Termination of a legal entity, Reorganization of a legal entity - Civil law

Termination of a legal entity

A legal entity can cease to exist by reorganization or liquidation. The main criterion for distinguishing between these two forms of termination of a legal entity is the presence (reorganization) or absence (liquidation) of the succession, i.e. transfer of rights and obligations from a legal entity to other persons (successors).

Reorganization of a legal entity

According to the norm of paragraph 1 of Art. 57 GK reorganization of a legal entity by merger, merger, division, separation or transformation can be carried out by decision of its founders (participants) or body of a legal entity authorized by constituent documents. In cases specified by law, reorganization of a legal entity in the form of its division or separation from its membership of one or several legal entities is carried out by decision of authorized state bodies or by a court decision (para 1, clause 2, clause 57 GK). If the founders (participants) of a legal entity authorized by them or a body of a legal entity authorized to reorganize it by its constituent documents will not reorganize the legal entity within the time specified in the decision of the authorized state body, according to the norm of para. 2 paragraph 2 of Art. 57 GK the court, on the suit of the said state body, appoints an external manager as a legal entity and instructs it to reorganize this legal entity. From the moment of appointment of an external manager, the authority to manage the affairs of a legal entity passes to it. The external administrator acts on behalf of the legal entity in court, draws up the separation balance sheet and submits it for consideration of the court together with the constituent documents of the legal entities arising as a result of the reorganization. The court's approval of these documents is the basis for state registration of newly emerging legal entities. In cases specified by law, the reorganization of legal entities in the form of merger, accession or transformation can be carried out only with the consent of authorized state bodies (clause 3 of Article 57 of the Civil Code). A legal entity is considered reorganized, except for cases of reorganization in the form of accession, from the moment of state registration of newly emerged legal entities. When reorganizing a legal entity in the form of merging with another legal entity, the first of them is considered to be reorganized from the moment of entry into the Unified State Register of Legal Entities of an entry on termination of the activity of an affiliated legal entity (item 4, Article 57 of the Civil Code)

When merging legal entities, the rights and obligations of each of them pass to a newly formed legal entity in accordance with the deed of transfer (paragraph 1, Article 58 of the Civil Code). When a legal entity joins another legal entity, the rights and obligations of the affiliated legal entity are transferred to the latter in accordance with the deed of transfer (paragraph 2 of Article 58 of the Civil Code). When a legal entity is divided, its rights and obligations pass to newly emerged legal entities in accordance with the separation balance sheet (Clause 3, Article 58 of the Civil Code). When a legal entity is separated from the legal entity, one or more legal entities to each of them pass the rights and obligations of the reorganized legal entity in accordance with the separation balance sheet (clause 4, article 58 of the Civil Code). When a legal entity of one type is transformed into a legal entity of another type (a change in the organizational and legal form), the rights and obligations of the reorganized legal entity are transferred to the newly formed legal entity in accordance with the deed of transfer (paragraph 5 of Article 58 of the Civil Code). According to the norm of Art. 59 GK transfer certificate and separation balance sheet should contain provisions on the succession of all obligations of the reorganized legal entity with respect to all its creditors and debtors, including liabilities contested by the parties. The transfer certificate and the separation balance sheet are approved by the founders (participants) of the legal entity or by the body that made the decision on the reorganization of legal entities and submitted together with the constituent documents for state registration of newly emerged legal entities or amendments to the constituent documents of existing legal entities. Failure to submit, together with the constituent documents, respectively the transfer certificate or the separation balance sheet, as well as the absence in them of provisions on the succession of the obligations of the reorganized legal entity, entail a refusal to state registration of newly emerged legal entities.

In accordance with Art. 60 GK legal entity within three working days after the date of adoption of a resolution on its reorganization is required to notify in writing to the body that is carrying out state registration of legal entities on the commencement of the reorganization procedure specifying the form of reorganization. In case of participation in the reorganization of two or more legal entities, such notification shall be sent by a legal entity, the latter who has taken a decision on reorganization or a definite decision on reorganization. On the basis of this notice, the body that carries out the state registration of legal entities enters a record in the unified state register of legal entities that the legal entity (legal entities) is (are) in the process of reorganization.

The reorganized legal entity after entry into the unified state register of legal entities of an entry on the beginning of the reorganization procedure places twice a month twice a month in the mass media in which data on the state registration of legal entities are published, a notice of its reorganization. In case of participation in the reorganization of two or more legal entities, the notice of reorganization is published on behalf of all legal entities participating in the reorganization by a legal entity, the latter having taken a decision on reorganization or a definite decision on reorganization. In the notification of reorganization, information is provided on each reorganization participating in the reorganization, the form of reorganization being created (continuing the activity) as a result of the reorganization, the description of the procedure and conditions for the creditors to file their claims, other information required by law.

The creditor of a legal entity, if its rights of claim arose prior to the publication of the notice on the reorganization of a legal entity, shall have the right to demand the early execution of the corresponding obligation by the debtor, and in the event of the impossibility of early execution - termination of the obligation and compensation of losses connected with it, except in cases established by law.

The creditor of a legal entity - an open joint stock company reorganized in the form of a merger, acquisition or transformation, if its rights of claim arose prior to the publication of the announcement of the reorganization of a legal entity, have the right to demand early execution of an obligation, by which the debtor is the legal entity, or termination of the obligation and compensation of losses in the event that the reorganized legal entity, its participants or third parties do not provide sufficient security commitments. At the same time, such claims can be presented by creditors no later than 30 days from the date of the last publication of the notice on reorganization of the legal entity. It is important to keep in mind that the claims claimed by creditors do not entail suspension of actions related to reorganization. In the event that the requirements for early performance or termination of obligations and compensation of damages are satisfied after the reorganization is completed, the legal entities newly created as a result of the reorganization (continuing operations) are jointly and severally liable for the obligations of the reorganized legal entity.

The fulfillment by the reorganized legal entity of obligations to creditors is provided in accordance with the procedure established by the Civil Code. However, in the event that the obligations to creditors of the reorganized legal entity - the debtor are secured by a pledge, such creditors are not entitled to demand additional security.

Peculiarities of the reorganization of credit institutions, including the procedure for notifying the state registration body of the procedure for the reorganization of the credit institution, the procedure for notification of creditors of the reorganized credit institutions, the procedure for the presentation by creditors of requirements for early execution or termination of the relevant obligations and compensation of damages, information affecting the financial and economic activities of the reorganized credit organization are determined I am laws that regulate the activities of credit institutions. In this case, the provisions of cl. 60 GK to credit institutions do not apply.

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