founders of the company. If a company is founded by one person, the decision on its establishment is made by that person alone (Clause 1, Article 11 of the LLC Law).

The decision to establish a company must reflect the voting results of the company’s founders and the decisions they made on the issues (Clause 2, Article 11 of the LLC Law):

- institutions of society,

- election or appointment of management bodies of the company,

- formation of an audit commission or election of an auditor of the company, if such bodies are provided for by the charter of the company or are mandatory in accordance with the Law on LLC.

unanimously. The election of the company's management bodies, the formation of the audit commission or the election of the company's auditor and the approval of the company's auditor are carried out by a majority at least three quarters votes from the total number of votes of the company’s founders (clauses 3 and 4 of Article 11 of the LLC Law).

b) The constituent document of an LLC is its charter (Clause 1, Article 12 of the LLC Law).

Full and abbreviated company name of the company;

Information about the location of the company;

Information on the composition and competence of the company's bodies, including on issues that constitute the exclusive competence of the general meeting of company participants, on the procedure for making decisions by the company's bodies, including on issues on which decisions are made unanimously or by a qualified majority of votes;

Information on the size of the authorized capital of the company;

Rights and obligations of company participants;

Information on the procedure and consequences of the withdrawal of a company participant from the company, if the right to leave the company is provided for by the company’s charter;

Information on the procedure for transferring a share or part of a share in the authorized capital of the company to another person;

Information on the procedure for storing company documents and on the procedure for the company providing information to company participants and other persons;

Other information provided for by the LLC Law.

After approval of the company's charter, changes to it can only be made by decision of the general meeting of the company's participants (clause 4 of article 12 of the LLC Law).

Making a decision to create an LLC and approving the charter of the LLC completes the first stage of establishing the LLC, after which follows According to the provisions of Art. 13 of the Law on LLC, the company is subject to state registration with the body that carries out state registration of legal entities, i.e. in the Federal Tax Service (FTS of Russia), in the manner established by the federal law on state registration of legal entities, i.e. Federal Law “On state registration of legal entities and individual entrepreneurs” 08.08.2001 No. 129-FZ.

The final stage of establishing an LLC is

The size of the authorized capital of the company must be no less than ten thousand rubles. The size of the share of a company participant in the authorized capital of the company is determined as a percentage or as a fraction.

Payment for shares in the authorized capital of a company can be made in money, securities, other things or property rights or other rights with a monetary value.

The peculiarity of the formation of the authorized capital of an LLC is that it begins before the registration of the company. So, according to the norms of paragraph 2 of Art. 16 of the Law on LLC at the time of state registration of the company, its authorized capital must be paid by the founders at least half. The rest is payable by each founder of the company within the period determined by the agreement on the establishment of the company or in the case of the establishment of the company by one person by the decision on the establishment of the company and cannot exceed one year from the date of state registration of the company (Clause 1 of Article 16 of the LLC Law) .

Meanwhile, in practice, cases are not uncommon when founders do not fully pay for their shares within the period established for this. The question arises about the consequences of such violations? The answer to the question posed is contained in paragraph 3 of Art. 16 of the Bankruptcy Law, according to which in case of incomplete payment of a share in the authorized capital of the company within the period determined by law, the unpaid part of the share passes to the LLC. Such part of the share must be sold by the LLC within one year from the date of transfer of the share in the authorized capital of the company to the company. If the LLC fails to sell the share transferred to it unpaid by the founder within the specified period, then the said share in the authorized capital of the company must be redeemed, and the size of the authorized capital of the company must be reduced by the nominal value of this share (clause 5 of Article 24 of the LLC Law) .

The authorized capital of an LLC can change either upward or downward. In this case, an increase in the authorized capital of the company is allowed only after its full payment. An increase in the authorized capital of a company can be carried out at the expense of the company’s property, and (or) at the expense of additional contributions of the company’s participants, and (or), if this is not prohibited by the company’s charter, at the expense of contributions from third parties accepted into the company. The company has the right, and in cases provided for by the LLC Law, is obliged to reduce its authorized capital. A decrease in the authorized capital of a company can be carried out by reducing the nominal value of the shares of all participants in the company in the authorized capital of the company and (or) redeeming shares owned by the company.

LLC as a legal entity has its own system of bodies that participate in the formation and expression of the will of society in legal relations.

General meeting of company participants

The general meeting of company participants may be regular or extraordinary. The next general meeting of the company's participants is held within the time limits specified by the company's charter, but not less than once a year. The next general meeting of the company's participants is convened by the executive body of the company. An extraordinary general meeting of the company's participants is held in cases specified by the company's charter, as well as in any other cases if the holding of such a general meeting is required by the interests of the company and its participants.

All company participants have the right to attend the general meeting of company participants, take part in the discussion of agenda items and vote when making decisions. Each company participant has a number of votes at the general meeting of company participants, proportional to his share in the authorized capital of the company, with the exception of cases provided for by the LLC Law.

The competence of the general meeting of company participants includes determining the main directions of the company’s activities, as well as making decisions on participation in associations and other associations of commercial organizations; changing the company's charter, including changing the size of the company's authorized capital; the formation of the executive bodies of the company and the early termination of their powers, as well as the adoption of a decision on the transfer of powers of the sole executive body of the company to the manager, approval of such a manager and the terms of the agreement with him, if the company’s charter does not include the resolution of these issues within the competence of the board of directors (supervisory board) of the company; election and early termination of powers of the audit commission (auditor) of the company; approval of annual reports and annual balance sheets; making a decision on the distribution of the company’s net profit among the company’s participants; making a decision on the placement of bonds and other issue-grade securities by the company; making a decision on the reorganization or liquidation of the company; appointment of a liquidation commission and approval of liquidation balance sheets.

It should be noted that issues referred to the exclusive competence of the general meeting of the company's participants cannot be attributed by the company's charter to the competence of other management bodies of the company.

Which is not a mandatory body of the LLC and may be provided for by the company’s charter. The optional creation of a board of directors (supervisory board) is also due to the fact that an LLC is an association of capital of persons connected by trust (fiduciary) relationships, which makes it possible to simplify the management system of the LLC.

The board of directors (supervisory board) of the company, like the general meeting of LLC participants, is the will-forming body of the LLC. The procedure for the formation and activities of the board of directors (supervisory board) of the company, as well as the procedure for terminating the powers of members of the board of directors (supervisory board) of the company and the competence of the chairman of the board of directors (supervisory board) of the company are determined by the charter of the company.

Management of the current activities of the company is carried out sole executive body of the company (CEO, President and others ) or the sole executive body of the company and the collegial executive body of the company (board, directorate and others). The executive bodies of the company are accountable to the general meeting of the company's participants and the board of directors (supervisory board) of the company.

Joint-Stock Company. The legal status of a joint stock company is determined by the norms of Art. 66-68, 96-104 of the Civil Code of the Russian Federation, as well as the norms of the Federal Law “On Joint-Stock Companies” dated December 26, 1995 No. 208-FZ 16 (hereinafter referred to as the JSC Law).

A joint stock company is a business company whose authorized capital is divided into a certain number of shares; Participants of a joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of the shares they own (clause 1 of Article 96 of the Civil Code of the Russian Federation).

From the above definition it follows that the legal (formal) difference between a JSC and an LLC comes down to the fact that a joint-stock company’s authorized capital is divided into a certain number of shares, while an LLC’s authorized capital is divided into shares. This legal (formal) difference is predetermined by the economic difference between LLC, as an association of capital of persons between whom there is a trust (fiduciary) relationship, and JSC, as an association of capital, between which there are no such relations. Unlike a share, a share is a security, the use of which allows you to speed up the civil circulation of the rights of company participants among an unlimited number of persons and attract additional capital in a shorter time.

The founders of the company can be citizens and (or) legal entities. State bodies and local government bodies cannot act as founders of a company, unless otherwise established by federal law. A company can be founded by one person, who becomes its sole participant. A company cannot have another business company consisting of one person as its sole founder (shareholder), unless otherwise established by federal law (clauses 1 and 2 of Article 10 of the JSC Law).

The creation of a joint stock company, as a rule, is carried out through its establishment, which can also be divided into three stages: preparation of documents necessary for registration, registration of the joint stock company with the competent government body and formation of the authorized capital. When establishing a joint stock company, its founders enter into a written agreement among themselves on its creation, which determines the procedure for their joint activities in establishing the company, the size of the authorized capital of the company, the categories and types of shares to be placed among the founders, the amount and procedure for their payment, the rights and obligations of the founders creation of society. The agreement on the creation of a company is not a constituent document of the company and is valid until the end of the term specified in the agreement for payment of shares to be placed among the founders (Clause 5, Article 9 of the Law on JSC).

When establishing a JSC, for its registration it is necessary to develop:

a) a decision to create a legal entity in the form of a protocol, agreement or other document in accordance with the law Russian Federation;

b) constituent document.

A) The decision to establish a JSC is made constituent assembly , while the decision to establish an LLC is made meeting of founders . If a company is founded by one person, the decision on its establishment is made by that person alone (Clause 1, Article 9 of the Law on JSC).

The decision to establish a company must contain the voting results of the founders and the decisions they made on the issues of establishing the company and approving the company’s charter (clause 2 of article 9 of the JSC Law):

- institutions of society,

- approval of the company’s charter,

- election of management bodies of the company,

- election of the audit commission (auditor) of the company,

Decisions on the establishment of a company and approval of its charter are made by the founders of the company unanimously. The election of the company's management bodies and the audit commission (auditor) of the joint-stock company is carried out by the founders of the company by a majority of three quarters of the vote, which represent shares to be placed among the founders of the company (Clause 4, Article 9 of the JSC Law).

b) The constituent document of a JSC is its charter (Clause 1, Article 11 of the Law on JSC).

The company's charter must contain:

Full and abbreviated "company names" of the company;

Location of the company;

Type of society (open or closed);

Number, par value, categories (ordinary, preferred) shares and types of preferred shares placed by the company;

Rights of shareholders - owners of shares of each category (type);

The size of the authorized capital of the company;

The structure and competence of the company’s management bodies and the procedure for their decision-making;

The procedure for preparing and holding a general meeting of shareholders, including a list of issues, decisions on which are made by the company’s management bodies by a qualified majority of votes or unanimously;

Information about branches and representative offices of the company;

Other provisions provided for by the JSC Law and other federal laws.

After approval of the company's charter, changes to it can be made by decision of the general meeting of shareholders, with the exception of cases provided for in paragraphs 2-6 of Art. 12 of the Law on JSC (clause 1 of Article 12 of the Law on JSC).

Making a decision to create a JSC and approving the charter of the JSC completes the first stage of establishing a JSC, after which follows stage of state registration of the company. According to the provisions of Art. 13 of the Law on JSC, the company is subject to state registration with the body that carries out state registration of legal entities, i.e. in the Federal Tax Service (FTS of Russia), in the manner established by the federal law on state registration of legal entities, i.e. Federal Law “On state registration of legal entities and individual entrepreneurs” 08.08.2001 No. 129-FZ.

The final stage of establishing a JSC is formation of its authorized capital, i.e. minimum size his property guaranteeing the interests of his creditors.

The minimum authorized capital of an OJSC must be at least thousand times the minimum wage established by federal law on the date of registration of the company (Article 26 of the Law on JSC). According to Article 5 of the Federal Law “On the Minimum Wage” dated June 19, 2000 No. 82-FZ 17, the base amount used to calculate taxes, fees, fines and other payments, the amount of which, in accordance with the legislation of the Russian Federation, is determined depending on the minimum wage labor, as well as payments for civil obligations established depending on the minimum wage, is one hundred rubles.

The authorized capital of the company is made up of the nominal value of the company's shares. Shares of the company are usually divided into ordinary shares, which provide the owner (shareholder) with the right to participate in the general meeting of shareholders with the right to vote on all issues within its competence, as well as the right to receive dividends, and in the event of liquidation of the company - the right to receive part of its property (Article 31 of the Law on JSC), and preferred shares that do not provide the owner (shareholder) with voting rights at the general meeting of shareholders, unless otherwise established by the Law on JSC (Article 32 of the Law on JSC).

The par value of all ordinary shares of the company must be the same. Company obliged places ordinary shares and has the right place one or more types of preferred shares. The par value of the issued preferred shares must not exceed 25 percent of the authorized capital of the company.

JSC shares can also be divided into outstanding shares, which means shares acquired by shareholders, and announced shares, i.e. shares that the company has the right to place in addition to the placed shares (Article 27 of the Law on JSC).

Payment for shares distributed among the founders of the company upon its establishment may be made in money, securities, other things or property rights or other rights that have a monetary value.

At least 50 percent of the company's shares distributed upon its establishment must be paid for within three months from the date of state registration of the company. The rest is payable within a year from the date of state registration of the company, unless a shorter period is provided for in the agreement on the creation of the company. A share owned by the founder of the company does not provide voting rights until it is paid in full, unless otherwise provided by the charter of the company (Clause 1, Article 34 of the Law on JSC).

In the practice of creating a joint stock company, there may also be cases when the founders do not fully pay for the shares within the period established for this. In such a situation, ownership of the shares, the placement price of which corresponds to the unpaid amount (the value of the property not transferred in payment for the shares), passes to the company, which is obliged, within one year from the date of their acquisition, to make a decision to reduce its authorized capital or in order to pay authorized capital on the basis of a decision of the board of directors (supervisory board) of the company to sell the acquired shares at a price not lower than their market value. If the market value of shares is lower than their par value, these shares must be sold at a price not lower than their par value. If the shares are not sold by the company within one year after their acquisition, the company is obliged to make a decision within a reasonable time to reduce its authorized capital by redeeming such shares (Clause 1, Article 34 of the JSC Law).

The authorized capital of a joint-stock company can change either upward or downward. In this case, an increase in the authorized capital of the company is allowed only after its full payment. The authorized capital of a company can be increased by increasing the par value of shares or placing additional shares. The company has the right, and in cases provided for by the Law on JSC, is obliged to reduce its authorized capital. The authorized capital of the company can be reduced by reducing the par value of shares or reducing them total number, including through the acquisition of part of the shares, in cases provided for by the Law on JSC.

JSC as a legal entity has its own system of bodies that participate in the formation and expression of the will of society in legal relations.

The structure of LLC bodies is as follows:

General meeting of shareholders of the company - supreme body management of the company, which is exclusively a will-forming body.

The JSC is obliged to hold an annual general meeting of shareholders annually, within the time limits established by the company's charter, but no earlier than two months and no later than six months after the end of the financial year. Issues must be resolved at the annual general meeting of shareholders about:

- election of the board of directors (supervisory board) of the company,

- the audit commission (auditor) of the company,

- approval of the company’s auditor,

- approval of annual reports, annual financial statements, including profit and loss statements (profit and loss accounts) of the company, as well as distribution of profits (including payment (declaration) of dividends, with the exception of profits distributed as dividends based on results first quarter, half year, nine months of the financial year) and losses of the company based on the results of the financial year.

At the annual general meeting of shareholders, other issues within the competence of the general meeting of shareholders may also be resolved. General meetings of shareholders held in addition to the annual meeting are extraordinary.

With the exception of cases established by federal laws, the right to vote at the general meeting of shareholders on issues put to vote is vested in:

- shareholders - owners of ordinary shares of the company;

- shareholders - owners of preferred shares of the company in cases provided for by the Law on JSC.

The competence of the general meeting of shareholders of a JSC is determined by the norms of Art. 48 of the Law on JSC. The main provisions relating to the competence of the general meeting of a joint-stock company include introducing amendments and additions to the company’s charter or approving the company’s charter in a new edition; reorganization of society; liquidation of the company, appointment of a liquidation commission and approval of interim and final liquidation balance sheets; determination of the quantitative composition of the board of directors (supervisory board) of the company, election of its members and early termination of their powers; determination of the quantity, par value, category (type) of authorized shares and the rights granted by these shares; increasing the authorized capital of the company by increasing the par value of shares or by placing additional shares, if the charter of the company in accordance with the Law on JSC, increasing the authorized capital of the company by placing additional shares is not within the competence of the board of directors (supervisory board) of the company; reducing the authorized capital of the company by reducing the par value of the shares, by acquiring a part of the shares by the company in order to reduce their total number, as well as by redeeming shares acquired or repurchased by the company; formation of the executive body of the company, early termination of its powers, if the company’s charter does not include the resolution of these issues within the competence of the board of directors (supervisory board) of the company, and others.

The decision of the general meeting of shareholders can be made without holding a meeting (joint presence of shareholders to discuss agenda items and make decisions on issues put to vote) by absentee voting. However, the general meeting of shareholders, the agenda of which includes issues on the election of the board of directors (supervisory board) of the company, the audit commission (auditor) of the company, approval of the auditor of the company, as well as issues of approval of annual reports, annual financial statements, including profit and financial statements losses (profit and loss accounts) of the company, as well as distribution of profits (including payment (declaration) of dividends, with the exception of profits distributed as dividends based on the results of the first quarter, half a year, nine months of the financial year) and losses of the company based on the results of the financial year .

Board of Directors (supervisory board) of the company carries out general management of the company's activities, with the exception of resolving issues referred to by the Law on JSC within the competence of the general meeting of shareholders.

If in an LLC the creation of a board of directors (supervisory board) is right company, then in a joint-stock company the creation of a board of directors (supervisory board) is its duty , except for the case if the company consists of less than fifty shareholders - owners of voting shares. In this case, the company’s charter may provide that the functions of the company’s board of directors (supervisory board) are performed by the general meeting of shareholders (paragraph 2, paragraph 1, article 64 of the JSC Law).

Members of the board of directors (supervisory board) of the company are elected by the general meeting of shareholders in the manner prescribed by the Law on JSC and the charter of the company for the period until the next annual general meeting of shareholders. Persons elected to the board of directors (supervisory board) of the company can be re-elected an unlimited number of times .By decision of the general meeting of shareholders, the powers of all members of the board of directors (supervisory board) of the company may be terminated early.

A member of the board of directors (supervisory board) of a company can only be an individual who may not be a shareholder of the company. The quantitative composition of the board of directors (supervisory board) of a company is determined by the charter of the company or a decision of the general meeting of shareholders, but cannot be less than five members. For a company with the number of shareholders - owners of voting shares of the company more than one thousand, the quantitative composition of the board of directors (supervisory board) of the company cannot be less than seven members, and for a company with the number of shareholders - owners of voting shares of the company more than ten thousand - less than nine members.

The chairman of the board of directors (supervisory board) of the company is elected by the members of the board of directors (supervisory board) of the company from among them by a majority vote of the total number of members of the board of directors (supervisory board) of the company, unless otherwise provided by the charter of the company. The board of directors (supervisory board) of the company has the right at any time to re-elect its chairman by a majority vote of the total number of members of the board of directors (supervisory board), unless otherwise provided by the charter of the company.

Management of the current activities of the company, as well as organizing the implementation of decisions of the general meeting of shareholders and the board of directors (supervisory board) of the company, is carried out by the sole executive body of the company (director, general director) or the sole executive body of the company (director, general director) and the collegial executive body of the company ( board, directorate). Executive bodies are accountable to the board of directors (supervisory board) of the company and the general meeting of shareholders.

The sole executive body of the company (director, general director) acts on behalf of the company without a power of attorney, including representing its interests, making transactions on behalf of the company, approving staff, issuing orders and giving instructions that are binding on all employees of the company.

By decision of the general meeting of shareholders, the powers of the sole executive body of the company can be transferred under an agreement commercial organization(managing organization) or individual entrepreneur (manager). The decision to transfer the powers of the sole executive body of the company to a management organization or manager is made by the general meeting of shareholders only upon the proposal of the board of directors (supervisory board) of the company.

Peasant (farm) economy. A peasant (farm) enterprise, created as a legal entity, is recognized as a voluntary association of citizens on the basis of membership for joint production or other economic activities in the field of agriculture, based on their personal participation and the association of property contributions by members of the peasant (farm) economy (paragraph 2 Clause 1 of Article 86.1 of the Civil Code of the Russian Federation).

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

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

Production cooperative (artel)- A production cooperative (artel) is a voluntary association of citizens on the basis of membership for joint production or other economic activities (production, processing, marketing of industrial, agricultural and other products, performance of work, trade, consumer services, provision of other services), based on their personal labor and other participation and association of property share contributions by its members (participants). A production cooperative is a corporate commercial organization.

From the content of the above definition it follows that a production cooperative is an association, first of all, of the labor abilities of its members. Meanwhile, this organizational and legal form does not exclude the pooling of capital. For this reason, the law and constituent documents of a production cooperative may provide for the participation of legal entities in its activities.

The legal status of a production cooperative is determined by the norms of Art. 106.1-106.6 of the Civil Code of the Russian Federation, as well as the norms of the Federal Law “On Production Cooperatives” dated 05/08/1996 No. 41-FZ 18 (hereinafter referred to as the PC Law).

Talking about production cooperative, it should be taken into account that this organizational and legal form is not typical for the capitalist mode of production, within which the capitalist, i.e. the owner of capital has the right to participate with personal labor in his own entrepreneurial activity, but is not obliged to do so. At the same time, personal labor participation in the production activities of a production cooperative is the responsibility of its members, and not their right.

For this reason, a production cooperative (artel) is also not a widespread legal form of a commercial organization. According to the website of the Federal Tax Service of the Russian Federation 19 as of 02/01/2013, out of 3,858,006 commercial organizations included in the Unified State Register of Legal Entities, 17,958 (0.47%) are production cooperatives.

It is advisable to use a production cooperative as an organizational and legal form of a commercial organization in such areas of production activity in which intra-production specialization of labor is absent or weakly expressed. Such areas include, for example, the services of beauty salons, hairdressers, ateliers, shoemakers, etc.

As a rule, production cooperatives are created by establishing them. The number of members of the cooperative should not be less than five.

The founding document of a production cooperative is its charter, approved by the general meeting of its members.

Formation feature mutual fund The PC that determines the minimum size of his property, guaranteeing the interests of his creditors, is that it begins before his registration. So, according to the norms of paragraphs 1 and 2 of Art. 10 of the Law on PC, a member of a cooperative is obliged to pay at least ten percent of the share contribution by the time of state registration of the cooperative. The rest of the share contribution is paid within a year after the state registration of the cooperative. The share contribution of a member of a cooperative can be money, securities, other property, including property rights, as well as other objects of civil rights.

The mutual fund must be fully formed during the first year of the cooperative’s activity. The general meeting of members of the cooperative is obliged to announce a reduction in the size of the cooperative’s mutual fund if, at the end of the second or each subsequent year, the cost net assets will be less than the cost of the cooperative's mutual fund.

The highest governing body of the cooperative is general meeting of its members.

In a cooperative with more than fifty members, a supervisory board which exercises control over the activities of the executive bodies of the cooperative.

The executive bodies of the cooperative are the board and (or) its chairman. They carry out the ongoing management of the activities of the cooperative and are accountable to the supervisory board and the general meeting of members of the cooperative.

Unitary enterprise. The legal status of state and municipal unitary enterprises is determined by the norms of Art. 113-115 of the Civil Code of the Russian Federation and the Federal Law “On State and Municipal Unitary Enterprises” dated November 14, 2002 No. 161-FZ 20 (hereinafter referred to as the Law on UP).

A unitary enterprise is a commercial organization that is not endowed with the right of ownership to the property assigned to it by the owner.

A feature of a unitary enterprise that distinguishes it from other commercial organizations is its unitary nature, which presupposes the indivisibility and impossibility of distributing its property among deposits (shares, shares), including among the employees of the enterprise.

Only state and municipal enterprises can be created in the form of unitary enterprises.

Another feature of a unitary enterprise is that the property of a state or municipal unitary enterprise is respectively in state or municipal ownership and belongs to such an enterprise by right economic management or operational management, while the property of other commercial organizations belongs to them by right of ownership.

Unitary enterprises, depending on the owner of the property, are usually divided into:

- state unitary enterprises,

- municipal unitary enterprises.

At the same time, paragraph 4 of Art. 113 of the Civil Code of the Russian Federation establishes that the company name of a unitary enterprise must contain an indication of the owner of its property.

Depending on the type of limited property right (the right of economic management or the right of operational management), on the basis of which property is assigned to a unitary enterprise, unitary enterprises are divided into:

A unitary enterprise based on the right of economic management. Such enterprises can be created by the Russian Federation on the basis of federal property, by constituent entities of the Russian Federation on the basis of property of constituent entities of the Russian Federation, and by municipalities on the basis of municipal property.

A unitary enterprise based on the right of operational management. This type of unitary enterprise is also called a state-owned enterprise, which can also be created by the Russian Federation on the basis of federal property, by constituent entities of the Russian Federation on the basis of property of constituent entities of the Russian Federation, and by municipalities on the basis of municipal property.

The minimum amount of property of a unitary enterprise that guarantees the interests of its creditors is called the authorized capital of a state or municipal enterprise. The authorized capital of a state or municipal enterprise can be formed from money, as well as securities, other things, property rights and other rights that have a monetary value.

The size of the authorized capital of a state enterprise must be no less than five thousand minimum wages established by federal law on the date of state registration of the state enterprise. The size of the authorized capital of a municipal enterprise must be no less than one thousand minimum wages established by federal law on the date of state registration registration of a municipal enterprise (clause 3 of article 12 of the Law on UP).

The authorized capital of a state or municipal enterprise must be fully formed by the owner of its property within three months from the date of state registration of such an enterprise.

The body of a unitary enterprise is the head of the enterprise, who is appointed by the body authorized by the owner, unless otherwise provided by law, and is accountable to him (Clause 5 of Article 113 of the Civil Code of the Russian Federation).