If you don't go on vacation. We provide vacation: non-standard cases
This law, adopted in accordance with the Civil Code of the Russian Federation, defines a limited liability company as a business company established by one or more persons, authorized capital which is divided into shares of sizes determined by the constituent documents; members of the company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their contributions. Members of the society can be citizens and legal entities. State bodies and bodies of local self-government are not entitled to act as participants in societies, unless otherwise provided by federal law. The number of members of the company should not be more than fifty. Otherwise, the company must be transformed into an open joint stock company or a production cooperative. Members of the society may have additional rights and bear additional responsibilities established by the charter of the company. The participants in the company, whose shares in aggregate constitute at least ten percent of the charter capital of the company, have the right to demand in court the exclusion from the company of a participant who grossly violates his obligations or by his actions (inaction) makes it impossible for the company to operate or significantly complicates it. The company carries out its activities on the basis of the articles of association and charter. In the event of a discrepancy between the provisions of the memorandum of association and the provisions of the charter, the provisions of the charter shall prevail for third parties and members of the company. The size of the authorized capital of the company must be at least a hundredfold. minimum size wages. The charter of the company may limit the maximum size of the share of a participant in the company and the possibility of changing the ratio of the shares of the participants in the company. Such restrictions cannot be established in relation to individual members of the company, must be contained in the charter of the company and be adopted unanimously at the general meeting of members of the company. This Federal Law comes into force on March 1, 1998. The constituent documents of limited liability companies (partnerships) created before the entry into force of this law shall be brought into conformity with the law no later than January 1, 1999. Limited liability companies (partnerships), the number of participants in which at the time of the entry into force of this law exceeds fifty, must, before July 1, 1998, be transformed into joint stock companies or production cooperatives or reduce the number of participants to the limit established by this law. When transforming such limited liability companies (partnerships) into joint stock companies, their transformation into closed joint stock companies is allowed without limiting the maximum number of shareholders of the closed joint stock company, established Federal law"On joint stock companies". Moreover, the provisions of this law on the right of the company's creditors to early termination or fulfillment of the company's corresponding obligations and compensation for losses shall not apply to such a reorganization in a CJSC.
The book provides an article-by-article commentary on the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies", taking into account the amendments made to it, including Federal Laws of December 29, 2015 No. 391-FZ and 409- FZ. The author analyzes in detail the legal status of limited liability companies, the procedure for their creation, reorganization and liquidation, management bodies of companies, rights and obligations of participants, transactions with shares in the authorized capital and property of companies. The features of the status of companies in the credit and insurance spheres of activity are considered. The legal positions of the Constitutional Court of the Russian Federation and explanations given by the Supreme Arbitration Court of the Russian Federation and the Supreme Court of the Russian Federation are presented. The book is intended primarily for law enforcers - founders and members of companies, managers, lawyers, economists and specialists in the taxation of companies. The book will also be useful to anyone interested in the legal regulation of the status of limited liability companies in Russia. 2nd edition, revised and enlarged
A series: Specialist comment
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The given introductory fragment of the book Commentary to the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies" (itemized) (A. N. Borisov, 2016) is provided by our book partner - the company Liters.
The authorized capital of the company. Community property
The authorized capital of the company. Shares in the authorized capital of the company
1. The authorized capital of a company is made up of the par value of the shares of its participants.
The size of the authorized capital of the company must be at least ten thousand rubles.
The size of the charter capital of the company and the nominal value of the shares of the participants in the company are determined in rubles.
The authorized capital of a company determines the minimum size of its property that guarantees the interests of its creditors.
2. The size of the share of a company participant in the charter capital of the company is determined as a percentage or as a fraction. The size of the share of a participant in the company must correspond to the ratio of the par 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 a part of the value net assets society, proportional to the size of its share.
3. The charter of the company may limit the maximum size of the share of a participant in the company. The charter of the company may restrict the possibility of changing the ratio of the shares of the participants in the company. Such restrictions cannot be established in relation to individual members of the company. These provisions may be provided for by the charter of the company at its foundation, as well as included in the charter of the company, changed and excluded from the charter of the company by decision general meeting members of the company, adopted by all members of the company unanimously.
If the charter of a company contains the restrictions provided for by this paragraph, a person who acquired a share in the charter capital of the company in violation of the requirements of this paragraph and the relevant provisions of the charter of the company has the right to vote at the general meeting of the company's participants with a part of the share, the amount of which does not exceed the amount established by the charter of the company. the maximum size of the share of a participant in the company.
1. The commented article devoted to the authorized capital of a company and shares in the authorized capital of a company is opened by the rule determining that the authorized capital of a company is made up of the nominal value of the shares of its participants. This norm reproduces the norm of Part 1, Clause 1, Art. 90 of the first part of the Civil Code of the Russian Federation in the previous edition, which provided that the authorized capital of a limited liability company is made up of the value of the shares acquired by its participants. At the same time, the norm of part 1, paragraph 1 of the commented article contains one detailing point - it directly states that this is a nominal, and not actual value shares (for the nominal and actual value of a share, see below). After the Law of 2014 No. 99-FZ introduced amendments to clause 1 of Art. 90 of the Civil Code of the Russian Federation, it is determined that the authorized capital of a limited liability company (Article 66.2 of the Code) is made up of the nominal value of the participants' shares. As you can see, this norm in new edition fixed in accordance with the norm of part 1, paragraph 1 of the commented article. The norm of clause 1 of Art. 90 of the Code, in turn, is predetermined by the norm of clause 1 of its Art. 87 (as amended by the Law of 2014 No. 99-FZ), according to which a limited liability company is a business company, the authorized capital of which is divided into shares (the norm of clause 1 of article 87 of the Code is reproduced in clause 1 of article 2 of the commented Law ).
In the original edition of the norm, Part 1, Clause 1, Art. 90 of the Civil Code of the Russian Federation, that is, prior to the introduction of amendments by the Law of 2008 No. 312-FZ, it was said that the authorized capital of a company is made up of the value of the contributions of its participants. Accordingly, the 2008 Law No. 312-FZ eliminated a terminological inaccuracy: it was impossible to understand exactly from the previous version of the Code's norm whether it was about paying for shares in the authorized capital or about contributions to the company's property (for contributions to the company's property, see comment to Article 27 of the Law). In addition, the terminology used has been simplified (see the commentary to Articles 15 and 16 of the Law).
In part 2, clause 1 of Art. 90 of the Civil Code of the Russian Federation in the previous edition established that the amount of the authorized capital of a company cannot be less than the amount determined by the law on limited liability companies. On the basis of this norm, in part 2 of paragraph 1 in the indicated edition of the commented article, it is established that the size of the authorized capital of the company must be at least 10 thousand rubles. Before the amendments were made by Law No. 312-FZ of 2008, part 2 of clause 1 of the commented article stated that the size of the company's charter capital should be at least one hundred times the minimum wage (minimum wage) established by federal law as of the date of submission of documents for the state registration of the company. Taking into account the provisions of Art. 5 of the Federal Law of June 19, 2000 No. 82-FZ "On the minimum wage", according to which the calculation of payments for civil obligations established depending on the minimum wage is made from January 1, 2001 on the basis of a base amount equal to 100 rubles, it was about the same amount ”10 thousand rubles. It is pertinent to mention that Article 26 of the Law on Joint-Stock Companies establishes the same minimum authorized capital of a non-public joint-stock company, and of a public joint-stock company ”- 100 thousand rubles. For companies - both LLCs and JSCs - in the areas of banking and insurance activities, other, much more stringent requirements for the minimum size of the authorized capital have been established. By the Law of 2014 No. 99-FZ, the aforementioned part 2, paragraph 1 of Art. 90 of the Civil Code of the Russian Federation is excluded, and in part 1 of clause 1 new article 66.2 "Basic provisions on the authorized capital of a business entity" established that the minimum size of the authorized capital of business entities is determined by the laws on business entities. In part 2 of the specified paragraph of Art. 66.2 of the Code stipulates that the minimum size of the authorized capital of business entities engaged in banking, insurance or other licensed activities, as well as joint stock companies using an open (public) subscription to their shares, are established by laws that determine the features of the legal status of these business entities.
When applying the norm of paragraph 1 of Art. 14 of the commented Law on the minimum amount of the authorized capital of a company in clause 6 of the Resolution of the Plenum of the RF Armed Forces and the Plenum of the RF Supreme Arbitration Court of December 9, 1999 No. the size of the authorized capital corresponded to the level established by the legal acts in force at that time, then when registering changes made to the company's charter (registration of the charter in a new edition), including in connection with bringing it in line with the commented Law (clause 3 of Art. 59), the state body carrying out such registration does not have the right to refuse to carry it out on the grounds that the authorized capital of the company does not correspond to the minimum amount in force on the date of registration of changes; refusal to register changes on this basis may be appealed (disputed) in court.
In accordance with part 3 of clause 1 of the commented article, the size of the authorized capital of the company and the par value of the shares of the participants in the company are to be determined in rubles. This rule is based on the provision of Part 1 of Art. 75 of the Constitution of the Russian Federation that the monetary unit in Russia is the ruble. In addition, according to paragraph 1 of Art. 317 of the first part of the Civil Code of the Russian Federation, monetary obligations must be expressed in rubles. In paragraph 1 of Art. 140 of this Code, it is established that the ruble is a legal tender, obligatory to be accepted at face value throughout Russia. At the same time, these norms do not mean that foreign currency, payment documents in foreign currency or property rights expressed in foreign currency or in conventional monetary units (ECU, “special rights borrowing ", etc.). For payment of shares in the authorized capital of the company, see the commentary to Art. 15 of the Law.
In part 4, paragraph 1 of the commented article, the provision of part 2 of paragraph 1 of Art. 90 of the Civil Code of the Russian Federation in the previous edition, which provided that the authorized capital of a company determines the minimum size of its property that guarantees the interests of its creditors. However, as mentioned above, the Law of 2014 No. 99-FZ, part 2, paragraph 1 of Art. 90 of the Civil Code of the Russian Federation is excluded. The new article 66.2 "Basic provisions on the authorized capital of a business entity" does not contain the corresponding provision.
As part of the designation of the need for new approaches to the regulation of authorized capital, the Concept for the Development of Corporate Legislation noted the following: Russian legislation adopted the European practice of establishing the minimum amount of property that guarantees the rights of creditors in the form of authorized capital; however, the size of the authorized capital established by Russian law (100 minimum wages for closed joint-stock companies and 1000 minimum wages for open ones) actually reduces this norm to a declaration.
In clauses 4.2.1 and 4.2.2 of section. III of the Concept for the Development of Civil Legislation of Russia in relation to the minimum size of the authorized capital of a business company, the following is noted:
Russian legislation follows the European legal tradition, according to which the presence of a "solid" authorized capital in a business society is mandatory. Currently, there are no sufficient reasons to abandon this legal category, but if it is retained, it should ensure that it performs the functions for which it was created (ensuring start-up capital for the activities of the company and guarantees of the rights of creditors). Modern legal regulation the authorized capital does not solve this problem. In most highly developed European legal orders and in regulatory documents The EU (in particular, in the Second Directive of 1976) defines significantly higher amounts of the minimum authorized capital than in Russian legislation;
in this regard, the size of the authorized capital for business entities should be increased. This will not create artificial obstacles to the development of small business, because it can be carried out in the forms of individual entrepreneurship, contracts of simple partnership (on joint activities), as well as in the form of a production cooperative, undeservedly forgotten by modern legislation, while economic societies have always been and remain a form of large and medium-sized business. Taking into account the experience of European legal order, it is advisable to conduct business to establish the size of the authorized capital for an LLC in the amount of at least 1 million rubles. (about 22-25 thousand euros), and for JSCs - in the amount of at least 2 million rubles. (about 45-50 thousand euros). This minimum size can be increased for those joint stock companies that resort to open (public) subscription to shares.
2. In part 1, clause 2 of the commented article, in the development of the above norm, part 1 of clause 1 of Art. 90 of part one of the Civil Code of the Russian Federation in the previous edition and part 1 of clause 1 of the commented article set out the rules for determining the size of the share of a company participant in the charter capital of a company, or, in other words, the nominal value of a share of a company participant: the size of a company participant's share in the charter capital of a company is determined as a percentage or as a fraction; the size of the share of a participant in the company must correspond to the ratio of the par value of his share and the authorized capital of the company. For example, if the size of the authorized capital of the company is 100 thousand rubles, of which one member of the company pays 80 thousand rubles, and the other member of the company - 20 thousand rubles, then the size of the share of the first member of the company will be 80% or 4/5 of the authorized capital, and the size of the share of the second participant in the company is 20% or 1/5 of the authorized capital. The amount of the par value of the shares of the two participants in the company will be 100 thousand rubles, which means that the requirement of part 1 of clause 1 of Art. 90 of the Civil Code of the Russian Federation and part 1 of paragraph 1 of the commented article.
In part 2, clause 2 of the commented article, the content of clauses 3 and 6 of Art. 93 of the Civil Code of the Russian Federation in the original version of the concept "the actual value of the share of a participant in a company" is a part of the value of the company's net assets, proportional to the size of its share.
In accordance with paragraph 2 of Art. 30 of the commented Law, the value of the net assets of a company (with the exception of credit institutions) is determined according to accounting data in the manner established by the federal executive body authorized by the Government of the Russian Federation. It is also provided there that for credit institution instead of the net asset value, the value is calculated own funds(capital), determined in accordance with the procedure established by the Bank of Russia. Anticipating the consideration of this norm, taking into account the legal position set forth in the Resolution of the Constitutional Court of the Russian Federation of July 18, 2003 No. 14-P, it should be noted that the normal financial condition of the company assumes that its net assets, the value of which is the difference between the book value of assets (property) and the amount of the company's liabilities, grow over time in comparison with the funds initially invested in the authorized capital.
Accordingly, with an increase in the company's net assets (assets "cleared" of liabilities), the actual value of the share of a member of the company also increases proportionally. So, if you develop the above example, you can indicate the following. If we assume that the result of the company's activities was the achievement of the value of its net assets of 300 thousand rubles. (for example, 500 thousand rubles of assets on the balance sheet minus 200 thousand rubles of liabilities), then the actual value of the share of the first participant in the company will be 240 thousand rubles, and the actual value of the share of the first participant in the company - 60 thousand rubles. At the same time, the nominal value of the shares of the company's participants, provided that there is no change in the authorized capital of the company, will remain unchanged - 80 thousand rubles. from the first participant of the company (corresponds to the size of the share of 80% or 4/5 of the authorized capital) and 20 thousand rubles. from the second participant of the company (corresponds to the size of the share of 20% or 1/5 of the authorized capital).
3. Part 1, clause 3 of the commented article provides that the charter of the company may limit the maximum size of the share of a participant in the company and may restrict the possibility of changing the ratio of the shares of participants in the company. At the same time, it is expressly stated that such restrictions cannot be established in relation to individual members of the company, that is, if restrictions are established by the charter of the company, then they should apply to all members of the company, without exception. The purpose of such restrictions is to maintain the balance of interests of the participants in society, achieved between them.
As indicated in this norm, provisions on such restrictions may be provided for by the charter of the company at its establishment, as well as introduced into the charter of the company, changed and excluded from the charter of the company by a decision of the general meeting of the company's participants, adopted unanimously by all members of the company. As a general rule, clause 8 of Art. 37 of the commented Law to make a decision on changing the charter of a company, a majority of at least two-thirds of the votes of the company's participants is sufficient, unless the charter of the company provides for the need for a larger number of votes. It is also pertinent to recall that according to the peremptory norm of paragraph 3 of Art. 11 of this Law, the decision to approve its charter is taken by the founders of the company unanimously, in connection with which part 1 of paragraph 3 of the commented article does not mention the quorum for making the appropriate decision.
In the event that the charter of the company contains restrictions on the maximum size of the share of a participant in the company and the share in the authorized capital of the company was acquired in violation of this restriction, part 2 of paragraph 3 of the commented article provides that the person who acquired the specified share in the authorized capital has the right to vote at the general meeting of participants in the company, only that part of the share, the size of which does not exceed the maximum size of the share of a participant in the company established by the charter of the company. This provision is included in clause 3 of the commented article by the Law of 2008 No. 312-FZ.
Payment of shares in the authorized capital of a company
1. Payment for shares in the authorized capital of a company may be carried out in money, securities, other things or property rights or other rights that have a monetary value.
2. The monetary value of the property contributed to pay for the shares in the authorized capital of the company is approved by the decision of the general meeting of the company's participants, adopted by all participants in the company unanimously.
If the nominal value or increase in the nominal value of the share of a company participant in the charter capital of the company, paid for in non-monetary funds, is more than twenty thousand rubles, in order to determine the value of this property, independent appraiser provided that not otherwise provided by federal law. The nominal value or increase in the nominal value of the share of a member of the company, paid for by such non-monetary funds, cannot exceed the amount of the valuation of the said property determined by an independent appraiser.
In the event of payment of shares in the authorized capital of a company with non-monetary funds, the participants of the company and an independent appraiser jointly bear subsidiary liability for its obligations in the event of insufficient property of the company in the amount of the overstatement of the value of the property contributed to pay for shares in the authorized capital of the company within three years from the date of state registration of the company or introduction of amendments to the charter of the company provided for in Article 19 of this Federal Law.
The charter of a company may establish the types of property that cannot be contributed to pay for shares in the charter capital of the company.
3. In case of termination of the company's right to use the property before the expiration of the period for which such property was transferred for use by the company to pay for the share, the member of the company who transferred the property is obliged to provide the company, at its request, with monetary compensation equal to the payment for the use of the same property for similar conditions during the remaining period of use of the property. Monetary compensation must be provided at a time within a reasonable period of time from the moment the company submits a demand for its provision, unless a different procedure for providing monetary compensation is established by a decision of the general meeting of the company's participants. This decision is made by the general meeting of the company's participants without taking into account the votes of a company participant who transferred the right to use the property to the company to pay for his share, which has terminated ahead of schedule.
The agreement on the founding of the company or in the case of the founding of the company by one person, the decision on the founding of the company may provide for other methods and other procedure for providing by the participant of the company compensation for the early termination of the right to use the property transferred by him for use to the company to pay for the share in the authorized capital of the company.
In case of failure to provide compensation within the established time limit, the share or part of the share in the authorized capital of the company, proportional to the unpaid amount (value) of compensation, shall be transferred to the company. Such a share or part of a share must be sold by the company in the manner and within the time limits established by Article 24 of this Federal Law.
4. The property transferred by the participant of the company for the use of the company to pay for his share, in the event of withdrawal or exclusion of such a participant from the company, remains in the use of the company for the period for which this property was transferred, unless otherwise provided by the agreement on the foundation of the company.
1. The commented article regulates the payment of shares in the authorized capital of a company. With the adoption of Law No. 312-FZ of 2008, this article has been completely revised. However, the changes for the most part boil down only to the clarification of the terminology used: in order to simplify the wording of the norms, the terms "contribution to the authorized capital", "making contributions" and other derivatives have been replaced by the term "payment of a share in the authorized capital" (this is reflected in the name of the commented articles). At the same time, the Concept for the development of corporate legislation proposed to abandon the detailed regulation of the issues of payment of the authorized capital and provide for mechanisms aimed at obtaining by interested parties information about what assets a legal entity has at a certain time and what is the value of its net assets, which would allow the participants in the turnover to judge the solvency of the legal entity.
In accordance with clause 1 of the commented article, payment for shares in the authorized capital of a company may be carried out in money, securities, other things or property rights or other rights that have a monetary value. Thus, in relation to the payment of shares in the authorized capital of a company, the general norm of Part 1 of Clause 6 of Art. 66 of part one of the Civil Code of the Russian Federation in the previous edition, according to which 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.
By the 2014 Law No. 99-FZ, these provisions of the Civil Code of the Russian Federation were transferred with amendments to clause 1 of the new article 66.1 "Contributions to the property of a business partnership or company" of this Code, which establishes the following: cash, things, shares (shares) in the authorized (joint-stock) capitals of other business partnerships and companies, state and municipal bonds; such contribution may also be exclusive, other intellectual rights and rights under license agreements subject to monetary value, unless otherwise provided by law.
According to paragraph 4 of Art. 129 "Turnover of objects of civil rights" of the first part of the Civil Code of the Russian Federation (clause introduced by Federal Law No. 231-FZ of December 18, 2006), the results of intellectual activity and equated means of individualization (Article 1225) cannot be alienated or transferred from one person in other ways to another; however, the rights to such results and means, as well as material media in which the corresponding results or means are expressed, may be alienated or otherwise transferred from one person to another in the cases and in the manner established by this Code. Clarifications corresponding to these provisions on making contributions to the property of an economic partnership or company were given in clause 17 of the Resolution of the Plenum of the Russian Armed Forces and the Plenum of the Supreme Arbitration Court of Russia of July 1, 1996 No. 6/8 (in accordance with the Resolution of the Plenum of the RF Armed Forces of June 23, 2015 No. 25 these explanations do not apply).
According to part 3, paragraph 1 of Art. 14 of the commented Law, the size of the authorized capital of the company and the nominal value of the shares of the participants in the company are determined in rubles. However, as mentioned in the commentary to this article, this rule does not mean that foreign currency, payment documents in foreign currency or property rights expressed in foreign currency or in conventional monetary units cannot be contributed as payment for shares in the authorized capital of the company ( ecu, "special drawing rights", etc.). At the same time, it must be borne in mind that according to paragraph 2 of Art. 140 of the first part of the Civil Code of the Russian Federation, the cases, procedure and conditions for the use of foreign currency on the territory of the Russian Federation are determined by law or in the manner prescribed by it. In paragraph 3 of Art. 317 of this Code stipulates that the use of foreign currency, as well as payment documents in foreign currency when making settlements on the territory of the Russian Federation for obligations is allowed in the cases, in the manner and on the conditions determined by law or in the manner prescribed by it. Such an act is the Federal Law “On Currency Regulation and Currency Control”.
It should also be borne in mind that with regard to the payment of shares in the authorized capital of companies in the areas of banking and insurance activities, special rules have been established containing additional restrictions.
2. The provisions of clause 2 of the commented article reproduce and develop the general rule of part 2 of clause 6 of Art. 66 of the first part of the Civil Code of the Russian Federation in the previous edition, according to which the monetary value 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 an independent expert review (after the Law of 2014 No. 99- FZ changes, this Code does not contain such provisions). At the same time, in the provisions of paragraph 2 of the commented article, certain analogies with the provisions of paragraphs 2 and 3 of Art. 34 of the Law on Joint-Stock Companies, regulating the transfer of property to a joint-stock company in payment for issued shares.
In accordance with ch. 1 clause 2 of the commented article, the monetary value of the property contributed to pay for the shares in the authorized capital of the company is subject to approval by the decision of the general meeting of the company's participants, adopted by all participants in the company unanimously. A similar rule is contained in paragraph 3 of Art. 34 of the Law on Joint Stock Companies, but for obvious reason only for cases where property is contributed as payment for shares when establishing a joint-stock company (when paying for additional shares with non-monetary funds, the monetary value of the property contributed as payment for shares is made by the board of directors (supervisory board) of the joint-stock company). The rate of part 1, clause 2 of the commented article, as well as the norms of parts 2 and 3 of this clause, is applied in all cases where property is contributed as payment for shares in the authorized capital of the company, and not only when the company is founded. In the previous version of this provision (i.e., before the amendments were made by Law No. 312-FZ of 2008), it was explicitly stated that we are talking about the monetary valuation of non-monetary contributions to the authorized capital of the company made by the company's participants and accepted into the company by third parties. Accordingly, in clause 7 of the Resolution of the Plenum of the RF Armed Forces and the Plenum of the RF Supreme Arbitration Court of December 9, 1999, No. 90/14, attention is drawn to the fact that the rules of clause 2 of the commented article apply both when a company is founded and in cases of an increase in its authorized capital ...
If the nominal value or increase in the nominal value of the share of a company participant in the authorized capital of the company, paid for with non-monetary funds, is more than 20 thousand rubles, then according to part 2 of clause 2 of the commented article, in order to determine the value of this property, it must be mandatory to engage an independent appraiser. Prior to the amendments made by Law No. 312-FZ of 2008, it was said about the amount of more than two hundred minimum wages established by federal law as of the date of submission of documents for state registration of the company or corresponding changes in the charter of the company. Taking into account the provisions of Art. 5 of the Federal Law "On the Minimum Wage", according to which the calculation of payments for civil obligations established depending on the minimum wage is made from January 1, 2001, based on a base amount equal to 100 rubles, it was about the same amount - 20 thousand rubles. The norm of part 2, clause 2 of the commented article is fixed by analogy with the norm of clause 3 of Art. 34 of the Law on JSC, but there is a significant difference between these norms - an independent appraiser must be involved regardless of the amount of payment for shares in non-monetary funds.
At the same time, in part 2 of paragraph 2 of the commented article, by analogy with paragraph 3 of Art. 34 of the Law on JSCs it is established that the nominal value or increase in the nominal value of the share of a member of the company, paid for by such non-monetary funds, cannot exceed the amount of the valuation of the said property determined by an independent appraiser. In other words, the non-monetary funds contributed to the payment of the share of the company participant cannot be set off in the part that exceeds the value of the corresponding property. At the same time, unless otherwise established, the issue of that part of the valuation amount of the relevant property that exceeds the nominal value or an increase in the nominal value of the share of a company participant, paid for by such non-monetary funds, is decided by the company at its own discretion.
Law of 2014 No. 99-FZ, part one of the Civil Code of the Russian Federation was supplemented by article 66.2 "Basic provisions on the authorized capital of a business entity", in part 2, clause 2 of which it is provided that the monetary assessment of a non-monetary contribution to the authorized capital of a business entity must be carried out by an independent appraiser , and also that members of a business entity are not entitled to determine the monetary value of a non-monetary contribution in an amount exceeding the value of the estimate determined by an independent appraiser.
The clause "provided that otherwise is not provided by federal law" is included in part 2 of clause 2 of the commented article by Federal Law No. 217-FZ of August 2, 2009 and is designed for cases that are provided for as a result of changes introduced by this Law to Federal laws of August 22, 1996 No. 125-FZ "On higher and postgraduate vocational education"(New clause 8 of article 27; reproduced in part 2 of article 103 of the Federal Law of December 29, 2012 No. 273-FZ" On education in the Russian Federation ") and of August 23, 1996 No. 127-FZ" On science and state scientific and technical policy "(new clause 3.1, article 5).
We are talking about cases of creation by budgetary scientific institutions and scientific institutions created by state academies of sciences of economic societies, the activities of which are practical application(introduction) of the results of intellectual activity, the exclusive rights to which belong to these scientific institutions, as well as cases of creation by higher educational institutions that are budgetary educational institutions, and the higher educational institutions of business societies created by the state academies of sciences, whose activities are in the practical application (implementation) of the results of intellectual activity, the exclusive rights to which belong to these higher educational institutions... As a contribution to the authorized capital of such economic companies, the right to use the results of intellectual activity is made. Accordingly, it is stipulated that an independent appraiser should evaluate the contribution only if the nominal value (increase in the nominal value) of the share or shares of the member of the economic company in the authorized capital of the economic company, paid for by such a contribution, is more than 500 thousand rubles.
As stipulated in part 3 of clause 2 of the commented article, in the case of payment of shares in the authorized capital of the company with non-monetary funds, the participants of the company and an independent appraiser jointly and severally bear subsidiary liability for its obligations in the event of insufficient property of the company in the amount of overstating the value of the property contributed to pay for shares in capital of the company within three years from the date of state registration of the company or inclusion in the charter of the company provided for by Art. 19 of the commented Law of Amendments. The law on joint-stock companies does not contain a similar norm. The specified three-year period corresponds to the general limitation period established in Art. 196 of the first part of the Civil Code of the Russian Federation. According to clause 9 of Art. 5 of Law No. 312-FZ of 2008, the provisions on special limitation periods and the procedure for calculating them, included by this Law in the commented Law, apply to claims considered after July 1, 2009 (i.e. after the date of entry into force of the 2008 Law No. No. 312-FZ) by a court of general jurisdiction or an arbitration court, regardless of the time of the occurrence of the relevant legal relationship or the grounds for their occurrence. For the concept of joint and several liability, see the commentary to Art. 2 of the Law, and on the concept of subsidiary liability - to Art. 3 Laws.
Part 1, clause 3 of the above-mentioned new article 66.2 of the Civil Code of the Russian Federation established that when paying for shares in the authorized capital of a limited liability company not in cash, but with other property, the participants of the company and an independent appraiser in the event of insufficient property of the company jointly bear subsidiary liability for its obligations within the amount by which the valuation of the property contributed to the authorized capital is overestimated, within five years from the date of the state registration of the company or the introduction of appropriate amendments to the charter of the company.
The legal basis for the regulation of appraisal activities is determined by the Federal Law of July 29, 1998 No. 135-FZ "On appraisal activities in the Russian Federation", which is enshrined in its Art. 2. The concept of "appraisers" in the said Law in accordance with Part 1 of its Art. 4 (hereinafter as amended by Federal Law No. 157-FZ dated July 27, 2006), the subjects of appraisal activities are designated, which are recognized as individuals who are members of one of the self-regulatory organizations appraisers and insured their liability in accordance with the requirements of this Law. According to part 2 of this article, an appraiser can carry out appraisal activities independently, engaging in private practice and also based on employment contract between the appraiser and a legal entity that meets the conditions established by Art. 15.1 of the named Law.
Ensuring property liability in the implementation of valuation activities is regulated by Art. 24.6 of the Federal Law "On Valuation Activities in the Russian Federation", I agree. 1 which losses caused to the customer who entered into a contract for the appraisal, or property damage caused to third parties due to the use of the final value of the market or other value of the appraisal object specified in the report signed by the appraiser or appraisers, are subject to compensation in full at the expense of the appraiser's property, or appraisers who have caused losses or property damage by their actions (inaction) while carrying out appraisal activities, or at the expense of the property of a legal entity with which the appraiser has entered into an employment contract.
The provisions of part 3 of paragraph 2 of the commented article in accordance with paragraph 8 of Art. 37 of the Federal Law of December 21, 2001 No. 178-FZ "On the Privatization of State and Municipal Property" (as amended by the Federal Law of July 11, 2011 No. 201-FZ) do not apply to companies created by privatizing state or municipal unitary enterprises... This rule is also enshrined in part 2 of paragraph 3 of the above-mentioned new article 66.2 of the Civil Code of the Russian Federation: the rules of this paragraph on the liability of a company participant and an independent appraiser do not apply to business companies created in accordance with the laws on privatization by privatizing state or municipal unitary enterprises. In part 4, paragraph 2 of the commented article, by analogy with paragraph 2 of Art. 34 of the Law on JSC provides that the charter of the company may establish the types of property that cannot be contributed to pay for shares in the authorized capital of the company. When applying this provision, it should be borne in mind what was said above that there are restrictions established by laws or other acts on the types of property contributed to pay for shares in the authorized capital of the company. According to the provisions of Part 4p. 2 of the commented article and clause 2 of Art. 34 of the Law on JSCs in clause 2 of Article 66.1 "Contributions to the property of an economic partnership or company" of the first part of the Civil Code of the Russian Federation introduced by Law No. 99-FZ of 2014, it is stipulated that the types specified in clause 1 of this article of property that cannot be contributed to pay for shares in the authorized (joint-stock) capital of a business partnership or company.
3. As already mentioned, in order to pay for a share in the authorized capital of a company, a participant in the company may transfer not the property itself, but the right to use the property for a certain period. In case of termination of the company's right to use property before the expiration of the period for which such property was transferred for use by the company to pay for the share, the rules of part 1 of paragraph 3 of the commented article shall apply:
the participant of the company who transferred the property is obliged to provide the company, at its request, with monetary compensation equal to the payment for the use of the same property on similar conditions during the remaining period of use of the property;
monetary compensation must be provided at a time within a reasonable period of time from the moment the company submits a demand for its provision. At the same time, it is stipulated that by a decision of the general meeting of the company's participants, a different procedure for providing monetary compensation may be established. This decision is made by the general meeting of the company's participants without taking into account the votes of a company participant who transferred the right to use the property to the company to pay for his share, which has terminated ahead of schedule. As follows from the norm of paragraph 8 of Art. 37 of this Law, a decision on this issue is made by a simple majority of votes of the total number of votes of the company's participants (respectively, without taking into account the votes of the specified participant in the company), unless the charter of the company provides for the need for a larger number of votes to make such decisions.
To determine the content of the concept of "reasonable time", it is necessary to refer to the provisions of paragraph 2 of Art. 314 of part one of the Civil Code of the Russian Federation (as amended by Federal Law of March 8, 2015 No. 42-FZ), according to which: in cases where the obligation does not provide for its term
performance and does not contain conditions allowing to determine this period, as well as in cases where the term for the fulfillment of the obligation is determined by the moment of demand, the obligation must be performed within seven days from the date the creditor submits a demand for its performance, if the obligation to perform in another period is not provided by law, other legal acts, conditions of the obligation or does not follow from the customs or the essence of the obligation; if the obligee fails to submit, within a reasonable time, a demand for the performance of such an obligation, the obligor shall have the right to demand from the obligee to accept performance, unless otherwise provided by law, other legal acts, the terms of the obligation, or is not clear from the customs or the essence of the obligation.
In part 2, clause 3 of the commented article, it is indicated that the agreement on the founding of the company or in the case of the founding of the company by one person, the decision on the founding of the company may provide for other methods and another procedure for providing by the participant of the company compensation for the early termination of the right to use the property transferred by him for use to the company for payment of a share in the authorized capital of the company.
In the previous edition of parts 1 and 2 of paragraph 3 of the commented article, that is, before the amendments were introduced by Law No. 312-FZ of 2008, the same rules were contained. The amendments made only take into account that the founders of the company conclude an agreement on the establishment of the company, and not the memorandum of association, which was previously the constituent document of the company (see the commentary to Articles 11 and 12 of the Law). In addition, as already mentioned, the terminology used has been clarified - earlier in the provisions it was said about property, the right to use which was transferred as a contribution to the authorized capital, and not to pay for a share in the authorized capital.
But there is also another change. Law of 2008 No. 312-FZ, clause 3 of the commented article was actually supplemented by part 3, which stipulates that in case of failure to provide compensation within the prescribed period, the share or part of the share in the authorized capital of the company, proportional to the unpaid amount (value) of compensation, is transferred to the company. In addition, it is expressly stated that such a share or part of a share must be sold by the company in the manner and within the time frame that
established by Art. 24 of the commented Law. The need to supplement clause 3 of the commented article with these provisions is predetermined by the fact that the Law of 2008 No. 312-FZ from Art. 23 of the commented Law excluded clause 3, which provided for the transfer to the company of the share of a participant in the company who did not provide in time the monetary or other compensation provided for in clause 3 of the commented article.
It should be noted that the norm of part 3 of paragraph 3 of the commented article provides for a slightly different regulation than that contained in paragraph 3 of Art. 23 of the Law in the previous edition. In paragraph 3 of Art. 23 of the Law, it was indicated that the share of a company participant who did not provide in time the monetary or other compensation provided for in clause 3 of the commented article goes to the company in full (accordingly, the company was obliged to pay the company participant the actual value of a part of his share, proportional to the period, during which the property was in the use of the society). At the same time, it was only assumed that the charter of the company may provide that a part of the share is transferred to the company, proportional to the unpaid amount (value) of compensation. The norm of part 3, clause 3 of the commented article imperatively establishes that in case of failure to provide compensation within the established period, only a part of the share in the authorized capital of the company is transferred to the company, proportional to the unpaid amount (value) of compensation. In these changes, there is an analogy with the provision of paragraph 1 of Art. 34 of the Law on Joint-Stock Companies (hereinafter as amended by Federal Law No. 120-FZ dated August 7, 2001), according to which, in the event of incomplete payment for shares during the deadline the joint-stock company receives the title to only those shares, the placement price of which corresponds to the unpaid amount (the value of the property not transferred in payment for the shares).
4. Clause 4 of the commented article establishes that the property transferred by a participant in the company for use by the company to pay for his share, in the event of withdrawal or exclusion of such a participant from the company, remains in the use of the company during the period for which this property was transferred. This norm is formulated as a dispositive one, it directly states that the agreement on the foundation of the company may provide for other regulation.
The previous version of this clause, that is, prior to the introduction of amendments by the Law of 2008 No. 312-FZ, contained the same norm. The amendments made only take into account that the founders of the company conclude an agreement on the establishment of the company, and not the memorandum of association, which was previously the constituent document of the company (see the commentary to Articles 11 and 12 of the Law). In addition, as already mentioned, the terminology used has been clarified - earlier in the norm it was said about property, the right to use which was transferred as a contribution to the authorized capital, and not to pay for a share in the authorized capital.
Procedure for Payment of Shares in the Authorized Capital of a Company upon Its Establishment
1. Each founder of a company must pay in full his share in the charter capital of the company within a period determined by the agreement on the foundation of the company or, in the case of the foundation of the company by one person, by the decision on the foundation of the company. The term for such payment cannot exceed four months from the date of state registration of the company. In this case, the share of each founder of the company can be paid at a price not lower than its nominal value.
It is not allowed to release the founder of the company from the obligation to pay for a share in the authorized capital of the company.
2. Abolished.
3. In case of incomplete payment of the share in the authorized capital of the company within the period determined in accordance with paragraph 1 of this article, the unpaid part of the share shall be transferred to the company. Such part of the share must be sold by the company in the manner and within the time limits established by Article 24 of this Federal Law.
End of introductory snippet.
3. In the event of the insolvency (bankruptcy) of the company through the fault of its participants or through the fault of other persons who have the right to give instructions binding on the company or otherwise have the opportunity to determine its actions, the said participants or other persons may be assigned subsidiary liability for its obligations.
3.1. Exclusion of a company from the unified state register legal entities in the manner prescribed by the federal law on state registration of legal entities for inactive legal entities, entails the consequences provided for by the Civil Code of the Russian Federation for the refusal of the main debtor to fulfill the obligation. In this case, if the failure to fulfill the company's obligations (including as a result of harm) is due to the fact that the persons specified in paragraphs 1 - 3 of Article 53.1 of the Civil Code of the Russian Federation acted in bad faith or unreasonably, at the request of the creditor, such persons may be imposed subsidiary responsibility for the obligations of this society.
4. The Russian Federation, the constituent entities of the Russian Federation and municipal formations are not liable for the obligations of the company, just as the company is not liable for the obligations of the Russian Federation, the constituent entities of the Russian Federation and municipal formations.
Judicial practice under article 3 of the Federal Law of 08.02.1998 No. 14-ФЗ
- participate in the management of the affairs of the company in the manner prescribed by this Federal Law and the constituent documents of the company;
- receive information about the activities of the company and get acquainted with its accounting books and other documentation in accordance with the procedure established by its constituent documents;
- take part in the distribution of profits;
- sell or otherwise cede his share in the authorized capital of the company or part of it to one or several participants in this company in the manner prescribed by this Federal Law and the charter of the company;
- leave the company at any time, regardless of the consent of its other participants; to receive, in the event of liquidation of the company, a part of the property remaining after settlements with creditors, or its value.
- to make contributions in the manner, in the amount, in the composition and within the terms provided for by this Federal Law and the constituent documents of the company;
- not to disclose confidential information about the activities of the company.
- 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 are the exclusive competence of the general meeting of the company's participants, on the procedure for making decisions by the company's bodies, including on issues on which decisions are taken unanimously or by a qualified majority;
- information on the size of the authorized capital of the company;
- information on the size and par value of the share of each participant in the company;
- the rights and obligations of the members of the company;
- information on the procedure and consequences of the withdrawal of a member of the company from the company;
- information on the procedure for the transfer of a share (part of a share) in the authorized capital of the company to another person;
- information on the procedure for keeping the company's documents and on the procedure for providing information by the company to members of the company and other persons;
- other information provided for by this Federal Law.
- until the full payment of the entire authorized capital of the company;
- before the payment of the actual value of the share (part of the share) of the participant in the company in the cases provided for by this Federal Law;
- if at the time of making such a decision the company meets the signs of insolvency (bankruptcy) in accordance with the federal law on insolvency (bankruptcy) or if these signs appear in the company as a result of making such a decision;
- if at the time of such a decision, the value of the company's net assets is less than its authorized capital and reserve fund, or becomes less than their size as a result of such a decision;
- if at the time of payment the company meets the signs of insolvency (bankruptcy) in accordance with the federal law on insolvency (bankruptcy) or if the indicated signs appear in the company as a result of the payment;
- if at the time of payment, the value of the company's net assets is less than its authorized capital and reserve fund, or becomes less than their size as a result of payment;
- in other cases stipulated by federal laws.
- if the procedure for filing a request to hold an extraordinary general meeting of participants in the company established by this Federal Law has not been observed;
- if none of the issues proposed for inclusion in the agenda of the extraordinary general meeting of the company's participants falls within its competence or does not comply with the requirements of federal laws.
- are a party to the transaction or act in the interests of third parties in their relationship with society;
- own (each individually or in aggregate) twenty or more percent of the shares (stakes, shares) of a legal entity that is a party to the transaction or acts in the interests of third parties in their relations with the company;
- hold positions in the management bodies of a legal entity that is a party to the transaction or acts in the interests of third parties in their relations with the company;
- in other cases determined by the charter of the company.
- about legal entities in which they, their spouses, parents, children, brothers, sisters and (or) their affiliates own twenty or more percent of shares (shares, shares);
- about legal entities in which they, their spouses, parents, children, brothers, sisters and (or) their affiliates hold positions in management bodies;
- on the transactions they are aware of, performed or proposed, in the performance of which they may be deemed interested.
- the constituent documents of the company, as well as amendments and additions made to the constituent documents of the company and registered in accordance with the established procedure;
- minutes (minutes) of the meeting of the founders of the company, containing the decision on the creation of the company and on the approval of the monetary value of non-monetary contributions to the charter capital of the company, as well as other decisions related to the creation of the company;
- a document confirming the state registration of the company;
- documents confirming the rights of the company to the property on its balance sheet; internal documents of the company;
- regulations on branches and representative offices of the company;
- documents related to the issue of bonds and other equity securities of the company;
- minutes of general meetings of members of the company, meetings of the board of directors (supervisory board) of the company, the collegial executive body of the company and the audit commission of the company;
- lists of affiliated persons of the company;
- conclusions of the audit commission (auditor) of the company, auditor, state and municipal bodies of financial control;
- other documents provided for by federal laws and other legal acts of the Russian Federation, the company's charter, internal documents of the company, decisions of the general meeting of the company's participants, the board of directors (supervisory board) of the company and the executive bodies of the company.
- first of all, the payment to the participants of the company of the distributed but unpaid part of the profit is carried out;
- in the second place, the distribution of the property of the liquidated company between the participants in the company is carried out in proportion to their shares in the authorized capital of the company.
Determination of May 31, 2019 in case No. A50-9561 / 2018
Supreme Court of the Russian Federation
Constructions ", collecting from the defendants jointly and severally in favor of the plaintiff debt in the amount of 10 164 711 RUB. 72 kopecks for the obligations of the company "TD" ZSK "on the basis of clause 3. 1 of Article 3 of the Federal Law of 08.02.1998 No. 14-FZ "On Limited Liability Companies" (taking into account the clarification of the claims adopted by the court in accordance with Article 49 ...
Decision of January 9, 2019 in case No. А76-20349 / 2018
Arbitration court Chelyabinsk region(AS of the Chelyabinsk region)
Joint Stock Company Trubodetal, OGRN 1027402894584, Chelyabinsk, to Ivanov Anton Aleksandrovich, Chelyabinsk, Olga Evgenievna Grigorieva, Chelyabinsk, for the collection of jointly and severally by way of subsidiary liability 3,165,809 rubles. 33 kopecks, with the participation of representatives in the court session: the plaintiff: G.A. Zotova, acting on the basis of a power of attorney dated 11/14/2017, identity certified by a passport, ESTABLISHED: ...
Decision of January 9, 2019 in case No. А78-16698 / 2018
Arbitration Court of the Trans-Baikal Territory (CA of the Trans-Baikal Territory)
2 of Article 61 of the Civil Code of the Russian Federation, a legal entity can be liquidated by decision of its founders (participants) or a body of a legal entity authorized to do so by the constituent documents. Clause 3. 1 article 3 of Law No. 14-FZ provides that the exclusion of a company from the unified state register of legal entities in the manner prescribed by the federal law on state registration of legal entities for ...
Resolution of January 9, 2019 in case No. A27-8490 / 2018
Seventh Arbitration Court of Appeal (7 AAC)
Leave unchanged, appeal - no satisfaction. Other persons participating in the case did not submit responses to the appeal. In accordance with part 1 of article 266, part 3 of article 156 of the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation), the court considers it possible to consider an appeal in the absence of representatives of other persons participating in the case. After examining the case materials, ...
Resolution of January 9, 2019 in case No. А32-51742 / 2017
Fifteenth Arbitration Court of Appeal (15 AAC)
Or other persons who have the right to give instructions binding on a limited liability company or otherwise have the opportunity to determine its actions are given in Art. 3 of the Federal Law of 08.02.1998 No. 14-FZ "On Limited Liability Companies" and constitute cases of insolvency (bankruptcy) of a company or exclusion of a company from the unified state register of legal ...
Decision of December 29, 2018 in case No. A56-120466 / 2018
Arbitration Court of St. Petersburg and the Leningrad Region (AS of St. Petersburg and the Leningrad Region)
A legal entity from the unified state register of legal entities entails legal consequences provided for by the Civil Code of the Russian Federation and other laws in relation to liquidated legal entities. By virtue of clause 3. 1 Article 3 of the Federal Law of 08.02.1998 No. 14-FZ "On Limited Liability Companies" (hereinafter referred to as Law No. 14-FZ), the exclusion of the company from the unified state register of legal ...
Decision of December 29, 2018 in case No. A27-18103 / 2018
Arbitration Court of the Kemerovo Region (CA of the Kemerovo Region)
A legal entity from the Unified State Register of Legal Entities entails the legal consequences provided for by this Code and other laws in relation to liquidated legal entities. By virtue of clause 3. 1 of Article 3 of the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies", the exclusion of the company from the Unified State Register of Legal Entities in the ...
Article-by-article commentary to the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies"
Chapter I. General Provisions
Article 1. Relations governed by this Federal Law
1. This Federal Law determines, in accordance with the Civil
the code of the Russian Federation, the legal status of a limited liability company,
the rights and obligations of its participants, the procedure for creation, reorganization and liquidation
society.
2. Features of the legal status, the procedure for creation, reorganization and
liquidation of limited liability companies in the areas of banking, insurance
and investment activities, as well as in the production of agricultural
products are determined by federal laws.
For the specifics of creating credit institutions, see the Law "On Banks and Banking
Commentary on Article 1.
1. Federal Law "On Limited Liability Companies" (hereinafter
Law; the commented Law) was developed in accordance with the Civil Code (clause 3 of Article 87 of the Civil Code)
and is applied in combination with it, as well as with other legislative acts,
supplementing and developing the provisions of the Code, thus creating a legal
the basis for the formation and operation of these companies. Clause 1 of Article 1 lists
main issues regulated by the Law: legal status of a limited company
creation, reorganization and liquidation of the company. At the same time, the Law contains a significant
attention is paid to the requirements for persons acting as its founders;
the procedure for the adoption and content of constituent documents; formation of statutory
the capital of the company; organization of management of the company and control over its activities
and others. A significant place is occupied by the norms that determine the rights of participants in society,
ways to protect them, including the right to leave society (Article 26), the preferential
the right of participants to acquire shares in the authorized capital, alienated by others
participants (Article 21). Measures are envisaged to ensure economic
stability of society, protection of its interests, establishing, in particular,
restrictions on the distribution of the company's profits between its participants in cases where
when it can lead to negative consequences for him, including
insolvency (Article 29 of the Law); provides for the responsibility of persons holding
leading positions in the management bodies of the company, for harm (losses) caused
him by the guilty actions or inaction of these persons (Article 44 of the Law), etc.
The norms of the Law are based not only on those provisions of the Civil Code, which are contained
in the articles directly regulating the principles of creation and operation of the considered
societies (Articles 87-94 of the Civil Code), but also for general rules on legal entities (Articles 48-65 of the Civil Code),
as well as about business entities (Articles 66-68 of the Civil Code).
The law applies to both previously created companies, as well as
and for those formed after its entry into force. The law also regulates the activities
limited liability partnerships (see Article 13 of the RSFSR Law of 25
December 1990 "On enterprises and entrepreneurial activity"), which
part one of the Civil Code of the Russian Federation "from the moment of entry
responsibility and must bring their constituent documents in line
with the norms of the Civil Code within the time frames provided for by this Law (see Article 59 of the commented
Law). In addition, many of the provisions of the Law apply to societies with additional
responsibility. As indicated in paragraph 3 of Art. 95 of the Civil Code, the rules on
limited liability company insofar as not otherwise provided
named article *.
According to clause 2 of article 48 of the Civil Code, participants in a limited liability company
have contractual rights in relation to him, but the scope of these rights and methods
their implementation is significantly different from the rights of obligation that bind
shareholders and joint stock company. Shares of participants in a limited company
liability in the authorized capital can be (and are) different. They are defined
in the constituent documents of the company as a percentage (or as a fraction) to its total
size. In this case, the actual value of the share corresponds to a part of the value
net assets of the company, proportional to its size (clause 2 of article 14 of the Law), and,
therefore, at any moment can be determined in monetary terms.
When a participant leaves a limited liability company, the last
is obliged to pay him the actual value of his share (or give the property
in kind of the same value - in the manner and within the time limits established by the Law).
A shareholder, as you know, cannot declare to the company about his withdrawal from
him and demand the return (or other compensation) of the shares contributed to the payment
funds. Withdrawal from such a company is possible only through the sale of shares or alienation
them in another way. (The shareholder has the right to a certain share in the property of the company
can appear only when it is eliminated). But the shareholder is at the same time more
is free to alienate the shares belonging to him (especially in an open company),
in obtaining income due to the exchange rate difference in their market value(at
favorable situation in the stock market), etc.
2. The effect of the commented Law extends to societies created
in any spheres of production and economic, commercial activities... Together
with the same paragraph 2 of the commented article provides that the features of the legal
regulations, procedure for the creation, reorganization and liquidation of companies in the banking sector,
insurance and investment activities, as well as in the field of agricultural production
products are determined by other federal laws.
The most developed system of special regulation of the procedure for creating
and the activities of banks and other credit institutions. Banking activities
regulated by the Banking Law and the CBR Law. Banking Law establishes
requirements for legal entities and individuals acting
as founders of credit institutions (hereinafter referred to as banks), first of all
regarding their economic viability and reliability; provided,
that the authorized capital of the bank to be created must be at least the minimum amount,
determined by the Bank of Russia (Article 11); limited legal capacity of banks -
they are prohibited from engaging in industrial, trade and insurance activities
(Article 5); a special procedure for registering banks and licensing their activities has been established
The Bank of Russia (Articles 12-17 of the Banking Law); the control functions of the Bank are defined
Russia in relation to commercial banks and a number of other special rules. Rights
Bank of Russia on banking regulation and control
for commercial banks are also defined by the Law on the CBR (see Articles 55-76). Him
granted broad powers to issue regulations governing
the activities of commercial banks (in addition to the named laws and in the established
within them). Among the Bank of Russia regulations affecting significant
issues of legal regulation of banking structures, one can call the Instruction
licensing of banking activities "(RG. 1996. N 211, 220, 230); Regulation
on the specifics of the reorganization of banks in the form of mergers and acquisitions, approved by
acts contain many rules applicable to any commercial banks, therein
including operating in the form of limited liability companies.
organization of insurance business "(Vedomosti RF. 1993. N 2. Art. 56; SZ RF. 1998.
No. 1. Article 4). Special legislation limits the legal capacity of insurance
organizations - they cannot be engaged in production, trade and intermediary
and banking; there is a special licensing procedure
insurance activities; measures to ensure financial stability
insurers. In order to guarantee their solvency, insurers are obliged,
for example, to comply with regulatory relationships between assets and assets accepted by them
undertake obligations (Article 27). Control functions in relation to insurance
organizations are carried out by the federal executive body for supervision
for insurance activities, entitled to publish regulations specifying
norms of the law.
in the RSFSR "(Bulletin of the RSFSR. 1991. N 29. Art. 1105) does not contain norms defining
features of the creation and legal status of companies operating in the investment
sphere. Presumably, they will be reflected in the new investment law,
work on which is underway.
When creating companies in the investment field, prior to the adoption of the appropriate
of the law should be guided by the existing by-laws that define
the procedure for licensing their activities, establishing limited legal capacity.
There is still no federal law that defines the features of the legal status
societies engaged in agricultural production. To those of them
which were created on the basis of reorganized collective and state farms can be applied
the relevant provisions of the decrees of the President of the Russian Federation and decrees of the Government
RF, which determine the procedure for the formation and operation of new agricultural
measures to implement land reform in the RSFSR "(Vedomosti RF. 1992. N 1.
reorganization of collective and state farms "(SP RF. 1992. N 1-2. Art. 9); Regulations on
reorganization of collective farms, state farms and privatization of state agricultural
g. N 708 (CA RF. 1992. N 12. Art. 93) and a number of others. Attention should be paid
that the commented Law, indicating the possibility of special regulation
certain issues of creating and operating societies in the field of agricultural
production, does not name the society, busy with service agricultural
manufacturers, construction of inter-farm organizations, processing
certain types of agricultural products, as provided for in clause 4
Article 5 of the Law on Joint Stock Companies. Based on this, a limited company
liability, not directly engaged in agricultural activities,
and serving agricultural producers should be guided by
this Law without any exceptions.
Clause 2 of Article 2 of the Law lists a limited range of issues that can be
regulated in special federal laws, - features of the legal status,
the procedure for the creation, reorganization and liquidation of companies operating in certain
spheres. Therefore, in everything else, these societies should be guided by
the general norms of the Law, including those determining ways of protecting the rights of shareholders
and the interests of society.
3. A company, like any legal entity, is considered to be created from the moment
its state registration. The procedure for its conduct must be established
federal law on state registration of legal entities (Article 51 of the Civil Code).
Until the adoption and enactment of such a law, the previously established
order (see Article 8 of the Law "On the Enactment of Part One of the Civil
Code of the Russian Federation "). It is defined by Articles 34 and 35 of the Law" On enterprises
and entrepreneurial activity ", which are still valid, as well as
Regulations on the procedure for state registration of business entities
activities. Companies established in banking, insurance and investment
spheres are registered in the manner prescribed by special legislation.
(For more details, see the commentary to Article 13 of the Law.)
The company is created without limiting the period of its activity, unless otherwise
not provided for by the charter of the company.
4. To carry out activities, the company needs a bank
accounts (accounts). The law provides for the right of the company to open accounts for both
the territory of the Russian Federation and beyond. Legal
persons, including business entities, on the territory of the Russian Federation,
usually commercial banks. When opening an account between a company (client)
and the bank draws up a bank account agreement (see article 845-859 of the Civil Code), which
the rights and obligations of the parties, the procedure for the disposal of funds are determined,
on the account, transactions performed by the bank on the account, etc. Detailed
regulation of the procedure for opening accounts is given in by-laws.
1986 N 28 "On settlement, current and budget accounts in the institutions of the State Bank
Accounts in foreign banks can be opened by Russian legal entities
persons with the permission of the Bank of Russia.
5. The society must have a seal. Clause 5 of Article 2 defines data that
should be reflected in it: the full corporate name of the company in Russian
language and location of the society. This norm is peremptory, and retreat
society is not entitled to it. At the same time, the seal may contain its proprietary
name in any language of the peoples of the Russian Federation and in a foreign language.
The question of the need for these designations is decided by the society as an option.
The company also has the right to have stamps and letterheads with its company name,
own emblem, duly registered trademark.
The procedure for registration, use and protection of trademarks is determined by the Law
places of origin of goods "(Vedomosti RF. 1992. N 42. Art. 2322).
Article 2. Basic provisions on limited liability companies
1. A limited liability company (hereinafter referred to as the company) is
a business company established by one or more persons, statutory
whose capital is divided into shares determined by the constituent documents
sizes; members of the company are not responsible for its obligations and bear the risk
their contributions.
The members of the company who have made contributions to the charter capital of the company not in full,
are jointly and severally liable for his obligations within the value
unpaid part of the contribution of each of the participants in the company.
2. The company owns separate property, which is accounted for
on its own balance sheet, can, on its own behalf, acquire and carry out
property and personal non-property rights, bear obligations, be a plaintiff
and a defendant in court.
Society can have civil rights and bear civil obligations,
necessary for the implementation of any activities not prohibited by federal
laws, if this does not contradict the subject and goals of the activity, definitely
limited charter of the company.
Certain types of activities, the list of which is determined by the federal
the law, the company can only engage in a special permit
(licenses). If the conditions for granting a special permit (license)
there is a requirement for the implementation of a certain type of activity
carry out such activities as an exclusive, company for a period
actions of a special permit (license) may only be carried out
activities provided for by a special permit (license), and related
activities.
3. The company is considered to be created as a legal entity from the moment of its state
registration in the manner prescribed by the federal law on state
registration of legal entities.
The company is created without any time limit, unless otherwise established by it.
4. The company has the right to open bank accounts in accordance with the established procedure
on the territory of the Russian Federation and abroad.
5. The company must have a round seal containing its full corporate identity
name in Russian and an indication of the location of the company. Seal
company may also contain the company name of the company in any language
peoples of the Russian Federation and (or) a foreign language.
The company has the right to have stamps and letterheads with its company name,
own emblem, as well as a registered trademark
sign and other means of individualization.
Commentary on Article 2.
1. Clause 1 of Article 2 provides a definition of a limited liability company,
coinciding with that contained in clause 1 of article 81 of the Civil Code. It lists the main features
limited liability companies. However, a number of provisions complementing
the legal characteristics of the society in question, is contained in other norms
Civil Code and Law. Let us name the main features of society that make it possible to distinguish it into an independent
organizational and legal form of a legal entity and reflecting its legal
position:
1) a limited liability company is one of the varieties
business entities, created, as a rule, by pooling capitals
individual legal entities and individuals founders (participants) in order to implement
entrepreneurial activity. The society is a commercial organization,
that is, one whose activities are focused on making a profit (see.
Articles 50, 66 of the Civil Code);
2) the company may be founded by one or several persons. Wherein,
however, the number of its founders cannot be more than fifty maximum number
participants, established by clause 3 of article 7 of the Law. Moreover, society cannot
have, as the sole founder (participant), another economic
a society consisting of one person (clause 2 of article 88 of the Civil Code, clause 2 of article 7 of the Law);
3) the authorized capital of the company, formed at the expense of the contributions of its founders
(participants), divided into shares of sizes determined by the constituent documents.
The sizes of shares belonging to each participant are fixed in the constituent
the agreement and in the charter of the company;
4) a limited liability company is not entitled to issue shares
(Clause 7, Article 66 of the Civil Code). The rights of a participant in relation to the company are determined by its constituent
documents, taking into account the amount of the contribution made in accordance with the norms of the Civil Code
and the Law;
5) the members of the company are not responsible for its obligations and bear the risk
losses associated with the activities of the company, within the value of the contributed
their contributions. This is a universal position; it defines the principles of the relationship
in business companies, including joint stock companies, except for companies with additional
responsibility (see article 95 of the Civil Code).
At the same time, the law provides that participants who have made contributions to
the authorized capital of the company is not completely, are jointly and severally liable for
his obligations within the value of the unpaid part of the contribution. This
the norm is based on the obligation of participants to pay in full their contribution to
the term determined by the constituent documents of the company, but no later than a year
from the moment of its creation (clause 1 of article 16 of the Law). Therefore, the responsibility of the shareholder
for the company's obligations within the unpaid part of its share in the charter
capital is essentially its responsibility for its debt (statutory
capital is considered as the minimum amount of property that guarantees the interests
creditors of the company - Article 14 of the Law). In case of joint liability, the creditor
has the right to demand debt repayment from all debtors jointly or from each
of them separately (Article 323 of the Civil Code). Creditors may submit to the members of the company
claims only in terms of the share not paid by each of them;
6) a limited liability company, although based on an association
capital (like any business company) and does not provide for mandatory
participation of the persons creating it in the production, economic, commercial
activities of society, presupposes, at the same time, the establishment of closer
corporate and economic relations between its participants and society than,
say, in a joint-stock company, which manifests itself in: a special procedure for joining a company
with limited liability; limitation of acceptance permitted by law
new faces to its composition; the possibility of redemption by the company of the share belonging to the participant;
the participant's right to leave the company with payment of the actual value
its share and a number of other features characteristic of these structures.
At the same time, limited liability companies are quite close to closed
joint stock companies. Moreover, the commented Law takes into account some issues,
the need to solve which was revealed in the practice of applying the Law on Joint Stock
societies.
2. In clause 2 of the commented article, the main provisions (signs) are fixed,
necessary for the company to acquire the status of a legal entity:
a) a limited liability company owns a separate
property recorded on an independent balance sheet. The source of formation
it is, as already noted, the funds contributed by the founders (participants)
companies as a contribution to the authorized capital, as well as property acquired
on other grounds provided for by law - as a result of production and economic,
commercial activities, etc. (Article 218-219 of the Civil Code).
As contributions to the property of a business entity in accordance
from article 48 and paragraph 2 of article 213 of the Civil Code, cash and other material
values, as well as property or other rights that have a monetary value.
The Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation in the Resolution of the Plenums N 6/8
clarified that the object cannot be transferred directly as a contribution
intellectual property (patent, copyright, including program
Computer, etc.) or "know-how", but the right to use such an object, transferred
society in accordance with the license agreement, can be accepted as a contribution
At the same time, society can own the things created by it in the process of its
activities, objects of intellectual property - the right to industrial
samples, certain technologies, trademark, etc .;
b) the company may, on its own behalf, acquire and exercise property
and moral rights. This is manifested in the implementation of the rights of the owner
on the ownership, use and disposal of property for the satisfaction of their own
needs, conducting production economic activity, in charity
and other purposes. The company can conclude transactions for the alienation of its own property
and the acquisition of a new one (contracts of purchase and sale, exchange, donation); transferring its
property for rent or for temporary use (under a loan agreement); hand over
it as a pledge, to make as a contribution to the authorized capital of other economic
societies, etc.
These rights are exercised by the company freely, except in cases where
when legal restrictions apply. So, Article 575 of the Civil Code does not allow donation
commercial organizations of property to each other and employees of state
bodies and bodies of municipalities in connection with the execution of their
duties (the exceptions are ordinary gifts of small value).
use by a person who is a founder, a member of this organization,
as well as its director, a member of a collegial governing or supervisory body.
Transactions made in violation of these restrictions are void
by virtue of Article 168 of the Civil Code.
The company bears obligations related to the exercise of the rights of the owner,
Caring for the maintenance of his property (Articles 209, 210 of the Civil Code), with the implementation
obligations under contracts and other transactions, etc. At the same time, it must
carry out without violating the rights and legitimate interests of other persons (Article 10 of the Civil Code);
c) another sign of a legal entity is the right to be a plaintiff and
the defendant in court. The right to judicial protection is provided for by Article 11 of the Civil Code. Order
appearing in court as a plaintiff and a defendant is determined by the Arbitration and
Civil Procedure Codes (see APC and Code of Civil Procedure).
As a commercial organization, a company in accordance with Article 49 of the Civil Code
and paragraph 2 of the commented article has general legal capacity, that is, it can
have civil rights and bear the civil obligations necessary to exercise
any activities not prohibited by law. In the commented article
along with this, it is noted that the activities of society should not contradict
subject and purpose, definitely limited in the charter of the society. Such restrictions
can be established in the charter by decision of either the founders (when creating a company),
or a general meeting of participants (by making amendments and additions to the charter),
based on the goals for the implementation of which this society is created. Necessary
at the same time, that the corresponding restrictions on the types of activities are clearly
reflected in the charter - by indicating in it an exhaustive (complete) list
or the inclusion in the charter of a clause that prohibits certain activities,
etc. (see clause 18 of the Resolution of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation N 6/8). Committing
by the company of transactions contrary to the objectives of the activity, definitely limited
in its constituent documents, is the basis for the recognition by the court of their
invalid at the claim of this company, its founder (participant) or state
the body supervising the activities of this legal entity,
if it is proven that the other party to the transaction knew or knowingly should have
to know about its illegality (Article 173 of the Civil Code). Execution of transactions in connection with the lesson
activities prohibited by law or with other violations of the law and other
legal acts entail their recognition as null and void on the basis of Article 168 of the Civil Code.
Certain types of activities, the list of which should be determined
federal law, society can only be engaged on the basis of a special
permits (licenses). Prior to the enactment of the licensing law, there are rules
"On licensing of certain types of activities" (SZ RF. 1995. N 1. Art. 69).
He determined the list of licensed types of activities, bodies authorized
carry out licensing, the procedure for registration and issuance of licenses. Banking,
insurance and investment activities are licensed in accordance with the rules,
established by special legislation (see the commentary to paragraph 2 of article 1 of the Law).
The license indicates the type of activity, the occupation of which is permitted,
and, as a rule, its duration. To carry out activities by certain
specialized organizations, such as banks, licenses are issued without
time limits (see Article 13 of the Banking Law). License is not transferable
to other persons.
In cases where a license is issued to engage in any activity
as exclusive, the company is not entitled to engage in another
activities. Violation of this rule is the basis for recognition
transactions that go beyond the special legal capacity of this legal
persons invalid.
The legislation specifies cases when a refusal to issue a license is possible,
its suspension or cancellation (see Article 16 of the Banking Law,
clauses 4 and 9 of the Procedure for conducting licensing activities, approved by the decree
in the issuance of a license, suspension or revocation is
comprehensive. Unjustified refusal (suspension, revocation of the license)
can be appealed to an arbitration court in accordance with Article 22 of the APC.
Since the limited liability company has general legal capacity,
Except for the cases noted above - he cannot be denied a license
(With general legal capacity, there is no need to list in the constituent
documents all types of activities that a legal entity may engage in.)
In case of refusal to issue it for this reason (due to the lack of instructions in the charter
regarding the implementation of certain activities), the company has the right to appeal
refusal in court as unlawful (see paragraph 2, paragraph 18 of the Resolution of the Plenums
RF Armed Forces and RF Supreme Arbitration Court N 6/8).
A transaction made by a company in the absence of a license (after the expiration of the
her actions), can be challenged and invalidated (Article 173 of the Civil Code).
Engaging in licensed activities without appropriate
permits (licenses), as well as activities prohibited by law, or with
repeated or gross violations of the law is in accordance
with clause 2 of article 61 of the Civil Code, the basis for filing a claim for liquidation in an arbitration court
legal entity (see also Article 13 of the Banking Law). With such claims, the right
contact prosecutors, tax authorities, in relation to commercial
banks - the Bank of Russia, as well as a body that carries out state registration
1997 N 23 - Bulletin of the Supreme Arbitration Court of the Russian Federation. 1998. N 2. Article 64).
Article 3. Responsibility of society
1. The company is responsible for its obligations to all
his property.
2. The company is not responsible for the obligations of its members.
3. In the event of insolvency (bankruptcy) of the company due to the fault of its participants
or through the fault of other persons who have the right to give obligatory for society
instructions or otherwise have the ability to determine his actions, on the specified
participants or other persons in the event of insufficiency of the company's property may
be assigned subsidiary liability for its obligations.
4. Russian Federation, constituent entities of the Russian Federation and municipal
entities are not responsible for the obligations of society, as well as
and the company is not responsible for the obligations of the Russian Federation,
subjects of the Russian Federation and municipalities.
Commentary on Article 3.
1. The provision of clause 1 of the commented article that the company is responsible
for his obligations with all property belonging to him, corresponds to clause 1
Article 56 of the Civil Code on liability of legal entities. It should be emphasized that responsibility
the companies in question are no less than other commercial organizations,
and the definition of "limited liability" has a different meaning.
It means that the participants of such a company are not responsible for its debts belonging to
property (with the exception of one case), their risk, as already noted,
limited by the size (value) of contributions made to the authorized capital
society. This distinguishes the position of members of a limited liability company
from the position of participants in general partnerships (see clause 2 of article 75 of the Civil Code), companies with an additional
responsibility (see clause 1 of article 95 of the Civil Code) and production cooperatives (see clause 2
Article 107 of the Civil Code), which, under certain conditions, bear subsidiary liability
under the obligations of a legal entity, the participants (members) of which they are.
The property of a limited liability company, which may
to be foreclosed on his obligations, includes cash,
his securities (for example, bonds) and other circulating assets
(including stocks of raw materials, materials, finished goods and so on, for which
foreclosure may be levied if the company lacks funds),
as well as fixed assets, including real estate. The property includes,
as already mentioned, cash and other material values contributed by
participants in payment of their share in the authorized capital of the company. They also
become the property of the company (clause 1 of article 66 of the Civil Code), and therefore they are addressed
collection of his debts. There is only one exception; it is associated with those cases
when not a thing is transferred as a contribution (share) to the authorized capital of the company
as such, but only the right to use it for a certain period (for example,
the right to use the premises owned by the participant). It cannot be
foreclosure was levied on the company's debts (by alienating it to cover the specified
debts), since this thing continues to be the property of the person,
who provided it for use. (See paragraph 17 of the Resolution of the Plenums of the RF Armed Forces and
Supreme Arbitration Court of the Russian Federation N 6/8.)
The composition of the property, which can be foreclosed on obligations
society is determined on the basis of its balance. When foreclosure on real estate
the belonging of a particular object to society is also determined by the data of the state
registration of real estate and transactions with it "- SZ RF. 1997. N 30. Article 3594).
The foreclosure is made in the manner established by law about
enforcement proceedings.
2. The company is not responsible for the obligations of its members. It is fixed
in the commented Law, the rule follows from general principles demarcations
civil liability - each subject of civil relations
is independently responsible for its obligations.
3. Paragraph 3 of the commented article establishes an exception from the general rule
that the members of the company are not liable for its debts. In him
we are talking about cases of insolvency (bankruptcy) of the company for
the fault of its participants or other persons who have the right to give mandatory
instructions for him or otherwise determine his actions. In case of insufficiency
property of the company to pay off their debts they can be assigned
subsidiary, that is, additional, liability (in the manner prescribed
Article 399 of the Civil Code). Collection on the property of these persons may be levied in that
part in which debts are not covered by the company's own property
with limited liability. The persons named in this paragraph include
participants, as well as other persons included in the management bodies of the company and endowed
relevant powers, as well as participants holding a significant share
in the authorized capital and thus having the ability to provide decisive
influence on decision-making by the general meeting. The question of whether there is a specific fault
the person in bringing the company to insolvency (bankruptcy) is decided in accordance
from article 401 of the Civil Code, where the criteria for determining it are given. For losses incurred as a result
acceptable business risk, persons who have taken the appropriate
solution, do not answer.
4. Clause 4 reproduces the general provision of civil legislation,
according to which the state and its organs are not responsible for the obligations
legal entities (except for cases of liability provided for by law
on the obligations of state enterprises and government agencies- Article 115,
120 GK), and legal entities are not liable for the obligations of the state and its
bodies, constituent entities of the Russian Federation and municipalities.
Article 4. Company name of the company and its location
1. The company must have full and have the right to have an abbreviated corporate
name in Russian. The company also has the right to have full and (or)
abbreviated corporate name in the languages of the peoples of the Russian Federation
and (or) foreign languages.
The full corporate name of the company in Russian must contain
the full name of the company and the words "limited liability". Abbreviated
the company name of the company in Russian must contain the full or
abbreviated name of the company and the words "limited liability"
or the abbreviation LLC.
The firm name of the company in Russian may not contain other
terms and abbreviations reflecting its organizational and legal form, including
including borrowed from foreign languages unless otherwise provided by federal
laws and other legal acts of the Russian Federation.
registration. The constituent documents of the company may establish that
the location of the society is the place of permanent location of its organs
management or its main place of business.
communication, and is obliged to notify the authorities carrying out state registration
legal entities, about changing their mailing address.
Commentary on Article 4.
1. In accordance with clause 4 of article 54 of the Civil Code, a legal entity that is a commercial
organization must have a corporate name. The law provides
that the company should have a full and entitled to have an abbreviated company name
in Russian, that is, the state language of the Russian Federation. It
may also use the appropriate name (full and abbreviated)
in the languages of the peoples of the Russian Federation and foreign languages. This issue is being resolved
at the discretion of the society.
The full name of the company must contain words indicating
on its organizational and legal form - "limited liability company",
as well as the name of the society that individualizes it. For example, a limited company
the responsibility of "Quant". The abbreviated name can be used
the abbreviation "OOO". The law prohibits the inclusion in the company name of the company
in Russian, other terms and abbreviations reflecting its organizational and legal
form, including borrowed from foreign languages (for example, "Ltd",
"GmbH"), unless otherwise provided by federal laws and other legal
acts of the Russian Federation.
The company chooses the brand name independently, but in compliance with
certain rules and some restrictions: a) it cannot use
the name under which another legal entity is registered (the same
organizational and legal form); 6) in the name of some commercial organizations,
carrying out specialized activities, must contain words
evidence of belonging to these organizations, for example "bank" (see.
Article 7 of the Banking Law). At the same time, organizations dealing with other types of
activity, is not entitled to use these words in their names. So,
Article 7 of the Banking Law states that "not a single legal entity in the Russian
Federation, with the exception of one that has received a license from the Bank of Russia to carry out
banking operations, cannot use the word "bank" in its name,
"credit institution" or otherwise indicate that this legal
the person has the right to carry out banking operations "; c) in accordance
names "Russia", "Russian Federation" and formed on their basis
words and phrases in the names of organizations and other structures "(Vedomosti
RF. 1992. N 10. Art. 470) the indicated names can only be used
with the consent of the Government of the Russian Federation and in accordance with the procedure established by it.
The firm name of the company is registered by incorporating the company
under it to the state register of legal entities (for the registration of a company, see
Article 13 of the Law and a commentary to it). Registered company name
refers to the exclusive rights of society and is protected in accordance with the law
okay. If this name is misused by another person, the company
has the right, on the basis of clause 1 of article 54 of the Civil Code, to demand termination of its use
and compensate for the losses caused by this.
Losses can amount to losses to society caused by unfair use
its name, thereby undermining business reputation society, etc.
The relevant claims are filed in a court of arbitration.
2. The location of the company is determined by the place of its state
registration. This provision of clause 2 of the commented article reproduces clause 2 of article 54
Civil Code, where, however, it is said that in the constituent documents of a legal entity
otherwise may be established in accordance with the law. The commented norm
(which in this case is such a law, that is, it allows to establish
other) stipulates that by the constituent documents of the company its location
can be determined by the place of permanent location of its governing bodies
or main place of business.
A clear indication of the location of the company is important for solving a number of legal
issues arising in its activities, in particular to determine the place
fulfillment of obligations when it is not specified in the contract or in a legal act
(see Article 316 of the Civil Code), establishing the territorial jurisdiction of disputes involving
society (see article 25 of the APC), etc.
In the Resolution of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation N 6/8 regarding the application of clause 2
Article 54 of the Civil Code gives the following clarification: "The procedure for registering legal entities,
including the definition of the place of registration, must be established by law
on the registration of legal entities (clause 1 of article 51 of the Civil Code). Considering that in accordance
with Article 8 of the Federal Law "On the Enactment of Part One of the Civil
Code of the Russian Federation "pending the introduction of the law on registration of legal
persons, the current procedure for registration of legal entities is applied, with permission
disputes should be based on the fact that the location of the legal entity is
the location of his organs ".
3. The company must have a postal address at which it is carried out
communication, and is obliged to notify the state registration authorities of legal
persons to change their address. It is also necessary to notify contractors about this.
under contracts and other persons with whom the company has business relations,
judicial and arbitration authorities, if the address of the company has changed when a dispute with
participation of this society is pending before one of these bodies.
The negative consequences of failure to fulfill such a duty will be borne by society,
for example, it will not be entitled to make claims for non-receipt of correspondence,
sent to him at a previously known address.
Article 5. Branches and representative offices of the company
1. The company can create branches and open representative offices on
the decision of the general meeting of the company's participants, adopted by a majority of at least
society.
Creation of branches by the company and opening of representative offices on the territory
Of the Russian Federation are carried out in compliance with the requirements of this Federal
of the law and other federal laws, and outside the territory of the Russian Federation
also in accordance with the legislation of a foreign state, on the territory
which branches are created or representative offices are opened, unless otherwise
provided for by international treaties of the Russian Federation.
2. The branch of the company is its separate subdivision located
outside the location of the company and performing all of its functions or part of them,
including the functions of representation.
3. The representative office of a company is its separate subdivision,
located outside the location of the company, representing the interests of the public
and protecting them.
4. Branch and representative office of the company are not legal entities
and act on the basis of the regulations approved by the society. Branch and representative office
endowed with property by the society that created them.
The heads of the branches and representative offices of the company are appointed by the company
and act on the basis of his power of attorney.
Branches and representative offices of the company carry out their activities from
the name of the society that created them. Responsibility for the activities of the branch and representative office
society bears the society that created them.
5. The charter of a company must contain information about its branches and representative offices.
Notifications about changes in the charter of the company, information about its branches and representative offices
submitted to the body that carries out state registration of legal
persons. The specified changes in the charter of the company come into force for third parties.
from the moment of notification of such changes to the body implementing the state
registration of legal entities.
Commentary on Article 5.
1. The right of legal entities to create branches and representative offices is provided for
Article 55 of the Civil Code. Paragraph 1 of the commented article of the Law establishes that the creation
branches and the opening of representative offices of limited liability companies
carried out by the decision of the general meeting, moreover, adopted by a majority,
if the need for a larger number is not provided for by the charter of the company. Should
pay attention to the fact that we are talking about a qualified majority of votes
namely the members of the society, and not the persons present at this meeting.
The creation of branches and representative offices enables the society to expand
the scope of his activities, representation and protection of his interests in various
regions. Branches and representative offices can be created (opened) as
in Russia and on the territory of other states. On the territory of the Russian
Federation, they open in accordance with Russian legislation (federal
laws), and outside Russia - in accordance with Russian laws and
the legislation of the state on the territory of which the branch is created or
a representative office is opened, unless otherwise provided by international treaties
Russian Federation.
2. Differences between branches and representative offices - in nature and scope
the functions they perform. A branch can perform all or part of the functions of the company,
what should be indicated in the regulation about him, as well as to carry out representative
duties. In accordance with the Banking Law, for example, a bank branch produces
on his behalf, all or part of the operations provided for by the license issued to the bank
(Article 22). It is not required to obtain licenses by branches in other cases of implementation
licensed activity: they have the right to engage in it on the basis of a permit,
issued to the company that created the branch.
The missions of the representative offices are more modest. They only represent society and protect
his interests. This includes, among other things, committing on behalf of society (by
his power of attorney) transactions and other legally significant actions.
Despite the differences noted, branches and representative offices have
much in common - in the conditions and order of creation, legal status, leadership
their activities, etc. The general boils down to the following:
a) both branches and representative offices are created as separate divisions
limited liability companies; they do not enjoy the rights of legal
persons and act on the basis of the provisions approved by the company (Article 55 of the Civil Code);
b) branches and representative offices are created outside the location of the company,
and, as noted, they can open both within the Russian Federation,
so in other states;
c) the company endows branches and representative offices with a part of its property.
It is recorded on their separate balance sheets and on the balance sheet of society. Staying
by the owner of the property, the limited liability company may seize
it at branches and representative offices;
d) not being legal entities, branches and representative offices operate
on behalf of a legal entity. In this case, specific transactions on behalf of the company are signed by
respectively, heads of branches and representative offices;
e) the heads of branches and representative offices are appointed by the society and act
on the basis of a power of attorney issued by him. The power of attorney must be executed with
compliance with the requirements of Article 185 of the Civil Code - be signed by the head of the company
or by another person authorized to do so by its charter; contain all the necessary
data, including the date of its issue, in the absence of which the power of attorney is recognized
invalid; the power of attorney must be sealed with the seal of the company;
f) responsibility for the actions of the branch or representative office (including
obligations assumed on behalf of the company) is borne by the company, as well as for the actions
any other division or for the actions of its employees; in the same time
property transferred to branches and representative offices can be foreclosed
on the debts of society.
Information about the created branches and representative offices should contain
in the charter of the society. When a branch or representative office is abolished or
new, corresponding changes are made to the charter. They are reported to the body,
registering legal entities in notification procedure, i.e.
this issue is resolved by a legal entity independently, without any approvals,
and the direction of information is for informational purposes. For third parties, the specified
changes come into force from the moment they are notified to the body carrying out
state registration of legal entities. Up to this point, a person who has
certain relations with a branch or representative office, may in their actions
proceed from the fact that these structures exist.
Taking into account the specifics of banking activities, the Banking Law provides,
that branches and representative offices of commercial banks may open with a notification
the Bank of Russia is informed of this at the same time: the postal address of the branch
(representative office), its powers and functions, information about the heads, scope
and the nature of the planned operations, as well as an imprint of its seal
and sample signatures. Branches of banks with foreign investments in the territory
Of the Russian Federation are registered by the Bank of Russia in the manner prescribed by it
(Article 22 of the Law).
In practice, there are cases when branch managers who have
powers to conclude contracts on behalf of a legal entity, conclude them
on behalf of the branch. The Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation, regarding such
situation, in the Resolution of the Plenums N 6/8 gave the following clarification: "When
resolution of a dispute arising from an agreement signed by the head of the branch
(representation) on behalf of the branch and without reference to the fact that the contract is concluded
on behalf of the legal entity and by its power of attorney, you should find out if there were
whether the head of the branch (representative office) at the time of signing the contract
the corresponding powers, expressed in the regulations on the branch and the power of attorney.
Transactions made by the head of a branch (representative office), if any
(item 20) **. The Resolution of the Plenums of the RF Armed Forces and the RF Supreme Arbitration Court N 6/8 emphasizes, in addition to
in addition, the need to take into account that the corresponding powers of the head
branch (representative office) must be confirmed by a power of attorney and cannot
be based only on the instructions contained in the constituent documents of the legal
a person, a position on a branch (representative office), etc., or to appear from the situation
(paragraph 2, clause 20). This clarification, based on the norms of the new Civil Code, excludes the previous
the approach when for the recognition of the presence of the head of a branch (representative office)
powers were enough to be indicated in the regulations on the branch
(another separate subdivision).
There is another important provision in the legislation that takes into account the specifics of
activities of branches and representative offices. In accordance with paragraph 2 of Article 25 of the APC, the claim
to a legal entity arising from the activities of its separate subdivision,
presented at the location of this subdivision ***, but by the side
business and in these cases is a legal entity (society).
Article 6. Subsidiaries and dependent companies
1. The company may have subsidiaries and dependent business companies with
the rights of a legal entity created on the territory of the Russian Federation in
in accordance with this Federal Law and other federal laws,
and outside the territory of the Russian Federation also in accordance with the legislation
a foreign state, on the territory of which a subsidiary or dependent
business company, unless otherwise provided by international treaties
Russian Federation.
2. The company is recognized as a subsidiary if another (main) business
society or partnership due to the prevailing participation in its authorized capital,
either in accordance with the agreement concluded between them, or otherwise
has the ability to determine the decisions made by such a society.
3. The subsidiary is not liable for the debts of the main business company
(partnerships).
The main business company (partnership), which has the right to give
the subsidiary company obligatory instructions, is responsible in solidarity with the subsidiary
a company for transactions concluded by the latter in pursuance of such instructions.
In the event of insolvency (bankruptcy) of a subsidiary due to the fault of the main
business company (partnership) bears the latter in case of insufficiency
property of a subsidiary company, subsidiary liability for its debts.
Members of a subsidiary have the right to demand compensation from the parent company
(partnership) losses caused through his fault to the subsidiary.
4. The company is recognized as dependent if the other (prevailing, participating)
a business company has more than twenty percent of the authorized capital of the first
society.
A company that has acquired more than twenty percent of voting shares
joint stock company or more than twenty percent of the authorized capital of another
limited liability company is obliged to immediately publish
information about this in the press, which publishes data on the state
registration of legal entities.
THE RUSSIAN FEDERATION
THE FEDERAL LAW
dated 08.02.98 N 14-FZ
ABOUT LIMITED LIABILITY COMPANY
(as amended by Federal Laws
from 11.07.1998 N 96-FZ, from 31.12.1998 N 193-FZ,
from 21.03.2002 N 31-FZ, from 29.12.2004 N 192-FZ,
from 27.07.2006 N 138-FZ,
as amended by Federal Law of 18.12.2006 N 231-FZ)
Chapter I. GENERAL PROVISIONS
Article 1. Relations governed by this Federal Law
1. This Federal Law determines, in accordance with the Civil Code of the Russian Federation, the legal status of a limited liability company, the rights and obligations of its participants, the procedure for the creation, reorganization and liquidation of the company.
2. Features of the legal status, the procedure for the creation, reorganization and liquidation of limited liability companies in the areas of banking, insurance and investment activities, as well as in the field of agricultural production are determined by federal laws.
Article 2. Basic provisions on limited liability companies
1. A limited liability company (hereinafter referred to as a company) is a business company established by one or more persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; members of the company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their contributions.
The members of the company who have made contributions to the charter capital of the company not in full are jointly and severally liable for its obligations within the value of the unpaid part of the contribution of each of the members of the company.
2. The company owns separate property, recorded on its independent balance sheet, can, on its own behalf, acquire and exercise property and personal non-property rights, bear obligations, be a plaintiff and defendant in court.
A society may have civil rights and bear civil obligations necessary for the implementation of any types of activity not prohibited by federal laws, if this does not contradict the subject matter and goals of the activity, which are definitely limited by the charter of the society.
Certain types of activities, the list of which is determined by federal law, can be carried out by a company only on the basis of a special permit (license). If the conditions for granting a special permit (license) to exercise a certain kind activities, there is a requirement to carry out such activities as exclusive, the company during the period of validity of the special permit (license) is entitled to carry out only the types of activities provided for by the special permit (license) and related activities.
3. The company is considered to be created as a legal entity from the moment of its state registration in accordance with the procedure established by the federal law on state registration of legal entities.
The company is created without any time limit, unless otherwise provided by its charter.
4. The Company has the right to open bank accounts on the territory of the Russian Federation and abroad in accordance with the established procedure.
5. The company must have a round seal containing its full corporate name in Russian and an indication of the location of the company. The company seal may also contain the company name of the company in any language of the peoples of the Russian Federation and (or) a foreign language.
The company has the right to have stamps and letterheads with its own company name, its own logo, as well as a trademark registered in the prescribed manner and other means of individualization.
Article 3. Responsibility of society
1. The company is responsible for its obligations with all property belonging to it.
2. The company is not responsible for the obligations of its members.
3. In the event of the insolvency (bankruptcy) of the company through the fault of its participants or through the fault of other persons who have the right to give instructions binding on the company or otherwise have the opportunity to determine its actions, the said participants or other persons may be assigned subsidiary liability for its obligations.
4. The Russian Federation, the constituent entities of the Russian Federation and municipal formations are not liable for the obligations of the company, just as the company is not liable for the obligations of the Russian Federation, the constituent entities of the Russian Federation and municipal formations.
Article 4. Company name of the company and its location
1. The company must have a full and have the right to have an abbreviated corporate name in Russian. The Company also has the right to have a full and (or) abbreviated corporate name in the languages of the peoples of the Russian Federation and (or) foreign languages.
The full company name of the company in Russian must contain the full name of the company and the words "limited liability". The abbreviated company name of the company in Russian must contain the full or abbreviated name of the company and the words "limited liability" or the abbreviation LLC.
The company name of the company in Russian cannot contain other terms and abbreviations reflecting its organizational and legal form, including borrowed from foreign languages, unless otherwise provided by federal laws and other legal acts of the Russian Federation.
2. The location of the company is determined by the place of its state registration.
Article 5. Branches and representative offices of the company
1. The company may create branches and open representative offices by decision of the general meeting of the company's participants, adopted by a majority of at least two-thirds of the total number of votes of the company's participants, if the need for a larger number of votes for making such a decision is not provided for by the charter of the company.
The creation of branches by the company and the opening of representative offices on the territory of the Russian Federation are carried out in compliance with the requirements of this Federal Law and other federal laws, and outside the territory of the Russian Federation also in accordance with the legislation of a foreign state on the territory of which branches are created or representative offices are opened, unless otherwise provided by international treaties of the Russian Federation.
2. A branch of a company is its separate subdivision located outside the location of the company and performing all of its functions or part of them, including the functions of representation.
3. A representative office of a company is its separate subdivision located outside the location of the company, representing the interests of the company and protecting them.
4. The branch and representative office of the company are not legal entities and act on the basis of the regulations approved by the company. A branch and a representative office are endowed with property by the company that created them.
The heads of the branches and representative offices of the company are appointed by the company and act on the basis of its power of attorney.
Branches and representative offices of the company carry out their activities on behalf of the company that created them. The responsibility for the activities of the branch and representative office of the company is borne by the company that created them.
5. The charter of a company must contain information about its branches and representative offices. Notifications about changes in the charter of a company, information about its branches and representative offices are submitted to the body that carries out state registration of legal entities. The specified changes in the charter of the company come into force for third parties from the moment of notification of such changes to the body that carries out state registration of legal entities.
Article 6. Subsidiaries and dependent companies
1. The company may have subsidiaries and dependent business entities with the rights of a legal entity, created on the territory of the Russian Federation in accordance with this Federal Law and other federal laws, and outside the territory of the Russian Federation also in accordance with the legislation of a foreign state on the territory of which the subsidiary was created. or a dependent business entity, unless otherwise provided by international treaties of the Russian Federation.
2. A company is recognized as a subsidiary if another (main) business company or partnership, due to the prevailing participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise has the ability to determine the decisions made by such a company.
3. A subsidiary is not liable for the debts of the main business company (partnership).
The main business company (partnership), which has the right to give instructions to the subsidiary company that are binding on it, shall be liable jointly and severally with the subsidiary company for transactions concluded by the latter in pursuance of such instructions.
In the event of the insolvency (bankruptcy) of the subsidiary through the fault of the main business company (partnership), the latter bears subsidiary liability for its debts in case of insufficient property of the subsidiary.
Members of a subsidiary have the right to demand compensation from the main company (partnership) for losses caused through its fault to the subsidiary.
4. The company is recognized as dependent if the other (dominant, participating) business company has more than twenty percent of the authorized capital of the first company.
A company that has acquired more than twenty percent of the voting shares of a joint-stock company or more than twenty percent of the authorized capital of another limited liability company is obliged to immediately publish information about this in the press, which publishes data on the state registration of legal entities.
Article 7. Members of the company
1. Members of the society can be citizens and legal entities.
Federal law may prohibit or restrict the participation of certain categories of citizens in societies.
2. State bodies and bodies of local self-government shall not have the right to act as participants in societies, unless otherwise provided by federal law.
A company can be founded by one person who becomes its sole participant... The society can subsequently become a society with one participant.
The company cannot have another business company, consisting of one person, as the only participant.
The provisions of this Federal Law shall apply to companies with one participant insofar as this Federal Law does not provide otherwise and insofar as this does not contradict the essence of the respective relations.
3. The number of members of the company must not be more than fifty.
If the number of participants in the company exceeds the limit established by this paragraph, 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 reorganized 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 that carries out state registration of legal entities, or other government agencies or local self-government bodies to which the right to present such a claim is granted by federal law.
Article 8. Rights of members of the company
1. Members of the company have the right:
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 a company.
These rights may be provided for by the charter of the company at its foundation or granted to the participant (members) of the company by decision of the general meeting of the company's participants, adopted unanimously by all members of the company.
Additional rights granted to a certain member of the company, in the event of alienation of his share (part of the share), do not transfer to the acquirer of the share (part of the share).
Termination or limitation of additional rights granted to all members of the company is carried out by decision of the general meeting of members of the company, adopted by all members of the company unanimously. The termination or limitation of additional rights granted to a certain participant in the company is carried out by a decision of the general meeting of participants in the company, adopted by a majority of at least two-thirds of votes of the total number of votes of the participants in the company, provided that the participant in the company who owns such additional rights voted for the adoption of such solutions or gave written agreement.
A company participant who has been granted additional rights may refuse to exercise the additional rights belonging to him by sending a written notification of this to the company. From the moment the company receives the said notification, the additional rights of a company participant are terminated.
Article 9. Obligations of the members of the company
1. Members of the society are obliged:
The members of the company also bear other obligations stipulated by this Federal Law.
2. In addition to the obligations provided for by this Federal Law, the charter of a company may provide for other obligations (additional obligations) of a participant (members) of the company. These obligations may be provided for by the charter of the company at its foundation or assigned to all members of the company by decision of the general meeting of members of the company, adopted by all members of the company unanimously. The imposition of additional duties on a certain participant in the company is carried out by a 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 participant in the company, on whom such additional responsibilities are imposed, voted for such a decision or gave written agreement.
Additional obligations imposed on a certain member of the company, in the event of 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 the company's members, adopted by all members of the company unanimously.
Article 10. Exclusion of a member of a company from a company
The participants in the company, whose shares in aggregate constitute at least ten percent of the charter capital of the company, have the right to demand in court the exclusion from the company of a participant who grossly violates his obligations or by his actions (inaction) makes it impossible for the company to operate or significantly complicates it.
Chapter II. ESTABLISHMENT OF THE COMPANY
Article 11. Procedure for founding a company
1. The founders of the company conclude a memorandum of association and approve the charter of the company.
The founding agreement and the charter of the company are the constituent documents of the company.
If the company is founded by one person, the founding document of the company is the charter approved by this person. In the event of an increase in the number of participants in the company to two or more, a memorandum of association must be concluded between them.
The founders of the company elect (appoint) the executive bodies of the company, and also, in the event that non-monetary contributions are made to the charter capital of the company, they approve their monetary value.
The decision to approve the charter of the company, as well as the decision to approve the monetary value of the contributions made by the founders of the company, is taken by the founders unanimously. Other decisions are made by the founders of the company in the manner prescribed by this Federal Law and the constituent documents of the company.
2. The founders of the company shall be jointly and severally liable for the obligations associated with the foundation of the company and which arose before its state registration. The company is liable for the obligations of the founders of the company associated with its establishment, only if their actions are subsequently approved by the general meeting of the company's participants.
3. The specifics of the establishment of a company with the participation of foreign investors shall be determined by federal law.
Article 12. Constituent documents of a company
1. In the memorandum of association, the founders of the company undertake to create the company and determine the procedure for joint activities for its creation. The constituent agreement also determines the composition of the founders (participants) of the company, the size of the authorized capital of the company and the size of the share of each of the founders (participants) of the company, the size and composition of contributions, the procedure and terms for their contribution to the authorized capital of the company at its establishment, the responsibility of the founders (participants) of the company. for violation of the obligation to make contributions, the conditions and procedure for the distribution of profits between the founders (participants) of the company, the composition of the company's bodies and the procedure for the withdrawal of the company's participants from the company.
2. The charter of a company must contain:
The company's charter may also contain other provisions that do not contradict this Federal Law and other federal laws.
3. At the request of a member of the company, an auditor or any interested person, the company is obliged, within a reasonable time, to provide them with the opportunity to familiarize themselves with the constituent documents of the company, including amendments. The company is obliged, at the request of a member of the company, to provide him with copies of the current constituent agreement and the charter of the company. The fee charged by the community for the provision of copies cannot exceed the cost of making them.
4. Changes to the constituent documents of the company are made by decision of the general meeting of the company's participants.
Changes made to the constituent documents of a company are subject to state registration in the manner prescribed by Article 13 of this Federal Law for the registration of a company.
Changes made to the constituent documents of the company become effective for third parties from the moment of their state registration, and in the cases established by this Federal Law, from the moment of notification of the body carrying out state registration.
5. In the event of a discrepancy between the provisions of the memorandum of association and the provisions of the charter of the company, the provisions of the charter of the company shall prevail for third parties and participants in the company.
Article 13. State registration of a company
The company is subject to state registration with the body that carries out state registration of legal entities, in the manner prescribed by the federal law on state registration of legal entities.
Chapter III. AUTHORIZED CAPITAL OF THE COMPANY. COMPANY PROPERTY
Article 14. The authorized capital of the company. Shares in the authorized capital of the company
1. The authorized capital of a company is made up of the par value of the shares of its participants.
The size of the charter capital of a company must be at least one hundred times the minimum wage established by federal law as of the date of submission of documents for state registration of the company.
The size of the charter capital of the company and the nominal value of the shares of the participants in the company are determined in rubles.
The authorized capital of a company determines the minimum size of its property that guarantees the interests of its creditors.
2. The size of the share of a company participant in the charter capital of the company is determined as a percentage or as a fraction. The size of the share of a participant in the company must correspond to the ratio of the par value of his share and the authorized capital of the company.
The actual value of the share of a participant in the company corresponds to a part of the value of the net assets of the company, proportional to the size of his share.
3. The charter of the company may limit the maximum size of the share of a participant in the company. The charter of the company may restrict the possibility of changing the ratio of the shares of the participants in the company. Such restrictions cannot be established in relation to individual members of the company. These provisions may be provided for by the charter of the company at its foundation, as well as introduced into the charter of the company, changed and excluded from the charter of the company by decision of the general meeting of the company's participants, adopted unanimously by all participants in the company.
Article 15. Contributions to the authorized capital of a company
1. A contribution to the authorized capital of a company may be money, securities, other things or property rights or other rights that have a monetary value.
2. The monetary assessment of non-monetary contributions to the charter capital of the company made by the company's participants and third parties accepted into the company shall be approved by the decision of the general meeting of the company's participants, adopted unanimously by all participants in the company.
If the nominal value (increase in the nominal value) of the share of a company participant in the charter capital of the company, paid for with a non-monetary contribution, is more than two hundred minimum wages established by federal law as of the date of submission of documents for state registration of the company or corresponding amendments to the charter of the company, such a contribution must be assessed an independent appraiser. The nominal value (increase in the nominal value) of the share of a member of the company, paid for by such a non-monetary contribution, cannot exceed the amount of the assessment of the specified contribution, determined by an independent appraiser.
In the event that non-monetary contributions are made to the charter capital of the company, the members of the company and an independent appraiser, within three years from the date of state registration of the company or the corresponding changes in the charter of the company, jointly and severally bear subsidiary liability for its obligations in the amount of the overstatement of the value of non-monetary contributions in case of insufficiency of the company's property.
The charter of the company may establish the types of property that cannot be a contribution to the charter capital of the company.
3. In case of termination of the company's right to use property before the expiration of the period for which such property was transferred for use by the company as a contribution to the authorized capital, the participant of the company who transferred the property is obliged to provide the company, upon its request, with monetary compensation equal to the payment for the use of such property. the same property on similar conditions for the remaining period. Monetary compensation must be provided at a time within a reasonable timeframe from the moment the company submits a demand for its provision, unless a different procedure for providing compensation is established by a decision of the general meeting of the company's participants. Such a decision is made by the general meeting of the company's participants without taking into account the votes of a company participant who has transferred to the company as a contribution to the authorized capital the right to use the property, which has terminated ahead of schedule.
The constituent agreement may provide for other methods and procedure for providing a company participant with compensation for the early termination of the right to use the property transferred by him for use to the company as a contribution to the authorized capital.
4. Property transferred by a participant excluded or withdrawn from the company for use by the company as a contribution to the authorized capital remains in the use of the company for the period for which it was transferred, unless otherwise provided by the memorandum of association.
Article 16. Procedure for making contributions to the authorized capital of a company upon its establishment
1. Each founder of a company must fully contribute to the charter capital of the company within a period that is determined by the memorandum of association and which cannot exceed one year from the date of state registration of the company. In this case, the value of the contribution of each founder of the company must be at least the nominal value of his share. It is not allowed to release the founder of the company from the obligation to make a contribution to the charter capital of the company, including by offsetting his claims against the company.
2. At the time of state registration of the company, its authorized capital must be paid by the founders at least half.
Article 17. Increase of the authorized capital of the company
1. An increase in the authorized capital of a company is allowed only after its full payment.
2. The increase in the authorized capital of the company may be carried out at the expense of the property of the company, and (or) at the expense of additional contributions of the members of the company, and (or), if it is not prohibited by the charter of the company, at the expense of contributions of third parties accepted in the company.
Article 18. Increase of the authorized capital of a company at the expense of its property
1. An increase in the charter capital of a company at the expense of its property is carried out by a decision of the general meeting of participants in the company, adopted by a majority of at least two-thirds of votes of the total number of votes of the company's participants, if the need for a larger number of votes for such a decision is not provided for by the charter of the company.
The decision to increase the authorized capital of the company at the expense of the property of the company can be made only on the basis of data accounting statements society for the year preceding the year during which such a decision was made.
2. The amount by which the charter capital of the company is increased at the expense of the property of the company must not exceed the difference between the value of the company's net assets and the amount of the charter capital and the reserve fund of the company.
3. With an increase in the authorized capital of a company in accordance with this article, the nominal value of the shares of all participants in the company increases proportionally without changing the size of their shares.
Article 19. Increase in the authorized capital of a company at the expense of additional contributions of its participants and contributions of third parties accepted into the company
1. The general meeting of the company's participants by a majority of at least two-thirds of the total number of votes of the company's participants, if the need for a larger number of votes for making such a decision is not provided for by the charter of the company, may decide to increase the charter capital of the company by making additional contributions by the company's participants. Such a decision should determine the total cost of additional contributions, as well as establish a single ratio for all members of the company between the cost of the additional contribution of a member of the company and the amount by which the nominal value of his share is increased. The specified ratio is established on the basis that the nominal value of the share of a participant in the company may increase by an amount equal to or less than the value of his additional contribution.
Each member of the company has the right to make an additional contribution not exceeding part total cost additional contributions proportional to the size of the share of this participant in the authorized capital of the company. Additional contributions may be made by the company's participants within two months from the date of the adoption by the general meeting of the company's participants of the decision specified in the first paragraph of this paragraph, unless a different period is established by the charter of the company or the decision of the general meeting of the company's participants.
Not later than one month after the end of the term for making additional contributions, the general meeting of the company's participants must make a decision on approving the results of making additional contributions by the company's participants and on making amendments to the constituent documents of the company related to an increase in the size of the charter capital of the company and an increase in the par value of the shares of the company's participants who made additional contributions, and, if necessary, also changes related to changes in the size of the shares of participants in the company. In this case, the nominal value of the share of each participant in the company who made an additional contribution increases in accordance with the ratio specified in the first paragraph of this clause.
The documents for state registration of the amendments provided for by this paragraph in the constituent documents of the company, as well as documents confirming the introduction of additional contributions by the participants of the company, must be submitted to the body that carries out the state registration of legal entities within a month from the date of the decision on the approval of the results of additional contributions by the participants of the company. and on the introduction of appropriate amendments to the constituent documents of the company. These changes in the constituent documents of the company become effective for the members of the company and third parties from the day of their state registration by the body that carries out state registration of legal entities.
In case of non-observance of the terms stipulated by the third and fourth paragraphs of this clause, the increase in the authorized capital of the company is recognized as invalid.
2. The general meeting of members of the company may decide to increase its authorized capital on the basis of an application by a member of the company (applications of members of the company) to make an additional contribution and (or), if this is not prohibited by the charter of the company, an application of a third party (applications of third parties) to accept it to society and contributing. This decision is taken by all members of the company unanimously.
The application of a company participant and the application of a third party must indicate the size and composition of the contribution, the procedure and the term for making it, as well as the size of the share that the company participant or a third party would like to have in the authorized capital of the company. The application may also indicate other conditions for making contributions and joining the company.
Simultaneously with the decision to increase the charter capital of the company, on the basis of an application by a company participant (statements of company participants) to make an additional contribution, a decision must be made to amend the constituent documents of the company related to an increase in the size of the charter capital of the company and an increase in the par value of the share of a company participant ( members of the company), who submitted an application for making an additional contribution, and, if necessary, also changes related to changes in the size of the shares of the company's participants. In this case, the nominal value of the share of each participant in the company who has submitted an application for making an additional contribution, increases by an amount equal to or less than the value of his additional contribution.
Simultaneously with the decision to increase the authorized capital of the company on the basis of an application by a third party (applications of third parties) to accept him (them) into the company and make a contribution, a decision must be made to amend the constituent documents of the company related to the adoption of a third party (third parties) into the company, determining the par value and the size of its share (their shares), increasing the size of the authorized capital of the company and changing the size of the shares of the company's participants. The nominal value of the share acquired by every third person admitted to the company must be equal to or less cost his contribution.
The documents for state registration of the amendments to the constituent documents of the company provided for by this paragraph, as well as documents confirming the making of additional contributions by the participants of the company and contributions by third parties in full, must be submitted to the body that carries out state registration of legal entities within a month from the date of making in full the amount of additional contributions by all members of the company and contributions by third parties who submitted applications, but no later than six months from the date of adoption of the decisions of the general meeting of members of the company provided for in this paragraph. These changes in the constituent documents take effect for the members of the company and third parties from the date of their state registration by the body that carries out state registration of legal entities.
In case of failure to meet the deadlines provided for in paragraph five of this clause, the increase in the authorized capital of the company is recognized as invalid.
3. If the increase in the authorized capital of the company did not take place, the company is obliged, within a reasonable time, to return to the participants of the company and to third parties who made deposits in cash, their contributions, and in case of non-return of deposits within the specified period, also to pay interest in the manner and within the time limits provided for in Article 395 Of the Civil Code of the Russian Federation.
To the members of the company and third parties who have made non-monetary contributions, the company is obliged to return their contributions within a reasonable time, and in case of non-return of contributions within the specified period, also to compensate for lost profits due to the inability to use the property contributed as a contribution.
Article 20. Reduction of the authorized capital of a company
1. The Company has the right, and in the cases provided for by this Federal Law, is obliged to reduce its authorized capital.
A decrease in the authorized capital of a company can be carried out by reducing the par value of the shares of all members of the company in the authorized capital of the company and (or) canceling the shares belonging to the company.
The company is not entitled to reduce its charter capital if, as a result of such a decrease, its size becomes less than the minimum size of the charter capital determined in accordance with this Federal Law as of the date of submission of documents for state registration of the relevant changes in the charter of the company, and in cases where, in accordance with by this Federal Law, the company is obliged to reduce its authorized capital on the date of state registration of the company.
A decrease in the authorized capital of a company by reducing the par value of the shares of all members of the company must be carried out while maintaining the size of the shares of all members of the company.
2. In case of incomplete payment of the charter capital of a company within a year from the moment of its state registration, the company must either declare a decrease in its charter capital to its actually paid amount and register its decrease in the prescribed manner, or make a decision on liquidation of the company.
3. If at the end of the second and each subsequent financial year the value of the company's net assets turns out to be less than its authorized capital, the company is obliged to declare a decrease in its authorized capital to an amount not exceeding the value of its net assets, and register such a decrease in the prescribed manner.
If at the end of the second and each subsequent financial year the value of the company's net assets turns out to be less than the minimum amount of the authorized capital established by this Federal Law as of the date of state registration of the company, the company is subject to liquidation.
The value of the company's net assets is determined in accordance with the procedure established by federal law and regulations issued in accordance with it.
4. Within thirty days from the date of the decision to reduce its charter capital, the company is obliged to notify in writing of the decrease in the charter capital of the company and its new size to all creditors of the company known to him, and also to publish in the press, which publishes data on the state registration of legal persons, a message about the decision. In this case, the creditors of the company have the right, within thirty days from the date of sending them a notification or within thirty days from the date of publication of the message on the decision taken, to demand in writing the early termination or fulfillment of the corresponding obligations of the company and compensation for losses.
State registration of a decrease in the authorized capital of a company is carried out only upon presentation of evidence of notification of creditors in the manner prescribed by this paragraph.
5. If, in the cases provided for by this Article, the company does not make a decision within a reasonable time to reduce its charter capital or to liquidate itself, creditors shall have the right to demand from the company early termination or fulfillment of the company's obligations and compensation for losses. The body that carries out the state registration of legal entities, or other state bodies or local self-government bodies, to which the right to present such a demand has been granted by federal law, in these cases has the right to file a demand in court for the liquidation of the company.
Article 21. Transfer of a share (part of a share) of a company participant in the charter capital of a company to other company participants and third parties
1. A company participant has the right to sell or otherwise cede his share in the charter capital of the company or a part of it to one or several participants of this company. The consent of the company or other members of the company for the conclusion of such a transaction is not required, unless otherwise provided by the charter of the company.
2. Sale or assignment in any other way by a company participant of his share (part of a share) to third parties is allowed, if it is not prohibited by the charter of the company.
3. A share of a company participant may be alienated until it is paid in full only in the part in which it has already been paid.
4. Participants of the company enjoy the pre-emptive right to purchase a share (part of a share) of a participant in the company at the price of the offer to a third party in proportion to the size of their shares, unless the charter of the company or an agreement of the participants in the company provides for a different procedure for exercising this right. The company's charter may provide for the company's preemptive right to acquire a share (part of a share) sold by its participant, if other members of the company have not used their preemptive right to purchase a share (part of a share).
A member of the company intending to sell his share (part of the share) to a third party is obliged to notify the other members of the company and the company itself in writing, indicating the price and other conditions for its sale. The charter of the company may stipulate that notices to the members of the company are sent through the company. In the event that the participants in the company and (or) the company do not use the pre-emptive right to purchase the entire share (the entire part of the share) offered for sale within a month from the date of such notification, unless another period is provided for by the charter of the company or by agreement of the participants in the company, the share ( part of the share) can be sold to a third party at the price and on the terms communicated to the company and its participants.
Provisions establishing the procedure for exercising the preemptive right to purchase a share (part of a share) disproportionate to the size of the shares of the company's participants may be provided for by the charter of the company at its foundation, introduced, changed and excluded from the charter of the company by a decision of the general meeting of the company's participants, adopted unanimously by all participants in the company.
When selling a share (part of a share) in violation of the preemptive right of purchase, any member of the company and (or) the company, if the charter of the company provides for the preemptive right of the company to acquire a share (part of a share), shall have the right within three months from the moment when the member of the company or the company learned or should have learned about such a violation, to demand in court the transfer of the rights and obligations of the buyer to them.
The cession of the said preemptive right is not allowed.
5. The charter of the company may provide for the need to obtain the consent of the company or other participants in the company for the assignment of a share (part of a share) of a participant in the company to third parties in a manner other than sale.
6. The assignment of a share (part of a share) in the authorized capital of the company must be made in a simple writing if the requirement to perform it in a notarial form is not provided for by the charter of the company. Failure to comply with the form of the transaction on the assignment of a share (part of a share) in the authorized capital of the company, established by this paragraph or the charter of the company, shall entail its invalidity.
The company must be notified in writing of the assignment of a share (part of a share) in the authorized capital of the company with the presentation of evidence of such an assignment. The acquirer of a share (part of a share) in the authorized capital of the company exercises the rights and bears the obligations of a participant in the company from the moment the company is notified of this assignment.
The acquirer of the share (part of the share) in the authorized capital of the company shall transfer all the rights and obligations of the participant in the company that arose before the cession of the said share (part of the share), with the exception of the rights and obligations provided for, respectively, by the second paragraph of paragraph 2 of Article 8 and the second paragraph of paragraph 2 of Article 9 of this Federal Law. A company participant who has ceded his share (part of a share) in the authorized capital of the company bears the obligation to the company to make a contribution to the property that arose before the cession of the said share (part of the share), in solidarity with its acquirer.
7. Shares in the authorized capital of the company are transferred to the heirs of citizens and to the legal successors of legal entities that were participants in the company.
In the event of the liquidation of a legal entity - a participant in the company, the share belonging to it, which remains after the completion of settlements with its creditors, is distributed among the participants of the legal entity being liquidated, unless otherwise provided by federal laws, other legal acts or the constituent documents of the liquidated legal entity.
The charter of the company may provide that the transfer and distribution of the share established by the first and second paragraphs of this clause are allowed only with the consent of the other members of the company.
Until the heir of a deceased member of the company accepts the inheritance, the rights of the deceased member of the company are exercised, and his duties are performed by the person specified in the will, and in the absence of such a person by the manager appointed by the notary.
8. If the charter of the company provides for the need to obtain the consent of the company's participants to assign a share (part of a share) in the authorized capital of the company to the company's participants or third parties, to transfer it to the heirs or legal successors, or to distribute the share between the participants of the liquidated legal entity, such consent shall be deemed to have been received if, within thirty days from the moment of contacting the members of the company or within another period specified in the charter of the company, the written consent of all the members of the company is received or a written refusal of consent is received from none of the participants in the company.
If the charter of the company provides for the need to obtain the consent of the company for the assignment of a share (part of a share) in the authorized capital of the company to the participants in the company or to third parties, such consent shall be deemed to have been obtained if within thirty days from the moment of contacting the company or within another period specified by the charter of the company the written consent of the company has been received, or a written refusal of consent has not been received from the company.
9. When a share (part of a share) in the authorized capital of a company is sold at public auction in cases stipulated by this Federal Law or other federal laws, the acquirer of the said share (part of a share) becomes a participant in the company regardless of the consent of the company or its participants.
Article 22. Pledge of shares in the authorized capital of a company
A company participant has the right to pledge his share (part of a share) in the charter capital of the company to another company participant or, if it is not prohibited by the charter of the company, to a third party with the consent of the company by a decision of the general meeting of company participants, adopted by a majority of votes of all company participants, if more votes for making such a decision are not provided for by the charter of the company. The votes of a company participant who intends to pledge his share (part of the share) are not taken into account when determining the voting results.
Article 23. Acquisition by a company of a share (part of a share) in the authorized capital of a company
1. The Company is not entitled to acquire shares (parts of shares) in its authorized capital, except for the cases provided for by this Federal Law.
2. In the event that the charter of the company prohibits the assignment of a share (part of a share) of a company participant to third parties, and other participants in the company refuse to acquire it, as well as in case of refusal to agree to the assignment of a share (part of a share) to a company participant or a third party, if the need to obtain such consent is provided for by the charter of the company, the company is obliged to acquire, at the request of a participant in the company, the share belonging to him (part of the share). In this case, the company is obliged to pay to the participant of the company the actual value of this share (part of the share), which is determined on the basis of the data of the accounting statements of the company for the last reporting period, preceding the day of the appeal of a participant in the company with such a request, or with the consent of the participant in the company, give him property in kind of the same value.
3. The share of the company participant who, when the company was founded, did not make his full contribution to the charter capital of the company in time, as well as the share of the company participant who did not provide the monetary or other compensation provided for in paragraph 3 of Article 15 of this Federal Law on time, shall be transferred to to society. In this case, the company is obliged to pay to the participant of the company the actual value of a part of his share, proportional to the part of the contribution made by him (the period during which the property was in the use of the company), or, with the consent of the participant of the company, give him property of the same value in kind.
The actual value of a part of the share is determined on the basis of the data of the company's financial statements for the last reporting period preceding the day of expiration of the term for making a contribution or providing compensation.
The charter of the company may provide that a part of the share is transferred to the company in proportion to the unpaid part of the contribution or the amount (value) of compensation.
4. The share of a member of the company expelled from the company is transferred to the company. In this case, the company is obliged to pay to the excluded member of the company the actual value of his share, which is determined according to the company's financial statements for the last reporting period preceding the date of entry into force of the court decision on the exclusion, or, with the consent of the excluded member of the company, give him property in kind of the same value ...
5. If the participants in the company refuse to agree to the transfer or distribution of a share in the cases provided for by paragraph 7 of Article 21 of this Federal Law, if such consent is required in accordance with the charter of the company, the share shall be transferred to the company. In this case, the company is obliged to pay the heirs of the deceased member of the company, the legal successors of the reorganized legal entity - the member of the company or the participants of the liquidated legal entity - the member of the company, the actual value of the share, determined on the basis of the data of the accounting statements of the company for the last reporting period preceding the day of death, reorganization or liquidation, or with their consent, give them property in kind of the same value.
6. In the event that the company pays out the actual value of a share (part of a share) of a member of the company at the request of its creditors in accordance with Article 25 of this Federal Law, a part of the share, the actual value of which was not paid by other members of the company, goes to the company, and the rest of the share is distributed between by the participants of the company in proportion to the fee paid by them.
7. A share (part of a share) shall be transferred to the company from the moment a member of the company submits a demand for its acquisition by the company, or the expiration of the term for making a contribution or providing compensation, or the entry into force of a court decision on excluding a member from the company, or receiving a refusal from any member of the company in consent to transfer the share to the heirs of citizens (legal successors of legal entities) who were members of the company, or to distribute it among the participants of a liquidated legal entity - a member of the company, or payment by the company of the actual value of the share (part of the share) of a member of the company at the request of its creditors.
8. The company is obliged to pay the actual value of the share (part of the share) or give out in kind property of the same value within one year from the date of transfer of the share (part of the share) to the company, unless a shorter period is provided for by the charter of the company.
The actual value of a share (part of a share) is paid at the expense of the difference between the value of the company's net assets and the size of its authorized capital. If this difference is not enough, the company is obliged to reduce its authorized capital by the missing amount.
Article 24. Shares belonging to the company
Shares belonging to the company are not taken into account when determining the results of voting at the general meeting of participants in the company, as well as when distributing profits and property of the company in the event of its liquidation.
The share belonging to the company, within one year from the date of its transfer to the company, must be distributed among all the company's participants in proportion to their shares in the charter capital of the company by decision of the general meeting of the company's participants, or sold to all or some of the company's participants and (or), if it is not prohibited by the charter of the company, to third parties and fully paid. The unallocated or unsold part of the share must be redeemed with a corresponding decrease in the authorized capital of the company. The sale of a share to the members of the company, as a result of which the size of the shares of its members changes, the sale of the share to third parties, as well as the introduction of amendments related to the sale of the share to the constituent documents of the company are carried out by decision of the general meeting of the members of the company, adopted unanimously by all members of the company.
Documents for state registration of the amendments to the constituent documents of the company provided for by this article, and in the case of the sale of a share, documents confirming the payment of the share sold by the company must be submitted to the body that carries out state registration of legal entities within one month from the date of the decision to approve the results of payment shares by the participants of the company and on the introduction of appropriate changes in the constituent documents of the company. These changes in the constituent documents of the company become effective for the members of the company and third parties from the day of their state registration by the body that carries out state registration of legal entities.
Article 25. Levy of execution on a share (part of a share) of a company participant in the authorized capital of a company
1. At the request of creditors, levying execution on a share (part of a share) of a company participant in the charter capital of a company for the debts of a company participant is allowed only on the basis of a court decision if it is insufficient to cover the debts of other property of a company participant.
2. In the event that a share (part of a share) of a company participant in the authorized capital of a company is levied on the debts of a company participant, the company has the right to pay creditors the actual value of the share (part of the share) of the company participant.
By the decision of the general meeting of the company's participants, unanimously adopted by all participants in the company, the actual value of the share (part of the share) of the participant in the company, whose property is being foreclosed, can be paid to creditors by the rest of the company's participants in proportion to their shares in the authorized capital of the company, if a different procedure for determining the amount of payment is not provided for by the charter of the company or by the decision of the general meeting of participants in the company.
The actual value of the share (part of the share) of the member of the company in the authorized capital of the company is determined on the basis of the data of the financial statements of the company for the last reporting period preceding the date of the presentation of the demand to the company to recover the share (part of the share) of the member of the company on his debts.
3. In the event that, within three months from the moment the creditors filed a claim, the company or its participants do not pay the actual value of the entire share (the entire part of the share) of the participant in the company against which the claim is being levied, the foreclosure on the share (part of the share) of the participant in the company is carried out by its sale at public auction.
Article 26. Withdrawal of a member of a company from a company
1. A participant in a company has the right to leave the company at any time, regardless of the consent of its other participants or of the company.
2. In the event of the withdrawal of a member of the company from the company, his share shall be transferred to the company from the moment of filing an application for withdrawal from the company. In this case, the company is obliged to pay the participant of the company who has filed an application for withdrawal from the company, the actual value of his share, determined on the basis of the data of the accounting statements of the company for the year during which the application for withdrawal from the company was submitted, or, with the consent of the participant of the company, give it to him in kind property of the same value, and in case of incomplete payment of his contribution to the authorized capital of the company, the actual value of a part of his share, proportional to the paid part of the contribution.
3. The company is obliged to pay the participant of the company who has filed an application for leaving the company, the actual value of his share or to give him property in kind of the same value within six months from the end of the financial year during which the application for leaving the company is submitted, if less the term is not provided for by the charter of the company.
The actual value of the share of a member of the company is paid at the expense of the difference between the value of the net assets of the company and the size of the charter capital of the company. In the event that such a difference is not enough to pay the member of the company who has filed an application for withdrawal from the company, the actual value of his share, the company is obliged to reduce its authorized capital by the missing amount.
4. The withdrawal of a member of the company from the company does not relieve him of the obligation to the company to make a contribution to the property of the company, which arose before the filing of the application for leaving the company.
Article 27. Contributions to the property of the company
1. The members of the company are obliged, if it is provided for by the charter of the company, by the decision of the general meeting of the members of the company, to make contributions to the property of the company. Such an obligation of the company's participants may be provided for by the charter of the company when the company is founded or by introducing amendments to the charter of the company by the decision of the general meeting of the company's participants, adopted unanimously by all participants in the company.
The decision of the general meeting of the company's participants on making contributions to the property of the company may be adopted by a majority of at least two-thirds of the total number of votes of the company's participants, if the need for a larger number of votes for making such a decision is not provided for by the charter of the company.
2. Contributions to the property of the company are made by all members of the company in proportion to their shares in the charter capital of the company, unless a different procedure for determining the size of contributions to the property of the company is provided for by the charter of the company.
The charter of the company may provide for the maximum value of contributions to the property of the company made by all or certain members of the company, as well as other restrictions related to making contributions to the property of the company.
The restrictions related to making contributions to the property of the company established for a certain member of the company, in the event of alienation of his share (part of the share), do not apply to the acquirer of the share (part of the share).
Provisions establishing the procedure for determining the size of contributions to the company's property disproportionate to the size of the shares of the company's participants, as well as provisions establishing restrictions related to making contributions to the company's property, may be provided for by the company's charter when it was founded or introduced into the company's charter by decision of the general meeting of the company's participants. adopted by all members of the company unanimously.
Amendments and exclusion of the provisions of the company's charter, establishing the procedure for determining the size of contributions to the company's property disproportionate to the size of the shares of the company's participants, as well as restrictions related to making contributions to the company's property, established for all members of the company, are carried out by decision of the general meeting of the company's participants, adopted by all participants society is unanimous. Amendments and exclusion of the provisions of the charter of a company that establish the specified restrictions for a certain participant in the company are carried out by a decision of the general meeting of participants in the company, adopted by a majority of at least two-thirds of votes of the total number of votes of the participants in the company, provided that the participant in the company for whom such restrictions are established, voted for such a decision or gave written consent.
3. Contributions to the property of the company are made in money, unless otherwise provided by the charter of the company or by the decision of the general meeting of the company's participants.
4. Contributions to the property of the company do not change the size and nominal value of the shares of the company's participants in the authorized capital of the company.
Article 28. Distribution of the company's profit among the company's participants
1. The company has the right to make a decision on the distribution of its net profit between the members of the company. The decision to determine the part of the company's profits to be distributed among the company's participants is taken by the general meeting of the company's participants.
2. The part of the company's profits intended for distribution among its participants shall be distributed in proportion to their shares in the authorized capital of the company.
The charter of the company at its foundation or by introducing amendments to the charter of the company by decision of the general meeting of the company's participants unanimously adopted by all participants in the company may establish a different procedure for the distribution of profits among the participants in the company. Changes and exclusion of the provisions of the charter of the company, establishing such a procedure, are carried out by decision of the general meeting of the company's participants, adopted by all participants in the company unanimously.
Article 29. Restrictions on the distribution of the company's profits between the members of the company. Restrictions on the payment of the company's profit to the company's participants
1. The company is not entitled to make a decision on the distribution of its profits between the participants in the company:
2. The company does not have the right to pay out to the participants in the company profit, the decision on the distribution of which among the participants of the company has been made:
Upon termination of the circumstances specified in this clause, the company is obliged to pay to the participants of the company the profit, the decision on the distribution of which among the participants of the company has been made.
Article 30. Reserve fund and other funds of the company
The company can create a reserve fund and other funds in the manner and amount provided for by the charter of the company.
Article 31. Placement of bonds by a company
1. The company has the right to place bonds and other issue-grade securities in accordance with the procedure established by law O valuable papers Oh.
2. The issue of bonds by a company is allowed after full payment of its authorized capital. The bond must have a par value. The par value of all bonds issued by the company must not exceed the amount of the charter capital of the company and (or) the amount of security provided to the company for these purposes by third parties. In the absence of collateral provided by third parties, the issue of bonds is allowed no earlier than the third year of the company's existence and subject to proper approval of the annual financial statements for the two completed financial years. These restrictions are not applied to issues of mortgage-backed bonds and in other cases established by federal laws on securities.
Chapter IV. SOCIETY GOVERNANCE
Article 32. Bodies of the Company
1. The supreme body of the company is the general meeting of the members of the company. The general meeting of the company's participants can be regular or extraordinary.
All members of the company have the right to attend the general meeting of members of the company, to take part in the discussion of issues on the agenda and to vote when making decisions. The provisions of the constituent documents of the company or decisions of the bodies of the company that restrict the specified rights of the participants in the company are null and void.
Each participant in the company has at the general meeting of participants in the company a number of votes proportional to his share in the charter capital of the company, except for the cases provided for by this Federal Law.
The charter of the company at its foundation or by introducing amendments to the charter of the company by a decision of the general meeting of participants in the company, adopted unanimously by all participants in the company, may establish a different procedure for determining the number of votes of the participants in the company. Changes and exclusion of the provisions of the charter of the company, establishing such a procedure, are carried out by decision of the general meeting of the company's participants, adopted by all participants in the company unanimously.
2. The charter of the company may provide for the formation of the board of directors (supervisory board) of the company.
The competence of the board of directors (supervisory board) of the company is determined by the charter of the company in accordance with this Federal Law.
The charter of the company may provide that the competence of the board of directors (supervisory board) of the company includes the formation of executive bodies of the company, early termination of their powers, the resolution of issues on the conclusion of major transactions in the cases provided for in Article 46 of this Federal Law, the resolution of issues of transactions, in in the fulfillment of which there is an interest, in the cases provided for in Article 45 of this Federal Law, the solution of issues related to the preparation, convocation and holding of the general meeting of the company's participants, as well as the solution of other issues provided for by this Federal Law. In the event that the resolution of issues related to the preparation, convocation and holding of the general meeting of the company's participants is attributed by the charter of the company to the competence of the board of directors (supervisory board) of the company, the executive body of the company acquires the right to demand an extraordinary general meeting of the company's participants.
The procedure for the formation and operation of the board of directors (supervisory board) of the company, as well as the procedure for terminating the powers of the 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.
Members of the collegial executive body companies cannot make up more than one fourth of the composition of the board of directors (supervisory board) of the company. The person performing the functions of the sole executive body of the company cannot be simultaneously the chairman of the board of directors (supervisory board) of the company.
By decision of the general meeting of the company's participants, members of the board of directors (supervisory board) of the company during the period of their duties may be paid remuneration and (or) compensated for the costs associated with the performance of these duties. The amounts of the mentioned remuneration and compensation are established by the decision of the general meeting of the company's participants.
3. Members of the board of directors (supervisory board) of the company, the person performing the functions of the sole executive body of the company, and members of the collegial executive body of the company who are not members of the company may participate in the general meeting of the company's participants with the right of an advisory vote.
4. Management of the current activities of the company is carried out by the sole executive body of the company or the sole executive body of the company and the collegial executive body of the company. The executive bodies of the company are accountable to the general meeting of members of the company and the board of directors (supervisory board) of the company.
5. Transfer of the right to vote by a member of the board of directors (supervisory board) of the company, a member of the collegial executive body of the company to other persons, including other members of the board of directors (supervisory board) of the company, other members of the collegial executive body of the company, is not allowed.
6. The charter of the company may provide for education audit commission(election of the auditor) of the company. In companies with more than fifteen members, the formation of an audit commission (election of an auditor) of the company is mandatory. A member of the auditing commission (auditor) of a company may also be a person who is not a member of the company.
The functions of the audit commission (auditor) of the company, if it is provided for by the charter of the company, may be performed by an auditor approved by the general meeting of participants in the company, not related to property interests with the company, members of the board of directors (supervisory board) of the company, with a person acting as the sole executive body of the company, members the collegial executive body of the company and the members of the company.
Members of the audit commission (auditor) of the company may not be members of the board of directors (supervisory board) of the company, a person performing the functions of the sole executive body of the company, and members of the collegial executive body of the company.
Article 33. Competence of the general meeting of members of the company
1. The competence of the general meeting of members of the company is determined by the charter of the company in accordance with this Federal Law.
2. The exclusive competence of the general meeting of the company's participants includes:
1) determination of the main directions of the company's activities, as well as making a decision on participation in associations and other unions of commercial organizations;
2) changes in the charter of the company, including changes in the size of the charter capital of the company;
3) amendments to the memorandum of association;
4) 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 commercial organization or individual entrepreneur(hereinafter referred to as the manager), approval of such a manager and the terms of the contract with him;
5) election and early termination of the powers of the audit commission (auditor) of the company;
6) approval of annual reports and annual balance sheets;
7) making a decision on the distribution of the company's net profit among the company's participants;
8) approval (adoption) of documents regulating internal activities society (internal documents of the society);
9) making a decision on the placement of bonds and other equity securities by the company;
10) appointment of an audit, approval of the auditor and determination of the amount of payment for his services;
11) making a decision on the reorganization or liquidation of the company;
12) appointment of a liquidation commission and approval of liquidation balance sheets;
13) solution of other issues provided for by this Federal Law.
Issues attributed to the exclusive competence of the general meeting of the company's participants cannot be delegated to them for a decision by the board of directors (supervisory board) of the company, with the exception of cases provided for by this Federal Law, as well as for a decision by the executive bodies of the company.
Article 34. Ordinary general meeting of members of the company
The next general meeting of the company's participants is held within the timeframes determined by the charter of the company, but at least once a year. The next general meeting of the company's participants is convened by the executive body of the company.
The charter of the company must determine the date for holding the next general meeting of the company's participants, at which the annual results of the company's activities are approved.
The specified general meeting of the company's participants must be held no earlier than two months and no later than four months after the end of the financial year.
Article 35. Extraordinary General Meeting of Members of the Company
1. An extraordinary general meeting of the company's participants shall be held in cases determined by the charter of the company, as well as in any other cases if the interests of the company and its participants require such a general meeting.
2. An extraordinary general meeting of members of the company is convened by the executive body of the company on its initiative, at the request of the board of directors (supervisory board) of the company, the audit commission (auditor) of the company, the auditor, as well as the members of the company who in aggregate have at least one tenth of the total votes of members of the company.
The executive body of the company is obliged, within five days from the date of receipt of the request to hold an extraordinary general meeting of the company's participants this requirement and make a decision to hold an extraordinary general meeting of the company's participants or to refuse to hold it. The decision to refuse to hold an extraordinary general meeting of participants in the company may be made by the executive body of the company only if:
If one or several issues proposed for inclusion in the agenda of the extraordinary general meeting of the company's participants do not fall within the competence of the general meeting of the company's participants or do not comply with the requirements of federal laws, these issues are not included in the agenda.
The executive body of the company is not entitled to amend the wording of the issues proposed for inclusion in the agenda of the extraordinary general meeting of the company's participants, as well as to change the proposed form of holding the extraordinary general meeting of the company's participants.
Along with the issues proposed for inclusion in the agenda of the extraordinary general meeting of the company's participants, the company's executive body for own initiative has the right to include additional questions in it.
3. If a decision is made to hold an extraordinary general meeting of the company's participants, the said general meeting must be held no later than forty-five days from the date of receipt of the request for its holding.
4. If, within the period established by this Federal Law, no decision is made to hold an extraordinary general meeting of the company's participants or a decision is made to refuse to hold it, the extraordinary general meeting of the company's participants may be convened by the bodies or persons requiring it.
In this case, the executive body of the company is obliged to provide the indicated bodies or persons with a list of participants in the company with their addresses.
The costs of preparing, convening and holding such a general meeting may be reimbursed by decision of the general meeting of the company's participants at the expense of the company.
Article 36. Procedure for convening a general meeting of participants in a company
1. The body or persons convening the general meeting of the company's participants must notify each participant of the company no later than thirty days before its holding. by registered mail at the address indicated in the list of participants in the company, or in another way provided for by the charter of the company.
2. The notification must indicate the time and place of the general meeting of the company's participants, as well as the proposed agenda.
Any member of the company has the right to make proposals on the inclusion of additional issues in the agenda of the general meeting of members of the company no later than fifteen days prior to its holding. Additional issues, with the exception of issues that do not fall within the competence of the general meeting of members of the company or do not meet the requirements of federal laws, are included in the agenda of the general meeting of members of the company.
The body or persons convening the general meeting of the company's participants are not entitled to amend the wording of additional issues proposed for inclusion in the agenda of the general meeting of the company's participants.
If, at the suggestion of the company's participants, changes are made to the initial agenda of the general meeting of the company's participants, the body or persons convening the general meeting of the company's participants are obliged, no later than ten days before its holding, to notify all the company's participants of the changes made to the agenda by specified in paragraph 1 of this article.
3. The information and materials to be provided to the company's participants in the preparation of the general meeting of the company's participants include the company's annual report, the conclusions of the audit commission (auditor) of the company and the auditor based on the results of checking the annual reports and annual balance sheets of the company, information about the candidate (candidates) for executive bodies of the company, the board of directors (supervisory board) of the company and the audit commission (auditors) of the company, draft amendments and additions to the constituent documents of the company, or drafts of the constituent documents of the company in a new edition, draft internal documents of the company, as well as other information (materials ), provided for by the charter of the company.
If a different procedure for familiarizing the company's participants with information and materials is not provided for by the charter of the company, the body or persons convening the general meeting of the company's participants are obliged to send them information and materials together with a notification of the general meeting of the company's participants, and in case of a change in the agenda, the relevant information and materials are sent together with notification of such change.
The specified information and materials within thirty days prior to the general meeting of the company's members must be provided to all members of the company for familiarization in the premises of the executive body of the company. The company is obliged, at the request of a member of the company, to provide him with copies of these documents. The fee charged by the community for the provision of these copies may not exceed the cost of their production.
4. The charter of the company may provide for shorter periods than those indicated in this article.
5. In the event of violation of the procedure for convening a general meeting of participants in the company established by this article, such a general meeting shall be deemed competent if all participants in the company participate in it.
Article 37. Procedure for holding a general meeting of participants in a company
1. The general meeting of members of the company is held in the manner prescribed by this Federal Law, the charter of the company and its internal documents. To the extent not regulated by this Federal Law, the company's charter and the company's internal documents, the procedure for holding a general meeting of company participants is established by a decision of the general meeting of company participants.
2. Before the opening of the general meeting of members of the company, registration of the arrived members of the company is carried out.
Members of the company have the right to participate in the general meeting personally or through their representatives. Representatives of the members of the company must present documents confirming their proper powers. A power of attorney issued to a representative of a company participant must contain information about the person represented and the representative (name or title, place of residence or location, passport data), be drawn up in accordance with the requirements of paragraphs 4 and 5 of Article 185 of the Civil Code of the Russian Federation or certified by a notary.
A non-registered member of the company (representative of a member of the company) is not entitled to take part in voting.
3. The general meeting of members of the company shall open at the time specified in the notice of the general meeting of members of the company or, if all members of the company are already registered, earlier.
4. The general meeting of members of the company shall be opened by the person performing the functions of the sole executive body of the company, or by the person who heads the collegial executive body of the company. The general meeting of the company's participants, convened by the board of directors (supervisory board) of the company, the audit commission (auditor) of the company, the auditor or members of the company, is opened by the chairman of the board of directors (supervisory board) of the company, the chairman of the audit commission (auditor) of the company, the auditor or one of the participants in the company who convened this general meeting.
5. The person who opens the general meeting of the company's participants shall elect a chairperson from among the company's participants. Unless otherwise provided by the company's charter, when voting on the issue of electing the chairman, each participant in the general meeting of the company's participants has one vote, and the decision on this issue is made by a majority of votes of the total number of votes of the company's participants who have the right to vote at this general meeting.
6. The executive body of the company organizes the keeping of the minutes of the general meeting of the company's participants.
The minutes of all general meetings of the members of the company are filed in the book of minutes, which must be provided at any time to any member of the company for review. At the request of the members of the company, they are issued extracts from the book of minutes, certified by the executive body of the company.
7. The general meeting of members of the company shall have the right to make decisions only on agenda items communicated to the members of the company in accordance with clauses 1 and 2 of Article 36 of this Federal Law, unless all members of the company participate in this general meeting.
8. Decisions on the issues specified in subparagraph 2 of paragraph 2 of Article 33 of this Federal Law, as well as on other issues determined by the charter of the company, shall be adopted by a majority of at least two-thirds of the total number of votes of the participants in the company, if a larger number of votes is required for the adoption of such decisions are not provided for by this Federal Law or the charter of the company.
Decisions on the issues specified in subparagraphs 3 and 11 of paragraph 2 of Article 33 of this Federal Law shall be taken by all members of the company unanimously.
The rest of the decisions are taken by a majority of votes of the total number of votes of the company's participants, if the need for a larger number of votes for making such decisions is not provided for by this Federal Law or the charter of the company.
9. The charter of the company may provide for a cumulative vote on the election of members of the board of directors (supervisory board) of the company, members of the collegial executive body of the company and (or) members of the audit commission of the company.
In cumulative voting, the number of votes belonging to each member of the company is multiplied by the number of persons to be elected to the organ of the company, and the member of the company has the right to give the number of votes thus obtained in full for one candidate or distribute them between two or more candidates. The candidates who receive the largest number of votes are considered elected.
10. Decisions of the general meeting of members of the company are adopted by open voting, unless a different procedure for making decisions is provided for by the charter of the company.
Article 38. The decision of the general meeting of members of the company, adopted by absentee voting (by poll)
1. The decision of the general meeting of the company's members may be made without holding a meeting (joint presence of the company's members to discuss agenda items and make decisions on issues put to a vote) by absentee voting (by poll). Such a vote can be carried out by exchanging documents by means of postal, telegraphic, teletype, telephone, electronic or other communications that ensure the authenticity of transmitted and received messages and their documentary confirmation.
The decision of the general meeting of members of the company on the issues specified in subparagraph 6 of paragraph 2 of Article 33 of this Federal Law cannot be taken by absentee voting (by poll).
2. When a decision is made by the general meeting of members of the company by absentee voting (by poll), Clauses 2, 3, 4, 5 and 7 of Article 37 of this Federal Law, as well as the provisions of Clauses 1, 2 and 3 of Article 36 of this Federal Law in parts of the time frames stipulated by them.
3. The procedure for holding absentee voting is determined by an internal document of the company, which must provide for the obligation to communicate the proposed agenda to all members of the company, the possibility of familiarizing all members of the company with all the necessary information and materials before voting, the ability to make proposals to include additional issues in the agenda, obligatory messages to all members of the company before the start of voting on the amended agenda, as well as the deadline for the end of the voting procedure.
Article 39. Adoption of decisions on issues related to the competence of the general meeting of participants in the company, the sole participant in the company
In a company consisting of one participant, decisions on issues related to the competence of the general meeting of participants in the company are made by the only participant in the company individually and are drawn up in writing. In this case, the provisions of Articles 34, 35, 36, 37, 38 and 43 of this Federal Law shall not apply, with the exception of the provisions concerning the timing of the annual general meeting of the company's participants.
Article 40. Sole executive body of the company
1. Sole executive body of the company ( general manager, president and others) is elected by the general meeting of the company's participants for a period determined by the charter of the company. The sole executive body of a company may also be elected not from among its participants.
The contract between the company and the person performing the functions of the sole executive body of the company shall be signed on behalf of the company by the person who presided over the general meeting of the company's participants, at which the person exercising the functions of the sole executive body of the company was elected, or by the company participant authorized by the decision of the general meeting of the company's participants.
2. Only individual, with the exception of the case provided for in Article 42 of this Federal Law.
3. Sole executive body of the company:
1) acts on behalf of the company without a power of attorney, including representing its interests and concluding transactions;
2) issues powers of attorney for the right of representation on behalf of the company, including powers of attorney with the right of substitution;
3) issue orders on the appointment of employees of the company, on their transfer and dismissal, apply incentive measures and impose disciplinary sanctions;
4) exercise other powers that are not attributed by this Federal Law or the company's charter to the competence of the general meeting of the company's participants, the board of directors (supervisory board) of the company and the collegial executive body of the company.
4. The procedure for the activity of the sole executive body of the company and its decision-making shall be established by the charter of the company, the internal documents of the company, as well as by the agreement concluded between the company and the person performing the functions of its sole executive body.
Article 41. Collegial executive body of the company
1. If the charter of a company provides for the formation, along with the sole executive body of the company, of a collegial executive body of the company (board, directorate and others), such a body shall be elected by the general meeting of the company's participants in the number and for a period determined by the charter of the company.
A member of the collegial executive body of a company may only be an individual who may not be a member of the company.
The collegial executive body of the company exercises the powers assigned by the charter of the company to its competence.
The functions of the chairman of the collegial executive body of the company shall be performed by the person performing the functions of the sole executive body of the company, unless the powers of the sole executive body of the company have been transferred to the manager.
2. The procedure for the activities of the collegial executive body of the company and its decision-making shall be established by the charter of the company and the internal documents of the company.
Article 42. Transfer of powers of the sole executive body of the company to the manager
The company has the right to transfer the powers of its sole executive body to the manager under the contract, if such a possibility is directly provided for by the charter of the company.
The contract with the manager is signed on behalf of the company by the person who presided over the general meeting of the company's participants, who approved the terms of the contract with the manager, or a company participant authorized by the decision of the general meeting of the company's participants.
Article 43. Appealing against decisions of the management bodies of the company
1. A decision of the general meeting of members of the company, adopted in violation of the requirements of this Federal Law, other legal acts of the Russian Federation, the charter of the company and violating the rights and legitimate interests of a member of the company, may be recognized by the court as invalid at the request of a member of the company who did not take part in voting or who voted against the contested decision. Such an application can be submitted within two months from the day when the member of the company learned or should have learned about the decision. If a member of the company took part in the general meeting of members of the company, which made the appealed decision, the said application may be submitted within two months from the date of such a decision.
2. The court shall have the right, taking into account all the circumstances of the case, to uphold the contested decision if the voting of the company participant who submitted the application could not affect the voting results, the violations committed are not material and the decision did not entail any damage this participant society.
3. The decision of the board of directors (supervisory board) of the company, the sole executive body of the company, the collegial executive body of the company or the manager, adopted in violation of the requirements of this Federal Law, other legal acts of the Russian Federation, the charter of the company and violating the rights and legitimate interests of a member of the company, may be declared invalid by the court at the request of this member of the company.
Article 44. Responsibility of members of the board of directors (supervisory board) of the company, the sole executive body of the company, members of the collegial executive body of the company and the manager
1. Members of the board of directors (supervisory board) of the company, the sole executive body of the company, members of the collegial executive body of the company, as well as the manager in the exercise of their rights and performance of duties must act in the interests of the company in good faith and reasonably.
2. Members of the board of directors (supervisory board) of the company, the sole executive body of the company, members of the collegial executive body of the company, as well as the manager shall be liable to the company for losses caused to the company by their guilty actions (inaction), unless other grounds and amount of responsibility are established by federal laws. At the same time, members of the board of directors (supervisory board) of the company, members of the collegial executive body of the company, who voted against the decision that caused damage to the company, or did not take part in the vote, are not liable.
3. When determining the grounds and amount of responsibility of members of the board of directors (supervisory board) of the company, the sole executive body of the company, members of the collegial executive body of the company, as well as the manager, the usual conditions of business turnover and other circumstances relevant to the case must be taken into account.
4. In the event that, in accordance with the provisions of this article, several persons bear responsibility, their responsibility to society is joint and several.
5. With a claim for compensation for losses caused to the company by a member of the board of directors (supervisory board) of the company, the sole executive body of the company, a member of the collegial executive body of the company or a manager, the company or its participant may apply to the court.
Article 45. Interest in the transaction by the company
1. Transactions in which there is an interest of a member of the board of directors (supervisory board) of a company, a person performing the functions of the sole executive body of a company, a member of a collegial executive body of a company, or an interest of a participant in a company who, together with its affiliates, has twenty or more percent of votes of the total the number of votes of the company's participants cannot be performed by the company without the consent of the general meeting of the company's participants.
The indicated persons are recognized as interested in the transaction by the company if they, their spouses, parents, children, brothers, sisters and (or) their affiliates:
2. The persons referred to in the first paragraph of clause 1 of this article must bring to the notice of the general meeting of the company's participants the information:
3. The decision on the conclusion by the company of a transaction in which there is an interest shall be adopted by the general meeting of the company's participants by a majority of votes from the total number of votes of the company's participants who are not interested in its completion.
4. The conclusion of an interested party transaction does not require a decision of the general meeting of participants in the company provided for in paragraph 3 of this article, in cases where the transaction is carried out in the normal course of business between the company and another party that took place before the moment from which the person interested in the transaction is recognized as such in accordance with paragraph 1 of this article (a decision is not required until the date of the next general meeting of the company's participants).
5. A transaction in which there is an interest and which was made in violation of the requirements provided for in this article may be invalidated at the suit of the company or its participant.
6. This article does not apply to companies consisting of one participant who simultaneously performs the functions of the sole executive body of this company.
7. In the event that a board of directors (supervisory board) of the company is formed in the company, the decision to conclude transactions in which there is an interest may be referred by the charter of the company to its competence, unless the amount of payment under the transaction or the value of the property that is the subject transactions, exceeds two percent of the value of the property of the company, determined on the basis of financial statements for the last reporting period.
Article 46. Major transactions
1. A major transaction is a transaction or several interrelated transactions related to the acquisition, alienation or the possibility of alienation by the company, directly or indirectly, of property, the value of which is more than twenty-five percent of the value of the property of the company, determined on the basis of financial statements for the last reporting period preceding the day of adoption decisions on the conclusion of such transactions, if the charter of the company does not provide for a higher size of the major transaction. Major transactions shall not be deemed to be transactions carried out in the course of the ordinary course of business of the company.
2. For the purposes of this article, the value of the property alienated by the company as a result of a major transaction is determined on the basis of its accounting data, and the value of the property acquired by the company is determined on the basis of the offer price.
3. The decision to conclude a major transaction is made by the general meeting of the company's participants.
4. In the event that a board of directors (supervisory board) of the company is formed in the company, making decisions on major transactions related to the acquisition, alienation or the possibility of alienation by the company, directly or indirectly, of property, the value of which ranges from twenty-five to fifty percent of the value of the company's property, may be referred by the charter of the company to the competence of the board of directors (supervisory board) of the company.
5. A major transaction concluded in violation of the requirements provided for by this article may be invalidated at the suit of the company or its participant.
6. The charter of the company may stipulate that the decision of the general meeting of the company's participants and the board of directors (supervisory board) of the company is not required for the conclusion of major transactions.
Article 47. Auditing commission (auditor) of the company
1. The audit commission (auditor) of the company is elected by the general meeting of the company's participants for a period determined by the charter of the company.
The number of members of the audit commission of the company is determined by the charter of the company.
2. The audit commission (auditor) of the company shall have the right at any time to carry out inspections of the financial and economic activities of the company and have access to all documentation relating to the activities of the company. At the request of the audit commission (auditor) of the company, members of the board of directors (supervisory board) of the company, a person performing the functions of the sole executive body of the company, members of the collegial executive body of the company, as well as employees of the company are required to provide the necessary explanations orally or in writing.
3. The auditing commission (auditor) of the company shall on a mandatory basis check the annual reports and balance sheets of the company prior to their approval by the general meeting of the company's participants. The general meeting of members of the company is not entitled to approve the annual reports and balance sheets of the company in the absence of the conclusions of the audit commission (auditor) of the company.
4. The procedure for the work of the audit commission (auditor) of the company is determined by the charter and internal documents of the company.
5. This article shall apply in cases where the formation of the audit commission of the company or the election of the auditor of the company is provided for by the charter of the company or is mandatory in accordance with this Federal Law.
Article 48. Audit of a company
To check and confirm the correctness of the annual reports and balance sheets of the company, as well as to check the state of the company's current affairs, it has the right, by decision of the general meeting of the company's participants, to engage a professional auditor who is not related to property interests with the company, members of the board of directors (supervisory board) of the company, a person performing the functions of the sole executive body of the company, members of the collegial executive body of the company and participants in the company.
At the request of any member of the company, an audit can be carried out by his chosen professional auditor, which must meet the requirements established by part one of this article. In the event of such an audit, payment for the auditor's services is carried out at the expense of a member of the company, at whose request it is carried out. The expenses of a member of the company for paying for the services of the auditor may be reimbursed to him by the decision of the general meeting of members of the company at the expense of the company.
Involvement of an auditor to check and confirm the correctness of the company's annual reports and balance sheets is mandatory in cases stipulated by federal laws and other legal acts of the Russian Federation.
Article 49. Public reporting of the company
1. The Company is not obliged to publish reports on its activities, except for the cases provided for by this Federal Law and other federal laws.
2. In the event of a public offering of bonds and other equity securities, the company is obliged to publish annual reports and balance sheets annually, as well as to disclose other information about its activities, provided for by federal laws and regulations adopted in accordance with them.
Article 50. Keeping the company's documents
1. The company is obliged to keep the following documents:
2. The company stores the documents provided for in paragraph 1 of this article at the location of its sole executive body or in another place known and accessible to the company's participants.
Chapter V. REORGANIZATION AND LIQUIDATION OF THE COMPANY
Article 51. Reorganization of the company
1. The Company may be voluntarily reorganized in the manner prescribed by this Federal Law.
Other grounds and procedure for the reorganization of the company are determined by the Civil Code of the Russian Federation and other federal laws.
2. The reorganization of a company may be carried out in the form of merger, acquisition, division, separation and transformation.
3. The company is considered reorganized, with the exception of cases of reorganization in the form of merger, from the moment of state registration of legal entities created as a result of reorganization.
When a company is reorganized in the form of a merger with another company, the first of them shall be considered reorganized from the moment an entry is made in the unified state register of legal entities about the termination of the merged company.
4. State registration of companies created as a result of reorganization, and making entries on the termination of the activities of reorganized companies, as well as state registration of amendments to the charter shall be carried out in accordance with the procedure established by federal laws.
5. Not later than thirty days from the date of the decision on the reorganization of the company, and in the event of the reorganization of the company in the form of a merger or acquisition from the date of the decision on this by the last of the companies participating in the merger or acquisition, the company is obliged to notify in writing all the creditors of the company known to it. and publish in the press, which publishes data on the state registration of legal entities, a message about the decision. In this case, the creditors of the company, within thirty days from the date of sending them notifications or within thirty days from the date of publication of the message on the decision taken, have the right to demand in writing the early termination or fulfillment of the corresponding obligations of the company and compensation for losses.
The state registration of companies created as a result of the reorganization and the entry of records on the termination of the activities of the reorganized companies are carried out only upon presentation of evidence of notification of creditors in the manner prescribed by this paragraph.
If the separation balance sheet does not make it possible to determine the legal successor of the reorganized company, the legal entities created as a result of the reorganization shall be jointly and severally liable for the obligations of the reorganized company to its creditors.
Article 52. Merger of companies
1. The merger of companies is the creation of a new company with the transfer to it of all the rights and obligations of two or more companies and the termination of the latter.
2. The general meeting of participants of each company participating in the reorganization in the form of a merger makes a decision on such a reorganization, on the approval of the merger agreement and the charter of the company created as a result of the merger, as well as on the approval of the transfer act.
3. The merger agreement signed by all participants of the company created as a result of the merger is, along with its charter, its constituent document and must comply with all the requirements of the Civil Code of the Russian Federation and this Federal Law to the constituent contract.
4. In the event that the general meeting of participants of each company participating in the reorganization in the form of a merger adopts a decision on such reorganization and on the approval of the merger agreement, the charter of the company created as a result of the merger, and the deed of transfer, the election of the executive bodies of the company created as a result of the merger, carried out at a joint general meeting of the participants of the companies participating in the merger. The timing and procedure for holding such a general meeting are determined by the merger agreement.
The sole executive body of the company created as a result of the merger carries out actions related to the state registration of this company.
5. In the event of a merger of companies, all the rights and obligations of each of them shall pass to the company created as a result of the merger, in accordance with the transfer acts.
Article 53. Accession of a company
1. The takeover of a company is the termination of one or several companies with the transfer of all their rights and obligations to another company.
2. The general meeting of participants of each company participating in the reorganization in the form of a merger makes a decision on such reorganization, on the approval of the merger agreement, and the general meeting of participants in the acquired company also makes a decision on the approval of the transfer act.
3. The joint general meeting of the participants of the companies participating in the merger introduces to the constituent documents of the company to which the merger is carried out, changes related to the change in the composition of the company's participants, the determination of the size of their shares, other changes provided for by the merger agreement, and, if necessary, decides other issues, including issues on the election of the bodies of the company to which the affiliation is carried out. The timing and procedure for holding such a general meeting are determined by the accession agreement.
4. When one company is merged with another, all the rights and obligations of the affiliated company are transferred to the latter in accordance with the deed of transfer.
Article 54. Division of the company
1. The division of the company is the termination of the company with the transfer of all its rights and obligations to the newly created companies.
2. The general meeting of participants in a company reorganized in the form of division shall take a decision on such reorganization, on the procedure and conditions for the division of the company, on the creation of new companies and on the approval of the separation balance sheet.
3. Members of each company created as a result of division shall sign a memorandum of association. The general meeting of members of each company, created as a result of division, approves the charter and elects the bodies of the company.
4. When a company is divided, all of its rights and obligations are transferred to the companies created as a result of the division, in accordance with the separation balance sheet.
Article 55. Spin-off of a company
1. Spin-off of a company is the creation of one or several companies with the transfer to him (them) of a part of the rights and obligations of the reorganized company without termination of the latter.
2. The general meeting of participants in a company reorganized in the form of a spin-off makes a decision on such reorganization, on the procedure and conditions for spin-off, on the creation of a new company (new companies) and on the approval of the separation balance sheet, enters into the constituent documents of the company reorganized in the form of a spin-off, changes related to the change in the composition of the company's participants, the determination of the size of their shares, and other changes provided for by the decision on the spin-off, as well as, if necessary, resolve other issues, including issues on the election of the company's bodies.
The participants of the spun off company sign the memorandum of association. The general meeting of the participants of the spun off company approves its charter and elects the bodies of the company.
If the only participant in the spun-off company is the reorganized company, the general meeting of the latter makes a decision on the reorganization of the company in the form of spin-off, on the procedure and conditions for spin-off, and also approves the charter of the spun-off company and the separation balance sheet, and elects the bodies of the spun-off company.
3. When one or several companies are separated from the company, a part of the rights and obligations of the reorganized company is transferred to each of them in accordance with the separation balance sheet.
Article 56. Reorganization of society
1. The company has the right to transform itself into a joint stock company, a company with additional liability or a production cooperative.
2. The general meeting of participants in a company reorganized in the form of reorganization makes a decision on such reorganization, on the procedure and conditions for the reorganization, on the procedure for exchanging shares of the company's participants for shares in a joint-stock company, shares of participants in a company with additional liability or shares of members of a production cooperative, on the approval the charter of a joint-stock company, a company with additional liability or a production cooperative created as a result of the transformation, as well as on the approval of the transfer act.
3. Participants of a legal entity created as a result of transformation make a decision on the election of its bodies in accordance with the requirements of federal laws on such legal entities and instruct the relevant body to carry out actions related to state registration of a legal entity created as a result of transformation.
4. When the company is reorganized, all the rights and obligations of the reorganized company shall be transferred to the legal entity created as a result of the reorganization in accordance with the deed of transfer.
Article 57. Liquidation of a company
1. The company may be liquidated voluntarily in accordance with the procedure established by the Civil Code of the Russian Federation, taking into account the requirements of this Federal Law and the company's charter. The Company can also be liquidated by a court decision on the grounds provided for by the Civil Code of the Russian Federation.
The liquidation of a company entails its termination without transfer of rights and obligations by way of succession to other persons.
2. The decision of the general meeting of the company's participants on the voluntary liquidation of the company and the appointment of the liquidation commission shall be adopted at the suggestion of the board of directors (supervisory board) of the company, the executive body or a member of the company. The general meeting of participants in a voluntarily liquidated company makes a decision on the liquidation of the company and the appointment of a liquidation commission.
3. From the moment of the appointment of the liquidation commission, all the powers to manage the affairs of the company shall be transferred to it. The liquidation commission acts in court on behalf of the liquidated company.
4. In the event that a participant in the liquidated company is the Russian Federation, a constituent entity of the Russian Federation or municipality, the liquidation commission includes a representative federal body for the management of state property, a specialized institution that sells federal property, a body for the management of state property of a constituent entity of the Russian Federation, a seller of state property of a constituent entity of the Russian Federation or a local government body.
5. The procedure for liquidating a company is determined by the Civil Code of the Russian Federation and other federal laws.
Article 58. Distribution of the property of a liquidated company between its participants
1. The property of the liquidated company remaining after the completion of settlements with creditors is distributed liquidation commission between the members of the company in the following order:
2. The claims of each priority are satisfied after the full satisfaction of the claims of the previous priority.
If the property available to the company is insufficient to pay the distributed, but unpaid part of the profit, the property of the company is distributed among its participants in proportion to their shares in the authorized capital of the company.
Chapter VI. FINAL PROVISIONS
Article 59. Entry into force of this Federal Law
2. From the moment this Federal Law enters into force, the legal acts in force on the territory of the Russian Federation until they are brought into conformity with this Federal Law shall be applied to the extent that they do not contradict this Federal Law.
The constituent documents of limited liability companies (limited liability partnerships) from the date of entry into force of this Federal Law shall be applied in the part that does not contradict this Federal Law.
3. The constituent documents of limited liability companies (limited liability partnerships) created prior to the entry into force of this Federal Law shall be brought into conformity with this Federal Law no later than July 1, 1999.
Limited liability companies (limited liability partnerships), the number of participants in which exceeds fifty at the time this Federal Law enters into force, must, before July 1, 1999, be transformed into joint stock companies or production cooperatives or reduce the number of participants to the limit established by this Federal Law. When such limited liability companies (limited liability partnerships) are transformed into joint stock companies, they may be transformed into closed joint stock companies without limiting the maximum number of shareholders of a closed joint stock company established by the Federal Law "On Joint Stock Companies". The provisions of the second and third paragraphs of clause 3 of Article 7 of the Federal Law "On Joint Stock Companies" are not applied to these closed joint stock companies.
When converting limited liability companies (limited liability partnerships) into joint stock companies or production cooperatives in the manner prescribed by this paragraph, the provisions of paragraph 5 of Article 51 of this Federal Law shall not apply either.
The decision of the general meeting of participants of a limited liability company (limited liability partnership) on the transformation of a limited liability company (limited liability partnership), the number of participants in which at the time of entry into force of this Federal Law exceeds fifty, shall be adopted by a majority of at least two-thirds of the total the number of votes of participants in a limited liability company (limited liability partnership). Participants in a limited liability company (limited liability partnership) who voted against the decision to reorganize it or did not participate in the vote have the right to withdraw from the limited liability company (limited liability partnership) in the manner prescribed by Article 26 of this Federal Law.
Limited liability companies (limited liability partnerships) that have not brought their constituent documents in accordance with this Federal Law or have not been transformed into joint stock companies or production cooperatives may be liquidated in court at the request of the body that carries out state registration of legal entities, or other state bodies or bodies of local self-government to which the right to present such a demand is granted by federal law.
4. Limited liability companies (limited liability partnerships) specified in paragraph 3 of this article are exempt from paying the registration fee when registering changes to their legal status in connection with its bringing in line with this Federal Law.
The president
Russian Federation
B. YELTSIN
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