Public and non-public joint-stock companies (NAO and PJSC) - classification, comparison and transition. Joint Stock Company: Concept, species, legal status

Joint Stock Company (AO)

Joint Stock organization joint Stock Company (AO)

Open and closed joint-stock companies.

Closed joint Stock Company (AO)

CLOSED JOINT-STOCK COMPANY (AO) (CJSC)

History in the Russian Federation - Actually years of Soviet power - Activated societies in modern Russian Federation

Creation of a joint stock company (AO)

Founders and constituent.

Types of contributions from the Company's participants.

Creation of a joint stock company

Establishment of the joint-stock company (AO).

Types of institution.

The basis of the shareholder company.

The emergence of a joint stock company (AO).

Board (pr).

Check Tip (COP)

General Meeting (OS)

Responsibilities of the shareholder:

3 non-stock company.

Protection of shareholders.

Protection of employees.

Protection of loans.

Protection of the public.

The existence of two types of a- closed and open is the logical embodiment of the ideas of legal science and law enforcement practice

CLOSED JOINT-STOCK COMPANY (AO) completely eliminates the possibility of hostile absorption

Shares of CJSC cannot be sold to third parties without the consent of other shareholders.

In the case of converting JSC into CJSC and, on the contrary, it is necessary to comply with the procedures provided for for reorganization.

Constituent documents of the joint stock company are the constituent treaty And the statute

At the time of state registration of the joint-stock company (AO), at least 50% of the authorized capital should be paid

Transneft, Transport, Moscow

Creation of a joint stock company (AO).

Founders and constituent.

For the establishment of a joint stock company, it is necessary to have founders or founders (according to the experience of the Federal Republic of Germany, their five, the Russian Federation - one, Ukraine - two, Belarus - Troy), which are obliged to make contributions (pay shares) in the manner, the amount and methods provided for in the constituent documents. The founders are developing a founding contract and the Charter of the Company, which is certified by a notary.

Types of contributions from the Company's participants.

The Charter should specify, in what form the contribution of the participants in the joint-stock company (AO) (monetary or natural terms) is carried out:

With a monetary contribution, the shareholder produces this operation in the form of payment;

With a natural contribution, shareholders contribute to Joint Stock Company (AO) instead money Funds or objects of labor, or land use rights, natural resources, main funds, as well as copyright, inventions, discoveries, patents.

Creation of a joint stock company

Founders open a subscription to shares, if this is an open joint-stock company (AO), and publish a notice of the upcoming subscription to shares. After a certain period of time, the subscription stops. If at this point failed to cover the most shares, the establishment of a joint-stock company (JSC) is recognized as invalid. If all the shares are distributed between 'the founders, the subscription is considered to be the appointment of the control board (Audit Commission), the Board and Controllers. The highest authority of the Company is the general meeting of shareholders, whose exceptional competence includes: election of members of the Board and Members of the Control Council. For the first financial and economic year, the founders may assign the first check advice and the controller to summarize, and the Check Council appoints the first board of the Company.

The founders notify the public about the progress of the Company's institution. An open publication is verified by the control board and an independent controller, as a rule, not a member of this joint-stock company.

Check in.

Society acquires legal land from the date of registration. For registration, registration applications and notarized copies of constituent documents are submitted. The register of state registration includes information on the form of society, subject, objectives and timing of its activities, the composition of the founders, corporate name, location, branches and the amount of authorized capital.

After registration, the Company has the ability to open accounts in the bank. Before entering the state register, the founders temporarily create a civil law society. The transactions committed on behalf of the Company before the registration is recognized by prisoners if they are approved by the general meeting of shareholders. Responsibility for the transaction is carried by persons who have entered into.

After applying for registration and verification, registration and data are published in open printing. State registration is for a joint stock company (AO) by a lawsuit.

Establishment of a joint stock company.

Founder and contract of society.

For the establishment of a joint-stock company (AO), at least five founders are needed, which should take on all shares for the contributions (German closed society). They are developing the contract and charter of the Company. This document must be certified by a notary.

Types of institution.

The Charter should record the type of established institution - it will be monetary or property. - With a monetary institution, shareholders contributions are made by payments.

Under the property establishment, the contribution of the shareholder to the joint-stock company (AO) instead money May be:, machines, patents (clothing payment) or other property (carrying things).

The basis of the shareholder company.

The Company is considered to be founded after taking shares by the founders.

Appointment of the control board, reign and controllers.

It is carried out to summarize the year. The founders appoint the first control board and the controller to summarize the first economic year. The checkpoint appoints the first board.

Message and verification of the institution.

The founders report in writing about the progress of the institution. This should be monitored by the Board, the Control Council and, as a rule, also by external controllers.

The emergence of a joint stock company (AO).

Before entering the trade register Republic of Germany Founders create a civil law society. Everyone who makes deals on behalf of the Company, responds personally and as a collective debtor. All founders, like all members of the Board and the Control Council, must apply. They must prove that all necessary disclosures and contributions followed the fixed capital. The application should indicate which executive powers are members of the Board. All documents on the establishment must be applied. After checking the application, the court follows registration and publication. As a Jurlso with commercial property, a joint-stock company (JSC) arises only after registration. Registration, thus, has a just-posing effect.

Structure of the joint-stock company.

Joint-stock company (AO) consists of three elements: the Board, the Control Council with the observer functions, the General Meeting of Shareholders.

Board (pr).

Legal position.

The executive body of the joint-stock company (AO), carrying out the management of the current activities, is the Board work Board Manager the president Board (chairman).

If the Board consists of several persons, then by law have the authority to the collective management of the enterprise and the general executive authority. In the Charter of the Company, authority may be recorded for sole leadership and sole representative power. The sole leadership is limited to the opinion of the majority of members of the Board of the joint-stock company. The statute of society can be given the authority to one of the members of the Board with the right to transfer the authority to a trusted person.

North German Joint-Stock Company (AO) "Celspist" of the celller with the transfer of authority to Mr. Horn.

The powers of the sole representation and powers of a trustee are made to the state (trading) registry.

Appointment and exemption from office.

The Board is elected by the General Meeting, is appointed by the Control Council or is appointed by the court for a period of no more than 5 years, as recorded in the Company's Charter, the reasons of the Board are permitted. Members of the Control Council cannot be simultaneously members of the Board of Joint Stock. The Control Council has the right to dismiss the designated members of the Management Board in the presence of serious grounds, such as violations of official duties.

The composition of the Board.

The Board may consist of several members or one president (director), which is determined by the value of the authorized capital. In joint stock companies FRG With the authorized capital of more than 3 million marks, the Board should consist of at least two people. For production with the number of employees of more than two thousand people and in the Mining Industry of the Federal Republic of Germany, the Director, who is appointed by the Control Board for the conduct of labor, legal, social and personal cases, is additionally introduced.

Effective management of joint-stock company in the personal economic responsibility of each of its member.

Regular informing of members of society. No less often than once a quarter a report on the progress of financial and economic activities and the economic situation of the Company and is transferred to the Check Council.

Drawing up a report for the expired budget year and report for inspector-controller.

Development of proposals for the rational use of the balance sheet profit of the joint-stock company (AO), followed by their protection at the General Meeting.

Careful and conscientious performance of the functions for managing business and finance society. Maintaining competitiveness at a sufficient level. With increasing debt, and in case of insolvency, the Board opens up bankruptcy Or conveys the case to the court for making a compromise solution.

Publicity.

The composition of the board of the joint-stock company and all changes in the composition are entered into the state register and are published in open printing. Each document or statement of the Board is signed by its members. The names of the Board members are published in business newspapers and circular letters. Business correspondence is signed by the Chairman and members of the Board, indicating posts.

Payment Labor.

The Board receives a fixed salary specifically agreed by the charter of society. In addition, the Board participates in the distribution of profits at the end of the year, which certainly stimulates its economic interest. The amount of annual profit increase decreases by damages, contributions are made to the society's accumulation funds, and the residue of profits, in accordance with the provisions of the Charter, is used to stimulate the Board.

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Check Tip (COP)

Appointment and composition:

The Control Council (Audit Commission) of the Joint-Stock Company (AO) is appointed in Germany for four years (in the Russian Federation for two years) and is formed under the following rules:

In societies with the number of employees of no more than 2000 people. The Control Council is chosen by two thirds from representatives of shareholders and one-third of the minimum number of members of the Control Council in this case is one hundred. The charter may also regulate more representatives of shareholders in the control board - depending on the amount of share capital:

up to 3'000'000 grades of 9 people,

over 3'000'000 brands 15 people,

over 20'000'000 grades 20 people,

In societies with the number of employees of more than 2,000 people. The checkpoint is chosen on parity principles from representatives of shareholders and employees for such rules:

With the number of employees from 2,000 to 10,000 people. - 12 members, of these, four representatives from employees and two from trade unions;

With the number of employees of more than 10,000 people. - 16 members, of these, six representatives from employees and two representatives from trade unions;

At more than 20,000 employees -20, from them seven representatives from employees and three trade unions.

In fact, the laws of the developed market stimulate honest ways to accumulate capital. This creates an atmosphere of confidence and confidence in the relationship of partners among themselves and with the state.

Payment of dividends (mutual capital). The General Assembly decides on the amount of the amount to be paid to shareholders from the Balance Profit.

Increase the balance of profits. The balance of profits is postponed to a new account.

Use of savings. Capital accumulations of the joint stock company serves as a security shareholder, since shareholders do not bear personal responsibility. These accumulations are the financial base of the joint-stock company (AO), and it is not recommended to contact them to cover damages. In the case of bankruptcy on capital savings, an appropriate decision is made. If the accumulation exceeds the standard established by the law and allowed by the Charter, the excess part of the savings can be used to cover losses if other types of savings were not used to pay dividends.

The supernorumative amount of savings can be turned into fixed assets. Other types of accumulations (profits) can be configured to target or without it. Accumulations serve to ensure and expand production, to stabilize fixed capital by covering losses, increasing capital and for dividend policies. Target savings can be created for promising investments, for the company of tourist trips and others. Transformation of savings into share capital is called capital growth from the Company's facilities. Capital and legitimate accumulations of FRG joint-stock companies can be converted to the authorized capital as much as they together exceed 10% or a higher part of the previous authorized capital. Other types of accumulations can be fully converted to authorized capital. Target savings are allowed to use only in their direct intended purpose.

The general meeting of the joint-stock company decides to increase the funds of the company in the ratio of two to one. Share capital increases from 4 to 6 million RUB. by redistributing accumulations of 2 million rubles.

Publicity. Annual report and other final documents are immediately transmitted to all shareholders by inclusion. statistical Data to the trading register and publication of communication in the federal press. The volume and type of publication depend on the magnitude of the Company's authorized capital.

3 non-stock company.

Joint-Stock companies emerged in the middle of the 19th century, during the period of universal industrialization of the economy to meet the enormous need of large ship, railway and industrial enterprises. Many large modern enterprises use the services of joint-stock companies to finance their own technical projects. In Germany in 1992 there were about 2,500 joint-stock companies. The number of transformations into this public form increases and is due to the need to concentrate capital for the purposes of technical progress. Low nominal value of shares contribute to the emergence of a large number of shareholders, even if they are limited to their own means.

Swedish joint-stock ownership is simultaneously distributed and concentrated. Each fourth Swede is the owner of the action. The possession of key control packets in large enterprises is concentrated in the hands of a small, number of families and major institutions. The concentration of influence is strengthened by the fact that in many cases the right of voting is unequal. This means that some shares have a lot of weight at the General Meeting. In Sweden, large shareholders are various institutions whose share has recently increased significantly. Joint-stock ownership is focused on large enterprises that own the packages of shares of other enterprises, which in turn, as follows, etc. There is a known example of major share capital in the type of "Matryoshka" - the ownership of the Wallenberg family.

It is known that a large number of shareholders in the state contributes to the emergence of a wide range of owners of the means of production. For this, the issuance of collective shares is practiced. After issuing shares, the Company receives in its own management of capital. On the other hand, shareholders can sell their own share capital at any time, significant amounts of production and concentration of capital in large joint-stock companies contribute to the creation of numerous and widely branched ties and interlacing with other enterprises and economic partners. The economic interests of economic partners are protected by legal acts, which agreed with possible guarantees from economic damage in the event of a bankruptcy of the joint-stock company (JSC).

Protection of shareholders.

The owners of a small number of shares do not have the impact on the board of the joint stock company. Large influence provides major shareholders, shareholders and banks that enjoy deposit votes. The purpose and its own activities of the Control Council and the unconditional right of a shareholder for a certificate forcing the Board to deal with the most effectively, vowels, with regular reports and messages.

Protection of employees.

Employees have their chosen representatives in the control board and the Board of the Joint Stock Company (AO). For society with the number of employees of more than 2000 people. One of the directors of the Company should be chosen from the number of employees.

Protection loan.

Borrowers due to the rules on capital anonymity are usually unknown as a joint-stock company and are not responsible for the obligations of the joint-stock company. Borrowers The provisions of the Law and the Charter on the delimitation of rights and obligations, the publication of the annual report in open printing, the obligatory accumulation and targeted use of share capital.

Protection of the public.

Managers are the leaders of joint-stock companies obligations to a substantial part of the national economic capital. The combination of enterprises of joint-stock companies by fusion of capital strengthens this trend, leads to the concentration of power in the hands of a small number of people. The influence of these structures of capital sockets on the economy and state policy is growing. Therefore, in the interests of the public, strict and complete publicity is needed in the media.

When considering and analyzing problems and proposals for their solution, without which the existence of our society is problematic and fruitful, the only possible conclusion is suggested that for normal functioning. market Of Ukraine and the successful introduction of concrete steps in the direction of relations between its subjects:

Immediate acceptance and strict implementation of regulatory acts regulating economic activities businessmen and public sector enterprises within the national market;

Creating equal conditions for successful work enterprises of all forms of ownership and the conduct of competent antitrust policy, which will prevent the emergence of monopolism in our young, not yet strengthened economies;

The provision of state assistance in creating and supporting such new inherent in the market forms of ownership, as a private, based on individual property and work activities of the owner, private ownership with the right to hiring labor, shareholder (joint-stock companies of closed and open types), property of public organizations, Property with foreign capital at an early stage of its development

Joint-stock companies are the most acceptable means of implementing large projects that require significant attraction of monetary and human resources. The scale of this organizational and legal form led to the fact that typical errors and errors associated with this way of doing business can lead to irreparable consequences, touched on major shareholders, top managers and even simple hired workers.

Along with other forms of entrepreneurial activities, the joint-stock company (AO) was forgotten by the era of socialist economic. Indigenous changes in the political and economic life of our country led to the revival and joint-stock companies. However, hasty in the adoption of legislative acts regulating this organizational and legal form, which ensued their improper use and the lack of legal culture of business led to the emergence of a huge number of myths and delusions related to joint-stock companies.

The existence of two types of a- closed and open is the logical embodiment of the ideas of legal science and law enforcement practice.

Nothing like this. Separation of joint-stock companies on two types represents an annoying legislative emboss, which over time has been rooted in regulatory acts, and in the legal consciousness businessmen. The fact is that at the stage of the initial formation of the regulatory framework conducted in the Russian Federation of reforms, the development of the RSFSR law of December 25, 1990. "On enterprises and business activities" and provisions on joint-stock companies approved by the Resolution of the Council of Ministers of the RSFSR of December 25, 1990 . Engaged mainly domestic economists. The lack of theoretical knowledge of them led to borrowing from the Anglo-American system the right of construction of a closed joint-stock company (AO), which received its legal development already in the Federal Law "On Joint-Stock Companies".

It should be emphasized that in European countries that apply such a way of doing business as a limited liability company, there is no closed joint-stock company (AO). At the same time in the USA and England The legal mechanism of CJSC is widely applied, and limited liability companies there simply do not exist. Thus, closed joint-stock companies are a "ineffective" dubler LLC, bringing confusion to the system of domestic law and misleading businessmen, counting on their closeness (see below).

CLOSED JOINT-STOCK COMPANY (AO) completely eliminates the possibility of hostile absorption.

In this case, in this case, shareholders are reliably protected from entry into their business unwanted partners, because the law suggests that the shareholder before selling the shares belonging to him to a third party should offer to other shareholders to buy securities alienated by him. Unfortunately, the requirement of the law is quite easily neutralized. The fact is that such a rule is necessarily only with a paid alienation of the shares, if there is a donation or transition of shares in the order of inheritance, the indicated norm of the law does not apply.

This is confirmed by real events that had a place at one Ural Machine-Building Plant. The actual owners of the specified open joint stock company were five of its leading managers Head with the Director General: a total of about 85% of the shares belonged to them. The rest of the shares were owned by a small number. fizlits..

Due to the uniqueness of the product manufactured, it brought stable and stood firmly on the legs, despite the negative economic situation in the country. In 1999, the main owners of the enterprise, fearing hostile actions on the part of major Moscow holding structures, decide to transform a firm to the Closed Joint-Stock Company (AO). In this regard, an extraordinary general meeting of shareholders is convened, on which the necessary decision on the transformation into CJSC is easily taken.

The calm course of events in the enterprise violates the sudden death of the Director-General, who owned 43% of the Company's voting shares. The head of the organization did not leave the testament, so all the property belonged to him passed to his son, which was the only heir. The newly related shareholder was not interested in the affairs of the enterprise, which made companions of his father think about the acquisition of shares. However, the price proposed for belonging to the heir's stake in the share did not suit his owner. Despite the refusal managers They did not hurry to raise the price, as they believed that the heir would not be able to sell the shares of a hostile holding, not offering them to acquire to other shareholders. What was the surprise of managers, when it became known that the company had new shareholders, the heir presented the shares to three phys. Persons, which presented the interests of the aforementioned holding structure (of course, for making these transactions, the heir received a significant amount of money, but it remained beyond the prisoners of gratuitous donation agreements).

Subsequently, a holding organization managed to purchase (again, with the help of a gift transaction) about 10% of the shares in disinterested shareholders and put under control Joint Stock Company (AO).

Shares of CJSC cannot be sold to third parties without the consent of other shareholders.

Indeed, such a rule for several years operated on contracts The provision mentioned above is the JSC. So in paragraph 7 of this document it was envisaged that the shares of a closed society can move from one person to another only with the consent of the majority of shareholders, unless otherwise specified in the Charter. Existing regulations abandoned such a legal structure. Now, if the shareholder of a closed joint-stock company (JSC) decided to sell his shares to a third party, he must pre-offer them to buy to other shareholders and sometimes and sometimes.

It is necessary to emphasize that the rule that enshrines the shareholders is a preferential right, is imperative, and therefore it cannot be limited to an agreement on the establishment of society, its charter or other internal document of society. At the same time, the society itself may apply for the acquisition of shares only if the shareholders of this society do not use the preemptive right to acquire shares.

Shareholders, and an e-chamber community, can take advantage of the advantage of the acquisition of shares, if they agree to purchase the proposed contract For the price and on the conditions specified in the notice (price of the proposal to a third party). If the price for which potential buyers expose the willingness to purchase shares is lower than those proposed by a third party or they agree to buy only part of the alienated shares, the shareholder is entitled to sell them to a third party at the initial declared price.

The assignment of the preemptive right to acquire shares is not allowed.

In order to ensure the implementation of the specified shareholder law, the current legislation provides for serious warranty. Suppose that the shareholder sold to his shares to him to a third party, despite the fact that other shareholders or society itself expressed a desire to acquire these securities at the specified price.

In this case, persons whose preemptive right to acquire shares is violated, has the right for three months from the moment they learned or should have learn about such a violation, to demand the translation of the rights and obligations of the buyer of these shares in the judicial order.

In the open joint stock company, it is not allowed to establish the advantage of the Company or its shareholders for the acquisition of shares, alienated by the shareholders of this company.

In the case of converting JSC into CJSC and, on the contrary, it is necessary to comply with the procedures provided for for reorganization.

With such a change in the form of doing business, it is necessary to take into account that the company's reorganization will not be place here, because the organizational and legal form of JUR. Persons remain the same joint stock company (AO). In this case, there is a change in the type of joint-stock company. Consequently, businessmen have the right not to comply with a number of procedural reorganization objects: the transmission act is not compiled, borrowers Organizations are not notified of the upcoming change in the type of joint-stock company (AO). In addition, shareholders lose the right to demand the redemption of the Company's shares belonging to them if they voted against the transformation or did not participate in the voting. Of course, these circumstances play the hand to the main shareholders.

The transformation of a joint-stock company of one type to the joint-stock company (AO) of another type is carried out by the decision of the General Meeting of Shareholders with the introduction of appropriate changes to the charter of the company (approval of the Charter in the new edition) and the state registration of them in the prescribed manner.

However, for such transformations, the legislation establishes restrictions, in particular, the following:

The number of shareholders created as a result of the transformation of an open society in a closed should not exceed 50;

The creation of certain groups of joint-stock companies is possible solely in the form of open (for example, joint-stock investment funds) or closed (joint-stock companies of employees (folk enterprises);

The size of the authorized capital of CJSC, whose participants intend to transform it into open, should not be lower than the minimum level established for open joint-stock companies.

Unfortunately, some executives of enterprises, as well as owners of major stake packages, believe that a simplified procedure for changing the type of joint-stock company (AO) allows you to freely handle other requirements of the law. Such a position leads to very poor consequences not only for the transformable organization, but also for its general director.

This is confirmed by examples from corporate practice. In 2001, one large Petersburg organization of CJSC, which is engaged in wholesale supplies Grocery products decided to become an open joint-stock company. The main shareholders of the firm, in order to simplify the procedure of this process, decided not to convene an extraordinary meeting of shareholders, which would have to transform the organization. The decision to change the type of joint-stock company in violation of the current legislation is made by the Board of Directors of Jurlitz. Shortly thereafter, using communication in power structures, businessmen registered changes in the Charter, and the firm continued its activities. However, six months later, one of the minor shareholders of the Company demanded a judicial to cancel the registration of these changes, as not relevant to current legislation. The court demanded the court supported by recognizing his rightness. The situation was aggravated by the fact that the Director General of the said organization was initiated by a criminal case under Part 1. Art. 171 of the Criminal Code of the Russian Federation "illegal entrepreneurship".

The constituent documents of the joint-stock company (AO) are the Constituent Agreement and the Charter.

Nothing like this. The specified statement is true for a limited liability company, but not for the joint stock company. The contract for the establishment of a company is concluded by the founders of the Joint-Stock Company. Persons and does not apply to constituent documents.

At the time of the state registration of the joint-stock company (AO), at least 50% of the authorized capital should be paid.

Indeed, before January 1, 2002, creating a joint-stock company (AO), its founders had to remember the mandatory payment of at least 50% of the authorized capital before the registration of the Jurlitz. However, the changes to the Federal Law "On JSC" in the root changed the situation now the founders of society are obliged to pay at least 50 percent of shares distributed under its establishment, no later than three months from the date of state registration of the organization. Due to the payment of the specified number of shares, the Company is not entitled to make transactions that are not related to its institution

In addition to transactions on the purchase of the founders of the founders of the Founders of the Promotions, the acquisition (lease) of the Society may include the acquisition (lease) of the Society, office equipment, office accounting equipment, and other not related to commercial (manufacturing) activities societies. Transactions concluded by society at a specified period and not related to the establishment of this society can be invalid.

The joint-stock company, the authorized capital of which is less than the minimum size of the established law, should increase it in mandatory.

This statement does not correspond to reality. After all, it violates the principle: the law of the inverse force does not have.

The Federal Law "On Joint-Stock Companies" defines the minimum amount of share capital for open joint-stock companies - at least a thousand-year sum and for closed joint-stock companies - no less than the current amount of the minimum wage established by the Federal Law at the date of state registration of the Company.

It must be borne in mind that if at the time of state registration of the joint-stock company (in its creation), the size of the authorized capital of the Company corresponded to the level established by the legal acts in force at that time, then when registering changes made to the Charter of the Company or registration of the Charter in a new edition, which carries out such registration , it is not entitled to refuse it in the motive of the inconsistency of the authorized capital of the Company with minimal size in effect on the date of registration of changes (except for cases of amendments to the Charter in connection with the decrease in the size of the authorized capital on the initiative of the Company). Refusal to register changes for this basis may be appealed (challenged) in court.

Joint Stock Company (AO) is obliged to pay dividends annually.

The current legislation does not provide for a similar obligation.

The decision on the payment of dividends, including the amount of dividend and the form of its payment, is made by the General Meeting of Shareholders on Shares of Each category (type), including on privileged, in accordance with the recommendations of the Board of Directors (Observation Council) of the Company.

In the absence of a decision on the announcement of dividends, the Company is not entitled to pay, and shareholders require their payments.

If necessary, during the reorganization, the joint-stock company (AO) can be combined with a limited liability company and other commercial organizations.

Unfortunately, this misconception touched upon the wide layers of the entrepreneurial community. This circumstance made the Plenum of the Supreme Arbitration Court of the Russian Federation in its decree No. 19 of 18.11.2003. Specially stay on this discussion issue. In particular, it was noted that the provisions of the Law on Joint-Stock Companies do not provide for the possibility of reorganization through the unification of enterprises of JSC with legal entities of other organizational and legal forms (including with limited liability companies) or the division of them (allocations) to the joint-stock company (JSC) and JUR. The face of another organizational and legal form. The merger or joining of two or several joint-stock companies can be carried out in order to create a larger society, and the separation (allocation) is to educate one or more new joint-stock companies.

To create branches and opening of representative offices of the joint-stock company (AO), the decision of the Director General of the Firm is sufficient.

This is rooted incorrectly. Due to the fact that every new branch and representation may have a serious impact on the economic position of the head organization, the solution of the issue of their existence refers to the competence of the Board of Directors. If the Board of Directors is not formed by this issue should be solved exclusively by the general meeting of shareholders and in no way the executive body of the Company.

Consider the following example. A large plant that produces products from crystal has decided to create a representative office in St. Petersburg: planned long-term cooperation with a group of Finnish companies. But due to the rush, the decision on the establishment of a separate division was taken only by the Director-General, not the Board of Directors of JSC; The charter did not change.

The situation was on hand to competitors of this plant. Hostile firms implemented a whole set of actions to discredit their opponent. First, some kind of physical. A person who owns 0.5% of the plant's shares, filed a lawsuit on the elimination of the plant's representative office in St. Petersburg, since it was created with violation of current legislation. Secondly, in the Russian and Scandinavian prints appeared about the "incomprehensible legal status" of the representative office of the plant and the assumption of the planned scam was expressed. Concerned Finnish partners asked for an emergency to present at least the charter of JSC, in which his Petersburg representative office would appear. Of course, such a request could not be performed, which confirmed the indirect fears of Finns and made them refuse to conclude a transaction.

The Director-General cannot be quickly removed from his position if he is elected by the General Meeting of Shareholders.

He is talking about the dismissal of the Director-General, it should be especially highlighted on the speed and efficiency of its dismissal. We simulate the situation: the director of the subsidiary B is elected and exempt from the post on the basis of the decision of the General Meeting of Shareholders. The parent organization A, which owns 77% of the voting shares in, it becomes aware of the establishment by the Director-General in a number of commercial organizations, which at low prices acquire the products of "daughters" in order to follow the implementation, making significant harm and subsidiaries and the parent company.

Organization A decides to dismiss the unfair director, it is necessary for this, firstly, to initiate consideration by the Board of Directors in the question of convening an extraordinary General Meeting of Shareholders in; Secondly, to hold a general meeting of shareholders and decide on the early termination of the powers of the General Director V. Obviously, since the meeting of the Board of Directors, before the General Meeting of Shareholders, it will take at least one month, which cannot be done in any way. This time director will continue to fulfill its duties, realizing that the question of his dismissal is practically resolved.

In order to avoid the specified situation of the parent organization, it was necessary to provide in advance in the Charter of the subsidiary, the possibility of the Board of Directors to suspend the authority of the Director-General and to form a temporary sole executive body of the Company, which would have endowed with the full authority of the General Director. Thus, the scheme of actions of the company and could look like this: first, the initiation of the meeting of the Board of Directors on the suspension of the powers of the Old General Director and on the formation of the temporary sole executive body of the Company (the candidacy, of course, is consistent with the parent company); Secondly, holding the General Meeting of Shareholders on which the powers of the Old Director-General are terminated and a new CEO is elected. I would like to emphasize that this procedure for suspending the authority of the director is possible only when it is directly provided for by the Charter.

It is impossible to take share shareholders with shares.

It would seem that this is true, because the shares are not stored at home from their owners, but are in accounts under the control of the registry holder. However, the criminal thought is not standing in place and more graceful ways come to replace the coarse means of weaning property.

This is confirmed by the case that took place a few years ago. Thus, a certain limited liability company was the owner of 5,000,401 pieces of ordinary registered shares of the oil organization OJSC "X".

In early September 1999, on the basis of a transmission order, a share in the amount of 700,000 units were written off by the register holder from the LLC and credited to the account of the new owner of CJSC "U". Two days later, a contract for the sale and purchase of these shares in the amount of 15 million rubles was concluded between CJSC "Y" and CJSC "Z", as a result of which they were credited to the account "Z".

After some time, the Director General of the Limited Liability Company was unpleasantly surprised to learn about the write-off of securities. In terms of fraud, a criminal case was initiated, under which experts of signatures and seals were conducted at the transfer order, as if signed by the General Director of Ltd. According to the conclusion of the handwriting examination, "The Signature of the Director-General was not carried out by him, but using the graphic image of its signature" facsimile ", so install a specific signature performer is not possible, the prints of simple round printing of a limited liability company is applied not to the printed form of simple round printing represented by research. "

In other words, fraudsters have forged the signature of the Director-General at the transfer order and manufactured the fake printing of the LLC.

If the owner of the company owns more than 50% of its voting shares. Compliance with the procedure provided for large transactions and transactions with interest is empty formality.

There is no way. Even in this case, it is necessary to comply with the procedure provided by law, otherwise this may have the most negative consequences for the organization itself and for its main shareholders.

The fact is that regularly giving inslace instructions to the head of the company, the owners of the enterprise often forget about the need for documenting approval with them to conclude certain important contracts. Such carelessness can be extremely negatively affected by the financial condition of the Company. Competitors of the organization, acquiring at least one share and establishing that society does not comply with the procedure for approving major transactions or interested transactions, may require invalidity of concluded contracts in court.

As an illustration, we give a story that happened at the end of last year in Yekaterinburg. One local businessman was controlled by 80% of the shares of a large industrial plant. Of course, the Director General and the members of the Board of Directors were nominated to their positions of this particular shareholder, which carried out permanent over their actions. Almost no little, a significant contract could not be concluded without prior agreement with the entrepreneur. Unfortunately, the plant was famous for the weak legal support, concluded transactions, many of them did not pass the necessary approval procedure from the Board of Directors or by the General Meeting of Shareholders. This omission and took advantage of the company's competitors. "Through submersible persons, several shares of the enterprise were acquired, after which the newly minted shareholders filed judicial claims on the invalidation of a number of contracts concluded by the combine. The judiciary agreed with the requirement of the plaintiffs, as a result of which the plant was forced to dismantle and return expensive equipment, also acquired with violation of joint-stock legislation. In addition, due to the invalidity of other smaller contracts, there was a significant damage to the business reputation of the enterprise. The most ridiculous in this story was that these transactions could be approved on time as the Board of Directors, the general meeting of shareholders of the company would avoid the sad outcome of the events.

Thus, organizations should clearly represent what transactions are in the category of large or interested in interest and what is the procedure for their commit. After all, there is always a danger that these transactions will be challenged on the suit of the society itself or its shareholder (participant).

If the court imposes an arrest on stocks, this automatically prohibits their owners to vote in general meetings of shareholders.

Quite often, even judges confuse two separate types of interim measures, this is a ban on participation in the voting and arrest of shares. It was for this circumstance that I drew in my newsletter dated July 24, 2003 No. 72 of the Presidium of the Supreme Arbitration Court of Russia (an overview of the practice of adopting measures to ensure measures to ensure considerations related to the conversion of securities).

Imposing arrest on shares in order to ensure a claim Arbitration court Does not prohibit the owner of the shares to use them and implement themselves the right to participate in the management of the joint-stock company, therefore, the arrest of shares imposed Arbitration Court In order to ensure a suit, only a ban on the owner of the shares to dispose of them as a civil turnover object.

This argument is confirmed by arbitration practice. The shareholder in accordance with part 2 of paragraph 7 of Article 55 of the Federal Law "On Joint-Stock Companies" (hereinafter referred to as the Law on Joint-Stock Companies) appealed against the Solution of the Board of Directors of the Closed Joint Stock Company on the refusal to convene an extraordinary General Meeting of Shareholders at the request of this shareholder. The Board of Directors, rejecting the demand of the shareholder, referred to the arrest of shares belonging to him to determine the arbitration court in the procedure of adopting measures to ensure the claim, which was presented to this shareholder with one of its counterparties. Consequently, the shareholder could not carry out rights certified by these shares, including the right to demand the convening of the General Meeting of Shareholders.

The court satisfied the lawsuit on the following grounds.

In accordance with Part 1 of Article 96 of the Arbitration Procedure code Russia (hereinafter - the APC RF), the definition of the Arbitration Court to ensure the claim is carried out in accordance with the procedure established for the execution of judicial acts of the Arbitration Court. According to clause 2 of Article 51 of the Federal Law "On Enforcement Proceedings" (hereinafter - the Act of Enforcement Procedure) The arrest of the debtor's property means banned to dispose of them, and if necessary, restriction of the right to use property, its withdrawal or transfer to storage.

In accordance with paragraph 2 of Article 51 of the Law on Enforcement Proceedings during the arrest of the property of the debtor in order to appeal to the recovery, volumes and deadlines for restricting the right to use the arrested property are determined by the bailiff in each specific case, taking into account the property properties, its importance for the owner or owner, economic, domestic or other use and other factors.

Since the shares arrest was imposed by the Arbitration Court in order to take measures to ensure the claim on the basis of Articles 90 and 91 of the APC RF, then the restriction of the right of the defendant-owner of the arrested shares to enjoy the rights, certified (species, volumes and deadlines) could be The need is established only by the Arbitration Court himself. The Arbitration Court has the right to establish limitations either directly within the framework imposed on the shares of the arrest or as a separate independent security measure. Such restrictions by the court were not introduced, so the arrest imposed on shares was only a ban on their owner to dispose of them. In addition, when Introduced by the court of restrictions on the shareholder's implementation of any of the rights certified by the arrested shares, a ban could be established for the convening of the General Meeting of Shareholders, as such a measure would prevent the implementation of the activities of the Higher Management Board of the Joint Stock Company (AO).

Thus, two separate interim measures should be distinguished. I would like to especially note that at present the courts are increasingly used by these measures in the complex. This is done in order to limit the possibility of maneuver for the side of the side. Suppose, on the eve of the General Meeting of Shareholders, one of the owners of the shares was forbidden to participate in the voting. However, due to the fact that no one forbade him to dispose of these shares, he can easily sell them to third parties, who will express his interests at the general meeting of shareholders.

Above the most common misconceptions regarding joint-stock companies were considered above. It must be emphasized that such corporate ignorance not only leads to significant financial losses, but even to the complete loss of the entire business.

Warranty function of the share capital of the joint stock company

In civil law theory, the idea of \u200b\u200bthe joint stock company (AO) is based on a warranty function, which is clearly stated in Art. 25 of the Federal Law "On Joint-Stock Companies". "As a result of the limited liability of shareholders, this capital is the only subject to satisfy its creditors, the only basis for its loan ... A joint-stock company has a union is not individuals, but capital; It depends on the loan, it does not depend on the personal loan of one or another participant, but from the share capital. "

You can agree with the allocation of two basic measures aimed at fulfilling the share capital of the Joint-Stock Company a guarantee function enshrined in the legislation of almost all states. This is, first of all, the actual creation of share capital, and secondly, the retention of property at the level of the amount provided for in the charter. E.A. Sukhanov, in addition, emphasizes the importance of establishing the minimum amount of the share capital of the Company.

It seems necessary to distinguish five main directions of the impact of the norms of the Civil Code of the Russian Federation and the Law on Joint-Stock Companies in the implementation of the authorized capital of the warranty function: the establishment of the minimum amount of the share capital of the joint-stock company (AO) at the legislative level; ensuring the actual formation of the authorized capital declared in the Constituent Document of the Company; ensuring compliance with the real value of contributions to the authorized capital of their nominal assessment; maintaining the value of the Company's property at the level not lower than the size of the authorized capital; Providing additional rights to borrowers in the event of a change in the value of the authorized capital.

Establishment of the minimum amount of the share capital of the joint-stock company at the legislative level. Joint-Stock Companies establishes the minimum amount of share capital of joint-stock companies. For an open joint-stock company (AO), a minimum at least a thousandth amount of the minimum wage was established for a closed - at least a hundred ago. The law does not establish the duties of society to increase the authorized capital, despite the ever-changing size of the minimum wage. The legislator for joint-stock companies wishing to carry out activities in a credit, insurance, investment and other fields, to obtain the relevant license set a higher minimum amount of share capital.

A similar exception to the general rule is determined by the peculiarities inherent in these activities and increased social responsibility to society and the state. Establishment at the legislative level of the minimum amount of the share capital of the joint-stock company as JUR. Persons who are "the ceiling of responsibility" carrying "independent and exceptional property responsibility" is characteristic of foreign legislation.

Ensuring the actual formation of the authorized capital declared in the constituent document of the Company. In order to ensure the actual creation of the authorized capital of the joint-stock company (AO), paragraph 3 of Art. 99 of the Civil Code of the Russian Federation prohibits an open subscription for the Company's shares until full payment is made by the statutory. The Civil Code of the Russian Federation and the Law on Joint-Stock Companies establish the rule according to which all shares in the establishment of a joint stock company must be distributed among the founders (paragraph 2 of Art. 25 of the Law on Joint-Stock Companies and paragraph 3 of Art. 99 of the Civil Code of the Russian Federation).

At the first stages of the development of joint-stock companies in the Russian legal literature, legislation criticized or allowing the distribution of all shares of the future society between the founders - I.T. Tarasov such a foundation called the "blowing" and advocated the prohibition of this method of distribution of shares, allocating the possibility of assisting the game on the stock exchange, the possibility of abuse with the founders of natural deposits, the harmful nature of the establishment of benefits from a successful enterprise, etc. Public and equal to All subscriptions for shares of the joint stock company, he considered the only true way to form the capital of the joint-stock company.

Thus, the prohibition of a public subscription under the establishment of a joint stock company (AO) is not a characteristic tendency of shareholder law. There are other mechanisms for monitoring the legitimacy of the establishment of a joint-stock company, provided for in the norms of not only civil, but also public branches of law. In addition, the problem of the so-called "failed" due to the non-distribution of all announced shares of societies is eliminated. The literature sounds, nevertheless, suggestions to make a public subscription when establishing society. So, M. Antocolskaya proposes while maintaining the founders of a sufficient large package (up to 50 percent) during a certain number of years to allow the distribution of other shares among an indefinite circle of persons.

The formation of authorized capital is possible by comparable to the value of the authorized capital of the value of shares, which represents it, in connection with this, Art. 36 of the Law on Joint-Stock Companies establishes that payment of the shares of the Company placed under its institution, as well as additional shares, is made at a price not lower than the nominal value of these shares. At least 50% of the Company's shares must be paid within three months from the date of registration of the Company, the rest is within the period established by the Charter, but not more than a year. Additional shares must be paid fully (Article 34 of the Law on Joint-Stock Companies). Shareholders who have not fully paid shares carry solidarity on the obligations of the Company within the unpaid part of the value of the shares belonging to them.

Ensuring that the real value of contributions to the authorized capital of their nominal assessment. It is equally important that the authorized captal of the joint-stock company (AO) is not only formally fixed, and the shares are posted, it is necessary that the capital gets a real filling of liquid assets. To this end, the legislator establishes the rules for assessing non-monetary (natural) deposits introduced by participants to share capital. The release of the shareholder is also prohibited from the obligation to pay the shares of the Company, including by testing the requirements for society (paragraph 2 of Art. 99 of the Civil Code of the Russian Federation).

Under the establishment of the Company, the assessment of the property introduced in the payment of shares is made on the unanimous solution of the founders. When paying for additional shares, the value of the property is determined by the Board of Directors (Supervisory Board) of the Company in accordance with Art. 77 of the Law on Joint-Stock Companies. But in any case, the monetary assessment of such property cannot be higher than the value of the assessment produced by an independent appraiser, which is necessarily attracted to determine the market value of non-monetary deposits, unless otherwise established by the Federal Law (Article 34 of the Law on Joint-Stock Companies).

The procedure for assessing deposits has always caused serious disagreements. It is often raised by the possibility and feasibility of making, for example, intellectual property objects as a contribution to share capital. So, for example, V.V. Dolinskaya proposes to use the experience of developed countries, where exemplary assessment orders of property assessment, intellectual property are also successfully applied: it is proposed to limit the right to alienation of shares obtained in exchange for material assets. Moreover, the initial owners of shares issued in exchange for a contribution in the form of an intellectual propulsion of their shares only after they prove the general meeting of shareholders with the real economic efficiency of their intellectual contribution. At the same time, definitely, a reservation is made that such a limitation of rights should be based on the law, and, above all, on the fundamental law of the Russian state. Currently, appraisers offer rules for determining the cost of intellectual property objects, such as the standards of the Russian Society of Appraisers, the Standards of the Association of Intellectual Property Appraisers IPEA, etc.

Maintaining the value of the Company's property at the level of not finding the size of the authorized capital. Maintaining the value of the property of the Company at a level not lower than the amount of share capital is provided by the standards that establish the requirements for the ratio of the cost of clean asset Societies with the size of its authorized capital. The norms regulating the procedure for dividend payments are also aimed at achieving this goal, the norms prohibiting the acquisition by the Company of their own shares, or the return of the shareholder of the contribution to other reasons.

Under the cost of clean asset The joint-stock company is understood as the value determined by subtracting from the amount of assets of the joint-stock company (AO) taken to the calculation, the amount of its liabilities taken to the calculation. If the cost of net assets of society at the end of the second and each subsequent fiscal year There will be less than its authorized capital, society is obliged to declare a decrease in its authorized capital to a value that does not exceed the value of its net assets. If the value of net assets will be less than the magnitude of the minimum share capital, society is obliged to decide on its liquidation. In case the society does not accept the appropriate decision within a reasonable time, the borrowers are entitled to demand the society of early termination or fulfillment of liabilities and compensation.

In addition, if these decisions were not adopted, the body carrying out the state registration of legal entities, or other state bodies or local governments, which the right to present such a requirement is provided by the Federal Law, has the right to submit to the court to eliminate the Company (Article 35 of the Law on joint stock companies).

As noted by S.K. Yelkin, the size of net assets of the joint-stock company in the first two years of its existence may be less than the authorized capital, which is not a violation of any regulatory requirements, since the authorized capital must be paid not immediately, but during the year, moreover, no sanctions are provided If in the second year of existence, the Company failed to still form net assets exceeding the size of the authorized capital. It should be noted that in practice it is often not fully authorized capital for many years. It should also agree with the opinion of I.A. Belova that if after approval of the "passive balance" (that is, the balance with the negative value of net assets) society functioned at least a year and approved the annual balance sheet, but which net assets exceed the size of the authorized capital, presenting a claim for compulsory liquidation Societies are no longer possible.

But not all researchers consider to be justified by the establishment of claims on the relationship between the share capital and the size of the Company's net assets. So, V. Rutgizer, speaking against such a rigid legislative regulation as arguments, leads, in particular, the following: the incompleteness of the assessment of property acquired in equal periods, the specificity of sectoral activities, exchange rate differences, etc.

MG Jonans also believes that provided for in paragraph 6 of Art. 35 The law on joint-stock companies related to the liquidation of the joint-stock company (AO) in connection with the excess of the authorized capital over the magnitude of net assets is unjustified. In fact, the elimination of legal entities due to the reduction of the cost of net assets is an accelerated bankruptcy procedure. Secondly, according to the author's comment, the possibility of such liquidation can be used by shareholders for the "clarification of relations", and, therefore, the tool of the shareholder.

It is also forbidden to decide on the payment of dividends to full payment of the entire authorized capital of the Company. The source of dividend payments can be only society. Only in the payment of dividends on privileged shares of certain types of type, the law permits the use of funds specially intended for this stock funds (Article 42 of the Law on Joint-Stock Companies).

According to the legislation of Russia, the joint-stock company (AO) is not entitled to decide on the payment of dividends on shares, as well as to pay declared dividends, if as a result of this, the value of the Company's property will decrease so much that it will not be able to fulfill its obligations to shareholders and borrowers (buy out shares In accordance with Art. 76 of the Law on Joint-Stock Companies, to pay the liquidation value for privileged shares, extinguish the bonds), in particular, if the society appears signs of insolvency. It should be noted that in practice there is an overestimation of asset articles in order to distort the actual property statute of the Company in order to formally comply with the requirement for the ratio of the value of net assets and authorized capital.

Providing additional rights to borrowers in the event of a change in the value of the authorized capital. The warranty function of the authorized capital is also manifested in the fact that the borrowers of society are provided with additional in the event of a change in the value of the authorized capital aside.

Stability of authorized capital is a feature of the joint-stock company, which is due to the method of transferring the share in the shareholder's society. The exit from the joint stock company (AO) is carried out by the purchase and sale of shares, and not the discharge of the share of the property of the Company, as in limited liability companies. In other words, the authorized capital remains in immunity.

So, the magnitude of the authorized capital, fixed in the constituent documents, is intended to express the cost of the minimum amount of the property of the joint-stock company. However, the authorized capital is largely due to ensuring the guaranteeing of property rights of creditors. Often the counterparties are quite difficult to judge the financial condition of the joint stock company (AO) on the size of the share capital enshrined in the charter. The real value of the property of the joint-stock company may be lower than the value of the authorized capital not only due to the shares incurred by the Company of losses or incomplete payment of shares, but also with the biased assessment of the natural contributions of the participants.

What are hiding secret joint-stock companies

In the Russian Federation, there is a whole army of enterprises, integrated with joint-stock companies as a result of the privatization of the 1990s. Their controlling shareholders and management are not interested in transparency and successfully bypass many requirements for data disclosure legislation.

Mystery of the country.

In early October, on the website of OJSC Tulamashzavod, which produces weapons for the land forces and the Navy, as well as laser equipment, diesel engines and other civil products, one could find the quarterly report of the issuer relating to January-March 2009. There is no more than fresh document, although the provisions of the FSFR on the disclosure of information prescribes it to publish it within 45 days after the end of each quarter.

But even in the outdated report, many fields are left empty. Recalling the law on Gostain, the company does not disclose, for example, revenue, profitability, labor efficiency, capital adequacy. It is unlikely that these financial information is of interest to spies. Meanwhile, this OJSC has more than 15 thousand shareholders - a pretty good argument in favor of greater transparency.

Leading analyst IF "OLMA" Anton Standers, regularly reading reports of many issuers, calm: "There are enterprises in the defense sector, which publish very scanty data, but it is not a trick, but specifics industries" In fact, the problem with the companies of the second-third echelon, according to him, not in the delay in the periods of publication and concealing data, and in the fact that many do not prepare more objective financial statements under IFRS, limited to Russian standards.

"The situation is simply absurd - emotionally expresses the participant in the Internet discussion on the topic of data disclosure that Sergey. - One society classifies the number of employees, but reveals the debate. Other JSC (located next to the first), on the contrary, reveals the number, but secrete receivables. And all this with reference to the same law about Gostain! "

"F." Compare reports "Tulamashzavod" and the Tula Armory (the latter with the number of shareholders in the registry - over 9 thousand). For example, for the "Tulamashzavod" Gostaina is the average number of employees, the attitude of the funds raised to capital and reserves. The Tula Armory publishes all this, but unlike the "colleague" puts dashing instead of creditor debt data to suppliers, contractors, staff and budget.

I will not say anything to anyone.

The mentioned law contains the most general formulations that allow us to bring almost any financial and production indicators of Oboronprom enterprises under Gostain.

And how things are in other industries?

For obvious reasons, small joint-stock companies are the most closed - the fir-fourth echelons. The lack of direct motivation to transparency is enhanced by fear of raiders. Sometimes there is insufficient training of personnel responsible for documents emitten. "It is the enterprises of the third echelon most often violate the procedure for publishing reporting and other information necessary for disclosure. The problem has existed a long time and is associated with the influence of a number of factors - starting from a lesser degree of control over such societies from the regulator and ending with low qualifications of management, including financial "

Analysts of one of the brokerage homes led to the example of agricultural structures of the Peter Holding "Phaeton". One of them is "Coporye" registered in the form of CJSC, but the number of its shareholders exceeds 500, and therefore it is obliged to publish quarterly reports. It is extremely difficult to find on the "Phaeton" website, the "Corporeier" disclosure page. But even if the searches are crowned with success, there will be little sense from this: there are no quarterly reporting. And the last annual document refers to the 2007th. According to the law, it needs to be published on the Internet within two days after approval by the meeting of shareholders and signing the relevant protocol.

"I was found that in a quarterly report emitten. Indicates that accountability is located in the application. However, it is impossible to find this application. At the same accounting balance, the grouping of income and expenses is specifically changing, while the organization does not provide comparable data for the same period last year. As a result, it is impossible to understand what is actually happening with the business, "describes the tricks to which AO is resorted to, one of the interlocutors" F. ".

Try to find.

OJSC Kuban Steppe (over 700 shareholders, shares are admitted to the MICEX) there is no full-fledged corporate site. Previously, reports on significant facts were published on the RCC registrar's resource. But the latest information is referred to 2008. "F." Barely found a new page of disclosure: Russian search engines almost do not notice it, because the domain is registered in the COM zone.

Meanwhile, the normative document FSFR Prescribes to provide free and easy access to information published on the Internet. The responsibility of the publication of quarterly reports arises from all issuers who recorded the securities prospectus (including bonds), placed campaigns by open subscription or distributed through closed, in which the number of purchases exceeded 500. Since June, demands apply to issuers of exchange bonds.

Small joint-stock companies can periodically change the addresses of the disclosure pages, making the way to reporting more thorny. And to obtain free access to the archives of five authorized news agencies, where all issuer messages must be duplicated, you will have to make a paid subscription. In other cases, organizations are resorted, for example, to a trick with several domains: documents are not published on a corporate official website, but on some other.

On the website of the Tuyimazinsky factory of concrete rooms (stocks are treated for the MICEX and in the RTS) section "Information to shareholders" is completely empty, and there is no reference to the page located on a third-party resource, where reporting is actually published.

And yet, perhaps, the simplest and most common violation is to delay with the publication. Reports appear with large delays and lose relevance by the time of publication. Thus, the last document of the Volga textile firm (1.8 thousand shareholders in the registry) refers to the fourth quarter of 2008.

Chifs were not.

Separately, mention of the former check investment funds, transformed into OJSC. Many of them do not even indulge in the minimum information of their shareholders.

For example, JSC Hermes-Planet (over 50 thousand shareholders) appointed a general annual meeting on June 4, but still did not influence the results of the voting. "F." Already described the focuses of this JSC with quarterly reports. To access the "Hermes-Planet" documents, wishing to register on the site. The visitor filled the form and to no avail waiting for confirmation to his email address. Now you simply click on the link, allegedly leading to the last "quarterly report for 2008", but a blank text file is loaded.

Former popular chif (over 600 thousand shareholders) in 2006 was attached to Energotransbank. He does not publish Issuer's reports since 2003.

Sources

Log John "Collective ownership of employees (review of American experience)" // "USA: Economics, politics, ideology" 1991 №10

Campbell McConel, Stanley L. Bruk "Economics" // Moscow 1992 t. 1 s. 51.

Camelson P. "Economics" // Moscow 1985 p. 293.

Students V. "Experience in Germany" // "ME and MO 1993 №11

Shepelev L.E. Joint-Stock organizations in the Russian Federation. L., 1973; Buranov Yu.A. Surveying Gornozavodskaya industry Urals. 1861-1917. M., 1982;

Sappowner L.V. Gornozavodskaya Urals at the turn of the XIX-XX centuries. (to the characteristic of monopolization processes). Ekaterinburg, 1993.Alan Greenspan Economic and Mathematical Dictionary - Economic Society, the authorized capital of which is divided into a certain number of shares. Shareholders are responsible for the obligations of the Company and carry the risk of losses related to the activities of the Company, within the value of the shares belonging to them; Organ ... ... Economic Dictionary

Joint-stock company is a fundamentally new form of a production organization, created on the basis of the voluntary participation of its members with a certain part of the aggregate capital of the company. The creation of such economic relations was a natural result obtained in the process of transformation and development of private entrepreneurship.

At a certain stage of its existence, the increased technological level, the organization of the financial sector and the scale of technological processes created prerequisites for attracting capital of many people into one enterprise, which for various reasons are not independently engaged in commercial activities. The responsibility of shareholders in such a union is limited by the value of the contribution made by them. This condition, simultaneously with the high concentration of capital, allows for profitable investments not only in promising, but also to risky projects, which significantly accelerates the introduction of the latest developments of the scientific and technical sphere.

Joint Stock Company are large enterprises and companies. In the production sectors of any country in the world, such capital associations and corporations are the most perfect mechanism in the economic sphere.

The main characteristics include:

Division of aggregate capital per shares;

The application for shareholders for the obligations of the organization only in the amount of contribution to the authorized capital;

Organization of activities according to the adopted charter, which is the foundation for mobile changes in the amount of aggregate capital and the number of participants;

Focusing the management of the enterprise in the hands of the Directorate (Board).

Joint Stock Company is a number of advantages:

1. The company has a real opportunity to attract shareholders to enlarge its authorized capital and will expand the area of \u200b\u200bactivity.

2. The separation of general guidelines from a particular management allows you to select the most appropriate candidates of directors. Shareholders interested in production efficiency are seriously suitable for the purpose of managing personnel.

3. Each member of the Labor Group has the right to become a full owner, bought a certain share of shares.

4. It is possible to create a network of concerned counterparties by purchasing securities of other societies and implementing their own.

There are two types - closed and open. The first type of unification involves no more than fifty participants in its composition. If this limit is violated, the organization of a closed form is to be registered exempted from the obligation to publish the results of their economic and financial activities. That is why they have no control of external users of information on the functioning of the enterprise.

Open Joint Stock Company is an organizational form that has the ability to attract major capital. A large number of participants provides the most favorable conditions for investing quite large funds to develop production. Shareholders are entitled to sell their part of securities to any buyer, order. In order to have control over the situation in the company, and to pursue the owner's policy, it is enough to have a package consisting of fifteen percent of securities constituting the authorized capital.

Joint Stock Company is one of the main prerequisites for economic reforms in the country. The widespread and formation of this type of association creates normal conditions for enterprises' activity. As a convenient form for the transfer of state organizations in the private form of property, joint-stock companies make it possible to effectively monitor the work of management structures.

Hello! If we speak in a simple language, the joint stock company is such an organizational and legal form, which is created in order to combine capital and solving business tasks. In this article, we consider in detail what the PAO differs from NAO.

Classification of AO

Until 2014 inclusive, all AOs were divided into two types: CJSC (closed) and OJSC (open). In the fall of 2014, the terminology was abolished, and the division was acting on public and non-public societies. On this classification and stay more. It is necessary to take into account the fact that these terms are not equivalent, not only the terms themselves, but also their signs and essence.

Characteristics of public and non-public societies

Public joint-stock companies (PJSC) create capital at the expense of securities (shares), or by transferring fixed assets into securities. The functioning of such companies, their turnover should fully comply with the federal law "On the securities market" adopted in the Russian Federation.

Also, taking into account all the conditions that the legislator puts, publicity should be mentioned in the title.

NEPBE-Societies refer limited liability companies and joint-stock companies (JSC).

Comparative characteristic Consider using the table below. It clearly presents important criteria for comparative analysis, although this list is not complete.

Table: Comparative characteristics of PJSC and NAO

Indicators for comparative analysis
Name	Availability of name in Russian, be sure to mention publicity	Availability of name in Russian, with a mandatory form indication
Minimum permissible size of authorized capital		10.000 rubles.
Valid number of shareholders	Minimum 1, maximum not limited by law	Minimum 1, maximum not limited by law
Availability of the right to hold an open subscription to accommodate shares	Available	Absent
Possibility of public circulation and securities	maybe	Does not have this right
Availability of the Board of Directors or Supervisory Board	Availability	Allowed not to create if shareholders no more than 50

The main features of public joint-stock companies can be called the following:

• The number of shareholders is not limited;
• Free viewing of shares is allowed.

If we talk about the authorized capital, then its size is also defined by federal legislation. The formation of the authorized capital of PJSC occurs due to the fact that promotions are issued on a sum of money.

The size of the authorized capital in this case is such a value that may vary, decrease or, on the contrary, increase. It depends, first of all, from how stocks are redeemed. As can be seen from the above table, the size of the authorized capital is 100,000 rubles.

As practice shows, control by the auditory authorities is tougher than in other cases. This is explained, first of all, the fact that all the statutory documents suggest that this society is the most open for third parties. That is, it is absolutely clear that the company's shares can acquire citizens. Accordingly, supervisory instances require maximum transparency and availability of all data.

For more information on this issue, it is worth contacting the civil law of the Russian Federation.

Statutory documents

The main document for PJSC is the charter. It, as a rule, reflects all provisions governing the activities of the organization, also recorded information about openness.

The Charter has in detail all the procedures for the issuance of shares, there is also information on the accrual and procedure for the implementation of dividend payments.

Availability of property fund and shares

PJSC property funds are formed, first of all, due to the turnover of the shares of the organization. At the same time, net income that will be obtained during the implementation of its organization can be included in the property fund. The law does not prohibit this.

Managers PAO

The main body to implement management activities in PJSC is the general meeting of shareholders. It is usually held once a year, the initiator is the Board of Directors. If such a need arises, the meeting may be held at the initiative of the Audit Commission, or according to the audit results.

It often makes it so that PJSC produces a large number of their shares to the market, then the number of shareholders may not have one hundred people. Collect them all at one time in one place - the task is impossible.

You can solve this problem in two ways:

• The number of shares is limited, the owners of which can participate in the meeting;
• Discussions are remotely carried out using the distribution sheet methodology.

Meeting of shareholders takes all important decisions on the activities of PJSC, plans to develop a company in the future. During the rest of the time, the responsibilities of leadership performs the Board of Directors. Explain more, what is this organ.

In large companies, the number of members of the Board of Directors can reach 12 people.

Forms of managerial activities

Formed on the basis of legislation of European countries. Usually this:

• Meeting of all shareholders;
• Board of Directors;
• Gen.Direct in a single face;
• Control and Audit Commission.

With regard to activities, it can be any, not prohibited by the law of our state. The main activity can be only one.

Some activities require licensing, which can be used after PJSC implements the registration procedure.

The legislation of the Russian Federation prescribes all PJSC to place the results of annual reporting on official websites of companies. In addition, the results of the year are checked for compliance with reality by auditors.

Non-publication currently are JSC (joint-stock companies), LLC. The main requirements that legislation shall be submitted to the NAO are as follows:

• The minimum size of the authorized capital is 10,000 rubles;
• In the title there is no instructions for publicity;
• Shares should not be offered for sale or placement on stock exchanges.

Important fact: The non-public nature of the organization involves greater freedom in implementing management activities. Such companies are not required to post information about their activities in publicly available sources, etc.

Statutory documents

The Charter is the main document. It contains all information about the organization, issued data on property and so on. If legal problems arise, this document can be used in court.

Therefore, the charter should be written so that all sorts of loopholes and flaws are completely excluded. When the Charter is in the preparation stage, it is necessary to carefully analyze the regulatory and legal documents, or seek advice from specialists who have experience in developing documentation of this type.

In addition to the charter, an agreement called corporate can be concluded between the founders. Let us dwell on the analysis of this document.

A corporate contract can be called a certain innovation in which the following points are prescribed:

• All participant in the Treaty should vote equally;
• The total price of shares belonging to all shareholders is established.

But this agreement implies one clear limitation: shareholders are not obliged to always agree with the position of the governing bodies for any questions. By and large, this is a gentlemen agreement translated into a legal plane. If a corporate contract is violated - this is a reason to recognize the invalid decision to meet shareholders.

It should be noted that the participants of NAO may have its founders who are simultaneously and its shareholders. This is due to the fact that stocks cannot be extended further than these persons.

The number of shareholders is also limited, it cannot exceed 50 people. If their number is more than 50, society must be re-registered.

Governments of NAO

In order to implement the management of a non-publisher joint-stock company, the general meeting of shareholders of the company is held. All decisions taken at the meeting are certified by a notary, they can also make sure that the person headed by the Accounts Commission.

Property NAO

After an independent estimate, it can be included in the authorized capital, as an investment.

Shares NAO

• Do not appeal publicly;
• An open subscription placement is impossible.

If we talk about the activities, everything is allowed that it is not prohibited. That is, if the legislation of the Russian Federation is not prohibited by the legislation of the Russian Federation, it can be carried out.

In general, the essence of NAO is that these are such societies that simply do not produce stocks to the market, these are practically existing before the adoption of the new law of CJSC, but still, this is not the same thing.

The obligation to post financial reporting results for the year for NAO is not provided. Such data is usually interested in only shareholders or investors, and in this case they are founders who already have access to all necessary information.

Public and non-public organizations carrying out commercial activities in which share capital is a share of public and non-public societies. The property fund is created by the contributions made by the founders.

Economic societies are also classified for public and non-public.

The possibility of transition from one form to another

The legislation is not prohibited by the change of one organizational form to another. For example, NAO is quite permissible to convert to PJSC. What actions to do this require:

• Increase the size of the authorized capital to 1000 minimum
• Develop documentation that confirms that the rights of shares holders have changed;
• Conduct an inventory of the property fund;
• Conduct checks with the involvement of auditors;
• Develop an updated version of the charter and all related documentation;
• Carry out the re-registration procedure;
• Make the transfer of property of the newly educated legal entity. Face.

As a result of the legislative reforms, many changes occurred in the corporate right. A new thing came to replace the usual concepts.

Although all changes occurred back in 2014, in some cities you can still celebrate signs with familiar CJSC or LLC. But all new organizations are registered exclusively as public or non-public societies.

Conclusion

The creation and design of the joint-stock company is a process that requires attention and responsibility. Problems of various nature arise even in the process, so it is not worth saving on your future company, and in case of any doubt it is worth contacting qualified specialists.

Implement the right choice - this is the first step along a long road to achieving success in, so it is necessary to make a decision we suspend, considering everything to the smallest detail.

The organizational and legal form in which the authorized capital is divided into a certain number of shares is referred to as a joint-stock company (JSC). Shares are securities, the release of which is carried out by the company, the placement takes place on the stock exchange. Shareholders of the Association are entitled to manage the company, receive a share from its profits (dividends), claiming property in the liquidation of the company. Property responsibility of securities holders is limited by the size of the contribution. The owner of the shares can be a capable citizen or legal entity, except for civil servants and servicemen.

The history of the appearance of AO.

It is believed that the emergence of such a form of a business society, as a joint-stock, began with the opening of the Genoese Bank of St. George. The goal for which this institution was formed, served as state loans. The Bank founded a group of lenders who issued the funds to the state in exchange for the right to receive a share of arrival from the treasury. The presence of the following features indicates that the Genoese Bank has become a prototype of the joint-stock company:

• Capital, with the help of which the bank opened, was divided into parts and freely rotated.
• He led the bank of his participants who took the main decisions.
• Participants who have shares received interest on them - dividends.

Former first Types of Commonwealth (Guild and Sea Partnerships) ceased to respond to the needs of participants and protect them. So, at the beginning of the XVII, the Ost-India Company was formed. She is even more like a modern JSC. The company united the existing organizations of Holland, who need new economic opportunities, protection. These firms had certain shares of participation in the East India Company. Subsequently, they began to be called shares, that is, documents proving the right to hold a participant share. Almost simultaneously appears the English version of such a company.

Modern joint-stock companies in Russia

The organization under consideration of the organization is suitable for medium and large business. Among the companies of such size, this type of economic association is popular. For large business, an open joint-stock company is being created (OJSC, which, after amendments in the Civil Code of the Russian Federation, 2014, became referred to as a public JSC or PJSC). Among the companies of the Medium Business More often you can meet closed joint-stock enterprises (CJSC or non-public JSC, which began to be called after the same changes in the Code).

An example of non-public joint-stock companies (originally named CJSC) can be:

• Thunder, to which the retail chain of stores "Magnit" relates;
• Katai pumping plant;
• Comstar region;
• Publishing House Kommersant.

Famous companies that are public organizations will:

• Gazprom;
• LUKOIL;
• Norilsk Nickel;
• Surgutneftegaz;
• Rosneft;
• Sberbank.

Regulatory and legislative base

The activities of joint-stock companies are regulated by the Civil Code of the Russian Federation. It has a definition of fundamental signs of JSC, the activities of this organizational and legal form. The Code also has a reference to the Federal Law "On Joint-Stock Companies" of December 26, 1995 No. 208-FZ. This regulatory act includes all aspects that it is important to know about the joint-stock organization:

• conditions of creation, activities and liquidation;
• legal status of a business entity;
• the main rights and obligations of shares holders;
• conditions for protecting the interests of securities owners.

Types

There are two main species in the classification of joint-stock companies: this is an open and closed society. After making a state of amendments to the Civil Code (in articles regulating the activities of this organizational and legal form), the unification of the open type began to carry the name of the public. In the meantime, closed organizations have become non-public. The activities of the associations became more regulated, which manifests itself, for example, in increasing the number of audit checks.

In addition, dependent and subsidiaries are allocated. If there is an organization (legal entity), which has more than 20% of the company's shares, the name dependent is applied to it. The subsidiary of society is recognized as such if the main company has the prevailing participation in the company's authorized capital and determines the decisions approved by it. These types of shareholders are used when opening corporations.

Features of JSC and CJSC

There are the following differences between open and closed societies (now public and nonpubs):

Criteria
Number of participants	From one to unlimited number	From one to 50 people (after changes in the Civil Code of the Russian Federation, the number of unlimited)
Size of authorized capital	1 000 MROT or 100 000 rubles	100 Marlet or 10 000 rubles
Distribution of shares	Between those who want to buy on the stock exchange	Only between the founders
Alienation of shares	You can freely alienate without the consent of other shareholders (donation, purchase and sale)	Shareholders enjoy the advantage of buying in the alienation of shares
Publication of reporting	Must be done	Not provided

What is the difference from other organizational and legal forms

In addition to joint-stock business associations, there are other forms of activity of a commercial organization. Therefore, it is possible to consider the main differences in AO and economic partnerships, a limited liability company and production cooperatives:

1. Difference with economic partnerships. The main difference of these organizational and legal units will be the nature of associations. Capital connected to JSC, and in the partnership (individual firm) - individuals. In addition, comrades impose full responsibility for the activities of the partnership, meet all their property. Owners of equity securities are carried out jointly responsibility proportional to their contribution to the authorized capital of the joint-stock company.
2. Difference with a limited liability company (LLC). A similar feature is that participants in societies are responsible within their deposits. Sale of shares in LLC complicated by the fact that the company has to change the charter due to the emergence of a new founder or an increase in the share in the Criminal Code. In addition, the company comes from the company through the sale of its shares, the exit with the payment of the value of the contribution, as in LLC, is not produced.
3. Differences from the production cooperative. Here everything is extremely simple. A feature that consists in the fact that the participants of the cooperative are increasingly responsible for its obligations, bringing closer to this form with the partnership. In AO, it does not go beyond the limits of investment funds of depositors. Persons in the cooperative and violating existing norms entail exceptions from the company. The yield of the shareholder from AO is exclusively voluntary, which is produced through the sale of shares.

Joint Stock Company as a legal entity

The concept of "Joint Stock Company", considered from two different points of view: the community of organization, its participants and the organization and its shares. Therefore, this type of organizational and legal form can be called unique. On the one hand, this is an independent organization, a market participant, which is conducting commercial activities in accordance with certain rules. On the other, this is a combination of all issued equity securities (shares), which were purchased by shareholders and began to belong to them.

Distinctive features of the organizational and legal form under consideration:

• The AO participants are responsible, which is limited to the size of their "infusion" into the statutory fund of the company.
• The organization has complete independent responsibility to its shareholders for fulfilling obligations. This also includes the payment of dividends, produced on time.
• The entire amount constituting authorized capital is equally divided into the number of issued shares of the organization. The owners of the shares will be members of JSC, but not founders.
• The authorized capital of the joint-stock company is collected using the investments of the participants. The investments made immediately turn out to be at the disposal of the economic enterprise.
• The activities of this form of the economic association occurs unlimitedly in terms. If necessary, the conditions relating to time and timing can be specified in the Charter.
• Since, according to the law, the reporting of such a business structure, as a joint-stock company, should be public, then it is necessary to publish the annual report, accounting and financial statements.
• There is the right to form your own representative offices of JSC, branches and dependent companies. So, the creation of branches even beyond Russia is allowed.

Structure and controls

The considered economic organization has a three-stage management structure, which involves the availability of all the main managers: the general meeting of shareholders, the Board of Directors, the Executive Body (Director General and the Board). Each such an organ has its own competencies and accepts independent decisions in their framework. So, the control structures own the authority:

• General Meeting of Shareholders. This is the highest management body of society. With its help, shareholders carry out administration. At the same time, management can only perform those shares that have securities with the right to vote.
• Board of Directors. Wears another name - the Supervisory Board. The authority competence includes the implementation of the Company's administration. The Council organizes the fruitful work of the executive bodies of the Organization, determines the development strategy, controls the activities of the underlying links.
• Executive agency. The Board and Director General (President), which make up the executive body, are responsible for the loss arising from the action performed by them. It is possible for only one form of the executive body (director or sole body and the board or the collegial body), which should be spelled out in the Charter. The Director-General may receive a reward for work.

Participants of the joint-stock company

Shareholders of JSC are its participants. They become physical and legal entities, state bodies and local self-government bodies do not have such a law. Among the fundamental rights, it is possible to note the receipt of dividends, participation in managing and obtaining information about the work of JSC. The responsibilities are following the rules and regulations from intra-report documents, the execution of decision-making authorities, the fulfillment of obligations to the economic unit. For the obligations and debts of the company, the shareholder does not respond.

Charter of the company

To register a society, you need to collect a whole package of documents, and only one will be the constituent - the Charter of the Organization. This type of document determines the peculiarities of a legal entity, for example, how communication with other market participants will occur, competitors. The charter must meet the strict structure (it is necessary to arrange a document correctly) and contain:

• company name organization (abbreviated too to register);
• legal address;
• rights and obligations of participants;
• information about the authorized capital;
• information concerning management bodies.

Authorized capital

The amount of the value of the organization's shares that were acquired by depositors is the authorized capital. This is the minimum amount of property that is a guarantee of the interests of the participants of the organization. According to the Federal Law "On Joint-Stock Companies", the creation of the organizational and legal form under consideration is possible in the presence of a minimally established amount of the authorized capital. This is a one-time form of creating authorized capital for a legal entity. During the direct activity of the company, capital may increase and decrease.

The final amount in the Foundation, stipulated by the founders, is prescribed in the Charter of the Organization. It is important that the minimum amount of money constituting the authorized capital is approved by the creators of a legal entity prior to registration, but the amount is not less than the amount established by the legislation (100,000 rubles for PJSC (JSC) and 10,000 rubles for JSC (CJSC)). Before registration, you do not need to make money in the Criminal Code, it is better to put them on a cumulative account.

In all countries there are three methods for creating a similar company:

• the founders of the legal entity buy all the shares that produces a firm that can be called personification;
• the founders of the joint stock company carry out the acquisition of equity securities of the Company on a par with other persons in the market;
• founders acquire only some share of shares, the remaining securities are made on the market on the principle of an open subscription.

Economic justification

It all begins with the origin of the idea, for which an organization is created. Those people who plan to open their work should clearly realize the pursued goal. You need to decide on the objectives and objectives of the open company. Founders should understand why the legal entity will be opened as a joint-stock company. If the choice is made in favor of this form of commercial activities of the organization, it is important to dwell on any type of this economic association.

The basic actions that reflect the economic validity of the establishment of AO and are manufactured before registration, refers to drawing up a business plan. It offers the necessary calculations of financial costs and the future budget that will help determine the size of the authorized capital. In addition, the business plan should reflect the attractiveness of the purchase of shares by the founders or investors, depending on the type of organization.

Conclusion of the founding contract

When a decision on the establishment of its own business unit is made, you should begin to the following steps. So the design of the constituent contract is a necessary stage in creating a business. This document contains the obligations of the founders on the activities of JSC, determines the procedure for opening the company, determines the nature of the joint work of the founders. The contract does not apply to the constituent documents, signed by the Director General.

Conducting the General Meeting of Founders

To approve the desire of the founders, their general meeting is organized. This event discusses issues related to the creation of a legal entity, the approval of the Charter, the assessment of the property, which the founders are made to pay for shares. The right to vote at the meeting are owners of preferred shares. Decisions on issues are accepted when everyone can vote. In addition, the assembly creates bodies that will manage the company.

Formation of UK

The property of the joint-stock company, which ensures depositors their interests, will be the authorized Fund of JSC. It is important that the minimum amount of capital is not lower than the level defined by law. Three months after the date of registration of the joint-stock company in state bodies, the number of uncompressed shares after the issue divided between the founders should not exceed 50% of their total number. Next is given three years on the final redemption of these securities.

State registration of the organization

Any formative legal entity whatever the regulatory form it should be a long-term process of state registration. After this procedure, information about the new company fall into the Unified State Register of Legal Entities. The company receives its own identification (INN) and registration (OGRN) numbers. So, after registration, the organization is considered officially created.

The completion of the existence of the described economic association in the form of a legal entity is liquidation (there is voluntary and forced). Another way that can be considered liquidation is the closure of the firm without the transfer of rights to another legal entity. If the existence of society is terminated due to the transformation into a different business entity, this is not considered to be liquidation. Can follow the reorganization of the company.

Voluntary

Such liquidation applies after the adoption of the relevant decision by the General Meeting of Shareholders:

• The proposal to close the AO is made by the Board of Directors.
• Approval of the decision on liquidation by the General Meeting of Shareholders by voting.
• Bringing information about the prepared completion of the company to the state registration authorities. This information must be transferred within three days after the decision to eliminate the decision. After these actions, it is forbidden to make any changes regarding the activities of JSC.
• A liquidation commission is appointed by the company and the state registration authority, which will be managed by the company.
• Finding creditors and action on the recruitment of receivables. All this implements the liquidation commission.
• Calculation with creditors (possible through the organization of competitive production or the offensive of subsidiary responsibility), drawing up a liquidation balance and redistribution of stock balances between their owners.
• Entering the recording on elimination into the appropriate register of legal entities.

Forced

In contrast to the voluntary form of liquidation of JSC, forced applicable by court decision. Actions after making a positive decision on the closure of a joint-stock company similar to the steps conducted by voluntary form. This refers to the creation of a liquidation commission, repayment of borrowed funds and return debt debt, the emergence of recording in the River registry.

The basis for the forced form can serve:

• committing activities under the prohibition of the law;
• conducting activities without a license or in violation of existing regulatory acts;
• identification of invalid registration of the Yul, which is proved by the court;
• recognition by the court of bankruptcy (insolvency) of the economic association.

Advantages and disadvantages

The described organizational and legal form has its advantages and disadvantages. So the advantages of society are:

• An unlimited nature of the fusion of capital. Such advantage helps to quickly collect funds for the necessary activity.
• Limited liability. The owner of the shares does not bear full property responsibility for the affairs of the company. The risk is equivalent to the deposit amount.
• Sustainable nature. For example, when careing one of the shareholders, the organization continues to continue.
• The ability to return your funds. This means that stocks can be promptly selling and get money for them.
• Freewness of capital. The category is determined by the fact that when needed, a change in capital is possible to a smaller or most side.

With all its merits, AO has disadvantages:

• Public reporting. The management form in question is obliged to publish its reporting in information sources, do not hide the data of the profits.
• Frequent audit checks. Monitoring the annual, which is governed by amendments to the Civil Code of the Russian Federation.
• The probability of loss of control due to a free sale of shares. Securities that are sold on the market are practically unregulated, can significantly change the composition of the company's participants. After that, there is a loss of control over the company.
• Missing and contradiction of the interests of owners of securities and managers of JSC. The conflict may arise due to different desires of the participants: Shareholders wish to obtain as many dividends as possible, increase the yield (the ratio of dividends to the nominal price of the security) and the stock course. In a word, they pursue their own enrichment. Officials want to correctly manage and distribute the income of the Organization to preserve it, increase the capitalization of the company.

Video

Introduction
1. HISTORY OF JOINT-STOCK RELATIONS IN RUSSIA
2. Concept and types of joint-stock companies
2.1. Joint Stock Company, Concept
2.2. Benefits of the joint-stock ownership
2.3. Types of joint-stock companies
3. Legal status of joint stock companies
3.1. Characteristics of the legislation of the Russian Federation on joint stock companies
3.2. Features of the legislative regulation of the creation and legal status of some groups of joint stock companies
3.3. Development of the regime of distinctive features of the legal status of open and closed joint-stock companies in the light of the Federal Law of 07.08.2001 N 120-FZ
Conclusion
BIBLIOGRAPHY

Introduction

Relationship forms of ownership play one of the fundamental roles in the development and development of the state.

Joint-stock ownership is one of the forms of ownership, on which production relations are based, which, in turn, the economic basis of the legal state.

Joint-stock companies were the result of a long, historical development of forms of commercial organizations. They obtained the greatest development in the conditions of market relations. Due to a number of person inherent in him (which will be reported in detail in the following sections of this work), joint-stock companies have become actually the most massive form of commercial organizations in all developed countries.

In this regard, it is natural that in the transition of Russian society to a market economy, a significant role is assigned to joint-stock companies, allowing to participate in the investment process, along with entrepreneurs, and a significant number of ordinary citizens, as well as contributing to the redistribution of capital in the country's economy in the most productive spheres Management. Joint-stock company is currently the organizational and legal form of commercial organizations in Russia (up to 60% of the number of registered commercial organizations in the country).

Accordingly, the study of trends in the development of this form of ownership, the analysis of the characteristics of its species, the legal status will always have a positive result, both in general - to understand the general system of civil legal relations, and in particular - in relation to a specific legal entity. This is the more apparently for this course work, the author of which is an employee of the joint stock company and, by virtue of its functional responsibilities, directly deals with these issues.

1. HISTORY OF JOINT-STOCK RELATIONS IN RUSSIA

The first steps on the creation of joint-stock companies in the Russian Empire were made under Peter I in the decrees of October 27, 1699, dated October 27, 1706, from March 2, 1711 and on November 8, 1723.

For the first time, a serious (and who did not succeed) the draft joint-stock company was presented to the Government Senate in 1739 by Lorenz Langom. The first joint-stock company can be considered established by February 24, 1757 "Russian in Constantinople Trading Company", the capital of which consisted of shares called shares. The rights of shareholders were certified by a ticket and could be freely alienated (while the buyer passed not only the rights, but also the obligations to make additional contributions).

In the future, other joint-stock companies were created (1762 - Joint-Stock Emission Bank, 1798 - Russian-American company). For these joint-stock companies, the following was characteristic:

The basis of the company's entrepreneurial activity is the authorized capital, divided into equal shares, and the contribution made by the participant could not be demanded back;

Shares were fluent in the market, their acquisition provided a shareholder not only rights, but also a certain responsibilities (on making additional contributions).

However, in the time of the regulations operating at the time, many questions did not receive their consolidation, and the practice required the further development of legislation on joint-stock societies. An important step in this direction should be considered the consolidation in the decree of Alexander I 1782 the principle of limited (within the value of the contribution) of the shareholders of the company's debts.

Until 1807, the charters of joint-stock companies were approved by the royal decrees. From August 1, 1807, the establishment of joint-stock companies is regulated by the manifesto "On the benefits of the benefits, differences, advantages and new ways to disseminate and strengthen the trade enterprise," which pointed out three forms of management: a partnership on faith, a full partnership and a partnership on sites. The last and was exactly the joint-stock company. This manifest subsequently entered the Code of Laws of the Russian Empire and stood out in the trade charter in a separate chapter "On the Trade Comrade".

On December 6, 1836, the "Provision on the Company's companies" is approved, which, among other establishments, introduced some mandatory requirements for the Charter, in which, in particular, should be negotiated: the size of the statutory (share) capital, the share of shares, the rights and obligations of shareholders and the company, reporting, dividend distribution, the procedure for closing and liquidating the company. For example. Position allowed output and appeal only registered shares A denomination of at least 50 and no more than 1000 rubles. Despite the existence of the said position, the statutes of joint-stock companies still played a major role, which were to be approved by the Senate. In practice, the charters were approved by the relevant ministry, published in the St. Petersburg Senate Vedomosti, and until 1912 - also in the "full meeting of the laws of the Russian Empire."

From the middle of the XIX century, the statutes gradually became a means of circumventing existing legislation, law enforcement practice often comes into incision with the law. In 1857, after a sharp decline in interest rates in state banks, investors, wanting to preserve their income, began to actively invest in the purchase of shares of joint-stock companies. The result was a boom of joint-stock sell in 1857, 1864 and 1869. Personal stories, from world practice did not cause due validity on gullible Russian investors.

One of the most famous "soap bubbles" in the world joint stock practice recognized the English "South Seas" company, created in 171I. Not without the help of persons who occupy prominent state posts, the company in 1720 managed to "drag" a special Bill, significantly expanding its scope of activity. A successful advertising company gave rise to an attractive demand for stocks, the founding fever began, the South Seas Company's shares increased 10 times and reached 1000 pounds per share. However, in September 1720, the decline of the company's shares began in September 17, which ended with a grand financial scandal, who destroyed many careers of statesmen who took the most active participation in speculation. It is noteworthy that in the ranks of "deceived depositors" was even Slim Isaac Newton, which was at the time the managers of the royal coast .

In the period from 1858 to 1897. Several projects have been developed for new provisions on joint-stock companies, each of which had significant disadvantages. Apparently, therefore, before 1917, the joint-stock legislation was not reformed, but this did not affect the further development of joint-stock companies in Russia. So, according to statists by 1913, the number of joint-stock companies amounted to about 2000.

With the beginning of the First World War, qualitative changes occur in the economy: the increase in the number of newly created joint-stock companies is reduced, significant scales acquire their mutual "compound". At that time, the fairly outdated Russian legislation did not yet know the procedures for the reorganization of legal entities (accession, merger, separation, allocation, transformation), so the process of splicing companies was based on the mutual acquisition of share packages.

After the February Revolution, on March 10, 1917, the Provisional Government adopted a resolution, eliminating many of the previously operating restrictions on the activities of joint-stock companies. This caused the rapid development of the joint-stock formation and private securities market. Until September 1917, in the conditions of an unstable political situation in Russia, more than 700 joint-stock companies were established with the total authorized capital in 1960 million rubles, respectively, 2 and 4 times the level of 1913 exceeded

The October events of 1917 produced revolutionary changes in legislative acts on joint-stock companies. On December 14, 1917, the Central Executive Committee submitted to the Supreme Council of the National Economy (High) draft decree, providing for the nationalization of all joint-stock companies in Russia. The project was not adopted, but the steps provided for them were gradually implemented in other regulatory acts of the new workers' and peasant power. There was a nationalization of joint-stock enterprises whose shares were still not canceled. The owners of the shares could dispose of them with the permission of local councils. The transfer of shares, including inherited, was accompanied by registration in Texax. The size of the dividend on shares was limited to a bet on deposits in Moscow and accounted for 4%.

During the years of Nap, the situation has changed somewhat. Thus, the Decree of the Central Executive Committee of May 22, 1922 "On Basic Private Property Paras" was allowed to create joint-stock companies to all legal citizens. The Civil Code of the RSFSR adopted in 1922 contained 45 articles dedicated to joint-stock companies whose provisions were regulated in sufficient detail all the necessary issues. Some of the 1922 GC articles contained, in particular, the following settings:

The authorized capital was formed due to the contributions of the founders, which all the necessary transactions on behalf of the Company could have been published on the registration of the Company, and if in the future the general meeting of the Company's shareholders did not approve of these transactions, the responsibility of the founders on them before the contracts was recognized as personal and Solidarity;

Shares were produced both nominal and bearer;

The shareholder had the right to receive a dividend from the remaining net profit of the Company;

The Board of the Joint-Stock Company, which was the executive body, could enter into any transactions from the Company's name (it is noteworthy that members of the Board for damages caused by the unscrupulous performance of their duties responded to the Society jointly, and in the event of the bankruptcy of the latter - also to creditors and shareholders).

The first joint-stock company of the Soviet period appeared on February 1, 1922. In total in 1922, 20 joint-stock companies were formed, and at the beginning of 1925 there were already over 150, and many of them were indeed developed structures that ranked market market in the necessary goods. and services. The company affected the banking sphere, in which, in addition to the State Bank, there were 5 major joint-stock commercial banks who have had 95 branches in the territories of the greatest favored NEP.

In the future, during the "socialist construction", a number of registered acts were published in the GC of the RSFSR of 1922, which include the "Regulation on Joint-Stock Companies" from 17 April 1927, in which, in particular, it was indicated that the most important task of state joint-stock companies (and There were more than 90% of the total number of joint stock companies) is economic activity, and not the increase in the capital of the founders. As a result of these innovations, the idea of \u200b\u200ba joint-stock company, as a mechanism for increasing capital through Successful Economic activities, loses all relevance.

State capital increasing deeper into joint-stock enterprises, societies are distributed by the relevant departments. It takes a little more time, and joint-stock companies are transformed into state-owned enterprises, a pause, which lasted for many decades.

By the beginning of the 1930s, almost all joint-stock companies were transformed into state enterprises. Only 2 joint-stock enterprises: Created in 1924, the USSR Foreign Trade Bank (later - Vnesheconombank) and the All-Union Joint-Stock Company "Intourist" formed in 1929 were the scope of share capital. However, these enterprises were shareholders only formally, for their activities were carried out on the same principles as the activities of all other government organizations.

In the period from the beginning of the 30s before the mid-1980s, only one joint-stock company was created in the USSR - in 1973, Ingosstrakh USSR was organized on the basis of foreign insurance management (USSR Insurance Joint-Stock Company). Ingosstrakh, like Vneshtorgbank and Inturist, the joint-stock company was formally. For virtually forgotten the management form of the management.

The prerequisites for the revival of the joint-stock formation of economic activities began to develop under the conditions of radical economic reform. The first major precedent in this area was created in 1986-1987. Lviv production association "Conveyor". It was made by the issuance of securities - shares, which was distinguished by great specificity, because it was an attempt to find non-traditional ways to accommodate stock tools in order to create a "socialist mechanism of a joint stock company other than capitalist in its essence, which is mainly due to outgoing causes.

The right to acquire association shares was provided only to persons working on it. At the same time, there were tough restrictions on the amount of shares purchased by members of the labor collective at the expense of personal funds or at the expense of the funds of the material promotion. The maximum amount of payment for shares from the material promotion fund was differentiated depending on the production experience. For violation of labor discipline, the holder of securities could be deprived of dividends or excluded from among the shareholders, which in itself contradicted the norms of personal property protection, including the established former Constitution of the Russian Federation.

Resale shares was prohibited. Shares acquired at the expense of the Fund of Material Promotion could be returned to the company only when dismissing from work, for which special funds were reserved. Shares purchased for their money were allowed to return to the enterprise at any time. In early 1987, Conveyor implemented shares by more than 1 million rubles.

The status of the "State Joint-Stock Socialist Enterprise", which received the conveyor association, in itself contained an internal contradiction, since the association remained state and issuing securities called shares, did not change the property relations.

In addition to the "conveyor" by the end of 1988, an attempt to issue his own shares, without waiting for the relevant legal support, carried out another number of socialist farms.

Enterprises who started the issue of shares, moved two main motifs: the desire to create the interest of workers in the results of work, awakening their sense of owner, and the desire to attract additional resources for technical re-equipment. Shares applied only among members of labor collectives and did not change the status of farms. The conditions and procedure for distributing shares by each enterprise had significant differences.

In order to streamline the natural practice of issuing enterprises and organizations of securities, the Council of Ministers of the USSR October 14, 1988 adopted a resolution "On the issue of enterprises and organizations of securities", in which the status of the so-called shares of the labor collective was fixed and the issue of "shares of enterprises and enterprises was allowed organizations "intended to accommodate among legal entities.

The emergence of this regulatory document gave a certain impetus to the practice of emissions by the farms of own stock documents. In the period past after the release of this resolution, the Council of Ministers of the USSR made separate decisions on the transfer of part of the property to the joint-stock ownership. For May 26, 1990, the Council of Ministers of the USSR Council was adopted on the creation of the Joint Stock Association "Scientific Instruments", and on June 26, 1990 - Decree of the Council of Ministers of the USSR "On the transformation of the KAMAZ Production Association to the KAMAZ Joint-Stock Company. The decision provided for the possibility of selling a part of the shares of this association not only to legal, but also to individuals, including foreigners, as well as the possibility of leaving dividends due to the state, at the disposal of a joint-stock company for their use on the goal of accumulation. The incidents of the total cost of approximately 4.7 billion rubles were subject to outrage. An attempt to transfer KamAZ to the joint-stock formality of ownership was actively covered in the press and should contribute to the influx of domestic and external investments in the automotive area.

The decision of the Council of Ministers of the USSR, adopted on June 19, 1990, about the approval of the Regulation on Joint-Stock Companies and Limited Liability Societies and Regulations on Securities "provided for the possibility of creating joint-stock companies and issues of shares that could be distributed both among legal and among individuals . The emergence of this document has created prerequisites for the active development of the joint-stock ownership. For the year with a small one after the release of the specified resolution (as of September 26, 1991), 1432 societies were made to the Unified State Register of Joint Stock Companies and Limited Liability Societies of the Ministry of Finance of the USSR, of which 402 were based on joint-stock ownership, And 1030 were limited liability companies.

The separation of the powers of the Russian and Soviet authorities led to the emergence of a separate "provision on joint-stock companies", approved by the Resolution of the Council of Ministers of the RSFSR of December 25, 1990, which was subsequently (as amended in April 1992) until January 1, 1995 (entry into The force of the first Civil Code of the Russian Federation) and January 1, 1996 (entry into force of the Federal Law "On Joint-Stock Companies") and became a fundamental regulatory document governing the basic principles of the legal status of joint-stock companies in Russia.

With the adoption and enactment on the territory of the Russian Federation, part of the First Civil Code, the legal status of joint-stock companies has undergone significant changes, due to the fact that the new code has been supplemented with sufficiently significant novels compared with the Law of the Russian Federation "On Enterprises and Entrepreneurial Activities" and the Government Regulations on joint-stock companies that have ceased to meet the needs of Russian economic and legal realities.

However, the majority of regulatory instructions of the Civil Code of the Russian Federation were sent down, and therefore during the year from the moment of its introduction, and was eagerly expected to appear the emergence of a new federal law, designed to fundamentally reform the corporate industry of Russian law. The Federal Law "On Joint-Stock Companies" entered into legal force from January 1, 1996. With his appearance, the stage of formation of the main legislative base of joint-stock companies in Russia at the present stage was completed.

2. Concept and types of joint-stock companies

2.1. Joint Stock Company, Concept

Joint-Stock Company (hereinafter referred to as society, JSC) in accordance with the Civil Code of the Russian Federation of October 21, 1994 and the Federal Law of December 26, 1995 No. 208-FZ "On Joint-Stock Companies" recognized a commercial organization, the authorized capital of which is divided into a certain number Shares certifying the obligations of the participants of the Company (shareholders) in relation to society.

The authorized capital is drawn up from the nominal value of the shares acquired by shareholders, and determines the minimum amount of the property of the JSC, guaranteeing the interests of its creditors.

The presence of authorized capital divided into a certain number of shares is a necessary sign of a joint-stock company.

Other commercial organizations (Limited Liability Company, Society with additional responsibility - see Art. 90, 95 of the Civil Code possess the authorized capital. Folding capital is available in the full partnership and a comdant partnership (partnership at faith) (Article 69-86 of the Civil Code). The authorized capital also has state and municipal unitary enterprises (see Art. 114 of the Civil Code). But only in a joint-stock company, the authorized capital is divided into shares, expressed in stocks, i.e. Securities, which are documents certifying the established form and compulsory details of property rights, the implementation or transfer of which is possible only upon presentation of such documents (for securities, see Gl. 7 GK; About stocks Read more See: Art.st. 25, 27, 34, 36-39, 41 of the law on JSC and comments on them).

The Company is a legal entity and owns separate property taken into account on its independent balance sheet.

The sign of a joint-stock company, as a legal entity, is also the ability to perform in civil circulation (to be his participant) on its own behalf - to acquire and carry out property and personal non-property rights, carry duties, to be the plaintiff and the defendant in court (meaning the courts of general jurisdiction, Arbitration and arbitration courts).

Society implements its civil rights and is responsible for exercise any activitiesnot prohibited by federal laws.

Separate activities, the list of which is determined by federal laws, society can only be engaged on the basis of a special permit (license). If the conditions for the provision of a special permit (license) on the occupation of a certain type of activity provides for the requirement of such activities as exceptional, the society during the term of special permission (license) is not entitled to carry out other activities, with the exception of activities provided for by a special permit (license ) And they are associated.

Society is considered to be created as a legal entity since its state registration in accordance with federal laws. Society is created without limitation, unless otherwise established by its charter.

The obligations of shareholders in relation to the joint-stock company include, first of all, the rights of owners of ordinary and preferred shares of the Company, provided for by Art. 31 and 32 of the Law on JSC (see these articles and comments on them).

The second paragraph of paragraph 1 of the commented article delimits the obligations of shareholders and the obligations of the Company, meaning that each of the people named in it is an independent participant in civil turnover. The property of shareholders is separate from the property of the joint-stock company, and at the unprofitable activities of the Company, shareholders risk only within the value of the shares belonging to them.

Another significant sign of the joint-stock company as a legal entity is an independent property responsibility (see Art. 48 GK). In the Law on JSC, a separate article is devoted to the Rules on the Company's responsibility (see Art. 3 of the AO Law and Comment on It).

The traditional sign of a joint-stock company, as well as any other legal entity, is its organizational unity. The presence of this feature of the joint stock company confirms Art. 48 GK, which gives the characteristic "Organization" any legal entity, as well as paragraph 1 of the commented article, indicating that the joint stock company is an organization, i.e. One whole. Such integrity, i.e. The organizational unity of the joint-stock company, implies that society has a sustainable structure and stable governing bodies with their own competence. The Company's management bodies carry out internal organizational and executive and administrative activities in society and represent society (act on his behalf) in external relations horizontally and vertical (with counterparties, state, municipal and other bodies).

The authorized capital of JSC, as described above, is compiled from the nominal value of shares acquired by shareholders. When establishing JSC, all shares are placed among the founders. All shares are nominal.

The number and nominal shares of each category of each particular society are determined by the Charter of JSC.

The charter of JSC may determine the number and denominations of the announced shares, the rights on them, the order and conditions for their placement.

For accounting for shareholders of the Company, their rights to securities of society each AO must maintain a register of shareholders. Requirements in the procedure for maintaining the registry are determined by the Register of Register of Owners of Normal Securities.

The company's shareholder register indicates information on each registered person, the number and categories (types) of shares recorded in the name of each registered person, other information provided for by legal acts of the Russian Federation.

The Company is obliged to ensure the maintenance and storage of the register of shareholders of the Company in accordance with the legal acts of the Russian Federation since the state registration of the Company.

The company's shareholder registry holder may be a society or a professional participant in the securities market, which carries out the register of registry owners of registered securities (hereinafter referred to as the registrar).

In society with the number of shareholders, more than 50 holder of the register of shareholders of the Company should be the registrar.

The Company, who has been guaranted the maintenance and storage of the register of shareholders of the Company to the registrar, is not exempt from liability for its maintenance and storage.

The placement of shares by joint-stock companies is carried out in accordance fromThe federal law "On the securities market" and the FCCB standards in the form of individual issues (the issuance of securities is a set of securities of one issuer providing the same amount of rights to owners and having the same emission conditions (primary placement). All papers of one issue must have one state registration number).

All issues of shares must be registered accordingly.. The requirement of state registration of securities is valid in Russia for nine years. However, in reality, the situation is far from the legal norm. Thus, in Article A. Ponomarenko, the Joint-Stock Company of the Third Millennium, it is indicated that according to the regional branch of the Federal Tax Service of Russia in the Far Eastern Federal District, out of 5,000 existing joint stock companies did not register its shares of approximately 2,000. And according to the State Statistics Committee of the Russian Federation, it is said in Article O. Codemaeva "Against scrap there are techniques" - Currently, about 430 thousand joint-stock companies operate in Russia, of which only 110 thousand have registered the proper issues of their shares.

It should be borne in mind that unregistered promotions cannot be placed among the first owners, it is impossible to sell, inhibit. Strictly speaking, such securities are not shares, since they did not pass the registration procedure procedure provided for by the law, and cannot provide their owners with the rights certified by shares, including to make decisions in general meetings of shareholders, to receive securities income, to elect the management bodies that Thus, do not acquire the right to act on behalf of the Company.

However, in practice, the existence of joint-stock companies with such securities in Russia is possible - despite the Declarations of the Civil Code of the Russian Federation, if there are existing gaps in the current legislation on state registration of legal entities in many subjects of the Federation, the situation is quite realistic when the AO is registered, and the issue of shares is quite real not. And, most sadly, often due to the lack of JSC managers of the necessary knowledge in this area, the Company learns about the need for state registration of the issue of shares, when the Prosecutor's Office or the Federal Commission on the Securities Market (FKSB of Russia) has already been "concerned" by this issue and check JSC.

The authorized capital of the Company can be increased - by increasing the nominal value of shares or posting additional shares.

The decision to increase the authorized capital of the Company by increasing the nominal value of shares and on the introduction of relevant changes to the Charter of the Company is made by the General Meeting of Shareholders or the Board of Directors.

The authorized capital of the Company may also be reduced - by reducing the nominal value of shares or reducing their total number, including by acquiring a part of the shares, in cases provided for by the Federal Law.

Reducing the authorized capital of the Company by acquiring and repaying a part of the shares is allowed if such an opportunity is provided for in the Company's Charter. The Company is not entitled to reduce the authorized capital, if, as a result of this, its size will be less than the minimum authorized capital of the Company defined in accordance with the Federal Law at the date of registration of relevant changes in the Company's Charter.

Shareholders who have not fully paid shares carry solidarity on the obligations of the Company within the unpaid part of the value of the shares belonging to them.

State registration of joint-stock companies is carried out, as a rule, by municipal bodies or bodies of the subjects of the Russian Federation, and joint-stock companies with the participation of foreign capital - the federal body (the State Registration Chamber under the Ministry of Economy of the Russian Federation, operating on the basis of the decision of the SM RSFSR of November 28, 1991, "On Registration enterprises with foreign investment "- SP RSFSR, 1992, N 1-2, Art. 6 - and Decisions of the Government of the Russian Federation of 06.06.1994 N 655" On the State Registration Chamber under the Ministry of Economy of the Russian Federation "- SZ RF, 1994, N 8, Art. 866).

Since July 2002, with the introduction of the Federal Law of the Russian Federation of 08.08.2001 No. 129-FZ "On State Registration of Legal Entities", registration should be carried out by the federal executive authority authorized in the manner prescribed by the Constitution of the Russian Federation and the Federal Constitutional Law " Government of the Russian Federation. "

In accordance with the specified law, the documents mentioned in it personally or by mail are submitted, and registration must be carried out at 5 days from the date of submission of the necessary documents.

State registration data, incl. For a joint stock company - the proprietary name is included in the Unified State Register of Legal Entities Open to Universal Review.

Violation of the procedure established by the Law of the Education of the joint-stock company or the inconsistency of its constituent document the law entails the refusal to state such a society.

Refusal of registration based on the inexpediency of creating a joint stock company is not allowed. Failure to state registration, as well as evasion of such registration, can be appealed to the Arbitration Court in accordance with the rules on the controversy of disputes (see Art. 22 APK).

The Company is responsible for its obligations to all owned property.

The Company is not responsible for the obligations of its shareholders.

The state and its bodies are not responsible for the obligations of the Company, as well as society does not respond to the obligations of the state and its bodies.

The society has its own brand name, which should contain an indication of its organizational and legal form and type (closed or open).

The Company has the right to have full and abbreviated name in Russian, foreign languages \u200b\u200band the languages \u200b\u200bof the peoples of the Russian Federation.

Society, the proprietary name of which was registered in the procedure established by legal acts of the Russian Federation, has the exclusive right to use it.

The location of society is determined by the place of its state registration, if in accordance with federal laws in the Company's charter is not established otherwise.

The society must have a postal address in which communication is communicated with it, and is obliged to notify the bodies of state registration of legal entities on changing their postal address.

The Company has the right to choose any brand name, if only it did not coincide with the already existing names of other legal entities and did not include the law prohibited by law. No, for example, the inclusion of the words "Russia", "Russian Federation" (see Resolution of the Supreme Soviet of the Russian Federation of February 14, 1992, "On the procedure for using the names" Russia "," Russian Federation "and formed on their basis words and phrases in Names of organizations and other structures "- Vedomosti of the Russian Federation, 1992, N 10, Art. 470). If we are talking about a joint-stock company established for financial transactions, then the inclusion of the Bank's designation is permissible only if there is a license for banking activities (see the Vedomosti RSFSR, 1990, N 27, Art. 357). The AE law does not require an indication of the object of activity in the company name of the joint-stock company, although in terms of the interests of the participants in the civil turnover, such an indication should be considered useful.

The proprietary name is subject to registration simultaneously with the state registration of society. Unlawful use of someone else's registered corporate name entails the responsibility of the violator at the request of the owner of the right to terminate its use and compensate the damages (see. 3 of paragraph 4 of Art. 54 of the Civil Code).

The exact designation of the location of the joint-stock company is necessary for the implementation of its rights and obligations in the field of civil and civil procedural law. For example, Art. 316 GK connects the place of execution of the monetary obligation with the location of the legal entity - the creditor at the time of the obligation.

The development of the rules about the place of finding a joint-stock company can be considered the norm on the postal address, which society should notify the body that carries out the state registration of legal entities. Separately from the registration of the location of the postal address notice is made only when it is changed. It should be noted that the joint-stock legislation of foreign countries does not know the special rule on the registration of the postal address.

The Company can create branches and discover offices in the Russian Federation in compliance with the requirements of this Federal Law and other federal laws.

The creation of branches by the Company and the opening of representative offices outside the territory of the Russian Federation is also carried out in accordance with the legislation of a foreign state at the location of branches and representative offices, unless otherwise provided by the International Treaty of the Russian Federation.

The branch of society is its separate unit located outside the location of society and carrying out all its functions, including the functions of the representative office, or part of them.

The representative office of the Company is its separate unit located outside the location of the Company, representing the interests of society and carrying out their protection.

The branch and representation are not legal entities, operate on the basis of a provision approved by the Company. The branch and representation are endowed by their own property that is taken into account both on their individual balances and on the balance of society.

The head of the branch and the head of the representative office are appointed by society and operate on the basis of a power of attorney issued by society.

The branch and representation carry out activities on behalf of the established society. Responsibility for the activities of the branch and representative office bears the established society.

The Company's Charter must contain information about its branches and offices. Messages about changes in the Charter of the Company related to the change in information about its branches and representative offices are submitted to the state registration authority of legal entities in a notification order. These changes in the Charter of the Company come into force for third parties from the date of notice.

Society may have subsidiaries and affiliates with the rights of a legal entity in the Russian Federation, created in accordance with the current Russian legislation, and outside the territory of the Russian Federation - in accordance with the legislation of the foreign state at the location of subsidiaries or dependent societies, unless otherwise provided by international Treaty of the Russian Federation.

The Company is recognized as a subsidiary, if the other (main) economic society (partnership) is due to the prevailing participation in its authorized capital, or in accordance with the contract between them, or otherwise it has the ability to determine the decisions taken by such a society.

A subsidiary is not responsible for the debts of the main society (partnership). The main society (partnership), which has the right to give subsidiaries obligatory for the last instruction, is responsible to agree with the subsidiary of transactions concluded by the latter in fulfillment of such instructions. The main society (partnership) is considered to have the right to give subsidiary of the obligatory for the last indication only when this right is provided for in the contract with the subsidiary or the Charter of a subsidiary.

The Company is recognized dependent if another (prevailing) society has more than 20 percent of the voting shares of the first society.

A society that has acquired more than 20 percent of the voting shares of the Company is obliged to immediately publish information about this in the manner determined by the federal executive authority on the securities market and the federal antimonopoly authority (as amended by the Federal Law of 07.08.2001 N 120-FZ).

2.2. Benefits of the joint-stock ownership

Joint-stock ownership is a logical result of the process of development and transformation of private ownership, when at a certain stage of development of production, the level of technology, the system of finance organization creates prerequisites for the fundamentally new form of the organization of production on the basis of the voluntary participation of shareholders.

The joint stock form makes it possible to attract the capital of many individuals into one enterprise, and even those that themselves can, due to any reasons to engage in entrepreneurship. In addition, limiting the responsibility of the amount of the contribution made together with its high diversification makes it possible to invest in highly promising, but also in highly risky projects, significantly accelerating the introduction of scientific and technological progress. There are also many other positive parties to the joint-stock ownership of ownership, which make it a truly universal and applicable everywhere, where there is a need and the ability to limit the scope of the responsibility of the entrepreneur.

The latter circumstance is especially important in the conditions of an unstable economy, when an unforeseen production situation can lead to huge losses, debts, which may not be enough for all available property. Individual entrepreneurs and some legal entities who have another organizational and legal form are subject to such responsibility. Joint-stock companies make it possible to more effectively use material and other resources, optimally combine the personal and public interests of all participants.

Joint-stock companies, which are the main form of organizing modern large enterprises and organizations around the world, are the most perfect legal mechanism for organizing the economy based on the association of private individuals, corporations of various types and other bodies. The main features of this type of society are:

• separation of share capital on uniform, freely appealing shares;
• limiting the responsibility of participants on the obligations of society only contributions to the capital of the Company;
• the authorized form of association, which can be easily changed the number of participants and the amount of share capital;
• the separation of the general manual from the management of the enterprise itself, which focuses in the hands of a special organ - sole and / or collegial (board (directorate) of the Company).

Joint stock companies have a number of advantages compared to other forms of ownership.

First, the society has the opportunity to attract shareholders to replenish the authorized capital and expand its activities, and these funds are not refundable (except for the complete liquidation of society), since the shares of society do not bother, but only resell to other shareholders.

Secondly, the overall management of the activities of the Company is separated from the specific management, which allows you to hire and choose the most appropriate managers, directors, forces shareholders to relate to the selection of managing personnel, as each shareholder is responsible for the efficient work of the Society with invested funds.

Thirdly, the possibility of real transformation of the entire labor collective of the enterprise to the owners by acquiring each of them the shares of society.

Fourth, it is possible to attract its permanent counterparties to shareholders, while creating a common interest in the results of the Company's activities. Also, society itself can acquire securities of other societies, while forming entire networks of organizations interested in each other's organizations related to property relations and the right to participate in management.

Thus, the joint-stock company, uniting all participants on a single legal basis, provides a unique form of implementing collective ownership, while creating interest in the final results of work. The issue and distribution of shares gives a real possibility of controlling activities and management by shareholders.

2.3. Types of joint-stock companies

In accordance with the Civil Code of the Russian Federation of October 21, 1994 and the Federal Law of December 26, 1995 No. 208-FZ "On Joint-Stock Companies" AO can be open or closed (hereinafter JSC), which is reflected in its charter and brand name.

Open Society has the right to hold an open subscription to the promotions produced by him and carry out their free sale, taking into account the requirements of this Federal Law and other legal acts of the Russian Federation. Open Society has the right to hold a closed subscription to the promotions produced by him, unless the possibility of a closed subscription is limited by the Company's charter or the requirements of the legal acts of the Russian Federation (as amended by the Federal Law of 07.08.2001 N 120-FZ).

The number of shareholders of an open society is not limited.

In open society, it is not allowed to establish the advantage of the right of society or its shareholders to acquire shares that are alienated by the shareholders of this company (paragraph is introduced by the Federal Law of 07.08.2001 N 120-FZ).

Society, whose shares are distributed only among its founders or other, a predetermined circle of persons, is recognized by a closed society. Such a society is not entitled to conduct an open subscription to the stock produced by him either otherwise offer them for the acquisition of an unlimited circle of individuals.

The number of shareholders of a closed society should not exceed fifty.

In the event that the number of shareholders of a closed society exceeds the limit established by this clause, the specified society for one year should be transformed into open. If the number of its shareholders does not decrease to the limit established by this clause, society is subject to liquidation in court.

Shareholders of a closed society use the preemptive right to acquire shares sold by other shareholders of this company, at the price of the proposal of a third party in proportion to the number of shares belonging to each of them if the Company's charter does not provide for another procedure for the implementation of this right. The charter of a closed society may be provided for the preemptive right to acquire shares sold by its shareholders if shareholders did not use their preemptive right to acquire shares (as amended by the Federal Law of 07.08.2001 N 120-FZ).

The shareholder of the Company, intended to sell its shares to a third party, is obliged to inform the other shareholders of the Company in writing and the society itself, indicating the price and other conditions for the sale of shares. The notice of shareholders of the Company is carried out through society. Unless otherwise provided by the Company's Charter, the notice of shareholders of the Company is carried out at the expense of the shareholder, intended to sell its shares (as amended by the Federal Law of 07.08.2001 N 120-FZ).

In the event that the shareholders of the Company and (or) society will not take advantage of the advantage of the purchase of all shares offered for sale, within two months from the date of such notice, if a shorter period is not provided for by the Company's charter, stocks can be sold to a third party for the price and On the conditions that are reported to society and its shareholders. The term of the preemptive right provided for by the Company's Charter should be at least 10 days from the date of the notice by the shareholder, intending to sell its shares to a third party, other shareholders and society. The term of the preemptive right is terminated if before its expiration from all shareholders of the Company received written statements about the use or refusal of the use of preferential law (paragraph was introduced by the Federal Law of 07.08.2001 N 120-FZ).

When selling shares with a violation of the preemptive right to acquire any shareholder of the Company and (or) Society, if the Company's Charter provides for the preemptive right to acquire shares by the Company, has the right for three months from the moment that a shareholder or society learned either should learn about such a violation, to demand Judicial procedure for the transfer of the rights and obligations of the buyer (paragraph was introduced by the Federal Law of 07.08.2001 N 120-FZ).

The assignment of the specified preemptive right is not allowed (paragraph is introduced by the Federal Law of 07.08.2001 N 120-FZ).

Societies, the founders of which are in cases established by federal laws, the Russian Federation, the subject of the Russian Federation or the municipal formation (with the exception of societies formed in the process of privatizing state and municipal enterprises) can only be open.

Size of authorized capital:

For JSC at least 1000 minimum wages at the date of registration of the Company

For at least 100 minimum wages at the date of registration of the Company

The openness of the joint-stock company is also expressed in the fact that OJSC is obliged to regularly publish for universal information and submit a number of information about its activities to the controlling authorities (annual report, accounting balance, profit and loss account, securities reports, etc.).

The most controversial issues relating to regulating the activities of closed joint-stock companies can be divided into three groups.

First group - Questions related to the definition of a closed joint-stock company.

In accordance with paragraph 3 of Art. The 7 of the Law "On Joint-Stock Companies" to the closed include those societies whose shares are distributed only among its founders or other, in advance of a certain circle of persons.

Comparison of this definition with definition data in Regulations on joint-stock companies approved by Resolution of the Ministerial Council of the RSFSR on December 25, 1990 No. 601This allows us to conclude that the definition of a closed joint-stock company has undergone significant changes. So, in the position of the closed society, this was recognized, whose shares "can move from one person to another only with the consent of the majority of shareholders ...". Thus, in law, the definition of a closed society is given through the description of the possibilities of the Company itself to realize the rights to the distribution of shares, in the Regulation - through the description of the opportunities of the shareholders themselves by order of their own shares. A different approach to the definition of a closed society has identified qualitative differences in the closing mechanism of society. And if in the first embodiment of the society in the first embodiment of the Company in the additional consent of one shareholders to the alienation of the shares by others, then in the latter it is not. The closeness of society in the new law is achieved through the distribution by the Company of the Shares only among its founders or other, predetermined a number of persons.

Such an approach to the "closure" of the joint-stock company is unusual for Russian practice, therefore, it may lead to a lot of errors when applied. First of all, the complexity will arise in the designation of the so-called predetermined circle of persons. There are a number of questions that the law does not give a response, but which will necessarily appear when applying this norm.

First, where is the line behind which a predetermined circle of persons will not turn into an unlimited circle of individuals? After all, the law says nothing about the criteria for determining such a circle. It may be a binding to the place of work, or to a profession, or to education, or to nationality, and a more complex version of the type of shareholders and employees of society is possible. There are many options, but which is correct, the law does not clarify.

Secondly, how to deal with criteria for legal entities, which can also be (and, most likely, will) shareholders of closed societies? Practice shows that in the preparation of changes and additions to the charter or in the development of his new edition, it is this issue that eats the attention of the heads of closed joint-stock companies. The Law of the Russian Federation "On Joint-Stock Companies" established a term of bringing the charters of joint-stock companies in accordance with the new law - until July 1, 1997, but in most cases the decoding of this provision did not find in the charters of its reflection. But if the charter will not be determined a circle of individuals, among which shares may be distributed, it will actually be limited only by the founders of the joint-stock company. This means that the joint stock company will be deprived of the opportunity to increase the number of their shareholders. Depending on the situation, this can play both positive and negative role. An example of the latter can be the situation when even if there are declared shares and the possibilities of adoption by the Board of Directors, the decision to increase the authorized capital and the introduction of a change in the charter will not be sold to the promotion of a possible investor without the additional convening of a shareholder meeting and make them a decision about three quarters of votes of voting shares. To exclude the possibility of such complications, it is possible to offer the following formulation to the Charter of the Company, which is already used in the practice of joint-stock companies: "The Company has the right to place its shares among shareholders, as well as among legal and / or individuals according to the list approved by the Board of Directors (the Supervisory Board ) When deciding on the conditions and timing of a closed subscription ".

At the same time, providing the right to the Company itself to determine the circle of individuals, among which it will be possible to distribute shares, to establish their number and thus regulate the "quality" and the number of shareholders adopted, the law opens unlimited possibilities of "penetration" in the Closed Joint Stock Company of any individuals and legal entities through the acquisition of shares at the shareholders themselves . This is the second group of issues that require clarification..

If you analyze the provisions of paragraph 2 and 3 of Art. 7 of the Law of the Russian Federation "On Joint-Stock Companies" at an angle of view of the opposition of an open society closed, the new question will inevitably arise: why is it in relation to the shareholders of an open society by law specifically stipulated the right to alienate the shares owned by them without the consent of other shareholders of this society? After all, if the law does not specify any restrictions on the alienation of shares by shareholders of a closed society, the special provision for this for the shareholders of an open society loses meaning. If this provision is perceived as a standard that determines the differences in the empowerness of the shareholders of a different type of societies, then in the norms regulating the rights of shareholders of a closed society, should contain any restrictions on the alienation of their shares.

In this situation, it would be logical to associate the possibility of shareholders to alienate their shares with those persons who fell into the same "pre-defined circle of persons." But the law does not directly envisage the law, as, however, does not provide for the establishment of any restrictions on this account in the Company's Charter.

It would seem that in support of the lack of need for such restrictions, the norm on the preemptive principle of shareholders of a closed society is introduced to acquire shares sold by other shareholders. However, this right can be implemented by a shareholder only on the "price of the offer to another person."

In the provisions of the law there are no regulators to implement such a right. Therefore, developers of the charters of closed joint stock companies you can give the following recommendation to eliminate this space: It is necessary to specifically "decipher" the meaning of the position of the "offer price to another person" and the procedure for applying this norm in the Charter. For example, this can be done in this form: "The price of the offer to another person is the price of the action, established by the seller's shareholder itself, according to which the person who agreed to acquire it can redeem it only after the end of the action of preferential rights to acquire shares by shareholders and the Society itself.

If the action does not redeem at this price and the seller's shareholder establishes a new, lower offer price, then this again entails the emergence of the advantage of the Company's shareholders and society itself. Next, the procedure for buying a promotion and the consequences of it are repeated. Establishing each new offer price to another person restores the preemptive right of shareholders of this society and the Company itself of the acquisition of shares sold by other shareholders of this society. "

But even following this recommendation does not exclude the possibility of such a situation where the society itself is not entitled to conduct an open subscription to the stock produced by him either otherwise offer them for the acquisition of an unlimited circle of persons, and a shareholder regardless of the size of its share package can actually offer their shares without any restrictions. Moreover, a situation is possible when a shareholder donates its shares, for example in the form of a donation. In such cases, the law does not at all envisage any preferential rights from other shareholders. As a result of this, non-controlness not only the "quality" of shareholders, but also their quantities, although the limit number of shareholders established by law should not exceed fifty people.

This moment is associated with a third group of issues.

Indeed, limiting the limit number of shareholders of a closed society with fifty-share shareholders, the law seemingly provided for the impossibility of unlimitedly widespread shares. Additionally, this requirement is provided by a sufficiently rigid norm of paragraph 3 of Art. 7 of the Law of the Russian Federation "On Joint-Stock Companies", which determines that if the number of shareholders of a closed society exceeds the established limit, then within one year it must be transformed into open. If the number of shareholders does not decrease to fifty, society is subject to liquidation in court

However, in paragraph 4 of Art. 94 The law limited the application of this norm by extending it only to closed societies, which were created after January 1, 1996, and, accordingly, eliminated its application for closed joint-stock companies created before the law into force, i.e. until January 1, 1996

Analysis of paragraph 4 of Art. 94 of the law shows that the provisions of this paragraph were formulated by the legislator, quite peculiar. This item reads: "The provisions of paragraph 3 of Article 7 of this Federal Law do not apply to closed societies established before the introduction of this Federal Law."

At the same time, we have just considered three groups of issues that are regulated by the provisions of clause 3 of Art. 7 of the Law: The first - the right of the company itself on the allocation of their shares; the second is the preferential rights of shareholders of the Company to acquire shares sold by other shareholders; Third - restrictions on the number of shareholders.

However, from the text of paragraph 4 of Art. 94 of the law it follows that none of the provisions governing these issues do not apply to closed societies created before entering into force the law. Is it so?

Let's start with the empower society on the allocation of their shares. First, the Regulation on joint-stock societies of December 25, 1990, then Art. 97 of the Civil Code of the Russian Federation completely unequivocally established a ban for closed joint-stock companies to conduct an open subscription and on the proposal of their shares to acquire an unlimited circle of persons and, accordingly, the possibility of their distribution among founders or other, predetermined a number of persons.

Article 97 of the Civil Code of the Russian Federation extended these duties and rights to all closed joint-stock companies regardless of the date of their institution, since Art. 5 of the Federal Law "On the introduction of part of the First Civil Code of the Russian Federation" unambiguously established: "Part of the first Code applies to civil legal relations arising after its introduction. According to civil relationships, which arose before its introduction, part of the first code applies to The rights and obligations that will arise after the introduction of it. " Thus, the position of the Civil Code of the Russian Federation on the possibility of a closed society to distribute its shares only among the founders or other, a predetermined circle of individuals, taking into account the prohibitions already described, cannot be seized from the regulation of the empowerment of a closed society.

Further on the beneficial rights of shareholders. Along with the above argument, which is also applicable and in this case, the right to prevail shares is carried out by shareholders also in accordance with the general rules set out in Art. 250 GK of the Russian Federation. These rules are that when selling a share in the right of the common ownership of a foreign person, the remaining participants in share ownership have the preferential right to buy the selling share in price, for which it is sold, and on other equal terms, except for the case of sales from public bid. When selling a share with a violation of the preemptive right of purchase, any other participant in equity ownership has the right for three months to demand the transfer of rights and obligations of the buyer in court. Thus, the preferential rights of shareholders of a closed joint-stock company for the acquisition of shares sold by other shareholders of this company cannot be removed from regulating the empowerment.

And finally, restrictions on the number of shareholders. On this issue of Art. 97 of the Civil Code of the Russian Federation does not establish any restrictions, indicating that specific quantitative restrictions will be established by law "On Joint-Stock Companies". Having giving a law on the decision of the issue of the maximum number of shareholders of the Closed Joint Stock Company, the Civil Code of the Russian Federation gave the opportunity to determine the circle of closed joint-stock companies, which will be distributed to this restriction.

Thus, despite the fuzzy formulation of paragraph 4. Art. 97 of the Law of the Russian Federation "On Joint-Stock Companies", all the above arguments prove that the norms of paragraph 3 of Art. 7 of the law that do not apply to closed joint-stock companies established before January 1, 1996 concerns only the provisions establishing the limit number of their shareholders, and do not affect all other provisions.

The consequences of this approach are estimated ambiguous. On the one hand, this assessment is positive, since in the process of transforming a number of enterprises in joint-stock companies (for example, rental enterprises with the right to buy property or already bought it) a large number of closed joint-stock companies were created with the number of shareholders, significantly exceeding fifty - from two hundred up to several thousand. Position of art. 94 of the Law of the Russian Federation "On Joint-Stock Companies" creates quiet conditions for the work of those organizations that, in accordance with the law in force at the time of their creation, could choose a completely defined type of joint-stock company and not change it. On the other hand, this assessment can be considered negative, since the law not only does not contain any regulators of the number of shareholders for such closed joint-stock companies, but does not provide for any "fixing without the right to change" their number on a specific date. Currently, it provokes the emergence of completely abnormal, in our opinion, the situation when the number of shareholders of a closed society, several times higher than the limit, can continue to increase. And if it is to associate with the possibility of shareholders to sell your shares unlimited circle of persons, we will see that an attempt to close society through a quantitative criterion is not always applicable.

3. Legal status of joint stock companies

3.1. Characteristics of the legislation of the Russian Federation on joint stock companies

Describing the legislation of the Russian Federation on joint-stock companies, first of all, it is necessary to note the two most important features:

• relatively short time period of the formation of a system of regulatory acts;
  • the presence of four "special" groups of joint-stock companies, whose features of the creation and legal status of which are governed by special regulatory acts (PP 3, 4, 5 of Article 1 of the Law of the Russian Federation "On Joint-Stock Companies". RF Law "On the peculiarities of the legal status of joint-stock employees of employees ( folk enterprises) "Dated July 19, 1998 No. P5-FZ).

In accordance with the classical approach to the system of sources of law, all legislation on joint-stock companies can be systematized as follows according to the degree of reduction of legal force:

Constitution of the Russian Federation - Many call it as an element of legislation on joint-stock companies. The role of the Constitution of the Russian Federation in the regulation of joint-stock relations is as follows: first, Article 30 of the Constitution guarantees the right of everyone to the union, and the joint stock company is the association to achieve common goals, secondly, Article 35 of the Constitution guarantees the right of private property in the Russian Federation. The form of ownership, which was characterized by joint-stock company, is private, thirdly, the Constitution proclaims a number of generally generals, which in many situations can serve as a reliable guarantee to ensure the rights of a joint stock company as a subject of law. Article 46 of the Constitution guarantees the protection of rights and freedoms, makes it possible to appeal against the actions (inaction) of government bodies, local governments and officials. In practice, there are unreasonable refusals to the state registration of joint-stock companies, which are subsequently successfully appealed in court.

Recognized norms of international law and international treaties of the Russian Federation In accordance with Article 15 of the Constitution of the Russian Federation and Article 7 of the Civil Code of the Russian Federation, are an integral part of the legal system of the Russian Federation. The norms of international law are contained in the UN Charter, Declarations and Recommendations of the UN General Assembly and other documents. The norms of international law are usually applied to joint-stock relations with a foreign element. Generally accepted norms of international law and international treaties have priority to the legislation of the Russian Federation in the case of a collision. As an example of such an international treaty, an agreement can be brought between the USSR government and the Government of the Republic of Cyprus on the avoidance of double taxation of income and property of October 29, 1982. International treaties concluded by the USSR maintain legal force (as the Russian Federation is the successor of the USSR) until one of the parties declared his denunciation.

Federal laws of the Russian Federation are the main element of the legislation of the Russian Federation on joint-stock companies. These include:

codified act - Civil Code of the Russian Federation, in which chapter 4 "legal entities" is of particular importance;

rF Law "On Joint-Stock Companies" from December 26, 1995 No. 208-FZ (as amended by Federal Law of 07.08.2001 N 120-FZ);

law of the Russian Federation "On the privatization of state property and the foundations of privatization of the municipality of property in the Russian Federation" dated July 21, 1997 No. 123-FZ;

rF Law "On the peculiarities of the legal status of joint-stock employees (folk enterprises) dated July 19, 1998 No. 115-FZ;

rF Law "On the Securities Market" of April 22, 1996 No. 39-FZ and some other laws containing certain standards relating to joint-stock companies.

According to the relations arising before the introduction of the relevant law, it applies only to those rights and obligations that arose after its entry into force, however, if in the adopted law it is directly indicated that its action applies to the relationship that emerged earlier, it is considered That this law is downtrent. The reverse force may be attached to the law in order of exception. Usually, the priority has a law with a later date of adoption (which does not apply to the Civil Code of the Russian Federation, having an absolute NPEOP, among all civil laws). The law acts, as a rule, throughout the TEPPIATURE of the Russian Federation in relation to all persons on the specified territory, and to the period specified in it or to directly, or until the new law enters into force, which is canceled or replacing the content of the previously active.

Puttitude regulatory acts Play a significant role in regulating joint stock relations. These include: decrees of the President of the Russian Federation, the Decree of the Government of the Russian Federation, the regulations of the Ministerial Ministerial Activities, departments, other federal executive bodies, among which the Federal Commission for the Securities Market Market, the Ministry of Government Property. Finance finishing, Ministry of Economy, Ministry of Justice and the Ministry of Antimonopoly Policy and Entrepreneurship Support.

Recently, interdepartmental regulatory regulations often appear.

Decrees of the President and Resolution of the Government accounts are subject to official publication (except for acts or specific provisions of the State Taine), departmental acts must be registered with the Ministry of Justice of the Russian Federation.

Summer regulations can be a common and special nature. Warning regulatory acts of a general nature establish common for all joint-stock societies of the RUSSIA (Decree of the Federal Tax Service of the Russian Federation "On Approval of the Regulations on the Jobs of PEECTPA Owners of Normal Securities" OT 2 October 1997 No. 27), while the acts of a special nature will peggylize features peculiar to individual joint-stock Societies (Order of the Ministry of Economy of the Russian Federation "On the Procedure for Registration of Joint-Stock Companies with Foreign Investments" of February 7, 1996 No. 2).

Separately, to dwell on the sub-banner regulatory acts of the USSR and the Russian Federation, adopted before the introduction of the Civil Code of the Russian Federation. In practice, these acts create the greatest difficulties, because They are still applied in a part that does not contradict the GC. As an example of one of these acts, which is valid to the present (with changes and additions), it is possible to bring the disposal of the President of the Russian Federation No. 58-RP on the Board of Directors of the Directors of RAO Gazprom and posting his shares among citizens of the Russian Federation "Dated January 26, 1993. Regulatory acts of the President of the Russian Federation and the government on issues that, by virtue of the GC, should be resolved by federal laws, are applied up to the introduction of relevant laws (Decree of the President of the Russian Federation "on streamlining state registration of enterprises and entrepreneurs in the territory of the Russian Federation of July 8, 1994 No. 1482 acted Up to the adoption of the Law of the Russian Federation "On State Registration of Legal Entities").

Legal customs (customs turnover), those. Such rules that, firstly, are sufficiently established and defined in their content, secondly, widely used and having no high-social nature, thirdly, the scope of their application is limited to entrepreneurial relations, fourth, not provided for by the current legislation. Based on the analysis of the content of articles 5 and 6 of the Civil Code of the Russian Federation, it can be concluded that legal customs are applied there and wherever the gaps of legislation are found not rented by the Agreement of the Parties. As legislation improves the legislation, a number of customs of business turnover receives consolidation in regulatory acts. So, an unwriting rule that the general meeting of shareholders is conducted by the Chairman of the Board of Directors, it was reflected in paragraph 2 of Article 67 of the Federal Law "On Joint-Stock Companies".

The question of whether the sources of legislation on joint-stock companies are acts of judicial and arbitration practice It is the subject of numerous discussions. These acts to those (sources) do not relate, although they play a significant role in replenishing the gaps in the current legislation. We give one practical example: in the judicial authorities, carrying out legal entities, while trying to register changes to the charter of the joint stock company, was denied registration under the pretext that the size of the share capital of the Company at the date of registration of changes was lower than the limit set by law - 100 Marot. Clause 5 of the joint decree of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court No. 4/8 of April 2, 1997 explained that in this case it meant the size of the authorized capital at the time of the primary registration of the Company.

Local acts of joint-stock companies - In the emergence of these acts, which, however, are very conventionally attributed to sources of law regulating joint-stock coverage, the method of civil law regulations is fully manifested, for which the autonomy of the will of the participants, the freedom of the contract, the inadmissibility of arbitrary interference in private cases, the possibility of choice between different behaviors. Local acts of joint-stock companies are reasonably divided into two groups: Internal acts and authorized by the state Charters and other documents (authorization manifests itself in state registration and approval, for example, the charters of joint-stock societies created in the privatization of state unitary enterprise). Among the internal acts it is necessary to allocate various provisions, namely, about the distribution and use of profits, about the securities of societies, about PeeCTPE shareholders of the Company, etc. It is impossible not to note the exceptional importance of local acts of the joint-stock company, which allow you to fill the gaps that are available in the legislation. In a joint-stock company, in the absence of the Board of Directors, the question arises: "Who will sign a contract with the Director-General on behalf of the Society?" Making a standards of obliging shareholders in the charter, together with the decision to elect the Director-General to appoint a person who will sign a contract with it, allows you to get out of a legal deadlock.

In the list of sources of "shareholder law", some authors also belong to Contracts. This position is controversial, because, although the founders and conclude a written agreement on its creation, which is a simple partnership agreement, but such a contract generates legal consequences only for a certain circle of persons - founders of society. In addition, in accordance with paragraph 3 of the joint decree of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation for the number 4/8 of April 2, 1997, the agreement on the creation of a joint stock company is not a constituent document of the latter, which further narrows the scope of its application.

At the same time, an agreement can be concluded between the main n daily societies, which allows the main society to give subsidiary mandatory for the last instruction. The legal nature of such a contract causes a lot of issues. So, the practice of privatization knows a number of examples when the holding of the Ministry of Ministries is created. The Glavk is transformed into an open joint-stock company, some of whose shares are distributed among employees of enterprises previously united in the specified Glavk. The former mastercade (now OJSC) becomes the owner of 100% of the shares of all enterprises entering it (now OJSC). Obviously, the refusal of signing the specified contract in practice will lead to the immediate dismissal of the Director General of the subsidiary. In such conditions, talking about freedom of the contract is simply inappropriate, because The previously existing administrative dependence has acquired a new quality, consolidating through the abuse of the right in the framework of joint stock relations.

3.2. Features of the legislative regulation of the creation and legal status of some groups of joint stock companies

Article 1 (PP 3, 4, 5) of the Law of the Russian Federation "On Joint-Stock Companies" establishes that its action applies to all joint-stock companies created or created on the territory of the Russian Federation, but with certain restrictions established by federal laws relating to four groups societies. These restrictions concern:

• joint-stock companies in the field of banking, investment and insurance activities;
• joint-stock companies created on the basis of reorganized in accordance with the Decree of the President of the Russian Federation "On urgent measures but the implementation of land reforms in the RSFSR" collective farms, state farms and other agricultural enterprises, as well as peasant (farmer) farms serving and service enterprises of the agro-industrial complex: enterprises technical supply, repair, agricultural chemicals, forestry, rural energy enterprises, seeding stations, vegetable processing enterprises;
• joint-stock companies established in the process of privatizing state and municipal enterprises;
• joint-Stock societies of workers (folk enterprises).

Features of the creation and legal status of joint stock companies first group Pugify: Law of the RSFSR "On Banks and Banking Activities" on December 2, 1990 No. 395-1, the Law of the RSFSR "On the Central Bank of the RSFSR (Bank of Russia)" OT 2 December 1990 No. 394-1, the Law of the Russian Federation "On the organization of insurance In the Russian Federation "dated November 27, 1992 No. 4015-1, the Law of the RSFSR" On Investment Activities in the RSFSR "OT 26 June 1991 No. 1488-1. as well as other legal acts of the Russian Federation, adopted before the enactment of the Law of the Russian Federation "On Joint-Stock Companies". Characteristic features of special regulation are:

a) establishing a closed list of activities;

b) determining the minimum amount of the authorized capital and the ratio of its monetary and non-monetary parts;

c) establishing special competence of special bodies to carry out state registration and supervision of the activities of relevant legal entities.

Joint-stock companies belonging to second group represent enterprises of the agro-industrial complex. Some of the Federal Laws, which refers to the Russian Law "On Joint-Stock Station", has not yet been adopted, therefore, in accordance with paragraph 5 of Article 94 of this law, the named group of joint stock companies is valid on the basis of the legal acts of the Russian Federation adopted before the law enforcement RF "On Joint-Stock Companies", to which include: Decree of the President of the Russian Federation "On urgent measures to implement land reform in the RSFSR" of December 27, 1991 No. 323; Decree of the President of the Russian Federation "On the peculiarities of the privatization of enterprises for the primary processing of agricultural products, production and maintenance and logistical support of the agro-industrial complexes" OT on December 20, 1994 No. 2005; Decree of the Government of the Russian Federation "On the procedure for the reorganization of collective farms and state farms" OT 29 December 1991 No. 86, Decree of the Government of the Russian Federation "On the procedure for the privatization and reorganization of enterprises by the agro-industrial complex" OT on September 4, 1992, "Regulation on transformation into joint-stock companies of cooperative-state enterprises, Organizations and their associations in the agro-industrial complex ", approved by the Decree of the Government of the Russian Federation of March 29, 1994 No. 200 and others. The main features of the creation and legal status of joint-stock companies of the agro-industrial complex are mainly due to the fact that the main component of the manufacturing process in agriculture is the Earth. For individual enterprises, when they are converted to joint-stock companies, mandatory conditions for the conservation of one or more activities are established. These restrictions affect, for example, tribal cone.

To the third group Compound joint-stock companies created during the privatization of state and municipal enterprises. It is obvious that during the privatization process, which is regulated by a significant number of regulatory acts, the joint-stock company itself is not yet. Features of the creation and legal status of these joint-stock companies are established by regulatory acts on privatization. The RF Law "On the Privatization of State and On Fundamentals of the Privatization of Municipal Property" OT July 21, 1997 No. 123-FZ, decrees of the President of the Russian Federation "On Organizational Measures to Transform State Enterprises, Voluntary Associations of State Enterprises to Joint-Stock Company" OT July 1, 1992 of the year No. 721, "On the State Program of Privatization of State and Municipal Enterprises in the Russian Federation" OT on December 24, 1993 No. 2283, "On the main provisions of the State Program for the Privatization of State and Municipal Enterprises in the Russian Federation" OT 22 July 1994 No. 1535, "On Measures for Protection of the rights of shareholders and ensuring the interests of the state as a dancer and shareholder "OT 18 AVHSU 1996 No. 1210; Decisions of the Government of the Russian Federation. Privatization of individual enterprises can be regulated by special regulatory acts.

In a number of characteristic features inherent in joint-stock companies created in privatization, it is necessary to allocate the following:

a) in the case of the application of special law ("Golden" shares)representatives of the Russian Federation, the constituent entities of the Russian Federation, municipalities are entitled to participate in the general meeting of shareholders, and also have the right of veto when making a general meeting of shareholders of decisions on amendments and additions to the charter of an open joint stock company or approval of the Charter of the Open Joint Stock Company in a new edition , on the reorganization of an open joint-stock company, on the elimination of an open joint-stock company, appointment of the liquidation commission and on the approval of the interim and final liquidation balances, on the change in the size of the authorized capital of the Open Joint Stock Company, on the conclusion of the Russian Law "On Joint-Stock Companies" transactions and transactions of an open joint-stock company, in which there is an interest;

b) Special requirements are imposed on the subject of the buyers of state and municipal property: in the privatization of state and municipal property, state and municipal unitary enterprises, government enterprises, state and municipal institutions, as well as other legal entities, in the authorized capital of which the share of the Russian Federation, the subjects of the Russian Federation and municipalities exceed 25%, can not be buyers of such property;

c) a special order of voting at the general meeting of shareholders in certain cases: from among the shares created in the privatization process of an open joint stock company, which is owned by a specialized institution (the Ministry of Public Property, etc.), the right of voting in general meetings of shareholders may have no more than 25% of the shares plus one share of the total number of shares of the specified open Joint Stock Company. Other shares of an open joint-stock company owned by a specialized institution, regardless of their number until the sale of investors are nonflowing and not taken into account when determining the quorum and counting votes in general meetings of shareholders;

d) a special procedure for the right of compatibility on the shares of joint-stock companies, created in privatization when acquiring them at the competition: ownership of the shares of an open joint stock company from the composition of state or municipal property, which is implemented at the commercial competition, passes to the winner of such a competition after certain investment and / or social conditions.

RF Law "On Joint-Stock Companies "Determines the time frame Privatization process. Legal standards that establish the peculiarities of the legal status of the considered group of joint-stock companies have been valid from the moment the competent authority is adopted to privatization until the state alienation by the state or the municipal formation of 75% of the shares belonging to them, but no later than the expiration date of the privatization established by the privatization plan of this particular enterprise. In practice, the start date of the privatization is easy to determine, and with the establishment of the expiration date there are many difficulties. There are cases when a significant package of shares is owned by the state or municipality of several years or for a long time is declared "Golden Promotion". In this case, the privatization process is considered unfinished. The deadline for the end of privatization is usually not indicated that it makes it difficult to use this criterion. To eliminate the uncertainties and ensure a single interpretation of the norms of the Law of the Russian Federation "On Joint-Stock Companies" Joint Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation in the decision of April 2, 1997 № 4/8 explained:

1) that if, in accordance with the legislation on privatization in state ownership, the Company's shares package (51.38 or 25.5%) is established for a certain period, then the term of privatization is the deadline for which the state's property is enshrined;

2) at the end of the privatization period or from the moment when the number of shares owned by state or municipal education will be less than 25% of their total number, the Company's activities are fully implemented in the regulation of the Law of the Russian Federation "On Joint-Stock Companies",

3) If, when privatizing the enterprise, the "golden" action was produced, then the rights granted to it are preserved for its holder for the entire period of its action.

On the fourth group The joint-stock companies of employees (folk enterprises), the features of the creation and legal status of which are determined by the Law of the Russian Federation "On the peculiarities of the legal situation of joint-stock employees (folk enterprises)" dated July 19, 1998 No. 115-FZ, which entered into force on October 1, 1998.

The people's enterprise can be created only as a result of the reorganization of an already existing commercial organization, except for state and municipal unitary enterprises and open joint-stock companies, in which employees own less than 49% of the shares. Despite the fact that the national enterprise is a closed joint-stock company, its authorized capital cannot be less than 1000 minimum wages at the date of registration, the nominal value of one share should not exceed 20% of the minimum wage to the specified date, and the number of shareholders can be within up to 5,000 people.

The employee of the people's enterprise cannot have over 5% of the Company's shares. In case of exceeding the specified size, it is obliged to sell society, and the last must buy excess stocks at their nominal value. In the case of dismissal from the enterprise, the employee is also obliged to sell its shares to society, but already at redemption cost, and society must redeem these shares. The law establishes the Company's responsibility for fulfilling the obligation to redemption of shares - Article 395 of the Civil Code of the Russian Federation is applied. The responsibility of the employee for fulfilling the obligation to sell shares is not established.

At the request of the shareholder's creditors, if to meet the requirements of the last insufficient property of the debtor, society is obliged to buy out shares from him and pay their redemption costs.

The employee of the people's enterprise has the right to sell only 20 and less percent of the shares belonging to him with other employees of the enterprise or society itself.

Dividend for shares can be paid no more than once a year.

The action of Article 75 of the RF Law "On Joint-Stock Companies" is distributed only on those shareholders who are not employees of the enterprise, including legal entities.

According to some issues of the agenda of the General Meeting of Shareholders (Society Reorganization), a special voting procedure is applied: 1 shareholder - 1 vote.

Completing the consideration of the peculiarities of the creation and legal status of the allocated groups of joint-stock companies, it should be noted, since the Law of the Russian Federation "On Joint-Stock Companies" refers to special legal regulation only the features of the creation and legal status of the considered groups of societies (except for popular enterprises, which are not said in the law) , in everything else, which is not resolved by special legislation, one should be guided by the general law, which is the Law of the Russian Federation "On Joint-Stock Companies" dated December 26, 1995 No. 208-FZ.

3.3. Development of the regime of distinctive features of the legal status of open and closed joint-stock companies in the light of the Federal Law of 07.08.2001 N 120-FZ

As already noted in Section 2.3, the closed joint-stock company has the following list of features of its legal status in relation to open society.

Firstly. The limit number of shareholders of a closed society has been established, which should not exceed 50 persons. An exception to the specified restrictions are cases of creating a closed society with a greater number of shareholders before January 1, 1996 (paragraph 3 of Art. 1 , p. 4 art. 94 of the new AO Law).

Secondly. The ban on the placement of additional shares and other issuing securities convertible into stocks, by means of a closed subscription (clause 3 of Article 7, paragraph 2 of Article 39 of the new AC).

Thirdly. By virtue of Art. 92 The new law on JSC has established various regimes of disclosing information of closed and open societies.

Fourth. The preemptive right of shareholders of a closed society to acquire shares sold by other shareholders to third parties (paragraph 3 of Article 7 of the new AO Law) was established.

Fifth. There are various requirements for the minimum size of the authorized capital of closed and open societies (Art. 26 of the new law on JSC).

At sixth. The Russian Federation, the subject of the Russian Federation, the municipality (clause 4 of Article 7 of the new AO) cannot be among the shareholders of closed societies.

The list of these features has not changed due to the adoption of the new AO Law. However, some refinements of these modes take place.

The limit number of shareholders

The new law on AO was changed unsuccessful norm of paragraph 4 of Art. 94 of this law in the old edition (hereinafter - the Old Law on JSC).

Indeed, by virtue of paragraph 4 of Art. 94 of the Old Law on JSC was found that the provisions of paragraph 3 of Art. 7 of the AO Law does not apply to closed societies established before January 1, 1996. At the same time, with the formal application of this regime, closed joint-stock companies, created before the specified period, not only had the opportunity to have a number of shareholders exceeding 50 persons, but also in fact, when selling shares to shareholders to third parties, other shareholders had the opportunity to take advantage of the advantage of the acquisition of shares.

New edition of paragraph 4 of Art. 94 of the Law on JSC assumes that not all the norms of the considered paragraph, but only the position of paragraphs of the second and third paragraph 3 of Art. 7 of the law on JSC (restrictions on the number of shareholders) are not applied to closed societies established before January 1, 1996.

Thus, these companies may have an unlimited number of shareholders. In all, they are distributed on them the general regimes established by the new law on JSC for closed societies.

However, the question of the possibility of further increasing the number of shareholders of such societies remains unresolved.

Indeed, suppose a closed joint-stock company as of January 1, 1996 had 100 shareholders. This society has the right to have a specified number of shareholders and now. However, the question arises: whether the number of shareholders becomes more than 100 as a result of posting shares on a closed subscription, as well as as a result of the alienation of shares to third parties to the Company's shareholders?

It is believed that the number of shareholders of such societies should not increase in relation to the number of shareholders who have been from the Company as of January 1, 1996.

Apparently, with this approach should agree. The legislator under the circumstances is given the right to exist with closed societies with the number of shareholders exceeding 50 persons, however, the possibility of further increase in the number of shareholders by law on AO is not provided.

PRESENTAL RIGHTS OF PRESSING ACCESS

The greatest questions of the specifics of the legal status of a closed society causes the procedure for the implementation of the preemptive right to acquire shares sold by shareholders to third parties.

The new law on AO was clarified by this order (paragraph 3 of Art. 7 of the Law on JSC). Thus, the Old Law on JSC, which assumed that the shareholders of a closed society have the preemptive right to acquire shares sold by other shareholders of this company, at the price of the proposal to another person, nevertheless, did not specify the procedure for the implementation of the specified preemptive right.

Indeed, some alternative to the procedure for the preemptive right to acquire shares was allowed. What can be explained in the following example.

For example, a closed joint-stock company has four shareholders. At the same time, the shareholder and owns 51 percent of the Company's shares in the amount of 51 shares. Shareholders B, B, G, respectively, own 20, 20, 9 percent of the shares.

Suppose that the shareholder is, having a desire to sell all the stocks belonging to him, found a potential buyer who is not a shareholder of the Company, with whom the stock price has agreed and other essential conditions of the alleged transaction.

Based on the requirement of paragraph 3 of Art. 7 of the old law on JSC Shareholder and in writing notified shareholders B, B, g about his desire to sell the shares to a third party and, accordingly, suggested this shareholders to take advantage of the advantage of the acquisition of shares.

The shareholder b, having a desire to acquire all sold shares, presented the appropriate written acceptance shareholder and after 10 days from the date of the offer.

The shareholder also expressed a desire to acquire all sold shares. However, the corresponding letter was obtained by a shareholder and after 20 days from the date of the offer of the offer.

Shareholder G did not express a desire to purchase sold shares.

Thus, the desire to buy shares expressed two shareholders, but in different times.

The implementation of the preemptive right under the circumstances is presented in three different ways.

Firstly, The entire package in the amount of 51 shares can be acquired by the shareholder of B due to the fact that he first accepted the offer.

Secondly, The shareholder b and shareholder in acquire an equal number of shares sold, due to the fact that each of them accepts the offer within the limits established by law (charter). This procedure is to be applied in case of assuming that the present preemptive right is carried out in proportion to the declared shareholders in the acquisition of shares. (It should be noted that when applying the Old Law on JSC in the considered case, shareholders b and in could not acquire an equal number of shares, since the formation of fractional shares was not allowed. Some of them had to acquire 26 shares, but someone - 25 shares. The new AE law by virtue of its paragraph 3 of Art. 25 admits under the circumstances the formation of fractional shares).

Thirdly, Shareholders B and B acquire 21 shares, the remaining 9 shares can be sold by a shareholder and a third party, due to the fact that the shareholder B did not take advantage of the shares provided to him. This procedure is to be applied in case of assuming that the present preemptive right is carried out in proportion to the number of shares belonging to each shareholder of the Company.

The Old Law on AO did not give an answer, how the preferential right to acquire shares by shareholders of a closed society should be carried out, thereby suggesting that this issue should be solved by the Charter (paragraph 3 of Art. 7 of the Old Law on JSC). Charters of closed societies envisaged various legal regimes, and in some cases did not contain any clarifying standards, which caused significant difficulties in conflict situations.

The new ALC law contains a dispositive rate that establishes the procedure for the implementation of this preferential law.

So, in accordance with paragraph 3 of Art. 7 of the new Law on JSC Shareholders of the Closed Society enjoy the advantage of the acquisition of shares sold by other shareholders of this company, at the price of the proposal of a third party in proportion to the number of shares belonging to each of them if the Company's charter does not provide for another procedure for the implementation of this right. The shareholder of the Company, intended to sell its shares to a third party, is obliged to inform the other shareholders of the Company in writing and the society itself, indicating the price and other conditions for the sale of shares. In the event that the shareholders of the Company and (or) society will not take advantage of the preemptive right to purchase all shares offered for sale, shares can be sold to a third party for the price and conditions that are reported to society and its shareholders.

The assignment of the specified preemptive right is not allowed.

Thus, by default, the charter, shareholders enjoy the advantage of the acquisition of the action in proportion to the number of shares belonging to each of them.

It seems that such an order will not always be convenient, especially since in some cases it can lead to a violation of the rights of the seller or the buyer of shares. In addition, the ambiguous formulation of the outlined mode can lead to its different interpretation.

Indeed, what meant the legislator, establishing that if the shareholders of the Company and (or) society would not take advantage of the advantage of the acquisition of all shares perceived for sale, shares can be sold to the third lip. What shares can be sold to a third party? Whether only those shares, the advantage of the right to acquire the shareholders (part of the shares of the shares), is the entire package of shares, which has the desire to sell a shareholder.

In relation to the above example in the first case, the shareholder and the right to sell 9.36 shares to the third person. (Shareholders b and c, stating their desire to use the preferential right, will acquire 20 whole 82 hundredths of sold shares in proportion to their shares. Due to the fact that the shareholder g did not express the desire to acquire shares provided for by 9.36 shares for him can be sold to a third party). However, this procedure significantly violates the rights of the shareholder of the seller. Most likely, he will not be able to sell the third party specified 9.36 shares. Third party was ready to purchase 51 percent of the Company's shares, thereby obtaining a controlling stake. We spend money for the purchase of less than a decade-free package of shares for him is unlikely to be advisable. The seller not only could not sell the entire package of shares, but also remained with a part of the shares, which someone is unlikely to acquire.

In the second case, a shareholder and will be able to sell all the shares available in the amount of 51 pieces, which, apparently, it is quite suitable for this shareholder. However, in this case, the other shareholders of the Company are violated. After all, when using this approach, in the case when at least one shareholder of a closed society did not take advantage of his preemptive right, all other shareholders of the Company also deprive the specified law. Especially since By virtue of paragraph 3 of Art. 7 of the new Law on JSC assignment of the specified preemptive right is not allowed.

Another interpretation of the procedure for the application of the preemptive right, provided for by paragraph 3 of Art is possible. 7 of the new law on JSC). Shareholders have the preemptive right to acquire the shares sold in proportion to the number of shares belonging to each of them. However, as a base for determining the share of the preemptive right of each shareholder, the arithmetic amount of all shares of shareholders of the Company, potentially possessing this preemptive right, and the amount of shareholders shares, which, as established by the new Law on AO (Charter), took advantage of this right. With regard to the considered case, this will mean that the shareholders b and in are entitled to acquire each of them 50 percent of the shares sold. (Shareholder B and Shareholder B have 20 shares of the Company. The base for determining the share of preemptive right is 40 shares. At the same time, the shareholder shares are not involved in the definition of this base, since this shareholder did not declare its desire to purchase sold shares in the prescribed period) .

The most preferred is the third option, since in this case the shareholders have a real opportunity to take advantage of the advantage of the acquisition of shares, and the seller has a real opportunity to sell all the shares of which is accepted. However, as already mentioned, the formal reading of paragraph 3 of Art. 7 of the new law on AO does not give an answer, which one outlined options for the application of this preemptive right meant the legislator. In this regard, based on the disposition of the analyzed norm of paragraph 3 of Art. 7 of the new AO Law, it seems necessary to establish a detailed procedure for the implementation of this preemptive right in the Company's Charter.

Preferential right of society

Also, the charter of a closed society may be provided for the preemptive right to acquire shares sold by its shareholders if the shareholders did not use their preemptive right to acquire shares (paragraph 3 of Art. 7 of the new AO Law).

With regard to the case under consideration, the content of the specified norm in the Charter will mean that the society has the right to acquire shares on its balance sheet, the acquisition of which the shareholder refused to practice. In practice, some problems may arise the implementation of this preferential law by society.

Indeed, the overall procedure for purchasing a company of placed shares to its balance sheet is established by Art. 72 of the new AO Law. At the same time, this article of the law does not provide for the possibility of non-observation of the regimes established by it in the event of the acquisition by the Company of the placed shares in the order of the preemptive right established by paragraph 3 of Art. 7 of the new AO Law.

In accordance with Art. 72 of the new Law on JSC the decision to acquire shares is made by its General Meeting of Shareholders or Board of Directors. This decision should contain categories (types of acquired shares, the number of shares acquired by the Company of each category (type, purchase price, form and payment period, and the term during which the acquisition of shares is carried out (and. 4 Article 72 of the new AO Law) .

In addition, no later than 30 days before the start of the deadline, during which the acquisition of shares is carried out, the Company is obliged to notify shareholders-owners of certain categories (types), the decision to acquire which is made. At the same time, each shareholder is the owner of shares of certain categories (types), the decision to acquire which is made, has the right to sell these shares, and the society is obliged to acquire them. The period during which the acquisition of the action is carried out, can not be less than 30 days (Section 4, paragraph 5 of Art. 72 by the law on JSC).

In accordance with paragraph 13 of the information letter of the Presidium of the Supreme Court of the Russian Federation of April 21, 1998 No. 33 "An overview of the practice of resolving disputes on transactions related to the placement and application of shares" a transaction for the acquisition of joint-stock companies placed by the shares, committed with violation of the requirements of Art. 72 Snotty AO Law is insignificant.

Thus, if the society has a desire to acquire posted shares (including the implementation of the preemptive right established by paragraph 3 of Art. 7 of the Law on JSC), it is obliged to, among other things, to offer each shareholder of the Company (and not just a shareholder, having a desire to sell the shares to the third person) to sell shares to society. At the same time, the period from the moment of such notification of shareholders until the acquisition of shares cannot be less than 60 days. (30 days before the acquisition, the Company is obliged to notify shareholders, another 30 days are given to the acquisition of shares. At the same time, to acquire shares before the end of the last 30 days, the Company cannot, since it is possible that the number of shares, the acquisition of which is stated by shareholders will exceed the number Shares desired for the acquisition by society. In this case, the application of shareholders by virtue of paragraph 4 of Art. 72 of the new AO Law should be satisfied in proportion to).

However, in accordance with paragraph 3 of Art. 7 of the new law on JSC Society (as well as his shareholders) can take advantage of the advantage of the acquisition of shares within two months from the date of the notice of the shareholder of the seller of shares.

Consequently, there is a contradiction of the two norms of the new AO Law. The Society has the right to take advantage of the advantage of the acquisition of shares within two months from the date of his notice of this, and by virtue of paragraph 4 of paragraph 5 of Art. 72 of the new AO Society Act cannot acquire posted shares earlier than 60 days from the date of this decision.

In connection with the foregoing, it seems that in the exercise by the Company of this preferential law of Art. 72 of the new AO Law should not be applied (in any case, in terms of the observance of the acquisition of posted shares). Otherwise, the advantage of society established by paragraph 3 of Art. 7 of the new law on JSC cannot be implemented.

There is another collision between the new law on JSC and the Federal Law "On the Securities Market" (hereinafter - the Law on the RCS).

In accordance with paragraph 1 of Art. 8 of the Law on the RCB Legal entity engaged in registering owners of securities, not entitled to carry out transactions with securities registered in the register of the issuer's securities register. Thus, based on the fact that closed joint-stock companies, as a rule, and maintain a register of shareholders, it can be assumed that the Company's data are not entitled to carry out transactions to acquire their placed shares.

The forensic arbitration practice is allowed this contradiction. In accordance with the Decision of the Presidium of you RF Of February 1, 2000 No. 5784/99 is indicated that the named norm of paragraph 1 of Art. 8 of the Law on RCB regulates exclusively the activities of professional participants in the securities market (as indicated by the section of the Law on the RCS, in which it is contained).

Consequently, a ban on making transactions with shares by a legal entity leading the register of shareholders of these shares is covered only on professional registrars. Such a ban cannot be applied to joint-stock companies that carry out independent register of shareholders.

When implementing the Company of the preemptive right to acquire shares, problems may arise with the formation of fractional shares.

Indeed, in accordance with paragraph 3 of Art. 25 of the new law on JSC stipulated that if in the implementation of the preemptive right to purchase shares sold by the shareholder of a closed society, the acquisition of a shareholder of a whole number of shares is impossible, part of the action (fractional shares) are formed.

Thus, the indicated rule of law allows education of fractional shares only from shareholders and does not imply their occurrence of society. Consequently, in relation to the above example, the acquisition by society of 9.36 shares (from the acquisition of which the shareholder d) was refused to be problematic.

Order and timeline

The Old Law on AO did not provide for the procedure for notifying shareholders of a closed society about their preferential principle of acquisition of shares. In this regard, the seller shares obliged to implement the specified notice, practical problems could arise. Indeed, to send notifications to shareholders must have information about their postal addresses. This information is contained in the system of maintaining the register of shareholders of the Company. However, for a shareholder who has less than 10 percent of the Company's shares, this part of the shareholders registry was inaccessible. (In accordance with paragraph 5 of the Decree of the President of the Russian Federation of August 18 1996 No. 1210 "On measures to protect shareholder rights and ensuring the interests of the state as the owner and shareholder" data of the register of shareholders, including in terms of the addresses of shareholders, should have been provided to shareholders owning 10 percent of the Company's shares).

Thus, the shareholder owning a smaller number of shares has not had a technical ability to send the notice to other shareholders of the Company. No obligation was not entrusted and the Society itself.

This procedure is established by the new law on JSC, in accordance with which the notice of shareholders of the Company is carried out through society. At the same time, unless otherwise provided by the Company's Charter, the notice of shareholders of the Company is carried out at the expense of the shareholder, intended to sell its shares (paragraph 3 of Art. 7 of the new law on JSC).

The charter may be envisaged that the notification of shareholders about their preemptive shares has been carried out by society at its own expense.

By virtue of paragraph 3 of Art. 7 of the new law on JSC stipulates that if the Company's shareholders and (or) society do not take advantage of the preemptive right to purchase all the shares perceived for sale within two months from the date of such notice, if a shorter period is not provided for by the Company's charter, promotions can be sold to a third party for the price and on the conditions that are reported to society and its shareholders. The term of the preemptive right, provided for by the Charter, should be at least 10 days from the date of the notice by the shareholder, intended to sell its shares to the third Lipon, the remaining shareholders and society.

Thus, by default the statute, the specified period is two months. However, it can be reduced by the charter of at least 10 days.

The presence of this alternative is predetermined by the balance of interests of the shareholder of the seller and other shareholders of the Company. A two-month period may be inconvenient to the seller of stocks, since not every buyer-third person is ready to wait two months.

Conclusion

The materials analyzed in the preparation of this course work allow us to draw the following conclusions.

1. Forms of ownership are one of the determining elements of industrial relations, which, in turn, constitute the economic basis of the state state.

The joint stock ownership form, relatively with other forms, has the highest potential for the development of the economy and, accordingly, is the most widespread in modern society - both in developed foreign countries and in Russia.

2. Joint-stock relations in Russia have a sufficiently long history of development, distinguished by certain originality and specificity, especially in the period after the October Revolution. A new large impulse in the development of joint-stock ownership in Russia began in the 90s of the last century, with the beginning of the construction of a legal state.

3. The joint stock formation provides the possibility of centralizing funds (capital associations) of various persons conducted through the sale of shares in order to carry out economic activities and profit. Such a form of unification of subjects gives joint stock companies a number of advantages, which are the basis for their widespread dissemination at this stage of the development of the state.

4. The legal status of joint-stock companies in Russia is determined and regulated by law. To date, domestic legislation regulating the activities of joint-stock companies should be recognized as fairly established. At the same time, it allows him to make sure that the number of its norms require further development and refinement to eliminate existing and newly emerging legal conflicts.

BIBLIOGRAPHY

List of used literature

1. Asoskov V.V. "Joint-Stock Company in the Russian Federation", www.ropnet.ru/pages/lawyer/ao.htm

2. Dolinskaya V.V. "Law on JSC: legal entities", "State and Law" magazine, No. 7, 1996

3. The Law of the Russian Federation "On Joint-Stock Companies" dated December 26, 1995, civil and entrepreneurial law - the general part, a collection of documents. Compiler: Bogachev T.V.; M- 1996, manuscript.

4. HISTORY OF JOINT-STOCK RELATIONS IN RUSSIA. http://rocotech.narod.ru/

5. Kashanin T. V., Kashanin A.V. Basics of Russian law. Moscow, 1997

Kitchensky N. How to create joint stock company., Economics and Life, 1996 No. 27.

6. Commentary to the Civil Code of the Russian Federation (part 1), Yurinform Center, M- 1997, resp. editor - prof. Sadikov O.N.

7. Comment to the Federal Law "On Joint-Stock Companies"., Ed. M. Yu. Tikhomirova. Moscow, 1998

8. Codeseva O. "Against the scrap there are techniques", http://www.mpg.ru

9. Lansky V., Joint-Stock Company as legal entities, Ural State Technical University, Ekaterinburg, 1999, 22 p.

. http://rocotech.narod.ru/ (Russian corporate technologies - inf. SPR. AO server).

12. Open and closed joint-stock companies. http://rocotech.narod.ru/

http://rocotech.narod.ru/ (Russian corporate technologies - inf. SPR. AO server).

14. Kropanyuk V.N. The theory of state and law: a textbook for higher educational institutions, ed. Professor V.G. Strekozova. - M.: "Dabakhov, Tkachev, Dimov", 1995.- 384 p.

List of used regulations

2. Federal Law of the Russian Federation of December 26, 1995 No. 208-FZ "On Joint-Stock Companies".

Regulations on the maintenance of the register of owners of registered securities (approved by Decree of the FCCB of the Russian Federation of 02.10.1997 N 27).

Shares emission standards when establishing joint-stock companies, additional shares, bonds and their emission prospectuses, app. Decree of FKSB of November 11, 1998 N 47