A member of a limited liability company, sometimes called a founder (and sometimes erroneously), is, according to Article 7 of the Federal Law "On LLC", an individual or legal entity participating in an LLC. It can be a citizen of the Russian Federation, a foreign citizen, and, if we are talking about a legal entity, it can also be a resident or non-resident of the Russian Federation.

The concept and characteristics of the founder, who can become the founder

The founder of an LLC is the one who establishes it. In fact, it looks like this: a group of people gathers, decides to create a company, approves the charter of this company, conclude an agreement on the establishment among themselves, where they describe how they will manage it, as well as who, how much, and when invests in authorized capital, and as a result they carry all documents for state registration. The only founder does all this alone, and does not conclude an agreement with anyone, he simply makes a decision.

The founder may be another legal entity. person, and even the Russian Federation represented by the Federal Property Management Agency. And if everything is clear with the Russian Federation, then for physical. persons and legal persons, there are a number of criteria by which they can act as founders:

Criterion	Individual	Entity
Right-, and legal capacity	Over 18 years of age, or emancipated, without diseases precluding legal capacity	A person under liquidation or reorganization cannot be a founder.
Prohibition to participate in LLC for certain categories of persons	It is forbidden: military personnel Deputies of the State Duma and legislative bodies of constituent entities of the Russian Federation Officials, civil servants Judges, court employees	In commercial law only commercial legal entities can participate. faces.
Quantity	No more than 50	No more than 50, you cannot create a legal entity. face with sole member-legal a person, which in turn also consists of one participant (the so-called "matryoshkas").
criminal record	You can not engage in entrepreneurial activities convicted of especially serious crimes

The difference between a participant and a founder

What is participation in an LLC and how does it differ from a foundation? The founder, as mentioned above, establishes, that is, and after that becomes a member. Or another person invests in this LLC, more precisely in its authorized capital, money or property, and also becomes a participant, but it is incorrect to call him a founder - he did not establish this company.

However, for example, in non-profit organizations there are no participants, there are only founders.

How to become a founder of an LLC

To become a founder of an LLC, you must meet the above criteria. Further, everything is simple. A decision is made on the establishment, the charter is approved, paid, and an application is made in the form P11001. All this is submitted to the registration authority (inspection of the Federal Tax Service), and after state registration you become a member of an LLC, while being its founder (since you created it).

Number of founders in the company

There can be no more than 50 founders in an LLC. If there are more, it must be transformed into production cooperative or a joint stock company. Or, if this is not done, it will be liquidated.

Rights and obligations of the founder

The rights and obligations of LLC participants are specified in Article 8 of the Federal Law "On LLC". In particular, these are:

• participation in the management of the company's affairs;
• obtaining information about the activities of the company and familiarization with its documents;
• taking part in the distribution of profits;
• the right to withdraw from the LLC, if it is in the charter;
• receiving part of the property in the event of liquidation of the LLC.

The articles of association may provide for additional rights.

Establishment agreement

The founding agreement governs. It is concluded between the founders when their number exceeds one. The form is simple written. According to part 5 of Art. 11 of the Federal Law "On LLC", the founding agreement determines:

"The way in which they joint activities on the establishment of the company, the size of the authorized capital of the company, the size and nominal value of the share of each of the founders of the company, as well as the amount, procedure and terms of payment for such shares in authorized capital society."

Founders meeting

The meeting of founders is held at any address. Before the meeting, it is necessary to record the attendance and powers of each of them (usually this is done by one of them, or a specially invited person; sometimes a notary).

The decision of the founders to establish a company is recorded in the form of minutes of the meeting, all decisions must be taken unanimously.

Founder responsibility

According to part 6 of Art. 11 FZ "On LLC",

“The founders of the company are jointly and severally liable for the obligations associated with the establishment of the company and that arose before its state registration. The company is liable for the obligations of the founders of the company associated with its establishment, only in the event of subsequent approval of their actions by the general meeting of participants in the company. At the same time, the amount of the company's liability in any case cannot exceed one-fifth of the company's paid-in authorized capital.

2.2. A corporation is a commercial organization in respect of which its members have rights of obligation.

2.3. A corporation is an organization that unites, on the basis of an agreement, persons or created by a person, whose liability is limited.

A corporation can be created by one person

A corporation can be created by several persons on the basis of an agreement concluded between them.

The liability of corporation members is limited

2.4. A corporation is a participant in civil transactions with a clear organizational structure, including the structure of its management bodies, the highest among which is the general meeting of its participants (members)

The concept of a corporate body

Classification of corporate bodies

Chapter 3. Types of corporations and their features

3.1. Joint-stock company

The authorized capital of a joint-stock company is divided into a certain number of shares

Joint-stock companies are divided into open and closed

The joint stock company has the right to acquire its outstanding shares

3.2. Limited Liability Company

Division of the authorized capital of a limited liability company into shares

A certain procedure has been established for the transfer of a share (part of a share) in the authorized capital of a company to another person

Possibility to leave the company at any time

The possibility of exclusion of a member from the society

3.3. Additional Liability Company

Chapter 4. Rights and obligations of participants in corporations: concept and types

4.1. Rights and obligations of members of a limited liability company Rights of members of a limited liability company

Obligations of members of a limited liability company

4.2. Shareholder rights system: classification and types

Unconditional rights of shareholders

Rights of shareholders due to share categories *(148)

Chapter 5. Corporate Management: Principles and Models

5.1. Corporate governance principles

Duty to act in the public interest

Exercise rights and perform duties in good faith and reasonably

5.2. Choosing a corporate management model

Corporate Governance Models

Chapter 6. Management bodies of a joint-stock company

6.1. General Meeting of Shareholders

Competence of the general meeting of shareholders

Types of general meetings of shareholders

Procedure for the General Meeting of Shareholders

6.2. Board of Directors (Supervisory Board) of a Joint Stock Company)

Competence of the board of directors (supervisory board) of the company

The procedure for the formation and operation of the board of directors (supervisory board) of the company

6.3. Executive bodies of the joint-stock company

Sole executive body of the joint-stock company

Collegial executive body of the joint-stock company

Chapter 7. Management Bodies with Limited (Additional) Liability

7.1. General meeting of the company's participants Competence of the meeting

Classification of varieties of meetings

The procedure for preparing and holding a general meeting of participants

7.2. Board of Directors (Supervisory Board) of the company

7.3. Executive bodies of the company

Sole executive body of the company

Collegial executive body of the company

Chapter 8. Legal support of the evolution of the organized development of the corporation

8.1. Creation of an organization. leadership crisis

8.2. Specialization

Intracorporate rulemaking

8.3. Crisis of autonomy

8.4. Delegation of authority

Intracorporate rulemaking

8.5. Crisis of diversification

8.6. Departmentalization

Specialized units

Functional divisions of the corporate level

Service functional units

Intracorporate rulemaking

8.7. Crisis of "Blurring Responsibility"

8.8. division

Comparative characteristics of the principles of functioning of the department and division

Advantages and disadvantages of downscaling options

Divisional management procedures

8.9. Divisional policy mismatch crisis

8.10. Coordination

8.11. General crisis of hierarchical organization

The evolution of the organizational development of a corporation

8.12. Complex organizational corporate structures

8.13. What is a quasi-hierarchical organizational structure

Goals and objectives of creating quasi-hierarchical structures

The basic principle of constructing a quasi-hierarchical structure

8.14. Forms and methods of creating and functioning of quasi-hierarchical organizational structures in Russia under the current legislation

The problem of ownership and authority

Reallocation of resources

Chapter 9

9.1. Protecting the interests of owners in terms of limiting property liability for the obligations of the legal entity itself

9.2. To what extent does this organizational and legal form ensure the safety of business assets and the interests of owners in terms of generating income in the event of "leaving" the business

Joint-stock company

Limited Liability Company

9.3. How are the interests of owners protected from the point of view of restrictions on the "protection" of the business from the "unauthorized entry" of third parties

9.4. How the interests of the heirs of the owners are ensured

9.5. How the interests of owners are ensured in terms of obtaining current income

9.6. How the interests of the owners are ensured in terms of influence on the management of the organization and decision-making procedures

9.7. To what extent the considered organizational and legal forms ensure the interests of creditors

Chapter 10

10.1. Non-traditional methods of formation of controlling stakes in joint-stock companies

Creation of a "parallel" organization

Downscaling

10.2. "Conquest" of corporation assets. The use of non-traditional organizational and legal forms when working with the assets and liabilities of a corporation

Disaggregation of a joint-stock company: possible options and mechanisms for their legal support

Comparative characteristics of schemes through division and selection

Creation of a new joint-stock company on the basis of valuable assets of JSC "x"

Establishment of a new limited liability company based on the valuable assets of JSC "x"

Use of an already existing business company to transfer valuable assets of JSC "x" to it

Establishment of a non-profit organization based on the valuable assets of JSC "x"

Differences between stand-alone non-profit organizations and non-profit partnerships

10.3. Mechanisms for protecting a corporation from an aggressive policy of its capture by an "aggressor" - a competitor (protection of both assets and liabilities)

Asset protection ("first corner")

Operating corporations ("second corner")

Managing organization ("third corner")

Equity protection ("fourth corner")

Practical situations (case study)

Information tables

Obligations of members of a limited liability company

An analysis of the articles of the Federal Law "On Limited Liability Companies" shows that the set of duties does not have such a wide range as the set of rights. In paragraph 1 of Art. 9 of the said Law does not contain an exhaustive list of duties, but the main ones are listed in it. Nevertheless, we can talk about a possible classification of all obligations that may arise from a member of a limited liability company.

Failure by participants to fulfill their obligations is always associated with negative consequences that arise for such participants. Therefore, when disclosing the content of the obligations of the participants in the company, we must disclose the consequences in case of non-performance or dishonest performance by the participants of their obligations. One of the most tangible consequences for a participant who grossly violates his obligations is his exclusion from the company (Article 10 of the Federal Law "On Limited Liability Companies").

All the obligations of the members of the company can be divided into two groups: basic and additional.

Main obligations of participants in a limited liability company

Members of the Society have the following main responsibilities:

* make contributions in the manner, amount, methods and within the time limits provided for by the constituent documents of the company;

* do not disclose confidential information about the activities of the company.

Membership obligations apply to:

* contributions to the authorized capital of the company;

* contributions to the property of the company.

The obligation to make contributions to the authorized capital of the company, in turn, may include:

1) the obligation to make contributions to the charter capital of the company upon founding the company;

2) the obligation to provide the company, at its request, with monetary compensation in the event that the company's right to use property is terminated before the expiration of the period for which such property was transferred to the use of the company by the participant as a contribution to the authorized capital, equal to the payment for the use of the same property on similar terms in the course of the remaining term;

3) the obligation to make contributions to the authorized capital of the company when increasing the authorized capital on the basis of the application of a third party (applications of third parties) to accept him (them) into the company and make a contribution (contributions).

The legal basis for the first obligation is Art. 16 of the Federal Law "On Limited Liability Companies", according to which each founder of the company must fully contribute to the authorized capital of the company within the period determined by the memorandum of association and which cannot exceed one year from the date of state registration of the company. If a member of the company has not made his contribution to the authorized capital of the company in full in time, his share is transferred to the company (clause 3, article 23 of the Law).

The legal basis for the second obligation is provided for in paragraph 3 of Art. 15 of the Federal Law "On Limited Liability Companies". According to this norm, monetary compensation must be provided at a time within a reasonable time from the moment the company submits a demand for its provision, unless a different procedure for providing compensation is established by decision general meeting members of the society.

If a member of the company did not provide monetary or other compensation on time, his share passes to the company (clause 3, article 23 of the Law).

The charter of the company may provide that a part of the share proportional to the unpaid part of the contribution or the amount (value) of compensation is transferred to the company.

The legal basis for the third obligation is paragraph 2 of Art. 19 of the Federal Law "On Limited Liability Companies". In case of violation of the terms for making such a contribution, determined by this article, the increase in the authorized capital is recognized as failed.

The obligation for participants to make contributions to property is a new and ambiguous norm in the legislation on business companies. According to Art. 27 of the Federal Law "On Limited Liability Companies", such an obligation may be provided for by the company's charter when the company is established or by amending the company's charter. Such changes are made to the charter by the decision of the general meeting of the company, adopted by all participants of the company unanimously.

The decision on specific contributions of participants to the property of the company may be taken by a meeting of participants in the company by a majority of at least 2/3 of the votes of the total number of votes of the participants in the company, unless the charter of the company provides for the need for a larger number of votes to make such a decision.

Let's pay attention to two very important points. First, if the charter of the company does not provide general duty participants to make contributions to the property of the company, then the question of the possibility of making specific contributions does not arise. Secondly, if the unanimity of all participants is necessary for the emergence of a common obligation, then 2/3 of the votes of the total number of votes of the participants is sufficient to make a decision on specific contributions, in the absence of strengthening qualifications on this issue in the charter.

With this approach, it cannot be ruled out that the inclusion of the obligation to make contributions to the property of participants at the stage of establishing a company can later be used to create an artificial situation when "poor" participants in the company, unable to compete with more "rich" participants, will not be able to fulfill this duty, which may lead to their exclusion on the grounds of "gross breach of duty" (Article 10 of the Federal Law "On Limited Liability Companies").

The legislator clearly drew a line between the obligation to make contributions to property and the obligation considered earlier to make contributions to the authorized capital of the company.

The first difference is that the obligation to make contributions to the company's property is determined in the company's charter, while the obligation to make contributions to the authorized capital is determined by the Law.

The second difference: according to paragraph 3 of Art. 27 of the Federal Law "On Limited Liability Companies", if the charter does not specifically stipulate in what form the contribution to the property of the company is made, then it is made only in money. A contribution to the authorized capital may be made in money, securities, things, rights to things and other rights that have a monetary value, i.e. The law does not set limits.

The third difference: contributions to the company's property, unlike contributions to the authorized capital, do not change the size and nominal value of the shares of the company's participants in the authorized capital.

To further characterize the mechanism for fulfilling the obligation of a participant to make a contribution to the property of the company, it should be taken into account that making these contributions is possible in three ways:

* by all participants of the company in proportion to their shares in the authorized capital of the company;

* by all participants of the company disproportionately to their shares in the authorized capital;

* not by all members of the society.

If the first option is quite simple and understandable, then the last two require additional explanation.

1. If in the second option the obligation to make contributions is established for everyone, although without linking with their shares in the authorized capital, then in the third option there is a group of participants for whom the obligation to make contributions to the property of the company is not established. As an illustration of this, the law establishes that the company's charter may provide for the maximum value of contributions to the company's property made by all or certain members of the company. Moreover, this is only one of the ways, since, according to paragraph 2 of Art. 27 of the Federal Law "On Limited Liability Companies", the charter may provide for other restrictions related to making contributions to the company's property.

Restrictions related to making contributions to the property of the company, established for a certain member of the company, in the event of the alienation of his share (part of the share) in relation to the acquirer of the share (part of the share), do not apply.

2. The provisions establishing the procedure for determining the amount of contributions to the property of the company disproportionately to the size of the shares of the participants in the company, as well as the provisions establishing restrictions related to making contributions to the property of the company, may be provided for by the charter of the company upon its establishment or included in the charter of the company by decision of the general meeting members of the company, adopted by all members of the company unanimously.

3. Change and exclusion of the provisions of the charter of the company, establishing the procedure for determining the amount of contributions to the property of the company disproportionately to the size of the shares of the participants in the company, as well as restrictions related to making contributions to the property of the company, established for all its participants, are carried out by decision of the general meeting of participants, adopted by all members of the society unanimously.

4. Amendment and exclusion of the provisions of the company's charter that establish the indicated restrictions for a certain member of the company are carried out by decision of the general meeting of members of the company, adopted by a majority of at least 2/3 of the total number of votes of the members of the company, provided that the member of the company for whom such restrictions are established restrictions, voted for the adoption of such a decision or gave written consent.

5. Withdrawal of a participant of the company from the company does not release him from the obligation to the company to make a contribution to the property of the company that arose before filing an application for withdrawal from the company.

6. A participant in a company who has transferred his share (part of a share) in the authorized capital of the company shall be liable to the company for making a contribution to the property that arose before the assignment of the specified share (part of the share), jointly with its acquirer.

Obligation not to disclose confidential information about the activities of the company. Confidential information is documented information, access to which is restricted in accordance with the law. The rules for handling confidential information are determined by the Federal Law "On Information, Informatization and Information Protection" dated February 20, 1995 N 24-FZ.

Additional obligations of members of a limited liability company

All obligations of the participants of the company, determined by the charter of the company, in addition to the obligations provided for by the Federal Law "On Limited Liability Companies", are additional obligations.

characteristic additional responsibilities are the following provisions:

1. These obligations may be provided for by the charter of the company upon its establishment or assigned to all participants in the company by decision of the general meeting, adopted by all participants of the company unanimously.

2. The imposition of additional obligations on a certain participant of the company is carried out by a decision of the general meeting, adopted by a majority of at least 2/3 of the total number of votes of the participants in the company, provided that the participant of the company, which is assigned such additional obligations, voted for the adoption of this decision or gave written agreement.

At the same time, we recall that the additional obligations assigned to a certain member of the company, in the event of the alienation of his share (part of the share), do not transfer to the acquirer of the share (part of the share).

3. Additional obligations may be terminated by a decision of the general meeting, adopted by all participants of the company unanimously.

participate in the management of the company's affairs in the manner prescribed by this Federal Law and the company's charter;

Receive information about the activities of the company and get acquainted with its accounting books and other documentation in the manner prescribed by its charter;

(see text in previous edition)

take part in the distribution of profits;

Sell ​​or otherwise alienate its share or part of the share in the authorized capital of the company to one or more participants in this company or to another person in the manner prescribed by this Federal Law and the charter of the company;

(see text in previous edition)

Withdraw from the company by alienating its share to the company, if such an opportunity is provided for by the charter of the company, or demand that the company acquire a share in the cases provided for by this Federal Law;

(see text in previous edition)

receive, in the event of liquidation of the company, part of the property remaining after settlements with creditors, or its value.

Members of the company also have other rights provided for by this Federal Law.

2. In addition to the rights provided for by this Federal Law, the charter of a company may provide for other rights (additional rights) of a participant (participants) of the company. These rights may be provided for by the charter of the company upon its establishment or granted to the participant (participants) of the company by decision of the general meeting of participants in the company, adopted by all participants of the company unanimously.

Additional rights granted to a certain member of the company, in the event of the alienation of his share or part of the share, do not transfer to the acquirer of the share or part of the share.

(see text in previous edition)

Termination or restriction of additional rights granted to all participants in the company is carried out by decision of the general meeting of participants in the company, adopted by all participants in the company unanimously. Termination or restriction of additional rights granted to a certain member of the company is carried out by decision of the general meeting of members of the company, adopted by a majority of at least two thirds of the votes of the total number of votes of the members of the company, provided that the member of the company who owns such additional rights voted for the adoption of such decision or gave written consent.

A participant in a company who has been granted additional rights may refuse to exercise the additional rights belonging to him by sending a written notice of this to the company. From the moment the company receives the said notice, the additional rights of the company's participant cease.

3. The founders (participants) of the company have the right to conclude an agreement on the exercise of the rights of the participants in the company, according to which they undertake to exercise their rights in a certain way and (or) refrain (refuse) from exercising these rights, including voting in a certain way at the general meeting of the participants in the company, agree on the voting option with other participants, sell a share or part of a share at a price determined by this agreement and (or) upon the occurrence of certain circumstances, or refrain (refuse) from alienating a share or part of a share until certain circumstances occur, as well as perform other actions in concert related to management of the company, with the creation, operation, reorganization and liquidation of the company. Such an agreement is writing by drawing up one document signed by the parties.

Such an economic company as an LLC from all other forms legal entities allocates authorized capital divided into shares of a certain size, each of which belongs to a certain participant. All provisions regarding LLC members, their shares, rights and obligations are detailed in Federal Law No. 14. However, this legislative act, after reading, still leaves some ambiguities. Let's deal with them in this article.

About LLC members

A member of a limited liability company can be any private or legal person, even far from entrepreneurial activity. In a limited manner, you can become a member or founder of an LLC:

• State institutions - with the consent of the owner of the property used by them.
• Representative bodies of local authorities - in exceptional cases.
• Organizations, if their constituent documents allow for profit received outside the estimate, to acquire a share in the LLC.

Definitely cannot obtain the rights of a participant in an LLC, depending on the share, distributed, municipal governments, government agencies.

The legislation also establishes prohibitions on the number of participants - there should not be more than 50. If the composition is exceeded by at least one person, the LLC must be transformed into a PJSC or a production cooperative. Otherwise, he is threatened with liquidation by a court decision.

Founder and member

In some cases, an LLC may have one founder, who also becomes its sole member. Here, the rights of an LLC participant, depending on the share, do not make sense. The difference between a founder and a participant is established simply: the first is the founder of the LLC, the second is a member actively participating in the life of the company. Therefore, the last concept will be somewhat broader and more voluminous.

Differences also apply to the following:

• The founders quite naturally become members of the LLC with rights and obligations belonging to the latter. But in order for a participant to become a founder, it is necessary to re-register the company.
• The composition of the founders remains unchanged throughout the history of the LLC, and the set of participants tends to change periodically.

Both a Russian citizen and a foreigner can act as the founder of an LLC in the Russian Federation, as individual as well as the firm. Only the following categories of citizens are not eligible to act in this role:

• military;
• in the public service;
• deputies of the State Duma;
• persons working in legislative or executive bodies authorities;
• members of the Federation Council.

The role of the founder is more important for the society than the participant:

• Acceptance of the Articles of Association.
• Preparation of constituent documents.
• Making your contribution to the authorized capital.
• Appointment of governing bodies, audit group.
• How does the share of founders affect the management of an LLC? They are responsible for the activities of the company, as participants, in proportion to its size.

All rights of members of a limited liability company

Note that the rights of participants are somewhat wider than those of founders. At the same time, the charter of the LLC listed below is not authorized to shorten, but only supplement with new, other items. So, we list the main rights of the participant:

• LLC business management.
• Possession of complete reliable information about the activities of the organization.
• Free access to accounting and other documentation.
• Participation in the distribution of income received by the LLC.
• The right to a liquidation quota is a share of a part of the property (or its equivalent in money), which will remain after all settlements with creditors.
• The right to leave the membership at any time, regardless of the opinions of other members, while receiving their own share back.
• Ability to assign or sell your share.
• Participation in general meetings, the right to elect and be elected to management and control structures, as well as to freely put their pressing issues on the agenda.

Obligations of the members of the society

Of course, in addition to the rights depending on the share, the LLC participant is also burdened with obligations:

• Making your contribution to the authorized capital - the amount, procedure, terms for making contributions are determined both by the legislation and the charter of the LLC.
• Compliance with the trade secrets of LLC, non-disclosure of certain data about the company.

The Articles of Association may require the members to bear additional obligations if they are adopted unanimously in a general vote. Such a burden can overtake only a certain member of society - with his written consent and with the approval of 2/3 of the remaining members. When he alienates his share, these obligations do not pass to its new owner.

It should also be noted that the presence of additional obligations does not lead to the emergence of exclusive rights. It is also possible to get rid of the additional burden at the general vote.

Changing the number of participants

When one member alienates his investment, the others have the priority right of the LLC participant (there is no dependence on the share here) to acquire it. But still, there are two more options for changing the number of members of an LLC:

• When a share is alienated to a third party, a contract for its sale and purchase is concluded. Both parties must be present at the transaction - the former participant and the newly minted one, as well as a notary. In addition, for the successful course of the procedure, the consent of the spouses of the parties is necessary - if any.
• At the general meeting, the inclusion of a new member is approved. He makes a conditional contribution to the authorized capital, then the share of the old participant is transferred to him, who submits documents to the registration authority for withdrawal from the LLC.

We will also tell you about another procedure - how to formalize the withdrawal of a participant from an LLC forcibly. Such measures are applied in the following cases: a member of the company does not perform his duties in a systematic manner, interferes with the activities of the LLC. An exception can only be made through the courts. Other participants are entitled to apply, provided that together they hold at least 10% of the votes of the company.

Now let's move closer to the concept of "share".

About the share in the authorized capital

The authorized capital of an LLC is a certain set of nominal amounts of shares, i.e. contributions from each of its members. The size of the share is usually expressed as a percentage or a fraction - it all depends on the ratio of its nominal value and the size of the entire authorized capital. To some extent, it can be compared with a security in PJSC, therefore, another name for the share is "uncertificated share", since it also determines the right to be a member of the society. Each of the LLC participants can own only one share, whose size depends on his contribution to the authorized capital.

How do participant rights change depending on the share? Any size of it brings to its owner the rights that we listed three points earlier. The profit of its owner depends on the size of the share - it is distributed among the participants in proportion to the size of their contribution to the authorized capital. The size of the share also affects the weight of the vote at the general meeting - in proportion to the size of the investments, the votes are distributed.

Proper distribution of shares in an LLC is such an order in which each participant receives such an amount of profit that corresponds to his contribution to the general activities of the company. At the same time, it is important to ensure that there is not a big gap in the income of different members of the LLC.

Nominal and actual value of a share

A share in the authorized capital of an LLC is a property type of right, an analogue of a share in common property. It is designed to give its owner a certain amount of property and non-property rights in relation to this society.

Let's distinguish between two types of share value:

• Rated. An abstract monetary value that expresses the value of the contribution of a member of an LLC to the authorized capital directly upon the creation of an organization; the initial assessment of the participant's investment.
• Valid. The cost for today of that part net assets LLC, which is proportional to the share of a certain participant. This value also assesses the size of the society's obligations to its member. It is this cost that is paid to the participant when he leaves the LLC.

Legal nature of the share

The rights and obligations of members of the company, the degree of control of the LLC, depending on the share of participation, are reflected in Art. 48 of the Civil Code of the Russian Federation. The presence of a contribution in the statutory fund gives the participant the following unconditional rights:

• Receipt net profit companies according to the size of their share.
• In the event of a voluntary withdrawal or forced exclusion from the number of participants - the allocation to him of the actual value of his investment.
• Receipt of a part of the LLC's property upon its liquidation - the share of that which remains after all settlements with creditors.
• Management of LLC affairs, free access to information about its activities.
• Voluntary withdrawal from society.

Sale and assignment of a share

Finally, let's talk about the sale and assignment of your share:

• A participant can sell, exchange, donate his share to another member of the LLC or several such persons. The consent of the latter is not required.
• Sale or assignment to a third party may be prohibited by the articles of association. Sometimes such a step requires his approval at the general meeting.
• When selling a share, LLC participants have a priority right to purchase it.

What is the best way to distribute roles in an LLC? In accordance with the shares, opportunities and desires of the participants themselves. When acquiring a share, they acquire inalienable rights and a number of obligations, the latter of which can be expanded. The share itself affects the profit of the participant, as well as the weight of his vote at the meeting. The rest of the rights of the owners of different shares are the same.

Let us briefly consider the composition of the participants in a limited liability company.

LLC participants can be legal entities and citizens (Article 7 of the Law), including those who are not professionally engaged in entrepreneurial activities. Federal law may prohibit or restrict the participation of certain categories of citizens in societies. The possibility of participation in such societies is directly related to the amount of legal capacity and the authority to dispose of property that a particular subject of civil legal relations has. As a result, they are not eligible to participate in limited liability companies. government bodies and local self-government bodies, unless otherwise provided by federal law. Here we consider it necessary to note that the Federal Law of October 6, 2003 No. 131-FZ “On the General Principles of Organizing Local Self-Government in Russian Federation» (the federal law comes into force on January 1, 2006) Article 68 provides that representative bodies municipalities to jointly resolve issues of local importance, they can make decisions on the establishment of inter-municipal economic companies in the form of closed joint-stock companies and limited liability companies. We emphasize that intermunicipal business companies carry out their activities in accordance with general provisions civil legislation of the Russian Federation.

Other institutions financed by the owner, in accordance with paragraph 4 of Article 66 of the Civil Code of the Russian Federation, can participate in companies only with the permission of the owner. It can also be assumed that, by virtue of the provisions of Article 298 of the Civil Code of the Russian Federation, institutions can participate in companies by acquiring shares in their authorized capital at the expense of income received outside the estimate, if the right to carry out activities that bring such income is granted by their constituent documents. State-owned enterprises, within the meaning of Article 297 of the Civil Code of the Russian Federation, can participate in companies only with the consent of the owner of their property .

As we have already emphasized, an LLC can be established by one person who becomes its sole participant. The company may subsequently become a company with one member.

The legislation establishes a limit on the number of participants in an LLC - no more than 50. If the number of participants in the company exceeds the established limit, the LLC must be transformed into an open joint-stock company or a production cooperative; otherwise, it is subject to liquidation in a judicial proceeding at the request of authorized bodies.

Members of an LLC have certain rights and obligations, referred to as corporate. The rights of participants in a company, as an association of capital, include (Article 8 of the Law):

The right to participate in the management of the company's affairs;

The right to receive information about the activities of the company and familiarization with its accounting books and other documentation;

The right to participate in the distribution of profits;

The right to sell or otherwise assign a share (part of a share) in the authorized capital of the company;

The right to withdraw from the company at any time, regardless of the consent of other participants and receive a share of the company's property;

The right to receive a property or monetary equivalent of a part of the company's property remaining after settlements with creditors - the right to a liquidation quota.

This list of rights is minimal and cannot be reduced or limited by the constituent documents of the company. On the contrary, the Articles of Association of a company may provide for other, so-called additional rights of its participants. These additional rights have two significant features. Firstly, they are personal in nature, that is, they are associated not with a share in the authorized capital, but personally with the participants. Accordingly, when a share or part of it is transferred to another person, the additional rights that the previous owner of the share (part of the share) had do not transfer to the new one. He can obtain such rights only by unanimous decision of the general meeting of participants. Secondly, it is possible to grant additional rights not to all, but only to some participants. As a result, the scope of the rights of the company's participants may vary significantly. In fact, paragraph 2 of Article 8 legalizes not additional rights, but the possibility of granting different participants in a limited liability company an unequal scope of rights listed in paragraph 1. On the one hand, such a solution creates the necessary flexibility of regulation, and on the other hand, it can lead to negative consequences laying the groundwork for granting unwarranted privileges to individual members of society .

Article 10 of the Law enshrines the right of the company's participants, whose shares in the aggregate amount to at least ten percent of the company's charter capital, to demand in court the exclusion from the company of a participant who grossly violates his obligations or by his actions (inaction) makes the company's activities impossible or significantly complicates it. .

Let's illustrate with an example from practice. So, in one of the cases, “Kozhinskaya Nailya Abdulovna, who is a member of the Limited Liability Company” Trading company Roxalana (hereinafter referred to as LLC TP Roxalana), which owns more than 10% of the authorized capital of the company, filed a lawsuit with the Moscow Arbitration Court against Doronin Vladimir Vasilyevich to exclude him from the list of participants in LLC TP Roxalana in connection with gross violation them the obligations of a member of the company, leading to a significant difficulty in its activities.

By the decision of the Arbitration Court of Moscow dated 03.06.04 the claims were satisfied. At the same time, the court proceeded from the fact that the systematic evasion of the defendant without good reasons from participation in general meetings of the company's participants, deprives the company of the opportunity to make decisions on issues requiring the unanimity of all its participants; non-participation of the defendant in the general meetings convened by the company leads to the impossibility of resolving issues referred to the exclusive competence of the general meeting, which is a gross violation by the defendant of his duties. Thus, the inaction of the defendant significantly complicates the activities of the company, and on issues requiring a unanimous decision, makes it impossible.

As established by the courts of first and appeal instances on 10/29/03, 11/15/03, 11/22/03 and 12/06/03, general meetings of Roxalana TP LLC were held, the agenda of which included, among other things, the approval of new editions of the company's constituent documents, increase in the authorized capital, reorganization of the company. In accordance with clause 7.1.5. of the Charter of the company, these issues are within the exclusive competence of the general meeting of participants, while the decision to amend the constituent documents and the decision to reorganize the company must be taken by all participants of the company unanimously.

The defendant, despite appearing at the place where the meetings were held, refused to participate in them, which is confirmed by the protocols of the general meetings of participants of OOO “TP “Roksalana” dated 10.29.03 No. 4 dated 10.10.03, No. 5 dated 11.15.03, and 11.22.03 available in the case file No. 6, dated 06.12.03 No. 7 and registration sheets for participants of Roxalana TP LLC who came to participate in the meetings, from which it follows that the defendant refused to register as a meeting participant.

In accordance with paragraph 2 of Article 37 federal law"On Limited Liability Companies" before the opening of the general meeting of participants in the company, registration of the arrived participants in the company is carried out; an unregistered member of the company (representative of a member of the company) is not entitled to take part in voting.

Thus it is refusal Doronin The.The. from registration as a participant in the general meetings of participants of LLC “TP “Roksalana” indicates that the defendant has no intention to take part in general meetings and participate in voting on agenda items.

Satisfying the claims, the courts came to a reasonable conclusion that the defendant's non-participation in the general meetings convened by the company leads to the impossibility of resolving issues that fall within the exclusive competence of the general meeting, which is a gross violation by the defendant of his duties. The inaction of the defendant significantly complicates the activities of the company, and on issues requiring a unanimous decision, makes it impossible.

When issuing judicial acts, the courts applied the rules of substantive law to be applied, namely Article 10 of the Federal Law "On Limited Liability Companies", according to which the participants in the company, whose shares in the aggregate amount to at least ten percent of the authorized capital of the company, have the right to demand by judicial procedure, exclusion from the company of a participant who grossly violates his obligations or by his actions (inaction) makes the activities of the company impossible or significantly complicates it.

In addition, paragraph 17 of the Decree of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 9, 1999 No. from the company of a participant who grossly violates his obligations or by his actions (inaction) makes the activities of the company impossible or significantly complicates it, it must be borne in mind that under the actions (inaction) of a participant that makes the activities of the company impossible or significantly complicates it, it follows, in in particular, to understand the systematic avoidance, without good reason, of participation in the general meeting of the company's participants, depriving the society of the opportunity to make decisions on issues requiring the unanimity of all its participants.

Thus, the factual circumstances that are important for the correct resolution of this dispute were established by the courts of the first and appellate instances on the basis of a full and comprehensive study of the evidence available in the case, and judicial acts were adopted with the correct application by the courts of the norms of substantive and procedural law " .

It should be borne in mind that the court dismisses the claim for the exclusion of a participant from a limited liability company, in the event that other participants in the LLC do not provide evidence that this member by his actions makes the activities of the company impossible or significantly complicates it, or that he does not fulfill the duties assigned to him (Resolution of the Federal Arbitration Court of the Moscow District of July 5, 2004 No. KG-A40 / 5292-04) .

The obligations of the participants of the company are not related to the need for personal participation in the entrepreneurial activities of the company and are limited to the following:

Make contributions to the authorized capital in the manner, amount, composition and within the time limits stipulated by law and constituent documents;

Do not disclose confidential information about the activities of the company.

In addition to the obligations provided for by the Law, the charter of the company may provide for other obligations (additional obligations) of the participant (participants) of the company. These obligations may be provided for by the charter of the company upon its establishment or assigned to all participants in the company by decision of the general meeting of participants in the company, adopted by all participants in the company unanimously. The imposition of additional obligations on a certain member of the company is carried out by decision of the general meeting of participants in the company, adopted by a majority of at least two-thirds of the votes of the total number of votes of the participants in the company, provided that the member of the company who is entrusted with such additional obligations voted for such a decision or gave written agreement.

As can be seen, in the issue of additional (internal) obligations, the Law contains dispositive norms, the content of which is determined by the agreement of the participants.

By analogy with additional rights, the Law allows for the imposition of additional obligations on all or individual participants in the company. As a rule, such duties relate to personal participation in the activities of the company or the provision of any services to it. However, the additional obligations imposed on a certain member of the company, in the event of the alienation of his share (part of the share), do not transfer to the acquirer of the share (part of the share).

Additional obligations may be terminated by a decision of the general meeting of participants in the company, adopted by all participants in the company unanimously.

It is important to note that the imposition of additional obligations on a participant in itself cannot serve as a basis for granting him additional rights.

The material basis of an LLC is its property. The norms of Chapter III of the Law regulate relations around the authorized capital and property of the company.

The authorized capital of a company is made up of the nominal value of the shares of its participants. The size of the authorized capital of the company must be at least one hundred times the minimum wage established by federal law on the date of submission of documents for the state registration of the company. Federal Law of June 19, 2000 No. 82-FZ “On minimum size wages" The minimum wage is calculated in the amount of 100 rubles.

The size of the authorized capital of the company and the nominal value of the shares of the company's participants are determined in rubles. The authorized capital of a company determines the minimum amount of its property that guarantees the interests of its creditors.

In fact, being the minimum value of net assets, the authorized capital determines the minimum amount of property, and guarantees the interests of creditors who have the right to rely on the satisfaction of their claims from the value of the authorized capital.

Paragraph 2 of Art. 14 of the Law establishes that the size of the share of a company participant in the authorized capital of a company is determined as a percentage or as a fraction. The size of the share of a member of the company must correspond to the ratio of the nominal value of his share and the authorized capital of the company. The actual value of the share of a member of the company corresponds to the part of the value of the net assets of the company, proportional to the size of its share.

It is assumed that during the normal functioning of society, in the process economic activity the actual value of the participant's share exceeds the face value. The initial share of the participant in the authorized capital of the company gives him certain (obligatory and corporate) rights in relation to the corresponding part of the entire property of the company, respectively, its increase means an increase in the actual value of the share itself.

In the opposite situation, the actual value of the share may be less than the face value. This is possible, for example, if the company has significant losses or large debts to creditors. When fulfilling the obligations of the company to creditors, the actual value of the share of a member of the company cannot be determined only by the total value of the company's property. Therefore, it is part of the value of not all property, but only the net assets of the company (i.e. total cost his property minus existing debts), proportional to the size of the share itself (in the authorized capital).

In 2004, the question was raised about the constitutionality of certain provisions of the Law "On LLC", in particular the above paragraph 2 of Article 14.

Based on the results of consideration of the complaint, the Ruling of the Constitutional Court of the Russian Federation dated April 8, 2004 No. No. 166-O "On the refusal to accept for consideration the complaint of a closed joint-stock company Moscow commercial Bank"Eurasia-Center" for violation of constitutional rights and freedoms by paragraph 2 of Article 14 and paragraph 2 of Article 26 of the Federal Law "On Limited Liability Companies" .

As the Constitutional Court of the Russian Federation emphasized, the authorized capital of a limited liability company, divided by constituent documents into shares of certain sizes, is the basis for the property isolation of the company as a legal entity - the owner and is compiled in accordance with the Law "On LLC" from the nominal value of the shares of its participants 1 article 14).

By delimiting in paragraph 2 of Article 14 of the Law "On LLC" the concepts of the nominal value of the share of a participant, by the ratio of which the size of his share is determined with the authorized capital, and the actual value of the share, which corresponds to the part of the value of the company's net assets proportional to the size of the share of the participant, the legislator, along with with the protection of the interests of creditors, establishes general guarantees for the participants of the company in order to maintain the size of their shares: contributions to the authorized capital of the company increase the nominal value of the shares of its participants (paragraph 1 of article 19), while contributions to other property of the company increase real value shares of participants, without affecting the size and face value of their shares in the authorized capital (clause 4, article 27). Since in this way the existing balance of mutual property interests of the company's participants is maintained, the norm of clause 2, article 14 of the Law “On LLC” does not in itself violate the constitutional rights of the applicant.

The charter of the company may limit the maximum size of the share of a member of the company. The charter of the company may restrict the possibility of changing the ratio of the shares of the company's participants. Such restrictions cannot be established in relation to individual members of the company. Said provisions may be provided for by the charter of the company upon its establishment, as well as included in the charter of the company, amended and excluded from the charter of the company by decision of the general meeting of participants in the company, adopted by all participants of the company unanimously.

It is noteworthy that the Law distinguishes between the concepts: "participant's share" (Article 14) as a conditional value - the monetary value (value) of its contribution and "participant's contribution" (Article 15) - real property (in the form of things or property rights) contributed a participant in the authorized capital (or in other property of the company). Hence, the contribution to the authorized capital of the company can be money, securities, other things or property rights or other rights having a monetary value - it is the material component of the participant's investment in the company that is important here. A member's contribution to an LLC is more a high degree personal interest in the affairs of the company, as well as the interest of the LLC in maintaining the contribution as part of its property (hence the right of pre-emption to purchase the share alienated by the participant).

According to federal law dated October 25, 2001 No. 137-FZ, it is not allowed to enter the right of permanent (unlimited) use of land plots into the authorized (share) capital of commercial organizations.

Non-monetary contributions to the authorized capital of the company are subject to monetary value, which must be approved by a unanimous decision of the general meeting of the company's participants (clause 2, article 15 of the Law). Certain difficulties arise, for example, in the assessment of such a contribution as the transfer of property for temporary use, as well as in the early termination of use. The resolution of such a situation is provided for in Art. 15 of the Law and explained in paragraph 8 of the Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated December 9, 1999 No. 90/14 . In cases where the nominal value of the share paid for by a non-cash contribution exceeds the amount specified in Part 2, Clause 1, Art. 15 of this Law, the contribution must be evaluated by an independent appraiser. At the same time, the member of the company, the size of whose share was determined on the basis of the opinion of an independent appraiser, and independent appraiser in case of overestimation of the value of the contribution, they bear property liability.

Participants are given the opportunity to regulate their relations related to contributions in the charter or in the memorandum of association. The charter of the company may determine the types of property that cannot be a contribution to the authorized capital. But the property transferred by the participant excluded or withdrawn from the company for use by the company as a contribution to the charter capital, remains in the use of the company for the period for which it was transferred, unless otherwise provided by the memorandum of association.

According to paragraph 1 of article 16 of the Law, the founder, who signed the memorandum of association, is obliged to make a contribution within the period specified by this agreement. The charter of the company may provide that the participants of the company are obliged, by decision of the general meeting, to make contributions to the property of the company and in the course of its existence. The decision of the general meeting in this case must be taken by a majority of at least two-thirds of the total number of votes of the company's participants. At the same time, contributions are made in proportion to the shares of participants in the authorized capital of the company. Contributions do not change the size and nominal value of the participants' shares in the authorized capital.

At the time of state registration of the company, its authorized capital must be paid by the founders at least half.

The authorized capital of the company is not a stable value - it can be increased or decreased in relation to the amount provided for in founding documents society. Changes in the size of the authorized capital are within the exclusive competence of the general meeting of participants in the company .

The share in the charter can also be transferred from the original member of the LLC to another person. The procedure for the transfer of a share (part of a share) of a company member in the authorized capital of the company to other members of the company and third parties is regulated by Art. 21 of the Law. Also here it is necessary to take into account the aforementioned Decree of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated December 9, 1999 No. 90/14.

A participant in a company has the right to sell or otherwise assign his share in the authorized capital of the company, or part of it, to one or more participants in this company. The consent of the company or other members of the company to make such a transaction is not required, unless otherwise provided by the charter of the company. Members of the company enjoy the pre-emptive right to purchase a share (part of a share) of a member of the company at the offer price to a third party in proportion to the size of their shares, unless the company's charter or agreement of the company's participants provides for a different procedure for exercising this right. The company's charter may provide for the company's pre-emptive right to acquire a share (part of a share) sold by its participant, if other participants in the company have not exercised their pre-emptive right to purchase a share (part of a share). These provisions are confirmed by practice materials. In accordance with the norms of the legislation on limited liability companies, when selling a share (part of a share) in violation of the preemptive right to purchase, any member of the company and (or) the company, if the company’s charter provides for the company’s preemptive right to acquire a share (part of a share), has the right within three months from the moment when the participant of the company or the company learned or should have learned about such a violation, demand in court the transfer of the rights and obligations of the buyer to them .

The shares of the company's participants may be transferred to other persons in the order of inheritance or legal succession in relation to legal entities that were participants in the company. In order to prevent the admission of undesirable persons, the charter of the company may contain a requirement for the unanimous consent of all participants to this. In this case, the provisions of paragraph 8 of Art. 21 procedure for obtaining said consent. In the absence of the consent of at least one of the participants in the company, the heirs and other successors have the right to demand only payment of the actual value of the relevant share to them. Consequently, the succession in respect of the share of a member of the company may be made dependent on the presence or absence of this condition.

According to Art. 26 of the Law, a participant in a company has the right to withdraw from the company at any time, regardless of the consent of its other participants or the company.

In the event that a participant in a company withdraws from the company, his share shall be transferred to the company from the moment of filing an application for withdrawal from the company. At the same time, the company is obliged to pay the participant of the company who submitted an application for withdrawal from the company the actual value of his share, determined on the basis of the data financial statements of the company for the year during which the application for withdrawal from the company was filed, or with the consent of the participant in the company, give him property in kind of the same value, and in case of incomplete payment of his contribution to the authorized capital of the company, the actual value of the part of his share proportional to the paid part of the contribution .

The company is obliged to pay the participant of the company who filed an application for withdrawal from the company the actual value of his share or to give him property of the same value in kind within six months from the end of the financial year during which the application for withdrawal from the company was submitted, unless a shorter period provided for by the company's charter. This circumstance is confirmed by practice. So, in one of the cases, “Valentina Nikolaevna Obiedkova filed a lawsuit against Pulse Limited Liability Company with the arbitration court to recover the actual value of the share in the amount specified during the trial, and amounting to 72,438 rubles.

The court established that Obedkova V.N. filed an application for withdrawal from Pulse LLP on October 5, 1998.

From paragraph 3 of Art. 26 of the Federal Law "On Limited Liability Companies" it follows that the company is obliged to pay the member of the company the actual value of his share within six months from the end of the financial year during which the application for withdrawal from the company was submitted, unless a shorter period is provided for by the charter of the company.

In clause 4.4 of the company's charter, the founders also provided for a six-month period from the end of the financial year.

Obedkova V.N. in payment for the cost of the share received according to the payroll dated October 20, 1998 No. 205 - 7671 rubles.

Since the specified amount was determined without taking into account the results of the financial year, the payment of the share was not made in full. The parties do not dispute that the plaintiff is due in payment of the share 72438 RUB.

Under such circumstances, the court of appeal came to the correct conclusion about the validity of the plaintiff's claims. .

In conclusion, we consider it necessary to note that the withdrawal of a participant from a company consisting of one participant is impossible and illogical, therefore the Law does not contain provisions on this matter. Such a society could neither function nor even self-destruct.

Federal Law of October 6, 2003 No. 131-FZ “On the General Principles of Organizing Local Self-Government in the Russian Federation” // Collected Legislation of the Russian Federation. - October 6, 2003 - No. 40. - Art.3822.

Federal Law of June 19, 2000 No. 82-FZ “On the Minimum Wage” // Collection of Legislation of the Russian Federation - June 26, 2000, - No. 26, - Art. 2729.

Determination of the Constitutional Court of the Russian Federation of April 8, 2004 No. 166-O “On the refusal to accept for consideration the complaint of the closed joint-stock company Moscow Commercial Bank Eurasia Center on violation of constitutional rights and freedoms by paragraph 2 of Article 14 and paragraph 2 of Article 26 of the Federal Law "On Limited Liability Companies" // SPS "Garant"

Federal Law of October 25, 2001 No. 137-FZ "On the Enactment of the Land Code of the Russian Federation" // Collection of Legislation of the Russian Federation - October 29, 2001 - No. 44 - Art. 4148.

Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Court A Arbitration Court of the Russian Federation dated December 9, 1999 No. 90/14 “On some issues of the application of the Federal Law “On Limited Liability Companies” // Bulletin of the Higher A Arbitration Court of the Russian Federation, 2000 - No. 2.

Civil law of Russia. General part: Course of lectures (responsible editor - O.N. Sadikov). - M. Jurist, - 2001.

Cm. Decree of the Federal Arbitration Court of the Moscow District dated March 24, 2004 No. KG- A 40/1893-04

Decree of the Federal Arbitration Court of the Moscow District dated February 4, 2004 No. KG- A 41/170-04