20 CHARACTERISTICS OF BUSINESS ASSOCIATIONS Large-scale business is characterized by special forms of organization, such as associative forms, which are based on the association of enterprises and firms into aggregate structures. Consider their main types. The corporation is

46 BANKRUPTCY: CHARACTERISTICS, CAUSES, PROCESS Bankruptcy is the inability of the debtor recognized by the arbitration court to satisfy in full the requests of creditors for monetary obligations and (or) to fulfill the obligation to pay taxes, fees and other

Business partnerships and companies are a generic concept denoting several independent types of commercial legal entities, which have in common that their authorized (share) capital is divided into shares. This is what distinguishes business partnerships and companies from other commercial organizations.

These are the most common types of legal entities in commercial circulation, a common feature of which is, in accordance with Art. 66 of the Civil Code that their property is conditionally divided into shares, in which the obligations of the participants in relation to the legal entity are expressed:

• - to receive a share from the distribution of profits;
• - to receive a share of the value of property when a participant leaves a legal entity;
• - to receive a share of the liquidation balance;
• - to participate in the management of a legal entity.

The basic rights and obligations of participants in business partnerships and companies are enshrined in Art. 67 of the Civil Code, are imperative and can be supplemented by constituent documents.

Participants have the right:

• - to manage the affairs of the company in one form or another,
• - receive information about its activities,
• - participate in the distribution of profits
• - receive part of the property left after the liquidation of the legal entity.

Participants are required to:

• - participate in the formation of the company's property;
• - not to disclose confidential information about its activities.

The founding document of a partnership is the memorandum of association.

Because the partnership is for joint management entrepreneurial activity, only entrepreneurs and commercial organizations can be its full members, there are no such restrictions for companies.

General partners bear unlimited joint and several liability for the obligations of the partnership, unlike other partners who bear limited liability; in connection with this, a person can be a general partner in only one partnership.

In order to protect the interests of creditors of economic companies, the participants of which bear limited liability, the law regulates more strictly the issues of formation authorized capital company, its changes, maintaining the company's assets at a level not less than the authorized capital;

The number of participants in a partnership, as a rule, is small, and their relations are of a personal-confidential nature: decisions are made on the basis of mutual consent, there is no system of governing bodies, and the partnership's affairs are conducted by the participants themselves.

The company has a system of governing bodies established by its constituent documents on the basis of the law: decision-making and the conduct of the affairs of the company are carried out by its management bodies on the basis of the powers granted to them by law and the constituent documents of the company.

AT legal regulation societies, the weight of imperative norms is quite high; partnerships are governed mainly by dispositive norms.

General partnership according to Art. 69 of the Civil Code is a business partnership, the participants of which are jointly and severally liable for its obligations with all their property.

General partnership according to Art. 70 GC arises on the basis of memorandum of association between participants.

Management of the partnership according to Art. 71 of the Civil Code is carried out in the manner in which decisions are made by all participants unanimously, unless otherwise provided by the agreement. The conduct of business is carried out by each of the participants, or by all the participants jointly, or by some of them, who in these cases have the right to act without a power of attorney, and the remaining participants have the right to represent the partnership only on the basis of a power of attorney.

Changing the personal composition of participants in accordance with Art. 76 of the Civil Code, i.e. their exit, exclusion, loss of legal capacity by a citizen, liquidation or reorganization of a legal entity, as well as a change in their property status, i.e. declaring bankrupt, foreclosing a share in the capital, as a general rule, entails the liquidation of a full partnership, unless otherwise provided by the agreement.

A retired comrade according to Art. 75 of the Civil Code is liable for the obligations of the partnership that arose before its retirement, within 2 years from the date of approval of the report for the year in which it retired.

Basic rights and obligations of participants in economic companies and partnerships in general view and can be supplemented in constituent documents. Participants have the right to manage the affairs of the company in one form or another, receive information about its activities, participate in the distribution of profits and receive part of the property left after the liquidation of the enterprise (the so-called liquidation balance). At the same time, they are obliged to participate in the formation of the property of the enterprise and not to disclose confidential information about its activities. The norms of the Civil Code are imperative in nature, therefore it is impossible to deprive a participant of any of the listed rights or release from obligations.

A business partnership, the participants of which jointly and severally bear subsidiary (additional) liability for its obligations with all their property, is called a general partnership. It arises on the basis of an agreement between several participants (general partners), which can only be entrepreneurs - individual or collective.

The legislator distinguishes between the cases of managing a general partnership (and conducting the affairs of a partnership. The management of a partnership is carried out on the basis of decisions taken by all participants unanimously or by a majority vote (if the latter is provided for by the memorandum of association). Conducting business, i.e. representing the interests of a general partnership in circulation, as a general rule, is carried out by each of the participants.In this case, a full partnership as a legal entity has several independent and equal bodies (according to the number of participants).The memorandum of association may establish other schemes of the bodies of a full partnership, for example: the conduct of business by all participants jointly (one collegiate body) or some of them (one or more individual bodies). It is important to note that the above options organizational structure partnerships cannot be applied simultaneously. Therefore, the assignment of conducting business of a general partnership 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 only relevant for its registration. In the future, neither a decrease in the share capital, nor even its complete loss, entail dramatic consequences. This is not surprising, since the claims of the partnership's creditors can be satisfied at the expense of the property of its participants.

A general partner is prohibited from acting in a similar capacity in more than one enterprise. By the way, this rule, which is unusual for most foreign legislation, was established in the interests of the partnership's creditors. To protect the interests of the partners themselves, a prohibition is provided for a participant to make, without the consent of others, transactions similar to those made by the partnership, that is, to compete with it.

A change in the personal composition of participants (withdrawal, expulsion, 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 full partnership. Other may be provided by the founding agreement or agreement of the remaining participants. A change in the property status of a participant has similar consequences - declaring him bankrupt or foreclosing by creditors on his share in the share capital.

Being by its nature an association of persons, a general partnership cannot consist of sole member and, if this happens, it must be transformed into a business company or liquidated.

A business partnership consisting of two categories of participants: general partners (complementary partners), jointly and severally bearing subsidiary liability for its obligations with their property, and fellow contributors (limited partners) who are not liable for the obligations of the enterprise, is called a limited partnership (or limited partnership).

Similarly to a general partnership, the company name of a limited partnership must contain the names (names) of all or at least one general partner (in the latter case - with the addition of the words - "... and the company").

According to the Civil Code, fellow contributors may not even participate in the signing of the memorandum of association, i.e. the principle of anonymity of limited partners is respected. The relations of fellow contributors and general partners must be regulated by an agreement. And if this is not a memorandum of association, then it must be some other, conditionally called an agreement on participation in a partnership. Such a legal structure, indeed, allows you to keep the absolute secret of the identity of the limited partner (even from the state), but still it seems extremely contradictory.

A limited partnership, as it were, includes two relatively independent structures: a general partnership and a group (or one) of fellow contributors. On the one hand, limited partners are completely excluded from participating in the management and conduct of business of the partnership. On the other hand, they dispose of their deposits completely independently of full comrades. Distinctive feature The rights of the limited partner to the property of the partnership lies in the fact that when leaving the enterprise, he has the right to claim only the return of his contribution, and not to receive an appropriate share in the property of the company. However, in the event of liquidation of the company, the partner-contributor participates in the distribution of the liquidation balance on an equal basis with general partners.

The grounds for the liquidation of a limited partnership have significant specifics. In particular, a limited partnership is preserved if at least one full partner and one limited partner remain in it (part 2, clause 1, article 86 of the Civil Code). This means that in all cases of changes in the personal composition of participants, the partnership, as a general rule, continues to exist.

In the part that 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 (see paragraph 5 of article 82 of the Civil Code).

A commercial organization, the authorized capital of which is divided into shares of certain sizes, formed by one or more persons who are not liable for its obligations, is called a limited liability company.

The founding documents of a limited liability company are the charter and memorandum of association (the latter cannot be concluded if there is only one member in the company). The corporate name of the company is based on general rules. A limited liability company 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, a limited liability company is distinguished by closer relations of participants, a more closed nature of membership. That is why paragraph 3 of Art. 7 of the Law on Limited Liability Companies establishes the maximum number of its participants - 50 people. If it is exceeded, the company must be transformed into an open JSC, production cooperative or be liquidated.

The authorized capital of a limited liability company consists of the nominal values ​​of the shares of all its participants.

The presence of a share in the authorized capital, of course, does not mean any real rights to the property of the enterprise. The rights of participants in relation to the company (to participate in management, information, profit share, liquidation balance, etc.) are implemented within the framework of a single obligation, which can be described as a shared obligation with an active plurality of persons, since the company itself acts as 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 taken together, i.e. cession.

The legal status of the management bodies of the company is regulated in detail by the Law. The supreme governing body of the company is general meeting its participants, the number of votes in which each participant has in proportion to his share in the authorized capital. The exclusive competence of the general meeting is listed in paragraph 2 of Art. 33 of the Law and include yourself: changing the charter of the company and the size of its authorized capital, formation and termination of the executive bodies of the company, approval of annual reports and balance sheets, distribution of profits and losses, reorganization and liquidation of the company, election of its audit commission(auditor) and a number of other issues. Along with the exclusive competence of the general meeting, a number of authors emphasize its general and alternative competence. The charter of the company may provide for the establishment of the Board of Directors (supervisory board), the position of which is generally similar to the status of the supervisory board in a joint-stock company.

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, is called an additional liability company.

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 against participants can only be made if the company's property is insufficient for settlements with creditors. Secondly, liability is joint and several in nature, therefore, creditors have the right to fully or in any part make claims against any of the participants, who is obliged to satisfy them. Thirdly, the participants bear the same responsibility, i.e. in equal measure a multiple of the size of their contributions to the authorized capital (clause 1 of article 95 of the Civil Code). Fourthly, the total amount of responsibility of all participants is determined by the constituent documents as a multiple (two, three, etc.) of the size of the authorized capital.

A commercial organization formed by one or more persons who are not liable for its obligations, with an authorized capital divided into shares, the rights to which are certified securities- shares, is called a joint-stock company.

The main difference between a joint-stock company and other legal entities lies in 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 a JSC, which emphasizes the formal nature of personal participation in the company (clause 3 of article 98 of the Civil Code), and is approved at a meeting of founders. At the same time, the Civil Code also speaks of the conclusion of a constituent agreement that regulates the relations of the founders in the process of creating a joint-stock company (clause 1, article 98 of the Civil Code). Such an agreement serves as an auxiliary tool that facilitates the creation of a joint-stock company, as a rule, it is not submitted for registration and can subsequently be terminated without prejudice to the company itself.

The authorized capital of a joint-stock company is equal to the nominal value of shares acquired by shareholders - ordinary and preferred (Article 99 of the Civil Code). Making a contribution to the authorized capital of the company means at the same time making a contract for the sale of shares. The seller in this agreement is the company itself, which is not entitled to refuse to conclude it with the founder. One of the features of the share purchase and sale agreement is that the delay in payment for the share beyond the time limits specified by the charter of the joint-stock company or the decision to place additional shares automatically leads to the termination of the agreement. Moreover, the company is not entitled to forgive the buyer such a delay in payment, since the corresponding norm of Part 2, Clause 4, Art. 34 of the Law "On joint-stock companies» is imperative.

An increase in the authorized capital of a joint-stock company is carried out either by increasing the nominal value of existing shares, or by placing (issuing) additional shares. In the latter case, the procedure for placing shares depends on the type of joint-stock company. A closed joint stock company is obliged to distribute all shares of new issues between specific persons known in advance. An open joint-stock company has the right to offer shares for purchase to an unlimited number of persons, that is, to conduct an open subscription for them (clauses 1 and 2 of article 97 of the Civil Code).

The ways of forming the authorized capital do not exhaust the differences between open and closed joint-stock companies. The number of participants in a closed joint-stock company cannot exceed fifty, and if it is exceeded, the company is transformed into an open joint-stock company or liquidated. Shareholders of a closed joint-stock company have the right to preemptively purchase shares alienated by other shareholders (similar to the transfer of shares in a limited liability company). The noted differences between open and closed joint-stock companies still do not lead to the splitting of joint-stock companies into two independent organizational and legal forms, because they fit into the framework of a single concept of joint-stock companies and do not contradict general principles shareholding form of the enterprise.

The law refers to the management bodies of a joint-stock company the general meeting of shareholders, as well as the board of directors ( supervisory board), which is necessarily created if the society has more than 50 members. JSC bodies as a legal entity, i.e. executive bodies, are the sole and (or) collegial body (board, directorate, etc.). Their competence, formation procedure and work procedure are determined by Art. 103 of the Civil Code, art. 47--71 of the Law "On Joint Stock Companies" and the charter of the JSC. In addition, the management of the company may be entrusted under the contract to third-party managers - legal entities or individuals.

Significant features differ legal status open joint stock companies created in the process of privatization of state and municipal enterprises. These JSCs are regulated special legislation on privatization, while the norms federal law"On joint-stock companies" applies to them only subsidiarily.

Mentioned in Art. 105 and 106 of the Civil Code, as well as Art. 6 of the 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) that has influenced the decisions of another company (subsidiary) by virtue of the predominant participation in its authorized capital, in accordance with the agreement or on other grounds, shall be jointly and severally liable with the subsidiary for transactions made as a result of such influence. Shareholders of a subsidiary company have the right to demand compensation for losses caused by the parent company. In the event of the insolvency of a subsidiary due to the fault of the principal, the latter is subsidiarily liable for its debts.

Dependent companies are singled out 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 economic company (predominant).

Affiliated companies and partnerships (more precisely, affiliated persons, since citizens can also be such) are also not a special organizational and legal form of legal entities.

The main duty of the dominant and affiliated persons is to provide (including publishing) relevant information to the competent government bodies and/or organizations dependent on them.

Thus: Legal entities can be classified: by forms of ownership. Depending on the form of ownership underlying the legal entity, state and private (non-state) legal entities are distinguished. Among the state (in broad sense, i.e., including municipal ones) include all unitary enterprises, as well as some institutions.