Individual types of commercial organizations
Various organizational and legal forms of some commercial legal entities have both common (item 66-68 GK), and specific features (articles 69-115 GK). In particular, economic partnerships and companies . These include all commercial organizations with a share (share) of the founders (participants) divided into shares (contributions) capital. The property created at the expense of the contributions of the founders (members), as well as produced and acquired by the economic partnership or the company in the course of its activities, belongs to it on the basis of ownership. The contribution to the property of an economic partnership or a company may be money, securities, other things or property rights having monetary value, for example exclusive rights to a patent protected invention. The monetary valuation of the contribution, the participant of the economic company is made by agreement between the founders (members) of the company and in cases provided by law, subject to an independent expert evaluation. Specifics of business entities is the possibility of their creation by one individual or legal entity, which becomes its sole participant. It is not allowed only to act as the sole founder (shareholder) of the joint-stock company of another business entity consisting of one person.
. Participants in a full partnership can only be individual entrepreneurs and (or) commercial organizations. All participants jointly and severally bear subsidiary responsibility for the obligations of the full partnership with all personally owned property. In other words, in case of insufficiency of the property of the partnership itself in order to satisfy the creditors' claims, the latter in the remainder may demand satisfaction in full from personal property of any (or any) of the full comrades (clause 1, Article 75 of the Civil Code). Such a treatment of joint and subsidiary liability is based on the norms of Section 1, Art. 323 and para. 1 p. 1 of Art. 399 GK.Partnership (limited partnership) - is a partnership in which, along with the participants who carry out entrepreneurial activities on behalf of the partnership and are responsible for its obligations with their property (i.e. that is, full partners), there is one or more contributor-participants (limited partners) who bear the risk of losses of the partnership only within the limits of the amounts of their deposits and do not take part in the implementation of the entrepreneurial activity by the partnership. Full partners in partnerships on faith, as well as in full partnerships, can also be only individual entrepreneurs and (or) commercial organizations (paragraph 1 of paragraph 4 of Article 66 of the Civil Code).
A limited liability company (LLC) recognizes an economic company created by one or more persons, the authorized capital of which is divided into shares; members of the LLC are not liable for its obligations and bear the risk of losses associated with the activities of the company within the value of their shares in the charter capital of the company (clause 1 of Article 2 of the Federal Law of 08.02.1998 No. 14-FZ "On Limited Liability Companies" (hereinafter referred to as the LLC Law).Participants in the company who do not fully pay their shares are jointly and severally liable for the obligations of the company within the limits of the value of the unpaid portion of the shares owned by them in the company's authorized capital.
Limited liability company is the most common type of business entities. This is primarily due to the simple procedure for creating it. So, an LLC can be established by one person or consist of one person, including when created as a result of reorganization. However, in this case, LLC can not have as another participant another business entity consisting of one person.
The founders of the LLC conclude a written agreement on the establishment of the company, which determines the procedure for their joint activities in establishing the company, the size of the charter capital of the company, the size of their shares in the charter capital of the company, the size and nominal value of the share of each of the founders of the company, , the procedure and terms of payment for such stakes in the authorized capital of the company. It should be borne in mind that the agreement on the establishment of the company is not its constituent document. Such a document is the charter of the society.
The founders of LLC are jointly and severally liable for the obligations related to the institution and originated before its state registration.
The supreme body of the company is the general meeting of the company's participants. The competence of the general meeting of the company's participants is determined by the company's charter in accordance with the LLC Law. Each member of the company has at the general meeting of the company's participants a number of votes proportional to its share in the company's authorized capital, with the exception of cases provided for by this Law. The charter of the company may provide for the formation of the board of directors (supervisory board) of the company. The charter defines the procedure for the formation, activities of the board of directors (supervisory council) of the company, the competence, as well as the procedure for terminating the powers of members of the board of directors supervisory board) of the company and the competence of the chairman of the board of directors (supervisory board) of the company.
The sole meeting of the company's members elects the sole executive body of the company (general director , president, etc.) for a period determined by the charter of the company, if the company's charter does not include the resolution of these issues in the competence of the board of directors (supervisory board) of the company. The sole executive body of a company may not be elected from among its participants. At the same time, only an individual can act as the sole executive body of the company, except for the case when the company under the contract transferred the exercise of the powers of its sole executive body to the manager.
If the company's charter provides for the formation along with the sole executive body of the company of a collegial executive body of the company (board , directorate, etc.) such the body is elected by the general meeting of the company's participants in the amount and for a period that is determined by the company's charter. At the same time, a member of the collegial executive body of a company may become only an individual who may not be a member of the company. It should be borne in mind that the functions of the chairman of the collegial executive body of the company are performed by the person performing the functions of the sole executive body of the company (general director, president, etc.), unless the powers of the sole executive body of the company are transferred to the manager.
A company with additional responsibility (ODL) is a company whose authorized capital is divided into shares; members of such a company jointly bear subsidiary responsibility for its obligations with its property in the same multiple for all, to the value of their shares as determined by the company's charter. In the event of bankruptcy of one of the participants, its liability for the obligations of the company is distributed among the other participants in proportion to their deposits, unless another procedure for the allocation of liability is provided for by the constituent documents of the company. The firm name of the ODL along with the name of the company must necessarily contain the words with additional responsibility & quot ;.Speaking about a society with additional responsibility, I would like to note that the authors of the draft Concept for the Development of Legislation on Legal Persons in 2009 justified the view that "there are not sufficient grounds for preserving such an organizational legal form of a legal entity as a society with additional responsibility (item 95 GK). The civil-legal status of such economic companies is almost completely determined by the provisions of the law on limited liability companies. Obviously, the imposition of additional liability on the debts of a legal entity to members of such a company does not require the establishment of a special organizational and legal form in the law, or may be sanctioned at the level of the charter. " Thus, in their opinion, "continuation of reforms in the field of improving the typology of legal entities should be the elimination of such an organizational and legal form as a society with additional responsibility (ODL)". However, the changes proposed in the Concept have not yet been adopted by the legislator and this legal form of legal entities continues to exist.
Joint Stock Company (AO) is one of the most common organizational and legal forms, especially in the sphere of medium and large business. The authorized capital of the joint-stock company is divided into a certain number of registered shares. Members of this company (shareholders) are not liable for its obligations and bear the risk of losses of the company within the value of their shares. The civil-legal status of various types of joint-stock companies is established by art. 96-104 of the Civil Code, as well as Federal Law No. 208-FZ of December 26, 1995 "On Joint Stock Companies" ("Joint Stock Companies Law"), No. 115-FZ dated July 19, 1998 "On the peculiarities of the legal status of joint-stock companies of workers (people's enterprises)"; (hereinafter - the Law on National Enterprises), No. 156-FZ of November 29, 2001, "On Investment Funds" (hereinafter - the Law on Investment Funds).
There is a number of differences between open, closed joint-stock companies and a joint stock company of workers (people's enterprise). For example, the number of founders public company ( OJSC) is not limited, while the number of founders Closed Joint Stock Company (CJSC) can not exceed fifty. Further, the Company has the right to conduct an open subscription to its shares and their free sale. Its participants may alienate their shares without the consent of other shareholders. Shares of ZAO, on the contrary, are distributed only among its founders or other predetermined circle of persons. ZAO does not have the right to conduct an open subscription to the shares issued by it, and its shareholders have the pre-emptive right to purchase shares sold by other shareholders of this company. The minimum authorized capital of the company must be no less than one thousand, and CJSC - one hundred times the minimum wage at the date of registration of the company. Shareholders - owners of ordinary shares of the company may participate in the general meeting of shareholders with the right to vote on all matters of its competence, and also have the right to receive dividends, in case of liquidation of the company - the right to receive part of its property. Owners of preference shares, on the contrary, do not have the right to vote at the general meeting of shareholders, unless otherwise provided by the Law on Joint Stock Companies. As a general rule, the location of the JSC is determined by the place of its state registration (clause 2 of Article 4 of this Law).
A joint-stock company may create branches and open representative offices. At the same time, the company's charter must contain information about its branches and representative offices. A joint-stock company may also have subsidiaries and associates with the rights of a legal entity.
A joint-stock company may act as the main company in relation to another (subsidiary) economic company if, by virtue of its predominant participation in the charter capital of the latter or in accordance with the contract concluded between them, it is able to determine the decisions made by such a company.
At the same time, the subsidiary company does not answer for the debts of the main company.The joint-stock company of workers (people's enterprise) - is a closed joint-stock company, whose shares are distributed among employees in proportion to their wages. Thus, labor relations are the defining relations in people's enterprises. A hired worker-shareholder has a certain number of shares of a national enterprise, with which he is vested in proportion to the amount of his labor payment, in other words, the number of shares is proportional to labor participation. At the same time, if AO is the pooling of capital, AO of workers is an association of wage workers, based on their labor participation. In AO, the possession of shares is the determining factor, since voting at the general meeting of shareholders is carried out on the principle of "one voting share - one vote", except for cases of cumulative voting on the election of members of the board of directors. In AO employees the prevailing principle is "one shareholder - one vote".
Upon dismissal, the employee-shareholder is obliged to sell to the national enterprise, and the latter is obliged to redeem the shares belonging to the shareholder at their redemption value.
The specificity of the joint stock company of workers (people's enterprises) is expressed primarily in the order of its creation. A public enterprise can be created only by transforming any commercial organization, with the exception of state and municipal enterprises and open joint-stock companies, whose employees own less than 49% of the authorized capital. People's enterprises are subject to the rules of the Joint Stock Companies Act, if otherwise provided by the People's Enterprises Act.
The average number of employees of a national enterprise can not be less than 51 people. With a decrease in this number, the national enterprise is obliged within one year to bring it in line with the requirements for 51 employees or be transformed into a commercial organization of a different form.
In science, it is widely believed that a people's enterprise can not be considered a closed joint-stock company, since it does not correspond to the essence of the joint-stock company, and the definition of a people's enterprise in the Law on National Enterprises as an organizational and legal form of a commercial organization does not comply with the norms of the Civil Code. This view is based on the fact that the list of organizational and legal forms of commercial organizations is exhaustive. Thus, in accordance with the Civil Code, legal entities that are commercial organizations may be established in the form of economic partnerships and companies, production cooperatives, state and municipal unitary enterprises (paragraph 2 of Article 50 of the Civil Code).Joint Stock Investment Fund - is an open joint stock company, joint-stock investment fund "; or investment fund (Article 2 of the Law on Investment Funds).
An important role in business is played by production cooperatives , or cooperative , i.e. voluntary associations of citizens on the basis of membership for joint production or other economic activities based on their personal labor and other participation and the association by its members (participants) of property shares.
Production cooperatives are created for the purposes of production, processing, marketing of industrial, agricultural and other products, performing work, conducting trade, consumer services, and rendering other services. The peculiarity of these entrepreneurial structures, in contrast, say, from economic societies, is the personal labor and other participation of their members in the activities of cooperatives along with the pooling of property shares. In addition to art. 107-112 CC of the relationship on the creation and activities of production cooperatives regulate federal laws of 08.05.1996 No. 41-FZ "On production cooperatives" (hereinafter - the Law on Production Cooperatives) and 08.12.1995 No. 193-FZ "On Agricultural Cooperatives" (hereinafter - the Law on Agricultural Co-operatives).
A cooperative is formed solely by the decision of its founders. The number of members of the cooperative can not be less than five people. The constituent document of the cooperative is the charter approved by the general meeting of members of the cooperative. The brand name of the cooperative must contain its name and the words "production cooperative" or artel .
Members of the cooperative may be the members of the cooperative that have been established by the charter of the cooperative, US citizens who have reached the age of 16 years. The amount and procedure for making a share contribution are determined by the charter of the cooperative. According to Art. 109 CC member of the cooperative is obliged to make at least 10% of the share contribution by the time of registration of the cooperative, and the remainder - within a year from the date of registration. Foreign citizens and stateless persons can be members of the cooperative as well as US citizens. The number of members of the co-operative who contributed to the co-operative, but does not take personal labor participation in its activities, can not exceed 25% of the number of members of the cooperative taking personal labor participation in its activities.
Property owned by a production cooperative is divided into shares of its members in accordance with the charter of the cooperative. The cooperative is not entitled to issue shares. The profit of the cooperative is distributed among its members according to their labor participation, unless otherwise provided by law and the charter of the cooperative.
The supreme governing body of a cooperative is the general meeting of its members. In a cooperative with a membership of more than 50, a supervisory board can be created that monitors the activities of the executive bodies of the cooperative. The executive bodies of the cooperative are the board and (or) its chairman. They carry out the current management of the activities of the cooperative and are accountable to the supervisory board and the general meeting of members of the cooperative. It should be borne in mind that members of the cooperative can only be members of the supervisory board and the management board of the cooperative, and also the chairman of the cooperative. A member of a cooperative can not simultaneously be a member of the supervisory board and a member of the board or chairman of the cooperative.
A production cooperative, by unanimous decision of its members, can be transformed into an economic partnership or a company.
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