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Business partnerships and societies commercial organizations with authorized (share) capital divided into shares (contributions) of founders (participants) are recognized. TO business partnerships relate:
General partnerships;
Limited partnerships (limited partnerships).
TO business companies relate:
Joint-Stock Company;
Limited Liability Company;
Company with additional liability.
Participants in general partnerships and general partners in limited partnerships may be:
· and (or) commercial organizations.
Participants in business companies and investors in limited partnerships can be:
· citizens;
· And legal entities.
Government agencies and authorities local government does not have the right to act as participants in business companies and investors in limited partnerships, unless otherwise provided by law.
Owner-financed institutions may be participants in business companies and investors in partnerships with the permission of the owner, unless otherwise provided by law.
The law may prohibit or limit the participation of certain categories of citizens in business partnerships and companies, with the exception of open joint-stock companies.
TO general characteristics of business partnerships and companies relate:
1) Dividing the authorized (share) capital into shares (shares).
2) Contributions to property can be money, securities, other things or property rights or other rights that have a monetary value. The monetary valuation of the contribution of a participant in a business company is made by agreement between the founders (participants) of the company and, in cases provided for by law, is subject to independent expert verification.
3) The same type of management structure, the supreme governing body of which is the general meeting of participants.
4) Business partnerships and companies may be founders (participants) of other business partnerships and companies, with the exception of cases provided for by the Civil Code of the Russian Federation and other laws.
5) Rights and obligations of participants.
Full partnership – a partnership whose participants (general partners) in accordance with the agreement concluded between them are engaged in entrepreneurial activity on behalf of the partnership and bear responsibility for its obligations with the property belonging to them (Article 69 of the Civil Code of the Russian Federation). The liability of the participants in a general partnership is joint and several.
Partnership of Faith(limited partnership) - a partnership in which, along with the participants who carry out business activities on behalf of the partnership and are liable for the obligations of the partnership with their property (general partners), there are one or more participants - investors (limited partners) who bear the risk of losses associated with the activities partnerships, within the limits of the amounts of contributions made by them and do not take part in the partnership’s business activities.
A general partnership and limited partnership are created on the basis of a constituent agreement.
Limited Liability Company- a company established by one or several persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents; Participants in a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of their contributions.
The constituent documents of a limited liability company are:
Memorandum of association;
If a company is founded by one person, its constituent document is the charter.
The number of participants in a limited liability company should not exceed 50 participants. Otherwise, it must be converted to Joint-Stock Company within a year, and after this period - liquidation in judicial procedure, unless the number of its participants decreases to the limit established by law.
The supreme body of a limited liability company is the general meeting of its participants.
The company's charter may provide for the formation of a board of directors (supervisory board) of the company.
In a limited liability company, an executive body is created (collegial and (or) sole), which carries out the current management of its activities and is accountable to the general meeting of its participants. The sole management body of the company may also be elected from outside its participants.
The legal status of limited liability companies is regulated Federal law dated February 8, 1998 No. 14-FZ “On Limited Liability Companies”. Review of questions judicial practice on cases related to the activities of limited liability companies, is given in the Resolution of the Plenum Supreme Court RF and the Plenum of the Supreme Arbitration Court RF dated December 9, 1999 No. 90/14 “On some issues of application of the Federal Law “On Limited Liability Companies”.
Additional liability company- is a company established by one or several persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents; Participants of such a company jointly and severally bear subsidiary liability for its obligations with their property in the same multiple of the value of their contributions, determined by the constituent documents of the company. In the event of bankruptcy of one of the participants, his liability for the obligations of the company is distributed among the remaining participants in proportion to their contributions, unless a different procedure for the distribution of liability is provided for by the constituent documents of the company.
The rules on limited liability companies apply to an additional liability company.
Joint-Stock Company - a company whose authorized capital is divided into a certain number of shares; Participants of a joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of the shares they own.
The main feature of a joint stock company is the division of the authorized capital into shares. Shares can only be issued by a joint stock company.
The legal status of joint-stock companies is regulated by federal laws of December 26, 1995 No. 208-FZ “On Joint-Stock Companies”, dated July 19, 1998 No. 115-FZ “On the peculiarities of the legal status of joint-stock companies of employees (national enterprises)”.
Types of joint stock companies:
· Public corporation.
· Closed joint stock company.
· Joint Stock Company of Workers (national enterprise).
Unlike an open joint stock company closed joint stock company does not have the right to conduct an open subscription for shares issued by it or otherwise offer them for acquisition to an unlimited number of persons.
Shareholders of a closed joint stock company have a pre-emptive right to purchase shares sold by other shareholders of this company.
The number of participants in a closed joint stock company should not exceed 50 participants.
Joint Stock Company of Workers (People's Enterprise)– a joint-stock company whose employees own a number of shares of a national enterprise, the par value of which is more than 75 percent of its authorized capital.
Subsidiary business company - this is an economic company in relation to which another (main) economic company or partnership, due to its predominant participation in its authorized capital, either in accordance with an agreement concluded between them, or otherwise has the ability to determine the decisions made by such a company.
The subsidiary is not liable for the debts of the parent company (partnership).
The parent company (partnership), which has the right to give mandatory instructions to the subsidiary, including under an agreement with it, shall be jointly and severally liable with the subsidiary for transactions concluded by the latter in pursuance of such instructions.
Dependent business company- a business company in relation to which another (predominant, participating) company has more than:
Or twenty percent of the authorized capital of a limited liability company.
A business company that has acquired more than twenty percent of the voting shares of a joint stock company or twenty percent of the authorized capital of a limited liability company is obliged to immediately publish information about this in the manner prescribed by the laws on business companies.
Production cooperative (artel) is a voluntary association of citizens on the basis of membership for joint production or other economic activity(production, processing, marketing of industrial, agricultural and other products, performance of work, trade, consumer services, provision of other services), based on their personal labor and other participation and the association of its members (participants) of property shares. The law and constituent documents of a production cooperative may provide for the participation of legal entities in its activities.
The main features of a production cooperative include the following:
The production cooperative is based on membership principles;
Is a commercial organization;
It represents not only the unification of the property of the participants, but also the unification of personal labor participation;
Profit distribution depends on labor participation;
The minimum number of participants is five members;
Members of a production cooperative bear subsidiary liability for the obligations of the cooperative in the amount and in the manner prescribed by the law on production cooperatives and the charter of the cooperative.
The legal status of production cooperatives is regulated by federal laws dated May 8, 1996 No. 41-FZ “On Production Cooperatives”, dated December 8, 1995 No. 193-FZ “On Agricultural Cooperation”.
State and municipal unitary enterprises - This commercial organization, not endowed with the right of ownership of the property assigned to it by the owner.
The property of a unitary enterprise is indivisible and cannot be distributed among contributions (shares, shares), including among employees of the enterprise.
Types of unitary enterprises:
1. Unitary enterprise based on the right of economic management.
An enterprise has no right to dispose of real estate.
The owner of the property of an enterprise based on the right of economic management is not liable for the obligations of the enterprise.
2. Unitary enterprise based on the right of operational management (state-owned enterprise)
A unitary enterprise does not have the right to dispose of both movable and immovable property without the consent of the owner. In this case, the owner can withdraw excess, unused or improperly used property.
The owner of the property of a state-owned enterprise bears subsidiary liability for the obligations of such an enterprise if its property is insufficient.
The legal status of unitary enterprises is regulated by the Federal Law of November 14, 2002 No. 161-FZ “On State and Municipal Unitary Enterprises”.
STATE EDUCATIONAL INSTITUTION
HIGHER PROFESSIONAL EDUCATION
MOSCOW STATE UNIVERSITY
INSTRUMENT ENGINEERING AND INFORMATION SCIENCE
Faculty of Management and Law
Department of Civil Law
Essay
in the discipline "Civil Law"
on the topic of: « Business partnerships and societies »
Completed by: II year student
correspondence courses
Faculty of ZDO special. 030501
groups UP-2
Ekimova Marina Valentinovna
Checked by: Associate Professor, Ph.D.:
Khovrina Lyudmila Viktorovna
Moscow – 2010
Introduction
1. Comparative characteristics business partnerships and societies
2. Business partnerships
A) Full partnership
B) Partnership of Faith
3. Business companies
A) Limited liability company
B) Company with additional liability
B) Joint stock company
4. Subsidiaries and dependent companies. Affiliates
Conclusion
List of used literature, regulations
Introduction
The state pays great attention issues related to business partnerships and societies. This is due to the fact that in the twentieth century the importance of the institution of a legal entity increased. Business partnerships and companies are recognized as commercial organizations with authorized (share) capital divided into shares (contributions) of founders (participants). Property created through the contributions of founders (participants), as well as produced and acquired by a business partnership or company in the course of its activities, belongs to it by right of ownership. In cases provided for by the Civil Code of the Russian Federation, a business company can be created by one person, who becomes its sole participant.
Business partnerships and societies are the most common and universal form of combining and separating property for a wide variety of business activities. It is the predominance of business partnerships and societies that characterizes the developed market turnover.
The Civil Code of the Russian Federation provides for a fairly wide range legal forms collective farming, which meets both modern international standards, and domestic economic realities. The organizational and legal forms of business partnerships or companies are capable of serving the interests of individual businessmen, small family groups, and giant groups of shareholders unfamiliar with each other.
1. Comparative characteristics of business partnerships and companies
These types of commercial organizations are the traditional, most common form of collective entrepreneurship in ordinary property turnover. That's why they open the list individual species legal entities established by law. Associations of this kind created by entrepreneurs are usually called companies or firms in European law, and corporations in American law. In Russia they were previously called trading partnerships, since commercial activity identified primarily with trade. The absence of private commerce in the previous legal order forced the use of a more “neutral” and broader concept of “economic activity.” Taking into account these traditions, the Civil Code also uses the term “economic” in relation to trade (commercial) partnerships and societies.
Partnerships and societies have many similarities. All of them are commercial organizations created on a voluntary (usually contractual) basis on a membership basis (corporate), and are endowed by law with general legal capacity. They become the sole and sole owners of property formed from the contributions of the founders (participants), as well as produced and acquired in the course of their activities, which makes them independent, full-fledged participants in property turnover.
Business partnerships in Russian legislation are understood as contractual associations of several persons to jointly conduct business activities under a common name.
Business companies are organizations created by one or more persons by combining (separating) their property to conduct business activities.
The main character of any partnership - a general partner - bears unlimited liability for the obligations of the company with all his property. Therefore, in partnerships, unlike companies, the founders, as a rule, take personal part in the affairs of the enterprise. For the same reason, a person can be a general partner in only one partnership. The circle of founders is usually much narrower than in companies, due to the personal and trusting relationships between them. Participants in general partnerships and general partners in limited partnerships can be individual entrepreneurs and (or) commercial organizations. Participants in business companies and investors in limited partnerships can be citizens and legal entities. State bodies and local government bodies do not have the right to act as participants in business companies and investors in limited partnerships, unless otherwise provided by law. Institutions may be participants in business companies and investors in partnerships with the permission of the owner, unless otherwise provided by law. The law may prohibit or limit the participation of certain categories of citizens in business partnerships and companies, with the exception of open joint-stock companies. Entrepreneurship is always associated with increased property risk, so the legislator believes legal status
It is typical for business societies to combine not so much the personal efforts of the participants as their property. Participants are not liable for the obligations of the company (with the exception of companies with additional liability), and their business risk is limited to the amount of contributions to the authorized capital. Therefore, it is the size of the authorized capital of the company that is the main guarantee of the interests of creditors and acquires a special significance that is not typical for partnerships. Reducing the size of the company's authorized capital is possible only after notifying all its creditors, who in this case acquire the right to demand early termination or fulfillment of obligations and compensation for losses (as in the case of reorganization).
So, in business companies and partnerships “a) personal participation is gradually reduced as the capitalist element increases; b) the amount of responsibility decreases as the capitalist element strengthens.”
Like any commercial organization, a business company or partnership must have an authorized (share) capital, which forms the property basis of its activities and guarantees the interests of creditors. Authorized capital - This is the amount of all contributions recorded in the constituent documents and valued in rubles that the founders (founder) decided to combine when creating a legal entity.
Before the adoption of a special law on registration of legal entities minimum value The authorized capital of commercial organizations (with the exception of joint-stock companies) is determined by Decree of the President of the Russian Federation of July 8, 1994 No. 1482, and for joint-stock companies the Federal Law “On Joint-Stock Companies” is established. According to these regulations the minimum authorized capital of open joint-stock companies, as well as enterprises of organizational and legal forms with the participation of foreign investments, is determined in the amount of 1000 times the amount of the minimum monthly wage, and for all other enterprises, including closed joint-stock companies, in the amount of 100 times the amount of the minimum monthly salary.
Any negotiable property, including property rights, can serve as a contribution to the authorized capital. The main criterion for the admissibility of certain contributions to the authorized capital is their ability to increase the amount of the company's assets. Therefore, for example, the law does not allow contributions to the authorized capital of business companies by offsetting the founder’s claims to the company.
The cost of contributions made to the authorized capital is determined by agreement of the parties, but in some cases is subject to independent expert assessment.
characteristics of business partnership society
2. Business partnerships
Business partnerships are contractual associations created by two or more persons to jointly conduct business activities under the name of a legal entity. Since at least one participant in any partnership is a general partner, i.e. bears responsibility for the obligations of the partnership with all its property; such participants are interested in personally conducting the affairs of the legal entity. Business partnerships are divided into two types: general partnerships
and fellowship in faith. Participants in general partnerships and general partners in limited partnerships can only be entrepreneurs and commercial organizations, while participants in business companies - in addition to legal ones, also.
individuals
A) Full partnership A business partnership, the participants of which jointly and severally bear subsidiary (additional) liability for its obligations with all their property,
A general partnership is the oldest of all organizational and legal forms of business partnerships and companies. In this form, the personal element is most clearly expressed and, on the contrary, there is no limitation on the liability of participants for the obligations of the partnership. Therefore, the use of the general partnership form is associated with increased risk for its participants. However, it is precisely this disadvantage that is closely related to the advantages of a general partnership, which make it a very attractive form of entrepreneurship. Since the claims of the creditors of a general partnership are guaranteed not only by the share capital, but also by the personal property of the partners, it, as a rule, does not experience any particular difficulties in obtaining a loan. A general partnership usually inspires confidence among commercial partners, because the property risk assumed by its participants indicates the seriousness of their intentions and the solidity of the enterprise. Finally, general partnerships are not subject to any requirements regarding the publication of operating results and reporting documents.
The Civil Code is based on the principle of the truth of the company, according to which brand name The partnership must include the true names of all its participants. You can limit yourself to indicating the name (title) of one of the general partners with the addition of the words “... and company” (for example: “Full partnership “Zhdanov and Company”). If the personal composition of participants in such a partnership changes, it is necessary to make corresponding changes to the company.
The legislator distinguishes between the cases of managing a general partnership and conducting the affairs of the partnership. The management of the partnership is carried out on the basis of decisions made by all participants unanimously or by a majority vote (if the latter is provided for in the constituent agreement). The conduct of business, i.e., representation of the interests of the general partnership in circulation, as a general rule, is carried out by each of the participants. In this case, a general partnership as a legal entity has several independent and equal bodies (according to the number of participants). The constituent agreement may establish other schemes for the bodies of a general partnership, for example: the conduct of affairs by all participants jointly (one collegial body) or some of them (one or more individual bodies ). It is important to note that the options listed partnerships cannot be applied simultaneously. Therefore, entrusting the management of general partnership affairs to one of the participants deprives the rest of the rights to represent the interests of the company without a power of attorney.
Legislative regulation of the size of the share capital of a general partnership is important only for its registration. In the future, neither a decrease in capital stock, nor even its complete loss will entail dramatic consequences.
The creditors' claims must be presented to the partnership itself, and only if its property is insufficient - to the general partners. The general rules governing joint and several liability are enshrined in Art. 322-325 Civil Code. Its specificity in a general partnership is that both the original participants (founders) and subsequent ones are equally liable for all obligations, regardless of the time they arose. Withdrawal or exclusion from the partnership also does not immediately terminate the community of joint and several liability of the participants: the departing partner continues to be liable for obligations that arose before his departure for another two years from the date of approval of the enterprise’s report for the year in which he left.
A change in the personal composition of participants (withdrawal, exclusion, death or loss of full legal capacity by a citizen, recognition of him as missing, liquidation or forced reorganization of a legal entity), as a general rule, entails the liquidation of a general partnership. Otherwise may be provided by the constituent agreement or agreement of the remaining participants.
A change in the property status of a participant - declaring him bankrupt or having creditors foreclose on his share in the share capital - has similar consequences. Being by its nature an association of persons, a general partnership cannot consist of a single participant and, if this nevertheless happens, it must be transformed into a business company or liquidated.
B) Partnership of Faith A business partnership consisting of two categories of participants: general partners (complementaries), jointly and severally bearing subsidiary liability for its obligations with their property, and fellow investors (limited partners) who are not liable for the obligations of the enterprise,
Limited partnership (limited partnership) is a later organizational and legal form than a general partnership. In a limited partnership there is a tendency to limit the liability of participants. In addition, unlike a general partnership, persons who do not intend to personally participate in its activities, but only make a property contribution, can enter into a limited partnership.
Similar to a general partnership, the business name of a limited partnership must contain the names of all or at least one general partner (in the latter case, with the addition of the words “... and company”). Historically this form commercial enterprise originated in the Middle Ages and became widespread as a way of attracting the capital of anonymous investors to the trade industry. Along with the constituent agreement, the Civil Code mentions a certificate of participation, certifying the contribution to the share capital. The specified certificate is not a security, since it is not classified as such by securities legislation, and also because the contribution certified by the certificate can be partially transferred. This means that the certificate of participation cannot be the only document certifying the rights of membership of a limited partner in the partnership. In addition, paragraph 1 of Art. 85 of the Civil Code definitely speaks of the obligation of the limited partner to make his contribution, which, therefore, exists even before the moment of his making. All this leads to the conclusion that relations between fellow investors and general partners should be regulated by agreement. And if this is not a constituent agreement, then it means some other one, conventionally called an agreement on participation in a partnership. This legal construction, indeed, makes it possible to maintain the absolute secret of the identity of the limited partner (even from the state), but still seems extremely contradictory. Figuratively speaking, a limited partnership seems to include two relatively independent structures: a general partnership and a group (or one) of fellow investors. The rights of a limited partner to the property of the partnership is that upon leaving the enterprise, he has the right to claim only the return of his contribution, and not to receive the corresponding share in the property of the company.
However, in the event of liquidation of the company, the fellow investor participates in the distribution of the liquidation balance on an equal basis with the general partners. The grounds for liquidation of a partnership of faith have significant specificity. In particular, a limited partnership is preserved if at least one general partner and one limited partner remain in it.
To the extent that it does not affect the legal status of limited partners, a limited partnership is similar to a general partnership, therefore everything said about general partnerships also applies to limited partnerships.
) of a legal entity from the property of the founders is significantly higher than in business partnerships. Business companies are traditionally called associations of capital, while business partnerships are called associations of persons. Relations between participants in a partnership, each of whom has the right to conduct its affairs (if we are talking about general partners), are assumed to be more trusting than relations between participants in business companies.
A) Limited liability company A commercial organization, the authorized capital of which is divided into shares of predetermined sizes, formed by one or more persons who are not liable for its obligations,
called a limited liability company. The constituent documents of a limited liability company (LLC) are the charter and the constituent agreement (the latter cannot be concluded if the company has only one participant). The corporate name of the company is based on, for example: “LLC “April”. LLC is one of the so-called “associations of capital” and, unlike partnerships, the personal element in it plays a subordinate role. However, in comparison with joint stock companies, LLCs are distinguished by closer relations between participants and a more closed nature of membership. The maximum number of participants in a limited liability company cannot exceed 50. If this limit is exceeded, the company's participants are obliged to transform it into a joint stock company within a year or reduce the number to the maximum allowable; otherwise, the company is subject to liquidation in court.
The basis of the LLC's property is the authorized capital, formed from the value of the founders' contributions. Authorized capital at the moment state registration society must be paid at least half; the remaining amount must be paid during the first year of the company's activity. Failure to comply with this requirement entails negative consequences for participants who have not made their full contributions: they are jointly and severally liable for the obligations of the company within the limits of the unpaid part of the contributions. Certain consequences also arise for the company itself, which must, in the above case, announce a reduction in its authorized capital and register the reduction in in the prescribed manner or carry out liquidation proceedings.
The rights of participants in relation to the company (to participate in management, information, share of profits, liquidation balance, etc.) are implemented within the framework of a single obligation, which can be characterized as an equity obligation with an active plurality of persons, since the company itself is its obligated party, and authorized - all participants. Therefore, the transfer of a share in the authorized capital actually means the assignment of a share in a single set of rights belonging to all participants together, i.e., an assignment.
The transfer by a participant of his share (or part thereof) in the authorized capital to other participants of the company is his unconditional right, while its alienation to third parties may be prohibited by the charter or subject to obtaining the consent of other participants.
Termination of membership in a company can occur not only as a result of the alienation of a share, but also through the withdrawal of a participant from the company.
The legal status of the company's management bodies must be regulated in detail by the law mentioned above. The Civil Code establishes in this area only the most general rules. The highest governing body of the company is the general meeting of its participants, one vote in which corresponds to one share in the authorized capital. The exclusive competence of the general meeting is listed in paragraph 3 of Art. 91 of the Civil Code and includes: changing the charter of the company and the size of its authorized capital, formation and termination of the executive bodies of the company, approval annual reports and balance sheets, distribution of profits and losses, reorganization and liquidation of the company, election of it audit commission(auditor).
As the highest management body, the general meeting of LLC participants has exclusive competence on the most important issues of the company's activities. These issues are listed in paragraph 3 of Art. 91 Civil Code, as well as clause 2 of Art. 33 Federal Law of the Russian Federation “On Limited Liability Companies”. These include: determination of the main directions of the company’s activities, changes in its constituent documents, formation of executive bodies, election and early termination of powers of the audit commission, approval of annual reports and balance sheets, distribution net profit, making decisions on reorganization and liquidation and other issues. The resolution of these issues cannot be transferred to other bodies of the legal entity.
Changes in the personal composition of participants in a limited liability company, as well as their property status, do not lead to its liquidation. The society continues to function even if there is only one member left.
B) Company with additional liability
A commercial organization, the authorized capital of which is divided into shares of predetermined sizes, formed by one or more persons jointly and severally bearing subsidiary liability for its obligations in an amount that is a multiple of the value of their contributions to the authorized capital, called a company with additional liability.
The specificity of a company with additional liability lies in the special nature of the property liability of participants for its debts.
Firstly, this liability is subsidiary, which means that claims can be made against participants only if the company’s property is insufficient for settlements with creditors.
Secondly, liability is joint and several; therefore, creditors have the right to make claims in full or in any part to any of the participants who is obliged to satisfy them.
Thirdly, the participants bear the same responsibility, i.e., equally multiple of the size of their contributions to the authorized capital.
Fourthly, the total liability of all participants is determined by the constituent documents as a multiple (two-, three-fold, etc.) of the size of the authorized capital.
Otherwise, this type of company is not much different from limited liability companies.
B) Joint stock company A commercial organization formed by one or more persons who are not liable for its obligations, with joint capital divided into shares, the rights to which are certified securities- shares,
called a joint stock company.
The main difference between a JSC and other legal entities is the method of securing the rights of a participant in relation to the company: by certifying them with shares. This, in turn, determines the specifics of the exercise of rights under the shares and their transfer. The charter is recognized as the only constituent document of the joint-stock company, which emphasizes the formal nature of personal participation in the company, and is approved at the meeting of founders. At the same time, the Civil Code also speaks of the conclusion of a constituent agreement regulating the relations of the founders in the process of creating a joint stock company. Such an agreement serves
auxiliary
In accordance with paragraph 1 of Art. 25 and paragraph 1 of Art. 27 of the Federal Law “On Joint-Stock Companies”, the authorized capital of a joint-stock company at the time of its establishment must consist of a certain number of ordinary shares with the same par value, and may also include preferred shares of different types (and different par values), the total share of which in the authorized capital should not exceed 25%. The law calls such shares placed, since their future buyers (shareholders) are already known. All shareholders are registered in a special register of shareholders, i.e. the issue of bearer shares is prohibited. Along with placed shares, the charter of a joint-stock company may provide for the existence of declared shares, i.e. such that the company has the right to subsequently place among shareholders.
Closed a joint stock company is obliged to distribute all shares of new issues among specific persons known in advance. Open A joint stock company has the right to offer shares for purchase to an unlimited number of persons, i.e. conduct an open subscription to them.
The number of participants in a closed joint-stock company cannot exceed 50, and if it is exceeded, the company is converted into an open joint-stock company or liquidated. Shareholders of CJSC have the right pre-emption shares alienated by other shareholders.
The law includes the general meeting of shareholders, as well as the board of directors (supervisory board), which must be created if the company has more than 50 participants, as the governing bodies of a joint-stock company. The bodies of a JSC as a legal entity, i.e. executive bodies, are a sole and (or) collegial body (board, directorate, etc.). Their competence, formation procedure and work procedure are determined by Art. 103 Civil Code, Art. 47-71 Federal Law “On Joint-Stock Companies” and the charter of the joint-stock company. In addition, the management of the company may be entrusted by contract to third-party managers - legal entities or individuals.
4. Subsidiaries and dependent companies. Affiliates
Mentioned in Art. 105 and 106 of the Civil Code, as well as Art. 6 of the Federal Law “On Joint-Stock Companies”, subsidiaries and dependent business companies are not independent organizational and legal forms of legal entities. Their allocation is aimed at protecting the interests of creditors and participants in companies (joint-stock and limited liability companies) that are under the influence of other business organizations.
A company or partnership (referred to as the main one), which influenced the decisions of another company (subsidiary) due to a predominant participation in its authorized capital, in accordance with an agreement or on other grounds, bears joint and several liability with the subsidiary for transactions made as a result of such influence. Shareholders of a subsidiary have the right to demand compensation for losses caused by the parent company. In case of insolvency of a subsidiary due to the fault of the parent company, the latter is subsidiarily liable for its debts.
Dependent companies are distinguished according to a purely formal criterion: ownership of more than 20% of their authorized capital (and in joint-stock companies - more than 20% of voting shares) to another business company (the dominant one).
Affiliated companies and partnerships (or rather, affiliated entities, since citizens can also be such) are also not a special organizational and legal form of legal entities. This term is borrowed from Anglo-American law and denotes persons who are in a state of varying dependence on each other, when one of them can determine the conditions for the conduct of economic activities by the other. The main responsibility of dominant and affiliated persons is to provide (including publication) relevant information to competent government agencies and (or) organizations dependent on them.
Conclusion
During my work they were dismantled the following types business partnerships and companies: general partnership, limited partnership, limited liability company, additional liability company, joint stock company, dependent and subsidiaries, affiliates. By defining their concepts, considering the procedure for managing and conducting business, analyzing the legal status of participants in these organizations and studying the conditions for their liquidation and transformation, it is possible to identify common features and differences between business partnerships and companies.
| Similarities | Differences | |
| Partnerships | Societies | |
| These are commercial organizations, the formation of which occurs on a voluntary (contractual) basis on the basis of membership with general legal capacity endowed by law. | Contractual associations of several persons. | Organizations created by one or more persons by combining (separating) their property. |
| Participants bear unlimited liability for their obligations of the company with all their property. | Participants are not liable for their debts, but only bear the risk of loss. | |
| Division of their authorized (share) capital into shares, the rights to which belong to their participants. | The ability to be a member of only one partnership at a time. | One person may well simultaneously be a member of several societies. |
| Cannot be created by one person. | Created by one or more persons. | |
| The main task is to receive profit and distribute it among participants. | ||
| They are the sole and sole owners of their property, formed from the contributions of the founders (participants), as well as produced and acquired in the course of their activities, which makes them independent, full-fledged participants in property turnover. | ||
| Participants in companies and partnerships lose the right of ownership to property transferred in the form of contributions to the company or partnership. In return, they receive obligatory claims. | ||
| Participants are obliged to make contributions to the authorized (share) capital in the manner and amount established by the constituent documents and not to disclose confidential information about the activities of the partnership or company. | ||
Having analyzed this table, we can come to the conclusion that business partnerships and societies are one of the forms of implementation by citizens of their constitutional law to engage in entrepreneurial activity.
List of used literature
1. A.P.Sergeev, Yu.K.Tolstoy. Civil law. Volume I (not the 4th edition, but an earlier one)
2. A.M. Gatin, Civil Law, 2005
3. E.A. Sukhanov, Civil Law, 2004, 2nd edition
4. D.A. Shevchuk, Civil Law, 2009
5. Commentary on the Civil Code of the Russian Federation, edited by O.N. Sadikova, 2005
6. Commentary on the Civil Code of the Russian Federation, edited by S.P. Grishaeva, A.M. Erdelevsky, 2006
Regulations
1. Civil Code RF, adopted 11/30/1994 (as amended on 12/27/2009, as amended on 06/08/2010)
2. The Constitution of the Russian Federation, adopted on December 12, 1993.
3. Federal Law of the Russian Federation “On Limited Liability Companies” dated 02/08/1998. (ed. dated December 18, 2006).
5. Decree of the President of the Russian Federation of July 8, 1994 No. 1482 “On streamlining the state registration of enterprises and entrepreneurs on the territory of the Russian Federation.”
Art. 94 Civil Code of the Russian Federation
Clause 1 art. 95 Civil Code of the Russian Federation
Clause 3 art. 98 Civil Code of the Russian Federation
Clause 1 Art. 98 Civil Code of the Russian Federation
Art. 99 Civil Code of the Russian Federation
Art. 27 Federal Law “On Joint Stock Companies”
Clauses 1 and 2 art. 97 Civil Code of the Russian Federation
Article 34 of the Constitution of the Russian Federation
Business partnerships can be created in the form of a general partnership and limited partnership.
Characteristics of a general partnership
Full partnership is a commercial organization whose participants have entered into an agreement with each other to create an enterprise for the joint conduct of certain economic activities.
1. Participants n general partnership are individual entrepreneurs and/or commercial organizations. At the same time, they retain full independence and rights of a legal entity.
2. The source of formation of the property of the partnership is the contributions of its participants.
3. Profits and losses are distributed among the participants in proportion to their shares in the share capital.
4. The entrepreneurial activity of its participants is recognized as the activity of the partnership itself as a legal entity.
5. If there is insufficient property of the partnership to pay off its debts, the claims of creditors are satisfied at the expense of the personal property of any of the participants (or all of them together), i.e. joint subsidiary liability.
6. An individual entrepreneur or a commercial organization can be members of only one general partnership.
7. On general meeting each participant has one vote. Upon leaving the partnership, a participant receives a share of property equal to his share in the share capital. In this case, the remaining participants contribute the amount paid to the participant who left, or reduce the amount of the share capital. Pooling of property is also possible on the basis of a joint activity agreement.
8. If one participant remains in a general partnership, he is obliged to transform it into a joint-stock company, limited liability company or additional liability company within 6 months.
9. The only constituent document is the Memorandum of Association. The partnership does not create bodies that express its will externally.
10. There is no minimum amount of share capital provided by law.
Advantages:
1. It is possible to accumulate significant funds in a short time;
2. Each member of the partnership may engage in entrepreneurial activity on behalf of the partnership;
3. General partnerships are more attractive to creditors;
4. It is possible to receive tax benefits.
Flaws:
1. Between full comrades there must be trusting relationship;
2. A partnership cannot be a company of one person;
3. In the event of bankruptcy, each member of the partnership is liable for its obligations not only with a contribution, but also with personal property.
Characteristic features of a partnership of faith
Partnership of Faith (limited partnership) is a type of general partnership with some features.
1. Consists of 2 groups of participants: general partners and investors. General partners carry out business activities on behalf of the partnership itself and bear unlimited and joint liability for the obligations of the partnership.
2. Investors can be any legal entities and/or individuals. Investors only make contributions to the property of the partnership, but are not liable with their personal property for its obligations. They do not have the right to participate in the management of the affairs of the partnership and act on its behalf, but have the right to get acquainted with its financial activities.
3. Investors have the right to receive a share of profits proportional to their deposits. They can freely withdraw from the partnership with the receipt of their contribution. They may transfer their share to another investor or a third party without the consent of the partnership or general partners.
4. The constituent document is also the constituent agreement, which is signed only by general partners.
5. The investor can leave the partnership at any time, in which case he receives only his contribution to the share capital, but does not have the right to receive a part of the property proportional to his share in the share capital.
Benefits of a partnership of faith:
1. The same as for a general partnership;
2. To increase capital, they can attract funds from investors.
Disadvantages of a partnership of faith:
1. The same as for a general partnership.
Types of business partnerships:
1.General partnership– a commercial organization, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities and bear full responsibility all property belonging to them (including personal).
2. Partnership of Faith(TV - limited partnership) includes general partners and investors (limited partners). The status of general partners is similar to a general partnership. Limited partners do not participate in business activities and bear the risk of losses of the partnership to the extent of their contributions.
3. The business company is considered a subsidiary, if another (main) business company or partnership has the opportunity to determine its decisions. The main business company or partnership bears full or subsidiary responsibility for the results of the activities of the subsidiary business company.
4. The business company is recognized as dependent, if another company (participating in its affairs) has more than twenty percent of voting shares or twenty percent of the authorized capital of the LLC.
An association of participants in entrepreneurial activity, partners for a joint business is called a partnership. Participation of partners in a partnership is usually sealed by a written agreement, or contract. For the purpose of a closer and stronger union, the partnership is registered as an enterprise. A partnership allows you to combine not only the efforts, but also the capital of its participants.
Business partnerships are a commercial organization, i.e. making a profit is the main goal of their activities.
Persons who create a business partnership are called its founders. Each of them makes a certain contribution to the partnership and becomes its participant. The initial contribution is called authorized or share capital.
Participants in business partnerships have the right to participate in the management of affairs, receive information about the activities of the partnership, familiarize themselves with its documentation, take part in the distribution of profits, and receive, upon liquidation of the partnership, part of the property remaining after settlements with creditors, or the cash equivalent of the value.
At the same time, participants in business partnerships bear a number of obligations to the organizations of which they are members. Participants are required to comply with the requirements of the constituent documents, make timely and full dues and contributions, maintain trade secrets, and not disclose confidential information. The property of partnerships includes fixed assets (buildings, structures, equipment) and working capital(stocks of raw materials, supplies, finished products, work in progress, other inventory items), cash, as well as other valuables.
Partnerships that do not have the status of a legal entity are not independent entities in the sense that they are not legally registered as a single company with its own name and charter, separate property. This is a union of equal persons based on an agreement, a contract. Each of these persons acts not as an employee of the company, but as a participant in a common business, responsible for its fate with his personal property.
Depending on the type of property liability of their participants, partnerships are divided into two main types: full business partnership and limited business partnership.
Full economic partnership - a form of business whose participants (general partners), in accordance with the agreement concluded with them, engage in entrepreneurial activities on behalf of the company and are liable for its obligations with the property belonging to them.
The business name of a general partnership must contain either the names (titles) of all its participants and the words “full partnership”, or the name (title) of one or more participants with the addition of the words “and company” or general partnership.”
A general partnership is created and operates on the basis of a constituent agreement, which must be signed by all participants. Management of the activities of a general partnership is carried out by general agreement of all participants. Each participant in a general partnership has one vote, unless the constituent agreement provides for a different procedure for determining the number of votes of its participants.
The profits and losses of a general partnership are distributed among its participants in proportion to their shares in the joint capital, unless otherwise provided by the constituent or other agreement of the participants.
An agreement to exclude any of the partnership participants from participating in profits or losses is not permitted. Features of a general partnership:
· the entrepreneurial activity of its participants is recognized as the activity of the partnership itself as a legal entity;
· if there is insufficient property of the partnership to pay off its debts, creditors have the right to demand satisfaction from the personal property of any of the participants (or all of them together). Therefore, the activities of the partnership are based on personal trust relationships of all its participants, the loss or change of which entails its termination. Commercial practice has shown that such partnerships often become a form of family entrepreneurship;
· any of the participants in a general partnership is engaged in entrepreneurial activities on behalf of the partnership as a whole, therefore, for the creation and functioning of a general partnership, a charter defining the competence of its bodies is not required. The only constituent document of such a commercial organization is the constituent agreement.
Economic partnership on faith (limited partnership) - a partnership in which, along with participants who carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with their property (general partners), there are one or more participants - investors (limited partners) who bear the risk of losses associated with the activities of the partnership within the limits of the amounts , the contributions they made and do not take part in the implementation of entrepreneurial activities.
The company name must contain the words: “limited partnership” or “limited partnership.”
Business partnership on faith is a type of general partnership and has the following features:
· consists of two groups of participants - general partners and investors.
The former carry out entrepreneurial activities on behalf of the partnership itself and bear full, unlimited and joint liability for the obligations of the partnership. Another group of participants - investors (limited partners) - makes contributions to the property of the partnership, but is not liable with their personal property for its obligations. Thus, in a limited partnership it is allowed to use the capital of third parties (investors), i.e. it becomes possible to raise additional funds not at the expense of the property of general partners, which is their advantage compared to general partnerships;
· inclusion of an investor in the company name of the partnership automatically leads to his transformation into a full investor, first of all, in the sense of unlimited and joint liability with his personal property for the affairs of the partnership;
· investors do not have the right to participate in managing the affairs of the limited partnership and act on its behalf, but have the right to familiarize themselves with its financial activities.
Investors have property rights related to their contribution to the property of the partnership:
ü the right to receive their share of the partnership’s profits;
ü investors retain the opportunity to freely withdraw from the partnership with the receipt of their contribution;
ü the investor can transfer his share or part thereof either to another investor or to a third party, and the consent of the partnership or general partners is not required;
ü upon liquidation of a limited partnership, investors have a priority right over general partners to receive their contributions or their cash equivalent from the property of the partnership after satisfying the claims of other creditors.
Benefits of a general partnership :
· the ability to accumulate significant funds in a relatively short time;
· each member of a general partnership has the right to engage in entrepreneurial activities on behalf of the partnership on an equal basis with others;
· general partnerships are more attractive to creditors, since their members bear unlimited liability for the obligations of the partnership.
Disadvantages of a general partnership :
· there must be a special trusting relationship between general partners, otherwise the collapse of this organization may quickly occur;
· a general partnership cannot be a “one person company”;
· each member of a general partnership bears full and joint unlimited liability for the obligations of this organization, i.e. in the event of bankruptcy, each member is liable not only with his contribution, but also with his personal property.
General partnerships have the same advantages and disadvantages as general partnerships. Their additional advantage is that to increase their capital they can attract funds from investors; general partnerships do not have this opportunity.
Individual entrepreneurs and (or) commercial organizations can pool their contributions and act together to make a profit or achieve another goal that does not contradict the law, without forming a legal entity. Such a union is called simple partnership . The document confirming its existence, defining the goals, rights, responsibilities and obligations of the participants is the Joint Activity Agreement.
The contributions of partners are everything that they contribute to the common cause (including money, other property, as well as business reputation and business connections).
The monetary valuation of all deposits is made by agreement between the partners.
The property contributed by the partners, which they owned as property, as well as the products produced as a result of joint activities and the income received from such activities are recognized as their common shared property.
Business partnerships are one of the oldest forms of business organization, rooted in family entrepreneurship. As the public relations family members were replaced by other participants in the common cause ─ comrades. Later, the associations were supplemented by depositors who received a certain percentage for their deposits.
The concept of a business partnership
The legislation does not have a special definition of the concept of “business partnership”, but it contains a joint definition of business partnerships and companies. A business partnership is a corporate commercial organization with an authorized (share) capital divided into shares (contributions) of founders (participants).
(The use of the expression “commercial business partnerships” is redundant, since any business partnership is commercial “by definition”).
Legal entities that are non-profit organizations, can be created in the organizational and legal forms of real estate owners' associations, which include, among other things, homeowners' associations.
Business partnerships and societies, production cooperatives, peasant (farm) enterprises, economic partnerships, state and municipal unitary enterprises ─ these are different organizational and legal forms in which legal entities that are commercial organizations can be created.
The property of business partnerships, created from the contributions of the founders (participants), as well as produced and acquired in the course of activity, belongs to the business partnerships by right of ownership.
