What is a general partnership? A general partnership, its distinguishing features and characteristics.

16.10.2019

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There are (etc., complete, etc.) carrying out various activities. What is a general partnership and what are its features?

The essence of a full partnership

A general partnership is a type of business partnership, all participants in it are full partners. They are responsible before the law for the activities of the partnership with property, and not only with a monetary contribution. All participants are fully committed by personal means if the state of affairs so requires.

A general partnership was originally a family type of business organization, because this form of doing business requires complete trust in colleagues in the enterprise.

Today, a general partnership can be organized by legal entities rather than individuals. The minimum number of participants is two people. A general partnership is not a common option for organizing entrepreneurship in today's environment.

Below is a description of a full partnership.

Characteristics and signs

General comrades bear the same responsibility before the law. It doesn't matter when a friend joined the organization, immediately after opening, or after a while. Even if a comrade leaves the organization, his responsibility before the law regarding the activities of this organization remains for another two years.

A participant in a general partnership cannot engage in activities that compete with the general partnership in which he participates. This point is very clearly stipulated in the charters of such organizations, before the exclusion of a comrade from the organization.

Advantages and disadvantages

The advantages of this form of doing business are such moments.

The ability to easily raise capital in a short period of time.
There is a high probability of attracting additional cash investments.
Positive assessment of creditors.

The disadvantages of such a business are also significant.

Full individual material responsibility before the law for the activities of the partnership.

Read about the features of the organization and the governing bodies of a full partnership below.

Control features

A general partnership can be managed in several ways.

Any participant carries out activities on behalf of the partnership.
Joint management of the organization's affairs. Decisions are joint and are made by all participants.
Governance is carried out by one member, who is elected by the participants.

Constituent documents

The main document of a full partnership is the memorandum of association. It is signed by all members of the organization. It indicates the following information.

Name and location of the partnership.
How the partnership is managed.
Information about the capital of the organization, about the shares of participants.
Liability of the members of the partnership.

This video will tell about the memorandum of association of a full partnership:

Society members

All participants in a full partnership are its founders. They are responsible for the activities of the organization. When there are not enough funds to cover the debts of the enterprise, the creditors have the right to recover the personal property of the participants. Only legal entities are members of a full partnership.

Members of a general partnership have the following rights.

Receive income that is proportional to his share in the capital of the organization.
The opportunity to participate in the management of the partnership, to receive information about the activities.
Get back a part of the property that was left after paying off the organization's debts.

The participants also have responsibilities in relation to the partnership.

The costs are also incurred in proportion to the share of the participants in the capital.
At least half of their monetary contribution by the participant must be made by the time of registration of the organization. The rest must be paid on time.
Keep confidential information about the partnership in secret.
Do not make transactions on your own behalf, which will compete with the company's activities.

Read about the sources of the property of the general partnership and the size of its authorized capital below.

Article 69. Basic provisions on a full partnership

1. A partnership is recognized as a full partnership, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are responsible for its obligations with property belonging to them.

2. A person can be a member of only one full partnership.

3. The firm name of a full partnership must contain either the names (names) of all its participants and the words "full partnership", or the name (name) of one or more participants with the addition of the words "and company" and the words "full partnership".

Article 70. Memorandum of full partnership

1. A general partnership is created and operates on the basis of the memorandum of association. The Memorandum of Association is signed by all of its participants.

2. The founding agreement of a full partnership must contain information about the company name and location of the partnership, conditions on the amount and composition of its contributed capital; on the size and procedure for changing the shares of each of the participants in the contributed capital; on the amount, composition, timing and procedure for making contributions; on the liability of participants for violation of obligations to make contributions.

Article 71. Management in a full partnership

1. Management of the activities of a full partnership shall be carried out by the general agreement of all participants. The founding agreement of the partnership may provide for cases when a decision is made by a majority vote of the participants.

2. Each participant in a full partnership has one vote, unless the constituent agreement provides for a different procedure for determining the number of votes of its participants.

3. Each participant in the partnership, regardless of whether he is authorized to conduct the affairs of the partnership, has the right to receive all information about the activities of the partnership and to get acquainted with all the documentation on the conduct of business. Waiver of this right or its restriction, including by agreement of the participants in the partnership, are void.

Article 72. Conduct of business of a full partnership

1. Each participant in a full partnership shall have the right to act on behalf of the partnership, unless the constituent agreement establishes that all its participants conduct business jointly, or the conduct of business is entrusted to separate participants.

In the joint conduct of the affairs of a partnership by its participants, the consent of all the participants in the partnership is required to complete each transaction.

If the conduct of the affairs of the partnership is entrusted by its participants to one or some of them, the other participants in order to conclude transactions on behalf of the partnership must have a power of attorney from the participant (participants) who is entrusted with the conduct of the affairs of the partnership.

In relations with third parties, the partnership does not have the right to refer to the provisions of the memorandum of association limiting the powers of the participants in the partnership, unless the partnership proves that the third party at the time of the transaction knew or knowingly should have known that the partnership participant had no right to act on behalf of the partnership ...

2. The powers to conduct the affairs of the partnership, granted to one or several participants, may be terminated by a court at the request of one or more other participants in the partnership if there are serious grounds for this, in particular as a result of a gross violation by the authorized person (persons) of his duties or his revealed inability to reasonable business management. On the basis of a court decision, the necessary amendments are made to the foundation agreement of the partnership.

Article 73. Obligations of a participant in a full partnership

1. A participant in a full partnership is obliged to participate in its activities in accordance with the terms of the memorandum of association.

2. A participant in a full partnership is obliged to make at least half of his contribution to the contributed capital of the partnership before it. The rest must be contributed by the participant within the time frame established by the memorandum of association. In case of failure to fulfill this obligation, the participant is obliged to pay to the partnership ten percent per annum from the unpaid part of the contribution and compensate for the losses caused, unless other consequences are established by the constituent agreement.

3. A participant in a full partnership shall not have the right, without the consent of the other participants, to make transactions on his own behalf in his own interests or in the interests of third parties that are similar to those that constitute the subject of the partnership's activities.

If this rule is violated, the partnership has the right, at its own choice, to demand from such a participant compensation for the losses caused to the partnership or transfer to the partnership all the benefits acquired under such transactions.

Article 74. Distribution of profits and losses of a general partnership

1. The profits and losses of a full partnership shall be distributed among its participants in proportion to their shares in the contributed capital, unless otherwise provided by the memorandum of association or other agreement of the participants. An agreement on the elimination of any of the participants in the partnership from participation in profits or losses is not allowed.

2. If, as a result of losses incurred by the partnership, the value of its net assets becomes less than the amount of its contributed capital, the profit received by the partnership is not distributed among the participants until the value of net assets exceeds the amount of its contributed capital.

Article 75. Liability of participants in a full partnership for its obligations

1. Participants in a full partnership jointly bear subsidiary liability with their property for the obligations of the partnership.

2. A participant in a full partnership, who is not its founder, shall be liable on an equal basis with other participants for obligations that arose before he entered the partnership.

A participant who has retired from the partnership is liable for the partnership's obligations that arose before the time of its retirement, on an equal basis with the remaining participants within two years from the date of approval of the report on the activities of the partnership for the year in which he left the partnership.

3. The agreement of the participants in the partnership on the limitation or elimination of the liability provided for in this article is null and void.

Article 76. Change in the composition of participants in a full partnership

1. In cases of withdrawal or death of any of the participants in a full partnership, recognition of one of them as missing, incapacitated, or partially incapacitated, or insolvent (bankrupt), opening of reorganization procedures against one of the participants by a court decision, liquidation of a participant in the partnership a legal entity or a creditor of one of the participants in the collection on a part of the property corresponding to its share in the contributed capital, the partnership may continue its activities if this is provided for by the foundation agreement of the partnership or the agreement of the remaining participants.

2. Participants in a full partnership have the right to demand in court the exclusion of any of the participants from the partnership by unanimous decision of the remaining participants and if there are serious reasons for this, in particular as a result of a gross violation by this participant of his obligations or his revealed inability to conduct business reasonably.

Article 77. Withdrawal of a participant from a full partnership

1. A participant in a full partnership has the right to withdraw from it, declaring his refusal to participate in the partnership.

Refusal to participate in a full partnership, established without specifying the term, must be declared by the participant at least six months before the actual withdrawal from the partnership. Early refusal to participate in a full partnership established for a specific period is allowed only for a valid reason.

2. An agreement between the participants in the partnership on the waiver of the right to withdraw from the partnership is null and void.

Article 78. Consequences of the withdrawal of a participant from a full partnership

1. A participant who has retired from a full partnership shall be paid the cost of a part of the partnership's property corresponding to the share of this participant in the contributed capital, unless otherwise provided by the memorandum of association. By agreement of the outgoing participant with the remaining participants, the payment of the value of the property may be replaced by the issuance of the property in kind.

The part of the partnership's property due to the retiring participant or its value is determined according to the balance sheet drawn up, with the exception of the case provided for in Article 80 of this Code, at the time of its retirement.

2. In the event of the death of a participant in a full partnership, his heir may enter into a full partnership only with the consent of other participants.

A legal entity that is the legal successor of a reorganized legal entity that participated in a full partnership shall have the right to enter the partnership with the consent of its other participants, unless otherwise provided by the founding agreement of the partnership.

Settlements with the heir (successor) who have not entered the partnership are made in accordance with paragraph 1 of this article. The heir (legal successor) of a participant in a full partnership shall be liable for the obligations of the partnership to third parties, for which, in accordance with paragraph 2 of Article 75 of this Code, the retired participant would be responsible, within the limits of the property of the retired participant in the partnership transferred to him.

3. If one of the participants retired from the partnership, the shares of the remaining participants in the joint capital of the partnership shall increase accordingly, unless otherwise provided by the memorandum of association or other agreement of the participants.

Article 79. Transfer of a participant's share in the pooled capital of a full partnership

A participant in a full partnership has the right, with the consent of the rest of its participants, to transfer his share in the pooled capital or part of it to another participant in the partnership or to a third party.

When a share (part of a share) is transferred to another person, the rights that belonged to the participant who transferred the share (part of the share) are transferred to him in full or in the corresponding part. The person to whom the share (part of the share) is transferred shall be liable for the obligations of the partnership in the manner prescribed by the first paragraph of clause 2 of Article 75 of this Code.

The transfer of the entire share to another person by a participant in the partnership terminates his participation in the partnership and entails the consequences provided for in paragraph 2 of Article 75 of this Code.

Article 80. Levy of execution on the share of a participant in the contributed capital of a full partnership

Levy of execution on the share of a participant in the joint capital of a full partnership for the participant's own debts is allowed only if there is a lack of his other property to cover the debts. The creditors of such a participant have the right to demand from the general partnership the allocation of a part of the partnership's property corresponding to the debtor's share in the contributed capital for the purpose of levying execution on this property. The part of the partnership's property subject to separation or its value is determined according to the balance sheet drawn up at the time the creditors presented the separation requirement.

Levy of execution on property corresponding to the share of a participant in the pooled capital of a full partnership terminates his participation in the partnership and entails the consequences provided for by paragraph two of clause 2 of Article 75 of this Code.

General partnerships are one of the oldest forms of partnerships. It is rarely used these days, but some entrepreneurs still prefer it. Those who decide to organize a general partnership, which should be prepared in advance, are advised to familiarize themselves with the rules for registering the organization.

What is a general partnership

A general partnership is one of the types in which the participants conclude an agreement in accordance with entrepreneurial activity. Each participant (or full partner) is fully responsible for the entrusted property, that is, bears unlimited liability.

The Civil Code regulates a general partnership, which is indicated by the following signs:

Created on the basis of a contract;

General partners are obliged to personally participate in the activities of the organization;

Have the same rights as legal entities;

The main goal is to carry out entrepreneurial activities;

The liability of all participants is unlimited.

There are rules for those who wish to become a member of a general partnership. According to the law, individual entrepreneurs can become them, like any (according to Article 66 of the Civil Code).

When choosing a name for a full partnership, it should be borne in mind that it must contain the words "general partnership" and the names of all participants, or the names of several participants, but then be sure to add the words "general partnership" or "company". An example of a full partnership is the imaginary firm Ivanov and Company.

Required documents

A general partnership, the constituent documents of which must be submitted for registration, is created on the basis of the memorandum of association. In it, the founders determine their participation in the activities of the partnership, agree on the costs and methods of managing the organization.

Each participant is obliged to sign the memorandum of association, which contains the following information:

Name that complies with the legislation;

Location;

The procedure for managing the partnership;

The size, composition and timing of contributions;

Responsibility for violations of the contract.

The memorandum of association has several purposes. It contains clauses that define the relationship between general comrades. Moreover, the contract specifies the terms of the partnership with other organizations. Like any document, the contract is drawn up in accordance with the law and must include all clauses. It is in writing, drawn up in the form of one document and signed by each participant.

Full partnership name

There is no requirement in the law that the contract must be in the form of a single document. However, this is a prerequisite for submitting it for registration. Moreover, when presenting a contract to third parties, it is imperative to show a single document.

From the moment of signing the agreement, the participants in a full partnership must fulfill their rights and obligations. However, for third parties, it only comes into effect after registration. Registration of the memorandum of association takes place in accordance with the Law on the Registration of Legal Entities. The name must comply with all the rules. An example of a full partnership with the correct name is "Abzal and K".

Obligations of participants

A general partnership, the constituent documents of which were signed by all participants, imposes rights and obligations on them. This is important to know. Participants in a full partnership cannot be members of more than one partnership. By law, they are not allowed to transact in their own name without the consent of others. Everyone is obliged to make at least half of their contribution to the capital by the time of registration of the partnership. The rest is paid within the period specified in the contract. Each partner is obliged to participate in the activities of the organization in accordance with the rules specified in the memorandum of association.

Participant rights

The founders of a full partnership have the right to leave the partnership earlier than the specified period. In this case, the person must declare his desire at least 6 months in advance. If a general partnership was created for a certain period, then the exit is possible only for a good reason.

A participant can be expelled from the partnership in court if the other participants voted for it. In this case, he is paid a value corresponding to his share in the capital. The shares of the withdrawn participants are transferred in the order of succession, but the rest of the comrades must vote for the successor. The composition of the comrades can be changed without excluding anyone. In this case, the share in the pooled capital is transferred to another participant or a third party. To carry out the operation, the consent of the rest of the comrades is required.

Liquidation of a full partnership

Since a general partnership is highly dependent on each participant, there are many events that can lead to its dissolution. Naturally, the death of a participant is the reason for the termination of the partnership. If the partner is a legal entity, its liquidation will serve as the basis for the liquidation of the organization.

Other reasons are:

The appeal of creditors to one of the participants for the purpose of collecting property;

Legal proceedings against one of the comrades;

Declaring the participant bankrupt.

A general partnership has the right to continue activities if such a clause is specified in the memorandum of association.

If the number of members has decreased to one, then the member has 6 months to transform the general partnership into a business entity. Otherwise, it is subject to liquidation.

What is limited partnership

General and limited partnerships differ on several points. Limited partnership, which is also called limited partnership, differs from full partnership in that it includes not only full comrades, but also contributors (limited partners). They take the risk for losses that are associated with the activities of the partnership. The amounts depend on the contributions made. Limited partners do not take part in business activities. Unlike general partners, investors can be not only individual entrepreneurs and commercial organizations, but also legal entities.

Limited partners have the right:

Receive profit according to the share in the contributed capital;

Require annual reports on the work of the partnership.

There are a number of restrictions that apply to contributors. They cannot be state bodies, as well as local self-government bodies. They are not allowed to act on behalf of the partnership, except by power of attorney.

A production cooperative as a form of collective entrepreneurship

One form of collective entrepreneurship is called a cooperative. A general partnership, by contrast, is more restrictive in terms of participants. Members of a production cooperative cannot be individual entrepreneurs, but they personally work in a cooperative. Each member has one vote regardless of the size of the contribution.

In the civil code, the production cooperative is called an artel, since the profit depends on the labor contribution of the participant, and not on his contribution. In the event of a debt, everyone is responsible for its repayment in the amount predetermined by the charter.

The advantage of this form of entrepreneurship is that profits are distributed in accordance with labor input. Property is also distributed if the production cooperative has been liquidated. The maximum number of members is not limited by law, which allows the creation of cooperatives of any size. Each participant has equal rights and one vote, which stimulates the interest of members in the activities of the organization.

The minimum number of members is limited to five. The downside is that this severely limits the possibility of creating a cooperative.

Concept: A type of business partnerships, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership.

Features of the institution: The name must "contain either the names (titles) of all its participants and the words" full partnership ", or the name (name) of one or more participants with the addition of the words" and company "and the words" full partnership ".

Owners status: The participants in a full partnership are called general partners and can only be individual entrepreneurs and (or) commercial organizations (and they can no longer participate in other general partnerships).

Sources of capital formation: The joint stock capital of the partnership is made up of the value of the contributions made by the partners and guarantees the interests of the creditors of the partnership. By mutual agreement of the participants, the contribution to the pooled capital can be made as personal property and non-property rights. The terms for making deposits by each participant are determined by the agreement. A general partnership is not entitled to issue shares.

Rights: Receive income in proportion to the contribution to the pooled capital; participate in the management of the partnership; receive information about the activities of the partnership; get acquainted with his accounting books and other documentation in the manner prescribed by the constituent documents; to take part in the distribution of profits, to receive, in the event of liquidation of the partnership, a part of the property remaining after settlements with creditors, or its value; withdraw from the partnership at any time; transfer your share to another PT participant, or to a third party.

Control features: The management of the activities of a full partnership is carried out by the general agreement of all participants. The founding agreement of the partnership may provide for cases when a decision is made by a majority vote of the participants. Each participant in a full partnership has the right to act on behalf of the partnership, unless the constituent agreement establishes that all its participants conduct business jointly, or the conduct of business is entrusted to separate participants. In the joint conduct of the affairs of a partnership by its participants, the consent of all the participants in the partnership is required to complete each transaction. If the conduct of business is entrusted to one or several participants, the remaining participants, in order to conclude transactions on behalf of the partnership, must have a power of attorney from the participant (participants) who is entrusted with the conduct of business.

Responsibility for obligations: The participants in a full partnership jointly bear subsidiary liability with their property for the obligations of the partnership. A participant in a full partnership, who is not its founder, is liable on an equal basis with other participants for obligations that arose before he entered the partnership. A participant who has retired from the partnership is liable for the partnership's obligations that arose before the time of its retirement, on an equal basis with the remaining participants within two years from the date of approval of the report on the activities of the partnership for the year in which he left the partnership.

Distribution of profit and loss: The profits and losses of a full partnership are distributed among its participants in proportion to their shares in the contributed capital, unless otherwise provided by the memorandum of association.

The main provisions of the charter and articles of association: The constituent document of a full partnership is the memorandum of association. The founding agreement of a full partnership must determine: the name of the full partnership; its location; the procedure for managing the activities of the partnership; conditions on the size and composition of the joint stock capital of the partnership; conditions on the amount and procedure for changing the shares of each of the participants in the contributed capital; conditions on the amount, composition, timing and procedure for making contributions by participants; conditions on the liability of participants for violation of obligations to make contributions.

Number of participants: The minimum is 2.

Articles 69-81 of the Civil Code are devoted to the legal status of general partnerships. A general partnership has both common characteristics of a legal entity and a business partnership, and special characteristics. Let's call their distinctive features.

1. Participants in a full partnership are general partners, that is, individual entrepreneurs and (or) commercial organizations. Any person can be a member of only one full partnership (clause 2 of article 69 of the Civil Code). However, this rule does not prohibit a participant in the partnership to conduct his own business activity, subject to paragraph 3 of Art. 73 CC. The aforementioned rule prohibits general partnerships that are entrepreneurs from competing with the activities of the partnership on the commodity market, that is, "to make on their own behalf, in their own interests or in the interests of third parties, transactions similar to those that constitute the subject of the partnership."

Otherwise, the partnership has the right, at its choice, to demand from such a participant compensation for losses caused to the partnership or transfer to the partnership of all the benefits acquired under such transactions (clause 3 of article 73 of the Civil Code).

2. A participant in a full partnership is obliged to personally participate in its activities in accordance with the terms of the memorandum of association. At the same time, the Civil Code of the Russian Federation (Art. 73) does not establish any sanctions for the passive behavior of a friend in partnership matters. Therefore, we agree with the opinion that systematic non-participation in the affairs of the partnership can be regarded as a gross violation, which is the basis for the exclusion of such a participant from the partnership in accordance with paragraph 2 of Art. 76 GK. On the other hand, a partner may actually be released from the obligation to personally participate in the affairs of the partnership.

In this regard, the question arises: is it possible, using the construction of the memorandum of association, to release a comrade from such participation? In our opinion, no. Rule paragraph 1 of Art. 73 of the Civil Code is a peremptory norm, and therefore the constituent agreement by virtue of paragraph 1 of Art. 422 of the Civil Code must comply with the rules binding on the parties, established by law and other legal acts (peremptory norms) in force at the time of its conclusion. Here the provisions of Art. 1, 421 of the Code of Freedom of Contract, since the freedom of participants in civil turnover (general partners) is limited by the action of a peremptory norm.

3. Participants in a full partnership jointly bear subsidiary liability their property for the obligations of the partnership (clause 1 of article 75 of the Civil Code). First of all, we note that the liability of general partners in relation to the liability of the partnership is subsidiary. In the literature, the opinion is widespread that it (responsibility) occurs only under the condition of insufficient property of the partnership. This opinion seems to be erroneous.

Indeed, such a condition is not provided for in Art. 75 of the Civil Code and does not follow from the general rule of clause 1 of Art. 399 GK. By virtue of paragraph 1 of Art. 399 to bring to subsidiary liability it is enough for the main debtor to refuse to satisfy the creditor's claims or if he does not receive a response to the submitted claim within a reasonable time.

The joint and several liability of the general partners means that the creditor of the partnership has the right to present a claim both to all partners jointly and to any of them separately, both in full and in part of the debt (clause 1 of article 323 of the Civil Code of the Russian Federation).

In order to protect the interests of the creditor, the Civil Code of the Russian Federation (clause 2 of Art. 75) contains a rule according to which a participant in a full partnership, who is not its founder, is liable for the partnership's debts on an equal basis with other participants for obligations that arose before it entered the partnership. Moreover, partners who have retired from the partnership are also liable for the partnership's obligations that arose before the time of its retirement, on an equal basis with other remaining participants within two years from the date of approval of the report on the activities of the partnership for the year in which it left the partnership. A very tough rule!

And one more aspect of the liability of the participants in a full partnership for its obligations. Agreement of general partners on the limitation or exclusion of liability under Art. 75 GK, negligible. This rule indicates that a peremptory norm of the law cannot be changed by private agreement.

4. As a general rule, management functions in a full partnership are carried out with the consent of all participants (Article 71 of the Civil Code). However, the memorandum of association may provide for cases when a decision is made by a majority vote of the participants. This exclusion allows the participants of the partnership in disputable situations to come up with a specific solution, since it is not always possible to reach a unanimous decision of all participants on some fundamental issues.

The literal interpretation of the rule of clause 1 of Art. 71 of the Civil Code allows us to conclude that these exceptions are applicable to individual cases. In other words, the general rule on a unanimous decision remains in effect even in cases where the conditions for a decision by a majority vote are formulated in the memorandum of association.

Since the Civil Code of the Russian Federation provides for the possibility of making a decision by a majority of votes, insofar as there is no prohibition, in our opinion, to establish in the agreement a rule that on some issues of managing the activities of a general partnership, relevant decisions are made by a qualified majority of the participants.

When counting the votes of participants in a full partnership, one should be guided by the rule that each full partner has one vote. Another procedure for determining the number of votes of the participants in the partnership may be provided for by the memorandum of association. 5. The Code (Art. 72 of the Civil Code) distinguishes between management in a partnership and the conduct of a full partnership... Doing business means representing the interests of the partnership in relations with third parties. The Code offers a choice of three models for conducting business of a full partnership: a) each participant in the partnership has the right to act on behalf of the partnership (general rule); b) all participants in the partnership conduct business jointly; c) the conduct of business is entrusted to individual participants. The last two options for doing business can be provided for by the memorandum of association.

When conducting the affairs of a full partnership, its participants, representing the interests of the partnership in relations with third parties, act as bodies of a legal entity. And although in relation to business partnerships the Civil Code does not call them (general partners) the body of the partnership, nevertheless they perform these functions. By virtue of paragraph 1 of Art. 53 of the Civil Code, a legal entity acquires civil rights and assumes civil obligations through its bodies.

We believe that general partners, taking into account the different models of conducting the affairs of a full partnership, are the bodies of a full partnership, acting in accordance with the law, other legal acts and the memorandum of association. There are peculiarities of their formation, but they are unlikely to be able to affect the functional affiliation of the participants in the partnership to the bodies of a legal entity. At the same time, we are not inclined to extend the regime of the institution of representation to the bodies of a legal entity in general and to participants in a full partnership in particular. There is no representation relationship between a legal entity and its bodies, which are the subject of regulation by the norms of Ch. 10 GK.

Each general partnership business model has its own merits and demerits. Thus, the first model gives each participant the right to act on behalf of the partnership. This can be viewed, on the one hand, as a plus, on the other, as a minus, since such a democratic conduct of business will lead to anarchy.

On the contrary, the second model is designed to ensure coordination of the actions of all participants in a full partnership. Not a bad idea, but in reality its implementation is fraught with significant difficulties. Even the personal and confidential nature of a full partnership cannot guarantee absolute unity of opinion and vote.

6. List of duties of general partners provided for by Art. 73 of the Civil Code is not exhaustive. For example, a general partner is obliged to participate in the distribution of losses (clause 1 of article 74 of the Civil Code).

In addition, additional obligations of participants in a full partnership may be provided for by the memorandum of association.

Along with the obligation of a participant in the partnership to participate in the activities of the partnership, Art. 73 of the Civil Code obliges the general partner to make at least half of his contribution to the contributed capital of the partnership by the time of its registration. Shared capital is a type of property of the partnership, formed from the contributions of the founders of the partnership. Therefore, it (capital) is the total value of all contributions, which the founders of the full partnership decided to combine when creating the partnership, registered (fixed) in the foundation agreement and expressed in rubles.

The current legislation does not contain a norm on the minimum amount of the contributed capital of a business partnership. In our opinion, such an absence can hardly be regarded as a gap. On the contrary, proceeding from the nature of business partnerships, we consider it inappropriate to legally establish the minimum amount of the partnership's share capital. The specified amount should be determined by the founders of the business partnership independently.

The joint stock capital of a business partnership does not fulfill a guarantee function aimed at ensuring the interests of creditors. With regard to business partnerships, it is important for creditors who the general partnerships are and what their property status is.

By and large, the authorized capital of business entities also does not fulfill the function of a guarantee, if only because its size in most cases is not able to ensure the interests of creditors.

7. According to the general rule (Article 74 of the Civil Code), the profits and losses of a full partnership are distributed between its participants in proportion to their shares in the contributed capital. However, a different rule may be formulated in the memorandum of association or in another agreement of the participants. For example, depending on the personal participation of the partners in the activities of the partnership, the general partners may agree on a different proportion of the distribution of profits and losses. At the same time, the Civil Code does not allow for an agreement of participants to eliminate any of the general partners from participating in profits or losses. Such an agreement is null and void.

The Code (clause 2 of Art. 74) prohibits the distribution of profits between general partners in the event that, as a result of losses incurred by the partnership, the value of its net assets becomes less than the amount of its contributed capital. This prohibition is in effect as long as the value of net assets does not exceed the amount of the contributed capital.

In this case, the legislator pursues the only goal - to exert a stimulating effect on the participants of a full partnership so that they show a minimum of interest in maintaining the solvency of the partnership, at least to the level of its contributed capital. But this rule is hardly capable of influencing in any way the fate of the partnership, nor can the business relationship of the partnership with creditors. The main guarantee of the interests of creditors is the subsidiary liability of general partners for the obligations of the partnership.

8. Change in the composition of participants in a full partnership(Article 76 of the Civil Code). The Code determines the circumstances, the presence of which may affect the fate of a business partnership, as well as the consequences of a change in the composition of participants in a full partnership. Such circumstances include: withdrawal or death of any of the participants in a full partnership; recognition of one of the comrades as missing, incapacitated or partially incapacitated; recognition of a general partner as insolvent (bankrupt), opening in relation to one of the participants in reorganization procedures by a court decision, liquidation of a legal entity participating in the partnership; the appeal by the creditor of one of the participants in the collection on a part of the property corresponding to his share in the joint capital of the partnership. Thus, the Code distinguishes between a change in the personal composition of participants in a full partnership and the property status of a participant.

These circumstances are grounds for the liquidation of a full partnership (Article 81 of the Civil Code). In practical terms, the question of a voluntary or compulsory method of liquidating a partnership deserves attention. Here is what F.M. Polyansky writes, the author of the commentary on paragraph 2 of Ch. 4 of the Code: "Each of these circumstances is the basis for the compulsory liquidation of the partnership, unless otherwise provided by its constituent agreement or the agreement of the remaining participants." As you can see, those listed in Art. 76 of the Civil Code, the circumstances serve, in the opinion of the named author, as the basis for the compulsory liquidation of a full partnership.

We do not fully agree with this opinion. Clause 2 of Art. 61 of the Civil Code establishes the grounds for voluntary and compulsory liquidation of a legal entity. Forced liquidation of a legal entity is carried out by a court decision on the grounds listed in paragraph 2 of Art. 61 GK. An analysis of this provision shows that the indicated grounds for the liquidation of a legal entity are heterogeneous: one group of grounds is a violation by a legal entity of the provisions of the law, other legal acts, the other group is not associated with such violations.

In our opinion, the phrase "in other cases provided for by this Code" means that the Code may provide for other grounds for the liquidation of a legal entity; and they do not need to constitute any violation.

In the case under consideration (Article 76 of the Civil Code), when the remaining participants in the full partnership did not make a unanimous decision on the existence of the partnership, there are grounds for liquidating the partnership. Such liquidation may be voluntary, that is, by decision of the participants in the full partnership. In turn, the court decision on the liquidation of the full partnership on the grounds specified in paragraph 1 of Art. 76 of the Civil Code, indicates the presence of disagreements between the remaining general comrades. Therefore, at the request of one of them, the court has the right to make a decision on the liquidation of the full partnership. Let's face it: the resulting situation is not simple (for example, nine comrades are in favor of maintaining the partnership, and one is against).

Another situation: the remaining participants in the full partnership did not make a decision to continue the partnership, but, on the other hand, do not go to court regarding its liquidation.

With the requirement for the compulsory liquidation of a full partnership on the grounds specified in paragraph 1 of Art. 76 of the Civil Code of the Russian Federation, the remaining general comrades have the right to apply. This statement does not contradict the meaning and content of the rule formulated in paragraph 3 of Art. 61 GK. According to the aforementioned rule, a demand for the compulsory liquidation of a legal entity may be brought before a court by a state body or a local self-government body, which has been granted the right to present such a demand by law.

9. Withdrawal of a participant from a full partnership(Article 77 of the Civil Code). Any participant in the partnership has the right to withdraw from it by declaring its refusal to participate in the partnership. In order to protect the interests of the remaining general partners, the Code contains a special rule on the withdrawal of a participant from a full partnership. If the partnership is founded without specifying the term, the refusal to participate in the full partnership must be declared by the participant at least six months before the actual withdrawal from the partnership. When founding a partnership for a certain period, early refusal to participate in a full partnership is allowed only for a valid reason (for example, illness of a member of the partnership).

The Code recognizes as null and void the agreement between the participants in the partnership to renounce the right to withdraw from the partnership.

The consequences of the withdrawal of a participant from a full partnership are provided for in Art. 78 CC. In particular, paragraph 1 of Art. 78 provides a participant who has retired from a full partnership the right to receive the value of a part of the partnership's property corresponding to the share of this participant in the contributed capital. However, another principle for determining the amount of such payment may be established by the memorandum of association.

The retiring participant can agree with the remaining general partners to replace the payment of the property value with the release of the property in kind. This rule is also formulated in Art. 78 CC.

The Civil Code specifically regulates procedural issues related to succession. Thus, in the event of the death of a participant in a full partnership, his heir may enter into a full partnership only with the consent of other participants. A slightly different rule applies to a reorganized legal entity: for its entry into a partnership, the consent of other general partners is required, unless otherwise provided by the foundation agreement of the partnership.

The Code contains norms on making settlements with the heir (successor) who has not entered the partnership. Such calculations are made in accordance with paragraph 1 of Art. 78 of the Civil Code, that is, the heir receives the value of a part of the partnership's property, which must correspond to the share of this participant in the contributed capital of the partnership. In addition, the heir (successor) bears the risk of liability for the obligations of the partnership to third parties within two years from the date of approval of the report on the activities of the partnership (clause 2 of article 75 of the Civil Code), but within the property of the retired participant transferred to him.

10. Transfer of a participant's share in the joint capital of a full partnership(Article 79 of the Civil Code). Such a transfer is carried out with the consent of the rest of the general partners. When a share (part of a share) is transferred to another person, the rights belonging to the participant who transferred the share (part of the share) are transferred to him in full or in the corresponding part.

Of course, the person to whom the share (part of the share) is transferred assumes the risk of responsibility lying on the retired partner (clause 2 of article 75 of the Civil Code). In turn, the transfer of the entire share to another person by a participant in the partnership terminates his participation in the partnership. Moreover, this transfer entails the consequences provided for in paragraph 2 of Art. 75 GK.

11. Liquidation of a full partnership(Article 81 of the Civil Code). The Code distinguishes between general grounds for the liquidation of a legal entity (Article 61 of the Civil Code) and special ones. The latter include, for example, the case when the only participant remains in the partnership. By virtue of Art. 81 such participants have the right, within six months from the moment when he became the only participant in the partnership, to transform such a partnership into a business company. Otherwise, the general partnership is subject to compulsory liquidation by a court decision (by the way, there is no violation of the law or other legal acts). A claim for the compulsory liquidation of a partnership may be submitted to the court by a single participant. However, the question arises: what if he does not?

As noted earlier, a general partnership can be liquidated in the cases specified in paragraph 1 of Art. 76 GK.