Federal Law on Limited Liability Company. Law on LLC with latest amendments
Shares owned by the company are not taken into account when determining the voting results at the general meeting of the company's participants, as well as when distributing the profit and property of the company in the event of its liquidation.
The share owned by the company, within one year from the date of its transfer to the company, must, by decision of the general meeting of the company's participants, be distributed among all participants of the company in proportion to their shares in the authorized capital of the company or sold to all or some participants of the company and (or), if this is not prohibited by the charter of the company, to third parties and fully paid. The undistributed or unsold part of the share must be repaid with a corresponding reduction in the authorized capital of the company. The sale of a share to the company's participants, as a result of which the size of the shares of its participants changes, the sale of the share to third parties, as well as the introduction of changes related to the sale of the share in the constituent documents of the company is carried out by decision of the general meeting of the company's participants, adopted unanimously by all the company's participants.
Documents for state registration of the changes provided for in this article in the constituent documents of the company, and in the case of the sale of a share, also documents confirming payment for the share sold by the company, must be submitted to the body carrying out state registration legal entities, within one month from the date of the decision to approve the results of payment of shares by the company's participants and to make appropriate changes to the constituent documents of the company. The specified changes in the constituent documents of the company become effective for the participants of the company and third parties from the date of their state registration by the body carrying out state registration of legal entities.
Distribution of a share owned by a company that is of strategic importance for ensuring the defense of the country and the security of the state in accordance with the Federal Law “On the procedure for making foreign investments in business entities that are of strategic importance for ensuring the defense of the country and the security of the state” between its participants, the sale of this share participants of such a company and third parties, the repayment of this share, if as a result of these actions a foreign investor or a group of persons that includes a foreign investor can establish or have established control over such a company, is carried out in the manner prescribed by the specified Federal Law.
Foreclosure of the share (part of the share) of a company participant in the authorized capital of the company
1. At the request of creditors, foreclosure on the share (part of the share) of a company participant in the authorized capital of the company for the debts of the company participant is allowed only on the basis of a court decision if the other property of the company participant is insufficient to cover the debts.
2. In the event of foreclosure on the share (part of the share) of a company participant in the authorized capital of the company for the debts of the company participant, the company has the right to pay creditors the actual value of the share (part of the share) of the company participant.
By decision of the general meeting of company participants, adopted unanimously by all company participants, the actual value of the share (part of the share) of the company participant whose property is being foreclosed on may be paid to creditors by the remaining company participants in proportion to their shares in the authorized capital of the company, unless the procedure for determining the amount of payment is different. not provided for by the company's charter or a decision of the general meeting of company participants.
The actual value of the share (part of the share) of a company participant in the authorized capital of the company is determined on the basis of data financial statements company for the last reporting period preceding the date of presentation of the demand to the company to foreclose on the share (part of the share) of a company participant for his debts.
3. If, within three months from the date of presentation of the claim by the creditors, the company or its participants do not pay the actual value of the entire share (the entire part of the share) of the company participant that is being foreclosed on, foreclosure on the share (part of the share) of the company participant is carried out by its sale at public auction.
Withdrawal of a company participant from the company
1. A participant in a company has the right to leave the company at any time, regardless of the consent of its other participants or the company.
2. If a company participant leaves the company, his share passes to the company from the moment he submits an application for withdrawal from the company. In this case, the company is obliged to pay to the company participant who filed an application to leave the company the actual value of his share, determined on the basis of the company’s financial statements for the year during which the application to leave the company was submitted, or, with the consent of the company participant, to give him in kind property of the same value, and in case of incomplete payment of its contribution to authorized capital company the actual value of part of its share, proportional to the paid part of the contribution.
3. The company is obliged to pay the company participant who filed an application to leave the company the actual value of his share or give him in kind property of the same value within six months from the end of the financial year during which the application to leave the company was submitted, if less the period is not provided for by the company's charter.
The actual value of a company participant's share is paid out of the difference between the value of the company's net assets and the size of the company's authorized capital. If such a difference is not enough to pay the company participant who filed an application to leave the company the actual value of his share, the company is obliged to reduce its authorized capital by the missing amount.
4. The withdrawal of a company participant from the company does not relieve him of his obligation to the company to make a contribution to the company’s property that arose before filing an application for withdrawal from the company.
Contributions to the company's property
1. Participants of the company are obliged, if provided for by the charter of the company, by decision of the general meeting of participants of the company, to make contributions to the property of the company. Such an obligation of the company's participants may be provided for by the company's charter when the company is founded or by introducing amendments to the company's charter by decision of the general meeting of the company's participants, adopted unanimously by all the company's participants.
The decision of the general meeting of company participants on making contributions to the company’s property can be adopted by a majority of at least two-thirds of the votes of total number votes of company members, if necessary more votes for making such a decision are not provided for by the company's charter.
2. Contributions to the property of the company are made by all participants of the company in proportion to their shares in the authorized capital of the company, unless a different procedure for determining the amount of contributions to the property of the company is provided for by the charter of the company.
The company's charter may provide for the maximum value of contributions to the company's property made by all or certain participants of the company, and may also provide for other restrictions associated with making contributions to the company's property. Restrictions related to making contributions to the property of the company established for a specific participant in the company in the event of alienation of his share (part of the share) in relation to the acquirer of the share (part of the share) do not apply.
Provisions establishing the procedure for determining the size of contributions to the company's property disproportionate to the size of the shares of the company's participants, as well as provisions establishing restrictions associated with making contributions to the company's property, may be provided for by the charter of the company upon its establishment or included in the company's charter by decision of the general meeting of the company's participants. , adopted unanimously by all members of the society.
Amendments and exclusions of the provisions of the company's charter establishing the procedure for determining the size of contributions to the company's property disproportionate to the size of the shares of the company's participants, as well as restrictions associated with making contributions to the company's property established for all participants of the company, are carried out by decision of the general meeting of the company's participants, adopted by all participants society unanimously. Amendments and exclusions of the provisions of the company's charter that establish the specified restrictions for a certain participant of the company are carried out by decision of the general meeting of the company's participants, adopted by a majority of at least two-thirds of the votes of the total number of votes of the company's participants, provided that the company participant for whom such restrictions are established, voted for such a decision or gave written consent.
3. Contributions to the property of the company are made in money, unless otherwise provided by the charter of the company or by a decision of the general meeting of participants of the company.
4. Contributions to the company’s property do not change the size and nominal value of the shares of company participants in the authorized capital of the company.
Distribution of company profits between company participants
1. The company has the right to make a decision on the distribution of its net profit between members of society. The decision to determine the part of the company's profit distributed among the company's participants is made by the general meeting of the company's participants.
2. Part of the company’s profit intended for distribution among its participants is distributed in proportion to their shares in the authorized capital of the company.
The charter of the company upon its establishment or by introducing amendments to the charter of the company by decision of the general meeting of the company's participants, adopted unanimously by all the company's participants, may establish a different procedure for the distribution of profit between the company's participants. Amendments and exclusions of the provisions of the company's charter establishing such a procedure are carried out by decision of the general meeting of the company's participants, adopted unanimously by all the company's participants.
Restrictions on the distribution of company profits among company participants. Restrictions on the payment of company profits to company participants
1. The company does not have the right to make a decision on the distribution of its profits among the participants of the company:
until full payment of the entire authorized capital of the company;
before payment of the actual value of the share (part of the share) of a company participant in the cases provided for by this Federal Law;
if at the time of making such a decision the company meets the criteria for insolvency (bankruptcy) in accordance with the federal law on insolvency (bankruptcy) or if the specified signs appear in the company as a result of such a decision;
if at the time such a decision is made, the value of the company’s net assets is less than its authorized capital and reserve fund or becomes less than their size as a result of such a decision;
2. The company does not have the right to pay profit to the company’s participants, the decision on the distribution of which among the company’s participants was made:
if at the time of payment the company meets the signs of insolvency (bankruptcy) in accordance with the federal law on insolvency (bankruptcy) or if the specified signs appear in the company as a result of the payment;
if at the time of payment the value of the company’s net assets is less than its authorized capital and reserve fund or will become less than their size as a result of the payment;
in other cases provided for by federal laws.
Upon termination of the circumstances specified in this paragraph, the company is obliged to pay profit to the company’s participants, the decision on the distribution of which among the company’s participants has been made.
Reserve fund and other funds of the company
The company may create a reserve fund and other funds in the manner and amounts provided for by the company's charter.
Federal law dated July 27, 2006 N 138-FZ, amendments were made to Article 31 of this Federal Law
Article 31. Placement of bonds by the company
1. The company has the right to place bonds and other issue-grade securities in the manner established by the legislation on securities.
Federal Law of December 29, 2004 N 192-FZ in paragraph 2 of Article 31 of this Federal Law changes made
2. The issue of bonds by a company is permitted after full payment of its authorized capital.
The bond must have a par value. The nominal value of all bonds issued by the company must not exceed the size of the company's authorized capital and (or) the amount of security provided to the company for these purposes by third parties. In the absence of security provided by third parties, the issue of bonds is permitted no earlier than the third year of the company’s existence and subject to proper approval of the annual financial statements for two completed financial years. The specified restrictions do not apply to issues of mortgage-backed bonds and in other cases established by federal securities laws.
3. Lost power.
Chapter IV. Management in society
Bodies of society
1. The supreme body of the company is the general meeting of the company's participants. The general meeting of company participants may be regular or extraordinary.
All company participants have the right to attend the general meeting of company participants, take part in the discussion of agenda items and vote when making decisions.
Provisions constituent documents of the company or decisions of the company’s bodies that limit the specified rights of the company’s participants are void.
Each participant in the company has a number of votes at the general meeting of participants in the company proportional to his share in the authorized capital of the company, except for cases provided for by this Federal Law.
The charter of the company upon its establishment or by introducing amendments to the charter of the company by decision of the general meeting of the company's participants, adopted unanimously by all the company's participants, may establish a different procedure for determining the number of votes of the company's participants. Amendments and exclusions of the provisions of the company's charter establishing such a procedure are carried out by decision of the general meeting of the company's participants, adopted unanimously by all the company's participants.
2. The charter of the company may provide for the formation of a board of directors (supervisory board) of the company.
The competence of the board of directors (supervisory board) of the company is determined by the charter of the company in accordance with this Federal Law.
The charter of the company may provide that the competence of the board of directors (supervisory board) of the company includes education executive bodies companies, early termination of their powers, resolving issues regarding the commission major transactions in the cases provided for in Article 46 of this Federal Law, resolving issues related to the execution of transactions in which there is an interest, in cases provided for in Article 45 of this Federal Law, resolving issues related to the preparation, convening and holding of a general meeting of company participants, as well as resolving other issues provided for by this Federal Law. If the resolution of issues related to the preparation, convening and holding of a general meeting of the company's participants is referred by the company's charter to the competence of the board of directors (supervisory board) of the company, the executive body of the company acquires the right to demand the holding of an extraordinary general meeting of the company's participants.
The procedure for the formation and activities of the board of directors (supervisory board) of the company, as well as the procedure for terminating the powers of members of the board of directors (supervisory board) of the company and the competence of the chairman of the board of directors (supervisory board) of the company are determined by the charter of the company.
Members of the company's collegial executive body cannot constitute more than one-fourth of the composition of the board of directors (supervisory board) of the company. A person performing the functions of the sole executive body of a company cannot simultaneously be the chairman of the board of directors (supervisory board) of the company.
By decision of the general meeting of the company's participants, members of the board of directors (supervisory board) of the company during the period of performance of their duties may be paid remuneration and (or) compensation for expenses associated with the performance of these duties. The amounts of these remunerations and compensations are established by a decision of the general meeting of the company's participants.
3. Members of the board of directors (supervisory board) of the company, the person performing the functions of the sole executive body of the company, and members of the collegial executive body of the company who are not participants in the company may participate in the general meeting of participants of the company with the right of an advisory vote.
4. Management of the current activities of the company is carried out by the sole executive body of the company or the sole executive body of the company and the collegial executive body of the company. The executive bodies of the company are accountable to the general meeting of the company's participants and the board of directors (supervisory board) of the company.
5. The transfer of voting rights by a member of the board of directors (supervisory board) of the company, a member of the collegial executive body of the company to other persons, including other members of the board of directors (supervisory board) of the company, other members of the collegial executive body of the company, is not permitted.
6. The charter of the company may provide for the formation audit commission(election of an auditor) of the company. In companies with more than fifteen participants, the formation of an audit commission (election of an auditor) of the company is mandatory. A person who is not a member of the company can also be a member of the audit commission (auditor) of the company.
The functions of the audit commission (auditor) of the company, if provided for by the company's charter, can be performed by an auditor approved by the general meeting of the company's participants, who is not connected by property interests with the company, members of the board of directors (supervisory board) of the company, with the person performing the functions of the sole executive body of the company, members the collegial executive body of the company and the participants of the company.
Members of the audit commission (auditor) of the company cannot be members of the board of directors (supervisory board) of the company, a person performing the functions of the sole executive body of the company, and members of the collegial executive body of the company.
Competence of the general meeting of company participants
1. The competence of the general meeting of participants of the company is determined by the charter of the company in accordance with this Federal Law.
2. The exclusive competence of the general meeting of company participants includes:
1) determining the main directions of the company’s activities, as well as making decisions on participation in associations and other associations of commercial organizations;
2) changing the charter of the company, including changing the size of the authorized capital of the company;
3) amendments to the constituent agreement;
4) formation of the executive bodies of the company and early termination of their powers, as well as making a decision on the transfer of powers of the sole executive body of the company commercial organization or individual entrepreneur(hereinafter referred to as the manager), approval of such a manager and the terms of the agreement with him;
5) election and early termination of powers of the audit commission (auditor) of the company;
6) approval of annual reports and annual balance sheets;
7) making a decision on the distribution of the company’s net profit among the company’s participants;
8) approval (acceptance) of documents regulating internal activities company (internal documents of the company);
9) making a decision on the company’s placement of bonds and other issue-grade securities;
10) appointment of an audit, approval of the auditor and determination of the amount of payment for his services;
11) making a decision on the reorganization or liquidation of the company;
12) appointment of a liquidation commission and approval of liquidation balance sheets;
13) resolution of other issues provided for by this Federal Law.
Issues within the exclusive competence of the general meeting of company participants cannot be delegated to them for decision by the board of directors (supervisory board) of the company, except in cases provided for by this Federal Law, as well as for decision by the executive bodies of the company.
The next general meeting of the company's participants
The next general meeting of the company's participants is held within the time limits specified by the company's charter, but not less than once a year. The next general meeting of the company's participants is convened by the executive body of the company.
The company's charter must determine the date for holding the next general meeting of the company's participants, at which the annual results of the company's activities are approved. The said general meeting of company participants must be held no earlier than two months and no later than four months after the end of the financial year.
Extraordinary general meeting of company participants
1. An extraordinary general meeting of the company’s participants is held in cases determined by the company’s charter, as well as in any other cases if the holding of such a general meeting is required by the interests of the company and its participants.
2. An extraordinary general meeting of the company’s participants is convened by the executive body of the company on its initiative, at the request of the board of directors (supervisory board) of the company, the audit commission (auditor) of the company, the auditor, as well as participants of the company who collectively own at least one tenth of the total votes of society participants.
The executive body of the company is obliged, within five days from the date of receipt of the request to hold an extraordinary general meeting of the company's participants, to consider this requirement and make a decision on holding an extraordinary general meeting of the company's participants or to refuse to hold it. A decision to refuse to hold an extraordinary general meeting of company participants can be made by the company’s executive body only in the following cases:
if the procedure established by this Federal Law for submitting a request to hold an extraordinary general meeting of company participants is not followed;
if none of the issues proposed for inclusion on the agenda of the extraordinary general meeting of the company's participants falls within its competence or does not comply with the requirements of federal laws.
If one or more issues proposed for inclusion on the agenda of an extraordinary general meeting of company participants do not fall within the competence of the general meeting of company participants or do not comply with the requirements of federal laws, these issues are not included in the agenda.
The executive body of the company does not have the right to make changes to the wording of issues proposed for inclusion on the agenda of the extraordinary general meeting of the company's participants, as well as to change the proposed form of holding the extraordinary general meeting of the company's participants.
Along with the issues proposed for inclusion on the agenda of the extraordinary general meeting of the company's participants, the executive body of the company, on its own initiative, has the right to include additional issues in it.
3. If a decision is made to hold an extraordinary general meeting of the company’s participants, the said general meeting must be held no later than forty-five days from the date of receipt of the request for its holding.
4. If, within the period established by this Federal Law, a decision is not made to hold an extraordinary general meeting of the company’s participants or a decision is made to refuse to hold it, the extraordinary general meeting of the company’s participants may be convened by bodies or persons demanding its holding.
In this case, the executive body of the company is obliged to provide the specified bodies or persons with a list of company participants with their addresses.
The costs of preparing, convening and holding such a general meeting may be reimbursed by decision of the general meeting of company participants at the expense of the company.
1. The body or persons convening the general meeting of the company’s participants are obliged to notify each company participant about this no later than thirty days before it is held by registered mail to the address indicated in the list of company participants, or in another way provided for by the company’s charter.
2. The notice must indicate the time and place of the general meeting of the company’s participants, as well as the proposed agenda.
Any participant in the company has the right to make proposals to include additional issues on the agenda of the general meeting of company participants no later than fifteen days before it is held. Additional issues, with the exception of issues that do not fall within the competence of the general meeting of company participants or do not comply with the requirements of federal laws, are included in the agenda of the general meeting of company participants.
The body or persons convening the general meeting of company participants does not have the right to make changes to the wording of additional issues proposed for inclusion on the agenda of the general meeting of company participants.
If, at the proposal of the company's participants, changes are made to the initial agenda of the general meeting of the company's participants, the body or persons convening the general meeting of the company's participants are obliged to notify all company participants no later than ten days before it is held about the changes made to the agenda in the following manner: specified in paragraph 1 of this article.
3. Information and materials to be provided to the company’s participants when preparing the general meeting of the company’s participants include the company’s annual report, the conclusions of the audit commission (auditor) of the company and the auditor based on the results of checking the annual reports and annual balance sheets of the company, information about the candidate (candidates) executive bodies of the company, the board of directors (supervisory board) of the company and the audit commission (auditors) of the company, draft amendments and additions to the constituent documents of the company, or draft constituent documents of the company in new edition, draft internal documents of the company, as well as other information (materials) provided for by the charter of the company.
If a different procedure for familiarizing the company's participants with information and materials is not provided for by the company's charter, the body or persons convening the general meeting of the company's participants are obliged to send them information and materials along with a notice of the general meeting of the company's participants, and in the event of a change in the agenda, the relevant information and materials are sent along with notification of such change.
The specified information and materials must be provided to all company participants for review at the premises of the executive body of the company within thirty days before the general meeting of the company’s participants. The company is obliged, at the request of a company participant, to provide him with copies of these documents. The fee charged by the company for providing these copies cannot exceed the costs of their production.
4. The company’s charter may provide for shorter periods than those specified in this article.
5. In case of violation of the procedure for convening a general meeting of company participants established by this article, such a general meeting is recognized as competent if all participants of the company participate in it.
Procedure for holding a general meeting of company participants
1. The general meeting of the company’s participants is held in the manner established by this Federal Law, the company’s charter and its internal documents. To the extent not regulated by this Federal Law, the company's charter and internal documents of the company, the procedure for holding a general meeting of company participants is established by a decision of the general meeting of company participants.
2. Before the opening of the general meeting of company participants, registration of arriving company participants is carried out.
Members of the company have the right to participate in the general meeting in person or through their representatives. Representatives of company participants must present documents confirming their proper authority. A power of attorney issued to a representative of a company participant must contain information about the represented person and the representative (name or designation, place of residence or location, passport details), and be drawn up in accordance with the requirements of paragraphs 4 and 5 of Article 185 Civil Code Russian Federation or notarized.
An unregistered company participant (representative of a company participant) is not entitled to take part in voting.
3. The general meeting of company participants opens at the time specified in the notice of the general meeting of company participants or, if all company participants are already registered, earlier.
4. The general meeting of the company’s participants is opened by the person performing the functions of the sole executive body of the company, or by the person heading the collegial executive body of the company. The general meeting of the company's participants, convened by the board of directors (supervisory board) of the company, the audit commission (auditor) of the company, the auditor or participants of the company, is opened by the chairman of the board of directors (supervisory board) of the company, the chairman of the audit commission (auditor) of the company, an auditor or one of the participants of the company who convened this general meeting.
5. The person opening the general meeting of the company’s participants elects a chairman from among the company’s participants. Unless otherwise provided by the company's charter, when voting on the issue of electing a chairman, each participant in the general meeting of the company's participants has one vote, and the decision on this issue is made by a majority vote of the total number of votes of the company's participants who have the right to vote at this general meeting.
6. The executive body of the company organizes the keeping of minutes of the general meeting of the company’s participants.
The minutes of all general meetings of company participants are filed in a minutes book, which must be provided to any company participant for review at any time. At the request of the company's participants, they are given extracts from the minutes book, certified by the executive body of the company.
7. The general meeting of company participants has the right to make decisions only on agenda items communicated to the company participants in accordance with paragraphs 1 and 2 of Article 36 of this Federal Law, except for cases where all company participants participate in this general meeting.
8. Decisions on the issues specified in subparagraph 2 of paragraph 2 of Article 33 of this Federal Law, as well as on other issues determined by the charter of the company, are made by a majority of at least two-thirds of the total number of votes of the company's participants, if a larger number of votes is necessary to adopt such decisions are not provided for by this Federal Law or the company's charter.
Decisions on the issues specified in subparagraphs 3 and 11 of paragraph 2 of Article 33 of this Federal Law are made unanimously by all participants of the company.
Other decisions are made by a majority vote of the total number of votes of the company's participants, unless the need for a larger number of votes to make such decisions is provided for by this Federal Law or the company's charter.
9. The company’s charter may provide for cumulative voting on issues of electing members of the board of directors (supervisory board) of the company, members of the collegial executive body of the company and (or) members of the audit commission of the company.
In cumulative voting, the number of votes belonging to each member of the company is multiplied by the number of persons who must be elected to the body of the company, and the participant of the company has the right to cast the resulting number of votes entirely for one candidate or distribute them between two or more candidates. The candidates who receive the largest number of votes are considered elected.
10. Decisions of the general meeting of the company's participants are adopted by open voting, unless a different procedure for making decisions is provided for by the company's charter.
The decision of the general meeting of the company's participants, adopted by absentee voting (by poll)
1. A decision at a general meeting of company participants may be made without holding a meeting (joint presence of company participants to discuss agenda items and make decisions on issues put to vote) by absentee voting (by poll). Such voting can be carried out by exchanging documents through postal, telegraphic, teletype, telephone, electronic or other communications that ensure the authenticity of transmitted and received messages and their documentary evidence.
The decision of the general meeting of company participants on the issues specified in subparagraph 6 of paragraph 2 of Article 33 of this Federal Law cannot be made by absentee voting (by poll).
2. When a decision is made by the general meeting of the company's participants through absentee voting (by poll), paragraphs 2, 3, 4, 5 and 7 of Article 37 of this Federal Law, as well as the provisions of paragraphs 1, 2 and 3 of Article 36 of this Federal Law in parts of the deadlines provided for by them.
3. The procedure for conducting absentee voting is determined by an internal document of the company, which must provide for the mandatory notification of the proposed agenda to all members of the company, the possibility of familiarizing all members of the company with all the necessary information and materials before voting, the opportunity to make proposals for the inclusion of additional issues on the agenda, mandatory notifications to all members of the company before the start of voting of the amended agenda, as well as the deadline for the end of the voting procedure.
Making decisions on issues within the competence of the general meeting of company participants by the sole participant of the company
In a company consisting of one participant, decisions on issues falling within the competence of the general meeting of company participants are made by the sole participant of the company individually and are documented in writing. In this case, the provisions of Articles 34, 35, 36, 37, 38 and 43 of this Federal Law do not apply, with the exception of the provisions relating to the timing of the annual general meeting of company participants.
Sole executive body of the company
1. Sole executive body of the company ( CEO, president and others) are elected by the general meeting of the company's participants for a period determined by the company's charter. The sole executive body of the company may also be elected from outside its participants.
An agreement between the company and the person performing the functions of the sole executive body of the company is signed on behalf of the company by the person who chaired the general meeting of the company's participants, at which the person performing the functions of the sole executive body of the company was elected, or by a participant of the company authorized by the decision of the general meeting of the company's participants.
2. Only an individual can act as the sole executive body of a company, except for the case provided for in Article 42 of this Federal Law.
3. Sole executive body of the company:
1) without a power of attorney, acts on behalf of the company, including representing its interests and making transactions;
2) issues powers of attorney for the right of representation on behalf of the company, including powers of attorney with the right of substitution;
3) issues orders on the appointment of company employees to positions, on their transfer and dismissal, applies incentive measures and imposes disciplinary sanctions;
4) exercises other powers not assigned by this Federal Law or the company’s charter to the competence of the general meeting of participants of the company, the board of directors (supervisory board) of the company and the collegial executive body of the company.
4. The procedure for the activities of the sole executive body of the company and its decision-making is established by the charter of the company, internal documents of the company, as well as an agreement concluded between the company and the person performing the functions of its sole executive body.
Collegiate executive body of the company
1. If the company’s charter provides for the formation, along with the sole executive body of the company, of a collegial executive body of the company (board, directorate and others), such a body is elected by the general meeting of the company’s participants in the number and for the period determined by the company’s charter.
A member of the collegial executive body of a company can only be an individual, who may not be a member of the company.
The collegial executive body of the company exercises the powers assigned by the company's charter to its competence.
The functions of the chairman of the collegial executive body of the company are performed by the person performing the functions of the sole executive body of the company, except for the case where the powers of the sole executive body of the company are transferred to the manager.
2. The procedure for the activities of the collegial executive body of the company and its decision-making is established by the charter of the company and internal documents of the company.
Transfer of powers of the sole executive body of the company to the manager
The company has the right to transfer, under an agreement, the powers of its sole executive body to the manager, if such a possibility is expressly provided for by the company’s charter.
The agreement with the manager is signed on behalf of the company by the person who chaired the general meeting of the company's participants, who approved the terms of the agreement with the manager, or by the company participant authorized by the decision of the general meeting of the company's participants.
Appealing decisions of company management bodies
1. A decision of a general meeting of company participants, adopted in violation of the requirements of this Federal Law, other legal acts of the Russian Federation, the company’s charter and violating the rights and legitimate interests of a company participant, may be declared invalid by the court upon the application of a company participant who did not take part in voting or voted against the contested decision. Such an application may be submitted within two months from the day when the company member learned or should have learned about the decision taken. If a company participant took part in the general meeting of company participants that adopted the appealed decision, the said application may be filed within two months from the date of adoption of such a decision.
2. The court has the right, taking into account all the circumstances of the case, to uphold the appealed decision if the vote of the company participant who filed the application could not influence the voting results, the violations committed are not significant and the decision did not cause losses to this company participant.
3. A decision of the board of directors (supervisory board) of the company, the sole executive body of the company, the collegial executive body of the company or the manager, adopted in violation of the requirements of this Federal Law, other legal acts of the Russian Federation, the charter of the company and violating the rights and legitimate interests of a participant in the company may be declared invalid by the court at the request of this member of the company.
Responsibility of members of the board of directors (supervisory board) of the company, the sole executive body of the company, members of the collegial executive body of the company and the manager
1. Members of the board of directors (supervisory board) of the company, the sole executive body of the company, members of the collegial executive body of the company, as well as the manager, when exercising their rights and performing their duties, must act in the interests of the company in good faith and wisely.
2. Members of the board of directors (supervisory board) of the company, the sole executive body of the company, members of the collegial executive body of the company, as well as the manager are liable to the company for losses caused to the company by their guilty actions (inaction), unless other grounds and the amount of liability are established by federal laws. In this case, members of the board of directors (supervisory board) of the company, members of the collegial executive body of the company who voted against the decision that caused losses to the company, or who did not take part in the voting, are not liable.
3. When determining the grounds and amount of liability of members of the board of directors (supervisory board) of the company, the sole executive body of the company, members of the collegial executive body of the company, as well as the manager, the usual conditions of business turnover and other circumstances relevant to the case must be taken into account.
4. If, in accordance with the provisions of this article, several persons are liable, their liability to society is joint and several.
5. The company or its participant has the right to file a claim for compensation for losses caused to the company by a member of the board of directors (supervisory board) of the company, the sole executive body of the company, a member of the collegial executive body of the company or the manager.
Interest in the company completing a transaction
1. Transactions in which there is an interest in a member of the board of directors (supervisory board) of the company, a person performing the functions of the sole executive body of the company, a member of the collegial executive body of the company, or the interest of a participant in the company who, together with its affiliates, has twenty or more percent of the votes of the total the number of votes of the company's participants cannot be carried out by the company without the consent of the general meeting of the company's participants.
The specified persons are recognized as interested in the transaction by the company in cases where they, their spouses, parents, children, brothers, sisters and (or) their affiliates:
are a party to a transaction or act in the interests of third parties in their relations with the company;
own (each individually or collectively) twenty or more percent of the shares (shares, shares) of a legal entity that is a party to the transaction or acts in the interests of third parties in their relations with the company;
hold positions in the management bodies of a legal entity that is a party to a transaction or acts in the interests of third parties in their relations with the company;
in other cases determined by the company's charter.
2. The persons specified in paragraph one of paragraph 1 of this article must bring to the attention of the general meeting of company participants the information:
about legal entities in which they, their spouses, parents, children, brothers, sisters and (or) their affiliates own twenty or more percent of shares (shares, shares);
about legal entities in which they, their spouses, parents, children, brothers, sisters and (or) their affiliates hold positions in management bodies;
about transactions known to them, being carried out or proposed, in which they may be recognized as interested.
3. The decision on the company to carry out a transaction in which there is an interest is made by the general meeting of the company's participants by a majority vote of the total number of votes of the company's participants who are not interested in its completion.
4. The conclusion of a transaction in which there is an interest does not require a decision of the general meeting of participants of the company provided for in paragraph 3 of this article, in cases where the transaction is carried out in the course of an ordinary economic activity between the company and the other party that took place before the moment from which the person interested in the transaction is recognized as such in accordance with paragraph 1 of this article (the decision is not required until the date of the next general meeting of the company's participants).
5. A transaction in which there is an interest and which was made in violation of the requirements provided for in this article may be declared invalid at the request of the company or its participant.
6. This article does not apply to companies consisting of one participant, who simultaneously exercises the functions of the sole executive body of this company.
7. If a board of directors (supervisory board) of the company is formed in the company, making decisions on transactions in which there is an interest may be attributed by the charter of the company to its competence, except in cases where the amount of payment for the transaction or the value of the property that is the subject transaction exceeds two percent of the value of the company’s property, determined on the basis of financial statements for the last reporting period.
Major deals
1. A major transaction is a transaction or several interrelated transactions related to the acquisition, alienation or possibility of alienation by the company, directly or indirectly, of property, the value of which is more than twenty-five percent of the value of the company’s property, determined on the basis of financial statements for the last reporting period preceding the day of adoption decisions to carry out such transactions, unless the company's charter provides for a larger size of a major transaction. Major transactions are not considered to be transactions made in the normal course of business of the company.
2. For the purposes of this article, the value of property alienated by the company as a result of a major transaction is determined on the basis of its data accounting, and the cost of the property acquired by the company is based on the offer price.
3. The decision to carry out a major transaction is made by the general meeting of the company’s participants.
4. If a board of directors (supervisory board) of the company is formed in the company, decisions on making major transactions related to the acquisition, alienation or possibility of alienation by the company directly or indirectly of property, the value of which is from twenty-five to fifty percent of the value of the company’s property, may be referred by the company's charter to the competence of the board of directors (supervisory board) of the company.
5. A major transaction completed in violation of the requirements provided for in this article may be declared invalid at the request of the company or its participant.
6. The company’s charter may provide that in order to carry out major transactions, a decision of the general meeting of the company’s participants and the board of directors (supervisory board) of the company is not required.
Audit commission (auditor) of the company
1. The audit commission (auditor) of the company is elected by the general meeting of participants of the company for a period determined by the charter of the company.
The number of members of the company's audit commission is determined by the company's charter.
2. The audit commission (auditor) of the company has the right at any time to conduct inspections of the financial and economic activities of the company and have access to all documentation relating to the activities of the company. At the request of the audit commission (auditor) of the company, members of the board of directors (supervisory board) of the company, the person performing the functions of the sole executive body of the company, members of the collegial executive body of the company, as well as employees of the company are required to give the necessary explanations orally or in writing.
3. Audit commission (auditor) of the company in mandatory carries out an audit of the company's annual reports and balance sheets before their approval by the general meeting of the company's participants. The general meeting of company participants does not have the right to approve annual reports and balance sheets of the company in the absence of conclusions from the audit commission (auditor) of the company.
4. The work procedure of the audit commission (auditor) of the company is determined by the charter and internal documents of the company.
5. This article applies in cases where the formation of an audit commission of a company or the election of an auditor of a company is provided for by the charter of the company or is mandatory in accordance with this Federal Law.
Audit of the company
To check and confirm the correctness of the company's annual reports and balance sheets, as well as to check the state of the company's current affairs, it has the right, by decision of the general meeting of the company's participants, to engage a professional auditor who is not connected by property interests with the company, members of the board of directors (supervisory board) of the company, a person performing the functions of the sole executive body of the company, members of the collegial executive body of the company and participants of the company.
At the request of any member of the company, an audit may be carried out by a professional auditor chosen by him, who must meet the requirements established by part one of this article. In the event of such an audit, payment for the auditor’s services is carried out at the expense of the company participant at whose request it is carried out. The expenses of a company participant for paying for the services of an auditor may be reimbursed to him by decision of the general meeting of company participants at the expense of the company.
The involvement of an auditor to check and confirm the accuracy of the company's annual reports and balance sheets is mandatory in cases provided for by federal laws and other legal acts of the Russian Federation.
Public reporting of the company
1. The company is not obliged to publish reports on its activities, except for the cases provided for by this Federal Law and other federal laws.
2. In the case of a public offering of bonds and other issue-grade securities, the company is obliged to annually publish annual reports and balance sheets, as well as disclose other information about its activities provided for by federal laws and regulations adopted in accordance with them.
Storage of company documents
1. The company is obliged to store the following documents:
constituent documents of the company, as well as changes and additions made to the constituent documents of the company and registered in the prescribed manner;
minutes (minutes) of the meeting of the founders of the company, containing the decision to create the company and to approve the monetary valuation of non-monetary contributions to the authorized capital of the company, as well as other decisions related to the creation of the company;
a document confirming the state registration of the company;
documents confirming the company’s rights to property on its balance sheet;
internal documents of the company;
regulations on branches and representative offices of the company;
documents related to the issue of bonds and other issue-grade securities of the company;
minutes of general meetings of company participants, meetings of the board of directors (supervisory board) of the company, the collegial executive body of the company and the audit commission of the company;
lists of affiliated persons of the company;
conclusions of the audit commission (auditor) of the company, auditor, state and municipal financial control bodies;
other documents provided for by federal laws and other legal acts of the Russian Federation, the company's charter, internal documents of the company, decisions of the general meeting of the company's participants, the board of directors (supervisory board) of the company and the executive bodies of the company.
2. The company stores the documents provided for in paragraph 1 of this article at the location of its sole executive body or in another place known and accessible to the company’s participants.
Chapter V. Reorganization and liquidation of the company
Reorganization of society
1. The company may be voluntarily reorganized in the manner prescribed by this Federal Law.
Other grounds and procedures for reorganizing the company are determined by the Civil Code of the Russian Federation and other federal laws.
2. Reorganization of a company can be carried out in the form of merger, accession, division, spin-off and transformation.
3. The company is considered reorganized, with the exception of cases of reorganization in the form of merger, from the moment of state registration of legal entities created as a result of the reorganization.
When a company is reorganized in the form of the merger of another company with it, the first of them is considered reorganized from the moment an entry is made in the Unified State Register of Legal Entities about the termination of the activities of the merged company.
4. State registration of companies created as a result of reorganization, and making entries on the termination of the activities of reorganized companies, as well as state registration of changes in the charter, is carried out in the manner established by federal laws.
5. No later than thirty days from the date of the decision to reorganize the company, and when reorganizing the company in the form of a merger or accession, from the date of the decision on this by the last of the companies participating in the merger or accession, the company is obliged to notify in writing about this all creditors of the company known to it and publish in the press organ, which publishes data on state registration of legal entities, a message about the decision made. In this case, the creditors of the company, within thirty days from the date of sending them notifications or within thirty days from the date of publication of the message about the decision made, have the right to demand in writing the early termination or fulfillment of the relevant obligations of the company and compensation for losses.
State registration of companies created as a result of reorganization and making entries on the termination of the activities of reorganized companies are carried out only upon presentation of evidence of notification of creditors in the manner established by this paragraph.
If the separation balance sheet does not make it possible to determine the legal successor of the reorganized company, legal entities created as a result of the reorganization bear joint liability for the obligations of the reorganized company to its creditors.
Merger of companies
1. A merger of companies is the creation of a new company with the transfer to it of all the rights and obligations of two or more companies and the termination of the latter.
2. The general meeting of participants of each company participating in the reorganization in the form of a merger makes a decision on such reorganization, on the approval of the merger agreement and the charter of the company created as a result of the merger, as well as on the approval of the transfer act.
3. The merger agreement, signed by all participants of the company created as a result of the merger, is, along with its charter, its constituent document and must comply with all the requirements set by the Civil Code of the Russian Federation and this Federal Law for the constituent agreement.
4. If the general meeting of participants of each company participating in a reorganization in the form of a merger makes a decision on such reorganization and on approval of the merger agreement, the charter of the company created as a result of the merger, and the transfer act, the election of executive bodies of the company created as a result of the merger, carried out at a joint general meeting of participants of the companies participating in the merger. The timing and procedure for holding such a general meeting are determined by the merger agreement.
The sole executive body of the company created as a result of the merger carries out actions related to the state registration of this company.
5. When companies merge, all rights and obligations of each of them are transferred to the company created as a result of the merger, in accordance with transfer acts.
Joining a company
1. The merger of a company is the termination of one or more companies with the transfer of all their rights and obligations to another company.
2. The general meeting of participants of each company participating in the reorganization in the form of merger makes a decision on such reorganization, on approval of the merger agreement, and the general meeting of participants of the acquired company also makes a decision on approval of the transfer act.
3. The joint general meeting of participants of the companies participating in the merger makes changes to the constituent documents of the company to which the merger is being carried out, changes related to changes in the composition of the company’s participants, determining the size of their shares, other changes provided for by the merger agreement, and also, if necessary, decides other issues, including questions about the election of bodies of the company to which the merger is being carried out. The timing and procedure for holding such a general meeting are determined by the accession agreement.
4. When one company merges with another, all rights and obligations of the merged company are transferred to the latter in accordance with the transfer act.
Division of society
1. The division of a company is the termination of a company with the transfer of all its rights and obligations to newly created companies.
2. The general meeting of participants of a company being reorganized in the form of division makes a decision on such reorganization, on the procedure and conditions for dividing the company, on the creation of new companies and on approval of the separation balance sheet.
3. The participants of each company created as a result of the division sign a constituent agreement. The general meeting of participants of each company created as a result of division approves the charter and elects the bodies of the company.
4. When a company is divided, all its rights and obligations pass to the companies created as a result of the division, in accordance with the separation balance sheet.
Spin-off of the company
1. The spin-off of a company is the creation of one or more companies with the transfer to it (them) of part of the rights and obligations of the reorganized company without terminating the latter.
2. The general meeting of participants of the company being reorganized in the form of a spin-off makes a decision on such reorganization, on the procedure and conditions for the spin-off, on the creation of a new company (new companies) and on approving the separation balance sheet, and enters into the constituent documents of the company being reorganized in the form of a spin-off, changes related to changes in the composition of the company's participants, determining the size of their shares, and other changes provided for by the decision on the separation, and also, if necessary, resolves other issues, including issues of electing the company's bodies.
The participants of the spun-off company sign the constituent agreement. The general meeting of participants of the spun-off company approves its charter and elects the company's bodies.
If the only participant of the spun-off company is the reorganized company, the general meeting of the latter makes a decision on the reorganization of the company in the form of spin-off, on the procedure and conditions for the spin-off, and also approves the charter of the spun-off company and the separation balance sheet, and elects the bodies of the spun-off company.
3. When one or more companies are separated from a company, a part of the rights and obligations of the reorganized company is transferred to each of them in accordance with the separation balance sheet.
Transformation of society
1. The company has the right to transform into Joint-Stock Company, additional liability company or production cooperative.
2. The general meeting of participants of a company being reorganized in the form of transformation makes a decision on such reorganization, on the procedure and conditions for the transformation, on the procedure for exchanging shares of company participants for shares of a joint-stock company, shares of participants in a company with additional liability or shares of members of a production cooperative, on approval the charter of a joint stock company, a company with additional liability or a production cooperative created as a result of transformation, as well as on the approval of the transfer act.
3. Participants in a legal entity created as a result of transformation make a decision on the election of its bodies in accordance with the requirements of federal laws on such legal entities and instruct the relevant body to carry out actions related to the state registration of the legal entity created as a result of transformation.
4. When transforming a company, all rights and obligations of the reorganized company are transferred to the legal entity created as a result of the transformation in accordance with the transfer deed.
Federal Law No. 31-FZ of March 21, 2002 amended Article 57 of this Federal Law, which comes into force on July 1, 2002.
Liquidation of the company
1. The company may be liquidated voluntarily in the manner established by the Civil Code of the Russian Federation, taking into account the requirements of this Federal Law and the company’s charter. The company may also be liquidated by a court decision on the grounds provided for by the Civil Code of the Russian Federation.
Liquidation of a company entails its termination without the transfer of rights and obligations by way of succession to other persons.
2. The decision of the general meeting of company participants on the voluntary liquidation of the company and the appointment of a liquidation commission is made upon the proposal of the board of directors (supervisory board) of the company, executive body or participant of the company.
The general meeting of participants of a voluntarily liquidated company makes a decision on the liquidation of the company and the appointment of a liquidation commission.
3. From the moment the liquidation commission is appointed, all powers to manage the affairs of the company are transferred to it. The liquidation commission acts in court on behalf of the liquidated company.
4. If the participant of the liquidated company is the Russian Federation, a subject of the Russian Federation or a municipal entity, a representative of the federal body for state property management is included in the liquidation commission, specialized institution carrying out the sale of federal property, a body for managing state property of a constituent entity of the Russian Federation, a seller of state property of a constituent entity of the Russian Federation or an authority local government.
5. The procedure for liquidating a company is determined by the Civil Code of the Russian Federation and other federal laws.
Distribution of the property of a liquidated company between its participants
1. The property of the liquidated company remaining after completion of settlements with creditors shall be distributed by the liquidation commission among the company’s participants in the following order:
first of all, payment to the company participants of the distributed but unpaid part of the profit is carried out;
secondly, the property of the liquidated company is distributed among the company's participants in proportion to their shares in the authorized capital of the company.
2. The requirements of each queue are satisfied after the requirements of the previous queue are fully satisfied.
If the property of the company is not enough to pay the distributed but unpaid part of the profit, the property of the company is distributed among its participants in proportion to their shares in the authorized capital of the company.
Chapter VI. Final provisions
dated December 31, 1998 N 193-FZ, amendments were made to Article 59 of this Federal Law
dated July 11, 1998 N 96-FZ, amendments were made to Article 59 of this Federal Law
Article 59. Entry into force of this Federal Law
2. From the moment this Federal Law comes into force, legal acts in force on the territory of the Russian Federation, until they are brought into compliance with this Federal Law, are applied to the extent that does not contradict this Federal Law.
From the moment this Federal Law comes into force, the constituent documents of limited liability companies (limited liability partnerships) are applied to the extent that they do not contradict this Federal Law.
3. The constituent documents of limited liability companies (limited liability partnerships) created before the entry into force of this Federal Law must be brought into compliance with this Federal Law no later than July 1, 1999.
Limited liability companies (limited liability partnerships), the number of participants of which at the time of entry into force of this Federal Law exceeds fifty, must, before July 1, 1999, be transformed into joint-stock companies or production cooperatives or reduce the number of participants to the limit established by this Federal Law. When transforming such limited liability companies (limited liability partnerships) into joint stock companies, their transformation into closed joint stock companies is permitted without limiting the maximum number of shareholders of a closed joint stock company established by the Federal Law “On Joint Stock Companies”. The provisions of paragraphs two and three of paragraph 3 of Article 7 of the Federal Law “On Joint Stock Companies” do not apply to these closed joint-stock companies.
When transforming limited liability companies (limited liability partnerships) into joint-stock companies or production cooperatives in the manner provided for by this paragraph, the provisions of paragraph 5 of Article 51 of this Federal Law also do not apply.
The decision of the general meeting of participants of a limited liability company (limited liability partnership) on the transformation of a limited liability company (limited liability partnership), the number of participants of which at the time of entry into force of this Federal Law exceeds fifty, is adopted by a majority of at least two-thirds of the votes of the total the number of votes of participants in a limited liability company (limited liability partnership). Participants in a limited liability company (limited liability partnership) who voted against the decision on its transformation or did not take part in the voting have the right to withdraw from the limited liability company (limited liability partnership) in the manner established by Article 26 of this Federal Law.
Limited liability companies (limited liability partnerships) that have not brought their constituent documents into compliance with this Federal Law or have not been transformed into joint-stock companies or production cooperatives may be liquidated in court at the request of the body carrying out state registration of legal entities, or other government agencies or local government bodies to which the right to make such a claim is granted by federal law.
4. Limited liability companies (limited liability partnerships) specified in paragraph 3 of this article are exempt from paying the registration fee when registering changes to their legal status in connection with its bringing into compliance with this Federal Law.
President of the Russian Federation B. Yeltsin
Moscow Kremlin
Article-by-article commentary to the Federal Law of February 8, 1998 N 14-FZ “On Limited Liability Companies”
Chapter I. General provisions
Article 1. Relations regulated by this Federal Law
1. This Federal Law determines in accordance with the Civil
Code of the Russian Federation, the legal status of a limited liability company,
rights and obligations of its participants, procedure for creation, reorganization and liquidation
society.
2. Features of the legal status, procedure for creation, reorganization and
liquidation of limited liability companies in the areas of banking, insurance
and investment activities, as well as in the field of agricultural production
products are determined by federal laws.
On the specifics of creating credit organizations, see the Law “On Banks and Banking
Commentary on article 1.
1. Federal Law "On Limited Liability Companies" (hereinafter
Law; commented Law) was developed in accordance with the Civil Code (clause 3 of Article 87 of the Civil Code)
and is applied in combination with it, as well as with other legislative acts,
complementing and developing the provisions of the Code, thus creating legal
the basis for the formation and activities of these societies. Clause 1 of Article 1 lists
main issues regulated by the Law: legal status of limited liability company
creation, reorganization and liquidation of a company. At the same time, the Law contains significant
attention is paid to the requirements for persons acting as its founders;
the procedure for adoption and content of constituent documents; formation of a statutory
capital of the company; organization of company management and control over its activities
etc. A significant place is occupied by the norms defining the rights of society participants,
ways to protect them, including the right to leave society (Article 26), priority
the right of participants to acquire shares in the authorized capital alienated by others
participants (Article 21). Measures are provided aimed at ensuring economic
stability of society, protection of its interests, establishing, in particular,
restrictions on the distribution of company profits between its participants in cases
when this could lead to negative consequences for him, including
insolvency (Article 29 of the Law); provides for the responsibility of persons occupying
leadership positions in the management bodies of the company, for damage (losses) caused
him by guilty actions or inactions of these persons (Article 44 of the Law), etc.
The provisions of the Law are based not only on those provisions of the Civil Code that are contained
in articles directly regulating the principles of creation and activities of the considered
societies (Articles 87-94 of the Civil Code), but also to general rules on legal entities (Articles 48-65 of the Civil Code),
as well as about business companies (Articles 66-68 of the Civil Code).
The Law applies to both previously created companies and
and those formed after its entry into force. The law also regulates the activities
limited liability partnerships (see Article 13 of the RSFSR Law of 25
December 1990 "About enterprises and entrepreneurial activity"), which
part one of the Civil Code of the Russian Federation" from the moment of entry into force
responsibility and must bring their constituent documents into compliance
with the norms of the Civil Code within the time limits provided for by this Law (see Article 59 of the commented
Law). In addition, many provisions of the Law apply to companies with additional
responsibility. As stated in paragraph 3 of Art. 95 of the Civil Code, the rules on
limited liability company insofar as it is not otherwise provided
named article *.
According to clause 2 of Article 48 of the Civil Code, participants of a limited liability company
have obligatory rights in relation to it, but the scope of these rights and methods
their implementation differs significantly from the rights of obligation binding
shareholders and joint stock company. Shares of participants in a limited company
liability in the authorized capital can be (and are) different. They are determined
in the constituent documents of the company as a percentage (or as a fraction) of its total
size. In this case, the actual value of the share corresponds to part of the cost
net assets of the company, proportional to its size (clause 2 of article 14 of the Law), and,
therefore, it can be determined in monetary terms at any time.
When a participant leaves a limited liability company, the latter
is obliged to pay him the actual value of his share (or hand over property
in kind of the same value - in the manner and within the time limits established by the Law).
A shareholder, as is known, cannot announce to society his withdrawal from
him and demand the return (or other compensation) of the shares paid for
funds. Exit from such a company is possible only through the sale of shares or alienation
them in a different way. (A shareholder has the right to a certain share in the company’s property
can appear only when it is eliminated). But the shareholder is at the same time more
is free to alienate shares owned by him (especially in an open company),
in generating income from exchange rate differences in their market value (if
favorable situation on the stock market), etc.
2. The effect of the commented Law extends to companies created
in all areas of production, economic and commercial activities. Together
Moreover, paragraph 2 of the commented article provides that the features of the legal
regulations, procedure for the creation, reorganization and liquidation of companies in the areas of banking,
insurance and investment activities, as well as in the field of agricultural production
products are determined by other federal laws.
The most developed system of special regulation of the order of creation
and activities of banks and other credit institutions. Banking activities
governed by the Banking Law and the CBR Law. The Banking Law establishes
requirements that apply to legal and individuals, speaking
as founders of credit institutions (hereinafter referred to as banks), - first of all
in relation to their economic solvency and trustworthiness; provided for
that the authorized capital of the newly created bank must not be lower than the minimum amount,
determined by the Bank of Russia (Article 11); the legal capacity of banks is limited -
they are prohibited from engaging in production, trading and insurance activities
(v.5); a special procedure has been established for registering banks and licensing their activities
Bank of Russia (Article 12-17 of the Banking Law); determined control functions Jar
Russia in relation to commercial banks and a number of other special rules. Rights
Bank of Russia on regulation of banking activities and control
for commercial banks are also determined by the Law on the Central Bank (see Art. 55-76). To him
granted broad powers to issue regulations governing
activities of commercial banks (in addition to the above laws and in the established
within them). Among the Bank of Russia regulations affecting significant
issues of legal regulation of banking structures, we can call the Instructions
licensing of banking activities" (RG. 1996. N 211, 220, 230); Regulation
on the specifics of bank reorganization in the form of mergers and acquisitions, approved
acts contain many rules applicable to any commercial banks, in
including those operating as limited liability companies.
organization of insurance business" (Vedomosti RF. 1993. N 2. Art. 56; SZ RF. 1998.
N 1. Art. 4). Special legislation limits the legal capacity of insurance companies.
organizations - they cannot engage in production, trade and intermediary
and banking activities; a special licensing procedure is provided
insurance activities; measures to ensure financial stability have been determined
insurers. In order to guarantee their solvency, insurers are obliged to
for example, to comply with the regulatory relationships between assets and accepted by them
assume obligations (Article 27). Control functions in relation to insurance companies
organizations is carried out by the federal executive body for supervision
for insurance activities, vested with the right to issue regulations specifying
norms of law.
in the RSFSR" (Vedomosti RSFSR. 1991. N 29. Art. 1105) does not contain rules defining
features of the creation and legal status of companies operating in the investment industry
sphere. We must assume that they will be reflected in the new investment law,
which is being worked on.
When creating companies in the investment field before the adoption of the relevant
law should be guided by the current by-laws defining
the procedure for licensing their activities, establishing limited legal capacity.
There is no federal law yet defining the specifics of the legal situation
companies involved in agricultural production. To those of them
which were created on the basis of reorganized collective and state farms can be used
relevant provisions of decrees of the President of the Russian Federation and Government resolutions
RF, defining the procedure for the formation and activities of new agricultural
measures to implement land reform in the RSFSR" (Vedomosti RF. 1992. No. 1.
reorganization of collective farms and state farms" (SP RF. 1992. N 1-2. Art. 9); Regulations on
reorganization of collective farms, state farms and privatization of state agricultural
No. 708 (SA RF. 1992. No. 12. Art. 93) and a number of others. Please note
that the commented Law, indicating the possibility of special regulation
individual issues of the creation and activities of societies in the field of agricultural
production, does not name companies engaged in servicing agricultural
producers, construction of off-farm organizations, processing
certain types of agricultural products, as provided for in paragraph 4
Article 5 of the Law on Joint Stock Companies. Based on this, limited society
liability, not directly carrying out agricultural activities,
and those serving agricultural producers should be guided by
this Law without any exceptions.
Clause 2 of Article 2 of the Law names a limited range of issues that may be
regulated in special federal laws - features of the legal situation,
procedure for the creation, reorganization and liquidation of companies operating in certain
spheres. Consequently, in all other respects these societies should be guided
general provisions of the Law, including those defining methods of protecting the rights of shareholders
and interests of society.
3. The company, like any legal entity, is considered created from the moment
its state registration. The procedure for its implementation must be established
Federal Law on State Registration of Legal Entities (Article 51 of the Civil Code).
Until such a law is adopted and put into effect, the previously established
procedure (see Article 8 of the Law "On the entry into force of part one of the Civil
Code of the Russian Federation"). It is defined by Articles 34 and 35 of the Law "On Enterprises
and entrepreneurial activity", which are still valid, as well as
Regulations on the procedure for state registration of business entities
activities. Companies created in banking, insurance and investment
spheres are registered in the manner prescribed by special legislation.
(For more information on this, see the commentary to Article 13 of the Law.)
The company is created without limiting the period of its activity, unless otherwise
not provided for by the company's charter.
4. To carry out its activities, the company must have a banking
account(s). The law provides for the right of a company to open accounts as
territory of the Russian Federation and beyond its borders. Legal entities are served
persons, including business entities, on the territory of the Russian Federation,
usually by commercial banks. When opening an account between a company (client)
and the bank draws up a bank account agreement (see Art. 845-859 of the Civil Code), which
the rights and obligations of the parties, the procedure for disposing of funds are determined,
located on the account, transactions performed by the bank on the account, etc. Detailed
regulation of the procedure for opening accounts is given in by-laws.
1986 N 28 "On settlement, current and budget accounts in State Bank institutions
Accounts in foreign banks can be opened by Russian legal entities
by persons with the permission of the Bank of Russia.
5. The society must have a seal. Clause 5 of Article 2 defines the data that
should be reflected in it: the full company name of the company in Russian
language and location of the company. This norm is imperative, and retreat
Society has no right from her. At the same time, the seal may contain his brand name
name in any language of the peoples of the Russian Federation and a foreign language.
The question of the need for these designations is decided by society optionally.
The Company also has the right to have stamps and forms with its corporate name,
own emblem, duly registered trademark.
The procedure for registration, use and protection of trademarks is determined by Law
places of origin of goods" (Vedomosti RF. 1992. N 42. Art. 2322).
Article 2. Basic provisions on limited liability companies
1. A limited liability company (hereinafter referred to as the company) is recognized as
a business company established by one or several persons, chartered
whose capital is divided into shares determined by the constituent documents
sizes; members of the company are not liable for its obligations and bear the risk
their deposits.
Participants of the company who have not fully contributed to the authorized capital of the company,
bear joint liability for its obligations within the cost
the unpaid portion of the contribution of each of the company's participants.
2. The company owns separate property, which is taken into account
on its independent balance sheet, can, on its own behalf, acquire and carry out
property and personal non-property rights, bear responsibilities, be a plaintiff
and a defendant in court.
Society can have civil rights and bear civic responsibilities,
necessary to carry out any type of activity not prohibited by federal
laws, if this does not contradict the subject and goals of the activity, definitely
limited by the company's charter.
Certain types of activities, the list of which is determined by the federal
by law, the company can engage in activities only on the basis of special permission
(licenses). If the conditions for granting a special permit (license)
there is a requirement for carrying out a certain type of activity
carry out such activities as exclusive, the company for a period of time
the actions of a special permit (license) may only be carried out by types
activities provided for by a special permit (license) and related
activities.
3. The company is considered created as a legal entity from the moment of its state
registration in the manner established by the federal law on state
registration of legal entities.
The company is created without a time limit, unless otherwise established by it
4. The company has the right to open bank accounts in the prescribed manner
on the territory of the Russian Federation and beyond its borders.
5. The company must have a round seal containing its full corporate identity
name in Russian and indication of the location of the company. Seal
the company may also contain the company name in any language
peoples of the Russian Federation and (or) a foreign language.
The Company has the right to have stamps and forms with its corporate name,
own emblem, as well as a trademark registered in accordance with the established procedure
sign and other means of individualization.
Commentary on article 2.
1. Clause 1 of Article 2 provides the definition of a limited liability company,
coinciding with what is contained in paragraph 1 of Article 81 of the Civil Code. It shows the main features
limited liability companies. At the same time, a number of provisions complementing
legal characteristics of the company in question, contained in other norms
Civil Code and Law. Let us name the main features of society that make it possible to distinguish it into an independent
organizational- legal form legal entity and reflecting its legal
position:
1) limited liability company is one of the varieties
business companies created, as a rule, by combining capital
individual legal entities and individuals founders (participants) in order to implement
entrepreneurial activity. The Company is a commercial organization
that is, one whose activities are focused on making a profit (see.
Art. 50, 66 Civil Code);
2) a company can be founded by one or several persons. Wherein,
however, the number of its founders cannot exceed the maximum number of fifty
participants established by clause 3 of article 7 of the Law. Moreover, society cannot
have another business entity as the sole founder (participant)
a company consisting of one person (clause 2 of article 88 of the Civil Code, clause 2 of article 7 of the Law);
3) the authorized capital of the company, formed from the contributions of its founders
(participants), divided into shares of sizes determined by the constituent documents.
The size of shares owned by each participant is fixed in the constituent documents
agreement and in the charter of the company;
4) a limited liability company does not have the right to issue shares
(Clause 7, Article 66 of the Civil Code). The rights of a participant in relation to the company are determined by its constituent
documents taking into account the size of the contribution made in accordance with the norms of the Civil Code
and the Law;
5) members of the company are not liable for its obligations and bear the risk
losses associated with the activities of the company, within the value of the contributions made
their deposits. This is a universal position; it defines the principles of relationships
in business companies, including joint stock companies, except for companies with additional
liability (see Article 95 of the Civil Code).
The law at the same time provides that participants who made contributions to
the authorized capital of the company is not fully, bear joint liability for
his obligations within the limits of the value of the unpaid part of the deposit. This
the norm is based on the obligation of participants to fully pay their contribution to
the period determined by the constituent documents of the company, but not later than a year
from the moment of its creation (clause 1 of article 16 of the Law). Therefore, the responsibility of the shareholder
for the obligations of the company within the unpaid portion of its share in the authorized
capital is essentially its responsibility for its debt (statutory
capital is considered as minimum size property guaranteeing interests
creditors of the company - Article 14 of the Law). In case of joint liability, the creditor
has the right to demand repayment of the debt from all debtors jointly or from each
of them separately (Article 323 of the Civil Code). Creditors may make claims against members of the company
claims only for the part of the share not paid by each of them;
6) a limited liability company, although based on an association
capital (like any business company) and does not provide for mandatory
participation of persons creating it in production, economic, commercial
activities of society, presupposes, at the same time, the establishment of closer
corporate and economic relations between its participants and society, than,
say, in a joint stock company, which is manifested in: a special procedure for joining the company
with limited liability; restrictions on acceptance permitted by law
new faces will be included in its composition; the possibility of the company purchasing a share owned by a participant;
the right of a participant to leave the company with payment of the actual value
its share and a number of other features characteristic of these structures.
At the same time, limited liability companies are quite close to closed ones
joint stock companies. Moreover, the commented Law takes into account some issues,
the need to solve which was revealed in the practice of applying the Law on Joint Stock Companies
societies.
2. Clause 2 of the commented article sets out the main provisions (features)
necessary for the company to acquire the status of a legal entity:
a) a limited liability company has separate ownership
property accounted for on an independent balance sheet. Source of formation
it is, as already noted, funds contributed by the founders (participants)
company as a contribution to the authorized capital, as well as property acquired
on other grounds provided by law - as a result of production and economic,
commercial activities, etc. (Article 218-219 of the Civil Code).
As contributions to the property of a business company in accordance with
from Article 48 and Clause 2 of Article 213 of the Civil Code may be introduced cash and other material
valuables, as well as property or other rights that have a monetary value.
The Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation in the Resolution of the Plenums No. 6/8
clarified that an object cannot be transferred directly as a contribution
intellectual property (patent, copyright, including software
Computers, etc.) or "know-how", but the right to use such an object transferred
society in accordance with the license agreement, can be accepted as a contribution
At the same time, the society can own those created by it in the process of its
activity objects of intellectual property - the right to industrial
samples, certain technologies, trademark, etc.;
b) the company can acquire and exercise property in its own name
and personal non-property rights. This is manifested in the exercise of the rights of the owner
on ownership, use and disposal of property to satisfy one’s own
needs, conducting production and economic activities, in charitable
and other purposes. The company may enter into transactions to alienate its own property
and the acquisition of new things (sale and purchase agreements, exchange, donation); handing over your
property for rent or temporary use (under a loan agreement); transmit
pledge it, make it as a contribution to the authorized capital of other economic
societies, etc.
These rights are exercised by the company freely, except in cases
when legal restrictions apply. Thus, Article 575 of the Civil Code does not allow donation
commercial organizations property to each other and government employees
bodies and bodies of municipalities in connection with the execution by them of their
duties (with the exception of ordinary gifts of small value).
use by a person who is a founder or participant of this organization,
as well as its director, member of the collegial management or control body.
Transactions made in violation of these restrictions are void
by virtue of Article 168 of the Civil Code.
The company bears responsibilities related to the exercise of its rights as an owner,
Concerns regarding the maintenance of property belonging to him (Articles 209, 210 of the Civil Code), with the implementation
obligations under contracts and other transactions, etc. At the same time, it must
carry out without violating the rights and legitimate interests of other persons (Article 10 of the Civil Code);
c) another feature of a legal entity is the right to be a plaintiff and
defendant in court. The right to judicial protection is provided for in Article 11 of the Civil Code. Order
appearances in court as a plaintiff and defendant are determined by the Arbitration and
Civil procedural codes (see APC and Code of Civil Procedure).
Being a commercial organization, the company in accordance with Article 49 of the Civil Code
and paragraph 2 of the commented article has general legal capacity, that is, it can
have civil rights and bear civil responsibilities necessary for the implementation
any types of activities not prohibited by law. In the commented article
Along with this, it is noted that the activities of the society should not contradict
subject and goals specifically limited in the company's charter. Such restrictions
may be established in the charter by decision of either the founders (when creating a company),
or a general meeting of participants (by introducing amendments and additions to the charter),
based on the goals for which the company is created. Necessary
at the same time, that the corresponding restrictions on activities are clearly
reflected in the charter - by indicating in it an exhaustive (complete) list
or inclusion in the charter of a clause that prohibits certain types of activities,
etc. (see paragraph 18 of the Resolution of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 6/8). Commitment
society of transactions in conflict with the objectives of the activity, definitely limited
in its constituent documents, is the basis for the court to recognize them
invalid at the claim of this company, its founder (participant) or state
the body exercising supervision over the activities of this legal entity,
if it is proven that the other party to the transaction knew or obviously should have
know about its illegality (Article 173 of the Civil Code). Transactions in connection with the occupation
activities prohibited by law or other violations of the law and other
legal acts entail their recognition as void on the basis of Article 168 of the Civil Code.
Separate types of activities, the list of which should be determined
federal law, a company can only engage in activities on the basis of a special
permissions (licenses). Until the adoption of the licensing law, the rules apply
“On licensing of certain types of activities” (SZ RF. 1995. N 1. Art. 69).
It defines a list of licensed types of activities, bodies authorized
carry out licensing, the procedure for registration and issuance of licenses. Bankovskaya,
insurance and investment activities are licensed in accordance with the rules
established by special legislation (see commentary to paragraph 2 of Article 1 of the Law).
The license specifies the type of activity that is permitted,
and, as a rule, its validity period. To carry out activities by certain
specialized organizations, such as banks, licenses are issued without
time limits (see Article 13 of the Banking Law). The license is not transferable
to other persons.
In cases where a license is issued to engage in any activity
as exclusive, the company has no right during the period of its validity to engage in any other
activities. Violation of this rule is grounds for recognition
transactions that go beyond the special legal capacity of this legal entity
persons, invalid.
The legislation specifies cases when refusal to issue a license is possible,
suspension or cancellation (see Article 16 of the Banking Law,
clauses 4 and 9 of the Procedure for conducting licensed activities, approved by the resolution
in the issuance of a license, suspension or revocation is
exhaustive. Unreasonable refusal (suspension, revocation of license)
may be appealed to the arbitration court in accordance with Article 22 of the Arbitration Procedure Code.
Since a limited liability company has general legal capacity,
Except for the cases noted above, he cannot be refused a license.
(With general legal capacity, there is no need to list in the constituent documents
documents all types of activities that a legal entity can engage in.)
In case of refusal to issue it for such a reason (due to the lack of instructions in the charter
regarding the implementation of certain activities), the company has the right to appeal
refusal in court as unlawful (see paragraph 2, paragraph 18 of the Resolution of the Plenums
RF Armed Forces and the RF Supreme Arbitration Court No. 6/8).
A transaction completed by a company in the absence of a license (after the expiration of
its actions) can be challenged and declared invalid (Article 173 of the Civil Code).
Engaging in activities subject to licensing without appropriate
permits (licenses), as well as activities prohibited by law, or with
repeated or gross violations of the law are in accordance with
with clause 2 of Article 61 of the Civil Code the basis for filing a claim for liquidation with the arbitration court
legal entity (see also Article 13 of the Banking Law). With such claims has the right
contact the prosecutor's office, tax authorities, in relation to commercial
banks - the Bank of Russia, as well as the body carrying out state registration
1997 N 23 - Bulletin of the Supreme Arbitration Court of the Russian Federation. 1998. N 2. Art. 64).
Article 3. Responsibility of the company
1. The company is responsible for its obligations with all its assets
property to him.
2. The company is not responsible for the obligations of its participants.
3. In case of insolvency (bankruptcy) of the company due to the fault of its participants
or through the fault of other persons who have the right to give obligations binding on society
instructions or otherwise have the opportunity to determine his actions, on the specified
participants or other persons in the event of insufficient property of the company may
be held vicariously liable for its obligations.
4. Russian Federation, constituent entities of the Russian Federation and municipal
entities are not liable for the obligations of society, nor
and the company is not liable for the obligations of the Russian Federation,
subjects of the Russian Federation and municipalities.
Commentary on article 3.
1. The provision of paragraph 1 of the commented article that the company bears responsibility
for his obligations with all the property belonging to him, corresponds to clause 1
Article 56 of the Civil Code on the liability of legal entities. It should be emphasized that responsibility
of the companies in question no less than other commercial organizations,
and the definition of “limited liability” carries a different meaning.
It means that the participants of such a company are not liable for its debts belonging to
their property (with the exception of one case), their risk, as already noted,
limited to the size (value) of contributions made to the authorized capital
society. This distinguishes the position of participants in a limited liability company
on the status of participants in general partnerships (see paragraph 2 of Article 75 of the Civil Code), companies with additional
liability (see clause 1 of Article 95 of the Civil Code) and production cooperatives (see clause 2
Article 107 of the Civil Code), which, under certain conditions, bear subsidiary liability
for the obligations of a legal entity of which they are participants (members).
The property of a limited liability company, which can be
be levied on his obligations, includes funds,
securities owned by him (for example, bonds) and other current assets
(including stocks of raw materials, materials, finished products, etc., for which
foreclosure may be applied if the company has insufficient funds),
as well as fixed assets, including real estate. The property includes:
as already mentioned, cash and other material values, introduced
participants in payment of their share in the authorized capital of the company. They also
become the property of the company (clause 1 of Article 66 of the Civil Code), and therefore they are also addressed
collection of his debts. There is only one exception; it is associated with those cases
when something other than a thing is transferred as a contribution (share) to the authorized capital of the company
as such, but only the right to use it for a certain period (for example,
the right to use the premises belonging to the participant). It can't be on her
collection of the company's debts was made (by alienating it to cover the specified
debts), since the thing continues to be the property of the person
who provided it for use. (See paragraph 17 of the Resolution of the Plenums of the RF Armed Forces and
VAS RF N 6/8.)
Composition of property that can be seized for obligations
society is determined on the basis of its balance sheet. When foreclosure on real estate
the belonging of a particular object to society is also determined by state data
registration of real estate and transactions with it" - SZ RF. 1997. N 30. Art. 3594).
Foreclosure is carried out in the order established by law about
enforcement proceedings.
2. The company is not responsible for the obligations of its participants. This is pinned
in the commented Law the rule follows from general principles demarcation
civil liability - every subject of civil law relations
independently responsible for its obligations.
3. Paragraph 3 of the commented article establishes an exception to the general rule
that the company's participants are not liable for its debts. In him
we are talking about cases of insolvency (bankruptcy) of a company due to
the fault of its participants or other persons who have the right to give mandatory
instructions for him or otherwise determine his actions. In case of insufficiency
the company may be entrusted with property to pay off its debts
subsidiary, that is, additional, liability (in the manner prescribed
Article 399 of the Civil Code). Foreclosure on the property of these persons may be made in accordance with the
the part in which debts are not covered by the company’s own property
with limited liability. The persons named in this paragraph include
participants, as well as other persons included in the management bodies of the company and authorized
relevant powers, as well as participants owning a significant share
in the authorized capital and therefore having the opportunity to provide decisive
influence on decision-making at the general meeting. Question about the presence of specific guilt
persons in bringing the company to insolvency (bankruptcy) is decided in accordance
from Article 401 of the Civil Code, where the criteria for determining it are given. For losses resulting from
acceptable business risk, persons who took the appropriate
decision, do not answer.
4. Clause 4 reproduces the general provisions of civil legislation,
according to which the state and its bodies are not liable for obligations
legal entities (except for cases of liability provided for by law
on obligations of state-owned enterprises and government agencies- Art. 115,
120 of the Civil Code), and legal entities are not liable for the obligations of the state and its
bodies, constituent entities of the Russian Federation and municipalities.
Article 4. Company name and location
1. The company must have a full and the right to have an abbreviated corporate
name in Russian. The Company also has the right to have full and (or)
abbreviated corporate name in the languages of the peoples of the Russian Federation
and (or) foreign languages.
The full corporate name of the company in Russian must contain
full name of the company and the words “limited liability”. Abbreviated
The corporate name of the company in Russian must contain the full or
abbreviated name of the company and the words "limited liability"
or the abbreviation LLC.
The corporate name of the company in Russian cannot contain other
terms and abbreviations reflecting its organizational and legal form, including
including borrowed from foreign languages, unless otherwise provided by federal
laws and other legal acts of the Russian Federation.
registration. The constituent documents of the company may establish that
the location of the company is the permanent location of its bodies
management or the main place of its activities.
communication, and is obliged to notify the authorities carrying out state registration
legal entities about changing their postal address.
Commentary on article 4.
1. In accordance with paragraph 4 of Article 54 of the Civil Code, a legal entity that is a commercial
organization must have a corporate name. The law provides
that the company must have a full and has the right to have an abbreviated company name
in Russian, that is, the state language of the Russian Federation. It
can also use the corresponding name (full and abbreviated)
in the languages of the peoples of the Russian Federation and foreign languages. This issue is being resolved
at the discretion of the society.
The full name of the company must contain words indicating
on its organizational and legal form - “limited liability company”,
as well as the name of the society that individualizes it. For example, Limited Liability Company
responsibility of "Kvant". Can be used in abbreviated name
abbreviation "OOO". The law prohibits inclusion in the corporate name of the company
in Russian other terms and abbreviations reflecting its organizational and legal
form, including borrowed from foreign languages (for example, "Ltd",
"Gmbh"), unless otherwise provided by federal laws and other legal
acts of the Russian Federation.
The company chooses a company name independently, but in compliance with
certain rules and some restrictions: a) it cannot use
the name under which another legal entity is registered (of the same
organizational and legal form); 6) in the name of some commercial organizations,
carrying out specialized types of activities must contain the words
indicating affiliation with these organizations, for example “bank” (see.
Article 7 of the Banking Law). At the same time, organizations engaged in other types of
activities, does not have the right to use these words in their names. So,
Article 7 of the Law on Banks states that “not a single legal entity in the Russian
Federation, with the exception of those who have received a license from the Bank of Russia to carry out
banking operations, cannot use the words “bank” in its name,
"credit institution" or otherwise indicate that this legal entity
the person has the right to carry out banking operations"; c) in accordance with
the names "Russia", "Russian Federation" and those formed on their basis
words and phrases in the names of organizations and other structures" (Vedomosti
RF. 1992. N 10. Art. 470) the indicated names can only be used
with the consent of the Government of the Russian Federation and in the manner established by it.
The corporate name of the company is registered by incorporating the company
under it in the state register of legal entities (for registration of a company, see
Article 13 of the Law and commentary thereto). Registered business name
refers to the exclusive rights of society and is protected in accordance with the law
ok. If this name is unlawfully used by another person, the company
has the right, on the basis of clause 1 of Article 54 of the Civil Code, to demand that its use be stopped
and compensate for the losses caused by this.
Losses may amount to losses to society caused by unfair use
its name, thereby undermining the business reputation of the company, etc.
Relevant claims are brought in court and arbitration procedure.
2. The location of the company is determined by the place of its state
registration. This provision of paragraph 2 of the commented article reproduces paragraph 2 of Article 54
Civil Code, which, however, states that in the constituent documents of a legal entity
may be established otherwise in accordance with the law. Commented norm
(which in this case is such a law, i.e. it allows you to establish
otherwise) provides that the constituent documents of the company its location
may be determined by the permanent location of its controls
or principal place of business.
A clear indication of the location of the company is important for resolving a number of legal issues.
issues arising in its activities, in particular to determine the place
fulfillment of obligations when it is not specified in the contract or legal act
(see Article 316 of the Civil Code), establishing territorial jurisdiction of disputes involving
society (see Article 25 of the APC), etc.
In the Resolution of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 6/8 regarding the application of clause 2
Article 54 of the Civil Code provides the following explanation: “The procedure for registering legal entities,
including determining the place of registration, must be established by law
on registration of legal entities (clause 1 of article 51 of the Civil Code). Considering that according to
with Article 8 of the Federal Law "On the entry into force of part one of the Civil
Code of the Russian Federation" pending the introduction of the law on registration of legal entities
persons, the current procedure for registering legal entities is applied, upon permission
disputes should be based on the fact that the location of the legal entity is
the location of his organs."
3. The company must have a postal address at which transactions with it are carried out
communication, and is obliged to notify the state registration authorities of legal entities
persons about changing their address. It is also necessary to notify counterparties about this.
under contracts and other persons with whom the company has business relations,
judicial and arbitration bodies, if the address of the company has changed, when a dispute with
participation of this company is under consideration in one of these bodies.
The negative consequences of failure to fulfill such obligations will be borne by society,
for example, it will not have the right to make claims regarding non-receipt of correspondence,
sent to him at a previously known address.
Article 5. Branches and representative offices of the company
1. The company may create branches and open representative offices according to
decision of the general meeting of the company's participants, adopted by a majority of at least
society.
Creation of branches by the company and opening of representative offices in the territory
of the Russian Federation are carried out in compliance with the requirements of this Federal
law and other federal laws, and outside the territory of the Russian Federation
also in accordance with the legislation of a foreign state, on the territory
which branches are created or representative offices are opened, unless otherwise
provided for by international treaties of the Russian Federation.
2. A branch of a company is its separate division located
outside the location of the company and performing all or part of its functions,
including the functions of representation.
3. The representative office of the company is its separate division,
located outside the location of the company, representing the interests of the company
and carrying out their protection.
4. The branch and representative office of the company are not legal entities
and act on the basis of provisions approved by the company. Branch and representative office
are endowed with property by the society that created them.
Heads of branches and representative offices of the company are appointed by the company
and act on the basis of his power of attorney.
Branches and representative offices of the company operate from
the name of the society that created them. Responsibility for the activities of the branch and representative office
society is borne by the society that created them.
5. The charter of the company must contain information about its branches and representative offices.
Notifications of changes in the company's charter and information about its branches and representative offices
submitted to the body carrying out state registration of legal entities
persons The specified changes in the company's charter come into force for third parties
from the moment of notification of such changes to the body implementing state
registration of legal entities.
Commentary on article 5.
1. The right of legal entities to create branches and representative offices is provided
Article 55 of the Civil Code. Paragraph 1 of the commented article of the Law establishes that the creation
branches and opening representative offices of limited liability companies
carried out by decision of the general meeting, and adopted by the majority,
unless the need for a larger number is provided for by the company's charter. Should
Please note that we are talking about a qualified majority of votes
namely the participants of the company, and not the persons present at this meeting.
The creation of branches and representative offices allows the company to expand
scope of his activities, representation and protection of his interests in various
regions. Branches and representative offices can be created (opened) as
in Russia and on the territory of other states. On the territory of the Russian
Federations they open in accordance with Russian legislation(federal
laws), and outside Russia - in accordance with Russian laws And
legislation of the state in whose territory the branch is created or
a representative office is opened, unless otherwise provided international treaties
Russian Federation.
2. Differences between branches and representative offices - in nature and scope
the functions they perform. A branch may perform all or part of the functions of the company,
what should be specified in the regulations about it, as well as carry out representative
responsibilities. According to the Banking Law, for example, a bank branch produces
on his behalf all or part of the operations provided for by the license issued to the bank
(v.22). Branches are not required to obtain licenses in other cases of implementation
licensed activity: they have the right to engage in it on the basis of a permit,
issued to the company that created the branch.
The missions of the representative offices are more modest. They only represent society and protect
his interests. This includes, among other things, commissions on behalf of the company (by
his powers of attorney) transactions and other legally significant actions.
Despite the noted differences, branches and representative offices have
many similarities - in the conditions and order of creation, legal status, leadership
their activities, etc. The general thing comes down to the following:
a) both branches and representative offices are created as separate divisions
limited liability companies; they do not enjoy legal rights
persons and act on the basis of provisions approved by the company (Article 55 of the Civil Code);
b) branches and representative offices are created outside the location of the company,
moreover, as noted, they can open both within the Russian Federation,
so in other states;
c) the company provides branches and representative offices with part of its property.
It is taken into account on their individual balance sheets and on the company’s balance sheet. Staying
owner of the property, the limited liability company may seize
it at branches and representative offices;
d) not being legal entities, branches and representative offices operate
on behalf of a legal entity. In this case, specific transactions are signed on behalf of the company
heads of branches and representative offices, respectively;
e) heads of branches and representative offices are appointed by the company and act
on the basis of a power of attorney issued by him. The power of attorney must be executed with
compliance with the requirements of Article 185 of the Civil Code - be signed by the head of the company
or another person authorized to do so by its charter; contain all necessary
data, including the date of its issue, in the absence of which the power of attorney is recognized
invalid; the power of attorney must be sealed by the company;
f) responsibility for the actions of a branch or representative office (including
obligations assumed on behalf of the company) are borne by the company, as well as for actions
any other department or for the actions of its employees; in the same time
property transferred to branches and representative offices may be subject to foreclosure
for the company's debts.
Information about created branches and representative offices must be contained
in the company's charter. Upon abolishment of a branch or representative office or creation
new, appropriate changes are made to the charter. They are reported to the authority
carrying out the registration of legal entities, in the notification procedure, i.e.
this issue is resolved by the legal entity independently, without any approvals,
and the direction of information is of an informational nature. For third parties specified
changes come into force from the moment of notification of them to the body implementing
state registration of legal entities. Until this point, a person who has
certain relations with a branch or representative office, may in its actions
assume that these structures exist.
Taking into account the specifics of banking activities, the Banking Law provides for
that branches and representative offices of commercial banks can open with notification
about this to the Bank of Russia, which is simultaneously informed: the postal address of the branch
(representative office), its powers and functions, information about managers, scale
and the nature of the planned operations, as well as an imprint of his seal
and sample signatures. Branches of banks with foreign investments in the territory
of the Russian Federation are registered by the Bank of Russia in the manner established by it
(Article 22 of the Law).
In practice, there are cases when branch managers who have
authority to conclude contracts on behalf of a legal entity, conclude them
on behalf of the branch. The Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation, regarding such
situation, in Resolution of the Plenums No. 6/8 they gave the following explanation: “When
resolving a dispute arising from an agreement signed by the head of the branch
(representative office) on behalf of the branch and without reference to the fact that the agreement was concluded
on behalf of a legal entity and under its power of attorney, it should be clarified whether there were
the head of the branch (representative office) at the time of signing the agreement
the corresponding powers expressed in the regulations on the branch and the power of attorney.
Transactions made by the head of the branch (representative office), if any
(clause 20)**. The Resolution of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 6/8 emphasizes, in addition
Moreover, the need to take into account that the corresponding powers of the manager
branch (representative office) must be confirmed by a power of attorney and cannot
be based only on the instructions contained in the constituent documents of the legal entity
persons, regulations on the branch (representative office), etc., or appear from the situation
(paragraph 2, paragraph 20). This clarification, based on the norms of the new Civil Code, excludes the previous
approach when, to recognize the presence of the head of a branch (representative office)
the powers were sufficient for this to be indicated in the regulations on the branch
(other separate division).
There is another important provision in the legislation that takes into account the specifics
activities of branches and representative offices. In accordance with paragraph 2 of Article 25 of the Arbitration Procedure Code, the claim
to a legal entity arising from the activities of its separate division,
presented at the location of this unit ***, but by the party
the case and in these cases is a legal entity (society).
Article 6. Subsidiaries and dependent companies
1. A company may have subsidiaries and dependent business companies with
rights of a legal entity created on the territory of the Russian Federation in
in accordance with this Federal Law and other federal laws,
and outside the territory of the Russian Federation also in accordance with the law
foreign state on whose territory a subsidiary or dependent
economic company, unless otherwise provided by international treaties
Russian Federation.
2. A company is recognized as a subsidiary if another (main) economic
company or partnership due to a predominant participation in its authorized capital,
either in accordance with the agreement concluded between them, or otherwise
has the ability to determine the decisions made by such a society.
3. The subsidiary is not liable for the debts of the main business company
(partnerships).
The main business company (partnership), which has the right to give
instructions to the subsidiary that are binding on it, shall be liable jointly and severally with the subsidiary
by the company on transactions concluded by the latter in pursuance of such instructions.
In case of insolvency (bankruptcy) subsidiary company due to the fault of the main
economic company (partnership), the latter bears in case of insufficiency
property of the subsidiary company subsidiary liability for its debts.
Participants in a subsidiary have the right to demand compensation from the parent company
(partnership) losses caused to its subsidiary through its fault.
4. A company is recognized as dependent if another (prevailing, participating)
business company has more than twenty percent of the authorized capital of the first
society.
A company that has acquired more than twenty percent of voting shares
joint-stock company or more than twenty percent of the authorized capital of another
limited liability company is obliged to immediately publish
information about this in the press organ, which publishes data on state
registration of legal entities.
The federal law
"On Limited Liability Companies" (On LLC)
dated 02/08/1998 N 14-FZ
(adopted by the State Duma of the Federal Assembly of the Russian Federation on January 14, 1998)
(current edition)
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Document Note:
The edition begins on October 21, 2009.
The edition expires on December 31, 2009.
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Attention! There is uncertainty about the effective date of the revision associated with the first official publication of the amending document. The changes made by Federal Law No. 205-FZ of July 19, 2009 came into force 90 days after the day of official publication, with the exception of changes made to paragraph 3 of Article 8, Article 21, paragraph 3 of Article 22, Article 23, paragraph two paragraph 5 of article 31.1, paragraph 2 of article 33, paragraph two of paragraph 3 of article 43, which entered into force on the date of official publication (published in the "Collection of Legislation of the Russian Federation" - 07.20.2009, in " Rossiyskaya newspaper" - 07/22/2009). For more details, see Reference information.
For the procedure for applying this document in connection with the entry into force of Federal Law No. 312-FZ of December 30, 2008, see Article 5 of the said Law.
The document is applied taking into account the provisions of the Federal Law of October 27, 2008 N 175-FZ (clause 2 of Article 11 of the Federal Law of October 27, 2008 N 175-FZ).
On the issue regarding the application of this document, see Resolution of the Plenum Supreme Court RF No. 90, Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 dated 12/09/1999.
Chapter I. GENERAL PROVISIONS
Article 1. Relations regulated by this Federal Law
1. This Federal Law determines, in accordance with the Civil Code of the Russian Federation, the legal status of a limited liability company, the rights and obligations of its participants, the procedure for the creation, reorganization and liquidation of the company.
2. Features of the legal status, procedure for the creation, reorganization and liquidation of limited liability companies in the areas of banking, insurance and investment activities, as well as in the field of agricultural production, are determined by federal laws.
Article 2. Basic provisions on limited liability companies
1. A limited liability company (hereinafter referred to as the company) is a business company established by one or several persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents; The participants of the company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of the contributions they made.
Participants of the company who have not fully contributed to the authorized capital of the company bear joint liability for its obligations to the extent of the value of the unpaid part of the contribution of each of the participants of the company.
2. The company owns separate property, which is accounted for on its independent balance sheet, and can, in its own name, acquire and exercise property and personal non-property rights, bear responsibilities, and be a plaintiff and defendant in court.
A company may have civil rights and bear civil responsibilities necessary to carry out any types of activities not prohibited by federal laws, if this does not contradict the subject and goals of the activity, specifically limited by the company’s charter.
The company may engage in certain types of activities, the list of which is determined by federal law, only on the basis of a special permit (license). If the conditions for granting a special permit (license) to carry out a certain type of activity provide for the requirement to carry out such activity as exclusive, the company during the period of validity of the special permit (license) has the right to carry out only the types of activities provided for by the special permit (license), and associated species activities.
3. The company is considered created as a legal entity from the moment of its state registration in the manner established by the federal law on state registration of legal entities.
A company is created without a time limit, unless otherwise established by its charter.
4. The Company has the right to open bank accounts in the prescribed manner on the territory of the Russian Federation and abroad.
5. The company must have a round seal containing its full corporate name in Russian and an indication of the location of the company. The company's seal may also contain the company's corporate name in any language of the peoples of the Russian Federation and (or) a foreign language.
The Company has the right to have stamps and forms with its corporate name, its own emblem, as well as a trademark registered in the prescribed manner and other means of individualization.
Article 3. Responsibility of the company
1. The company is liable for its obligations with all its property.
2. The company is not responsible for the obligations of its participants.
3. In the event of insolvency (bankruptcy) of a company through the fault of its participants or through the fault of other persons who have the right to give instructions binding on the company or otherwise have the opportunity to determine its actions, the specified participants or other persons in the event of insufficiency of the company’s property may be assigned subsidiary liability for his obligations.
4. Russian Federation, constituent entities of the Russian Federation and municipalities are not liable for the obligations of the company, just as the company is not liable for the obligations of the Russian Federation, constituent entities of the Russian Federation and municipalities.
Article 4. Company name and location
1. The company must have a full and has the right to have an abbreviated corporate name in Russian. The Company also has the right to have a full and (or) abbreviated corporate name in the languages of the peoples of the Russian Federation and (or) foreign languages.
The full corporate name of the company in Russian must contain the full name of the company and the words “limited liability”. The abbreviated corporate name of the company in Russian must contain the full or abbreviated name of the company and the words “limited liability” or the abbreviation LLC.
The corporate name of the company in Russian cannot contain other terms and abbreviations that reflect its organizational and legal form, including those borrowed from foreign languages, unless otherwise provided by federal laws and other legal acts of the Russian Federation.
2. The location of the company is determined by the place of its state registration. (as amended by Federal Law No. 31-FZ dated March 21, 2002)
3. Excluded. - Federal Law of March 21, 2002 N 31-FZ.
Article 5. Branches and representative offices of the company
1. A company may create branches and open representative offices by decision of the general meeting of the company’s participants, adopted by a majority of at least two-thirds of the total number of votes of the company’s participants, unless the need for a larger number of votes to make such a decision is provided for by the company’s charter.
The creation by the company of branches and the opening of representative offices on the territory of the Russian Federation are carried out in compliance with the requirements of this Federal Law and other federal laws, and outside the territory of the Russian Federation also in accordance with the legislation of the foreign state on the territory of which branches are created or representative offices are opened, unless otherwise provided by international treaties of the Russian Federation.
2. A branch of a company is its separate division, located outside the location of the company and performing all or part of its functions, including the functions of a representative office.
3. A representative office of a company is its separate division, located outside the location of the company, representing the interests of the company and protecting them.
4. The branch and representative office of the company are not legal entities and act on the basis of regulations approved by the company. A branch and representative office are endowed with property by the company that created them.
The heads of branches and representative offices of the company are appointed by the company and act on the basis of its power of attorney.
Branches and representative offices of the company carry out their activities on behalf of the company that created them. The responsibility for the activities of the branch and representative office of the company lies with the company that created them.
5. The charter of the company must contain information about its branches and representative offices. Messages about changes in the company's charter and information about its branches and representative offices are submitted to the body that carries out state registration of legal entities. The specified changes in the company's charter come into force for third parties from the moment of notification of such changes to the body carrying out state registration of legal entities.
Article 6. Subsidiaries and dependent companies
1. A company may have subsidiaries and dependent business companies with the rights of a legal entity, created on the territory of the Russian Federation in accordance with this Federal Law and other federal laws, and outside the territory of the Russian Federation also in accordance with the legislation of the foreign state on the territory of which the subsidiary was created or a dependent business company, unless otherwise provided by international treaties of the Russian Federation.
2. A company is recognized as a subsidiary if another (main) business company or partnership, due to its predominant participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise has the opportunity to determine the decisions taken by such company.
3. The subsidiary is not liable for the debts of the main business company (partnership).
The main business company (partnership), which has the right to give mandatory instructions to its subsidiary, is jointly and severally liable with the subsidiary for transactions concluded by the latter in pursuance of such instructions.
In the event of insolvency (bankruptcy) of a subsidiary through the fault of the main business company (partnership), the latter bears subsidiary liability for its debts if the subsidiary's property is insufficient.
Participants in a subsidiary have the right to demand compensation from the parent company (partnership) for losses caused to the subsidiary through its fault.
4. A company is recognized as dependent if another (predominant, participating) business company has more than twenty percent of the authorized capital of the first company.
A company that has acquired more than twenty percent of the voting shares of a joint stock company or more than twenty percent of the authorized capital of another limited liability company is obliged to immediately publish information about this in the press organ in which data on state registration of legal entities is published.
Article 7. Members of the company
1. Participants of the company can be citizens and legal entities.
Federal law may prohibit or restrict participation individual categories citizens in societies.
2. State bodies and local self-government bodies do not have the right to act as participants in companies, unless otherwise established by federal law.
A company can be founded by one person, who becomes its sole participant. The company may subsequently become a single-member company.
A company cannot have another business company consisting of one person as its sole participant.
The provisions of this Federal Law apply to companies with one participant insofar as this Federal Law does not provide otherwise and insofar as this does not contradict the essence of the relevant relations.
3. The number of company participants should not be more than fifty.
If the number of participants in the company exceeds the limit established by this paragraph, the company must be transformed into an open joint-stock company or a production cooperative within a year. If within the specified period the company is not transformed and the number of participants in the company does not decrease to the limit established by this paragraph, it is subject to liquidation in court at the request of the body carrying out state registration of legal entities, or other state bodies or local government bodies, which have the right to present such a requirement is provided by federal law.
Article 8. Rights of company participants
1. Members of the company have the right:
participate in managing the affairs of the company in the manner established by this Federal Law and the constituent documents of the company;
receive information about the activities of the company and get acquainted with its accounting books and other documentation in the manner established by its constituent documents;
take part in the distribution of profits;
sell or otherwise assign your share in the authorized capital of the company or part thereof to one or more participants of this company in the manner prescribed by this Federal Law and the charter of the company;
leave the society at any time, regardless of the consent of its other participants;
receive, in the event of liquidation of the company, part of the property remaining after settlements with creditors, or its value.
Members of the company also have other rights provided for by this Federal Law.
2. In addition to the rights provided for by this Federal Law, the charter of the company may provide for other rights (additional rights) of the participant(s) of the company. These rights may be provided for by the charter of the company upon its establishment or granted to a participant (participants) of the company by decision of the general meeting of participants of the company, adopted unanimously by all participants of the company.
Additional rights granted to a specific member of the company in the event of alienation of his share (part of the share) are not transferred to the acquirer of the share (part of the share).
Termination or restriction additional rights provided to all members of the company, is carried out by decision of the general meeting of the company's participants, adopted unanimously by all members of the company. Termination or restriction of additional rights granted to a specific company participant is carried out by decision of the general meeting of company participants, adopted by a majority of at least two-thirds of the total number of votes of company participants, provided that the company participant who owns such additional rights voted for the adoption of such decisions or gave written consent.
A company participant who has been granted additional rights may refuse to exercise his additional rights by sending written notice about this to society. From the moment the company receives this notification, the additional rights of the company participant are terminated.
Article 9. Obligations of company participants
1. Members of the company are obliged to:
make contributions in the manner, in amounts, in composition and within the time limits provided for by this Federal Law and the constituent documents of the company;
not to disclose confidential information about the activities of the company.
Members of the company also bear other responsibilities provided for by this Federal Law.
2. In addition to the duties provided for by this Federal Law, the charter of the company may provide for other duties (additional duties) of the participant (participants) of the company. These responsibilities may be provided for by the charter of the company upon its establishment or assigned to all participants of the company by decision of the general meeting of participants of the company, adopted unanimously by all participants of the company. The assignment of additional responsibilities to a specific company participant is carried out by decision of the general meeting of company participants, adopted by a majority of at least two-thirds of the votes of the total number of votes of the company participants, provided that the company participant who is assigned such additional responsibilities voted for such a decision or gave written agreement.
Additional obligations assigned to a specific participant in the company, in the event of alienation of his share (part of the share) are not transferred to the acquirer of the share (part of the share).
Additional duties may be terminated by a decision of the general meeting of company participants, adopted unanimously by all company participants.
Article 10. Expulsion of a company participant from the company
Participants of the company, whose shares in the aggregate constitute at least ten percent of the authorized capital of the company, have the right to demand in court the exclusion from the company of a participant who grossly violates his duties or by his actions (inaction) makes the activities of the company impossible or significantly complicates it.
Chapter II. ESTABLISHMENT OF THE COMPANY
Article 11. Procedure for establishing a company
1. The founders of the company conclude a constituent agreement and approve the charter of the company. The memorandum of association and the charter of the company are the constituent documents of the company.
If a company is founded by one person, the constituent document of the company is the charter approved by this person. If the number of company participants increases to two or more, a constituent agreement must be concluded between them.
The founders of the company elect (appoint) the executive bodies of the company, and also, in the case of non-monetary contributions to the authorized capital of the company, approve their monetary value.
The decision to approve the company's charter, as well as the decision to approve the monetary value of the contributions made by the founders of the company, is adopted by the founders unanimously. Other decisions are made by the founders of the company in the manner prescribed by this Federal Law and the constituent documents of the company.
2. The founders of the company bear joint liability for obligations related to the establishment of the company and arose before its state registration. The company is liable for the obligations of the company's founders related to its establishment only if their actions are subsequently approved by the general meeting of the company's participants.
3. The specifics of establishing a company with the participation of foreign investors are determined by federal law.
Article 12. Constituent documents of the company
1. In the founding agreement, the founders of the company undertake to create the company and determine the procedure joint activities on its creation. The constituent agreement also determines the composition of the founders (participants) of the company, the size of the authorized capital of the company and the size of the share of each of the founders (participants) of the company, the size and composition of contributions, the procedure and timing of their contribution to the authorized capital of the company upon its establishment, the responsibility of the founders (participants) of the company for violation of the obligation to make contributions, the conditions and procedure for the distribution of profits between the founders (participants) of the company, the composition of the company’s bodies and the procedure for the withdrawal of company participants from the company.
2. The charter of the company must contain:
full and abbreviated company name of the company;
information about the location of the company;
information on the composition and competence of the company's bodies, including on issues that constitute the exclusive competence of the general meeting of the company's participants, on the procedure for making decisions by the company's bodies, including on issues on which decisions are made unanimously or by a qualified majority of votes;
information on the size of the company's authorized capital;
information about the size and nominal value of the share of each participant in the company;
rights and obligations of company participants;
information about the procedure and consequences of the withdrawal of a company participant from the company;
information on the procedure for transferring a share (part of a share) in the authorized capital of the company to another person;
information on the procedure for storing company documents and on the procedure for the company providing information to company participants and other persons;
other information provided for by this Federal Law.
The company's charter may also contain other provisions that do not contradict this Federal Law and other federal laws.
3. At the request of a company participant, auditor or any interested party, the company is obliged, within a reasonable time, to provide them with the opportunity to familiarize themselves with the constituent documents of the company, including amendments. The company is obliged, at the request of a company participant, to provide him with copies of the current constituent agreement and the company's charter. The fee charged by the company for providing copies cannot exceed the cost of their production.
4. Changes to the constituent documents of the company are made by decision of the general meeting of the company's participants.
Changes made to the constituent documents of the company are subject to state registration in the manner prescribed by Article 13 of this Federal Law for registration of the company.
Changes made to the constituent documents of the company become effective for third parties from the moment of their state registration, and in cases established by this Federal Law, from the moment of notification to the body carrying out state registration.
5. In the event of a discrepancy between the provisions of the constituent agreement and the provisions of the charter of the company, the provisions of the charter of the company shall prevail for third parties and participants of the company.
Law No. 14-FZ “On Limited Liability Companies” determines the legal status of the company, the obligations and rights of its participants, the rules of creation, liquidation and reorganization. The specifics of the transformation, formation and closure of enterprises in the areas of investment, banking, private security, insurance activities and in the production of agricultural goods are also regulated by other industry regulations.
14-FZ "On LLC" ("Guarantor")
In Art. 2 of the normative act under consideration provides basic terms and definitions. An LLC is a business enterprise formed by one or more entities, with an authorized capital divided into shares. Participants do not bear the risk of loss and do not repay the company's obligations related to its activities to the extent of the value of their contributions. Entities must pay their capital shares in full. Participants who have made only a partial investment are jointly and severally liable for the obligations of the enterprise to the extent of the value of the outstanding part of the contribution.
Company Features
Law No. 14-FZ “On Limited Liability Companies” provides that a company must have separate property, which is accounted for on an independent balance sheet. An enterprise can acquire and sell from own name non-property and property rights, answer for your obligations, represent your interests in court as a defendant or plaintiff. The company can conduct any activity that is not prohibited by regulations and does not contradict the purposes of its creation established in the charter. Certain species Operations may only be performed with a license (permit).
Law No. 14-FZ “On Limited Liability Companies” establishes that an enterprise is considered formed from the date of its state registration according to the rules provided for in current regulations. A company is created for an indefinite period, unless otherwise specified in the charter.
Personalization
Law No. 14-FZ "On LLC" (current version) requires the enterprise to have a round seal with official language state and indicating its location. The company may have forms and stamps with its name, emblem, trademark, etc.
In accordance with the Federal Law "On Limited Liability Companies", an enterprise must have a full name and may have an abbreviated name. There are certain requirements for the name. In particular, the name must necessarily contain the phrase “limited liability”; in the abbreviated version it is allowed to use an abbreviation. Other requirements for the name are determined by the provisions of the Civil Code.
Specifics of fulfillment of obligations
In accordance with Federal Law No. 14, the company is responsible for its actions with all the property belonging to it. The enterprise does not fulfill the obligations of its participants. In the event of bankruptcy (insolvency) of a company due to the fault of investors or other persons who have the right to give instructions binding on it, or the ability to determine its actions, those responsible for the insufficiency of the company's property are assigned subsidiary liability.
Representative offices and branches
According to the Federal Law "On Limited Liability Companies", an enterprise has the right to form separate divisions. Relevant decisions are made at a meeting of participants. A resolution is considered approved if it is supported by a majority (at least 2/3) of the total number of votes, unless a different number is established in the charter.
The formation of representative offices and branches is carried out in compliance with the requirements provided for by the 14th Federal Law “On Limited Liability Companies” and other regulations, and abroad - the legal provisions of the state on whose territory the divisions are formed, unless otherwise provided in international treaties.
These organizations do not act as legal entities. Their activities are carried out in accordance with the regulations approved by the main enterprise. A representative office of an LLC is a division that is located outside the location of the enterprise. It acts in the interests of the company and ensures their protection. A branch is a division located outside the location of the LLC and performing all or part of its functions. This includes representation. The appointment of management of divisions is carried out by the company. To exercise their powers, they are issued a power of attorney.
Affiliated companies
They have the rights of a legal entity and are formed both on the territory of the Russian Federation and abroad. A company is considered a subsidiary if the main enterprise has the ability to determine decisions that are approved by it. Such a right may arise by virtue of a concluded agreement, predominant participation in capital or for other reasons. is not liable for the obligations of the parent company. The main undertaking may issue instructions that are binding on it. At the same time, it is jointly and severally liable with it for transactions made during the execution of these orders. In the event of the insolvency of a subsidiary due to the fault of the main enterprise, provision is made for the latter for its debts if its property was insufficient for this. Participants can demand compensation from the main company for losses caused by its fault.
Dependent companies
As such, Law No. 14-FZ “On Limited Liability Companies” (latest edition) recognizes companies whose authorized capital is more than 20% owned by the main enterprise. The company that acquired the specified share is obliged to disclose information about it. For this purpose, information is published in the official publication containing data on state registration of legal entities. Relevant information must be made public in as soon as possible after the transaction is completed.
Participants
According to Law No. 14-FZ “On Limited Liability Companies,” they can be legal entities and citizens. Certain individuals may be prohibited or restricted from participating. Government agencies and local government structures do not have the right to join an LLC, unless otherwise provided by federal legislation. An enterprise can be founded by one person. It thus becomes the only participant. A company can be formed by several persons. In the course of its activities, an enterprise can become a company with one participant. The maximum number of founders cannot be more than 50. If the number of participants exceeds this, within a year the enterprise must be transformed into an OJSC. If this order is not fulfilled, and the number of entities is not reduced, the company may be liquidated in court in accordance with the requirements of the registration authority or other authorized bodies.
Participants' rights
The Federal Law “On Limited Liability Companies” (current version) provides for the following legal options:
- Participate in the management of the current affairs of the enterprise according to the rules provided for in the regulatory act in question and the company’s charter.
- Obtain information about the activities of the company, study its accounting and other documentation.
- Participate in the distribution of profits. According to 14-FZ “On LLC”, dividends are paid based on the results of the reporting period.
- Sell or otherwise alienate your share or part of it in the capital to other participants or other persons.
- Leave the society. This can be done by the participant selling his share (if this possibility is provided for in the charter) or by presenting a requirement for the enterprise to acquire his contribution in the cases established in the regulatory act.
- Receive part of the property when the Participant has the right to purchase material assets remaining after settlements with creditors. During liquidation, in accordance with 14-FZ "On LLC", an independent appraiser performs the proper calculations. In exchange for the property, the participant has the right to demand its value.
Additional features
They may be provided for by the charter of the enterprise at the time of establishment or provided by decision of the meeting adopted unanimously. Additional rights upon alienation of a participant's share or part thereof do not pass to the acquirer. Their termination or restriction in relation to all participants is carried out on the basis of a decision adopted unanimously at the meeting, in relation to a specific subject - by a majority (at least 2/3) of all voters. In the latter case, the subject must give written consent or vote for approval of the resolution. The Participant may waive additional rights granted to him by sending appropriate notice.
Responsibilities
In accordance with 14-FZ "On LLC", participants of the enterprise must:
- Make payments for shares in the capital of the company in the amounts, manner and terms determined normative act and the articles of association.
- Maintain confidentiality of information about the company's activities.
Additional responsibilities may be established in the charter of the enterprise upon its establishment or assigned to the subjects by decision of the meeting. If they are provided for a specific entity, upon alienation of its share or part thereof, they do not pass to the acquirer.
Establishment of an enterprise
The formation of a society is carried out in accordance with the decision of the meeting. If there is only one founder, then it is accepted by him alone. The decision reflects the results of voting on issues related to the organization of the enterprise, the appointment/election of executive bodies, the formation of an audit commission, if these structures are mandatory or provided for in the charter.
When establishing a company by one entity, the amount of capital, the period and procedure for its payment, the nominal value and the size of the share must be determined. The participants enter into a written agreement that establishes the rules for conducting joint activities. The agreement also determines the amount and term of payment of shares.
Charter
It acts as the constituent document of the enterprise. The charter must indicate:
- Company name (abbreviated and full).
- Location data.
- Information on the competence and composition of executive bodies, including on issues relating to their exclusive jurisdiction, and on the procedure for their decision-making.
- Data on the amount of capital.
- Responsibilities and rights of participants.
- Information about the rules and consequences of the withdrawal of entities from the company, if such a possibility is provided.
- Data on the procedure for transferring the entire share or part of it to another person.
- Rules for storing documentation and providing information to other entities.
- Other information of significant importance.
Capital
It is formed from the nominal price of the participants' shares. The amount of capital must be at least 10 thousand rubles. Its size, as well as the cost of shares, is determined in rubles. Capital determines the minimum amount of property that ensures the fulfillment of obligations to creditors. The size of the share of participants is determined as a fraction or as a percentage. It must correspond to the ratio of its nominal value and the amount of capital. The articles of association may provide for a limitation on the maximum size of the share. Its actual value must correspond to part of the price of the enterprise’s net assets, proportional to the size of the deposit. Limits on the size of shares can be established for individual participants of the company in the charter at the time of establishment, and can also be included in the document, amended or excluded from it based on a decision of the meeting adopted unanimously.
The size of the authorized capital of the company and the nominal value of the shares of the company's participants are determined in rubles.
The authorized capital of a company determines the minimum amount of its property, which guarantees the interests of its creditors.
2. The size of the share of a company participant in the authorized capital of the company is determined as a percentage or as a fraction. The size of the share of a company participant must correspond to the ratio of the nominal value of his share and the authorized capital of the company.
The actual value of the share of a company participant corresponds to a part of the value of the company's net assets, proportional to the size of his share.
3. The company's charter may limit the maximum size of the share of a company participant. The company's charter may limit the possibility of changing the ratio of shares of the company's participants. Such restrictions cannot be established in relation to individual members of the company. The specified provisions may be provided for by the charter of the company upon its establishment, and also included in the charter of the company, amended and excluded from the charter of the company by decision of the general meeting of the company's participants, adopted unanimously by all the company's participants.
If the company's charter contains the restrictions provided for by this paragraph, a person who acquired a share in the authorized capital of the company in violation of the requirements of this paragraph and the relevant provisions of the company's charter has the right to vote at the general meeting of the company's participants with a portion of the share, the amount of which does not exceed that established by the company's charter the maximum size of the share of a company participant.
Judicial practice under Article 14 of the Federal Law of 02/08/1998 No. 14-FZ
Determination of January 21, 2019 in case No. A11-10050/2015
Having assessed the totality and interrelationships of the evidence presented in the case file, including forensic reports, in the manner prescribed by Chapter 7 of the Code, guided by the provisions of Articles 14, 23, 26 of the Federal Law of 02/08/1998 No. 14 - Federal Law “On Limited Companies” liability,” the appellate court, supported by the district court, concluded that...
Determination of December 26, 2018 in case No. A63-5733/2017
Supreme Court of the Russian Federation - Civil
The essence of the dispute: Corporate dispute - Invalidation of the constituent documents of companies (charter, agreement) or amendments made to them
Cases of evidence, including conclusions forensics and additional forensic examination, taking into account the expert’s explanations, in the manner prescribed by Chapter 7 of the Code, guided by the provisions of Articles 14, 23, 26 of the Federal Law of 02/08/1998 No. 14 - Federal Law “On Limited Liability Companies”, court of first instance, supported by the courts appellate and cassation instances, came to the conclusion...
Decision of October 16, 2018 in case No. A14-9352/2018
Arbitration Court of the Voronezh Region (AC of the Voronezh Region)
In the manner and within the time limits provided for by the law on limited liability companies and the charter of the company. According to Articles 8, 26 of the Federal Law of 02/08/1998 No. 14 - Federal Law “On Limited Liability Companies” (hereinafter referred to as the Federal Law “On Limited Liability Companies”), a company participant has the right to leave the company by alienating the share to the company, regardless of... .
Decision of October 10, 2018 in case No. A42-7132/2018
Arbitration court Murmansk region(AS of the Murmansk region)
2 of Article 25 of the Federal Law of 08.08.2001 N 129-FZ “On state registration of legal entities and individual entrepreneurs”. According to the provisions of paragraph 1 of Article 14 of Law No. 14-FZ, the size of the authorized capital of the company must be no less than ten thousand rubles. In accordance with paragraph 4 of Article 30 of Law No. 14 - Federal Law, if the cost...
Decision of October 4, 2018 in case No. A32-14403/2018
Arbitration court Krasnodar region(AS of Krasnodar region)
The court was guided by the following. The sale of a share owned by the company is carried out by decision of the general meeting of the company's participants (Part 3 of Article 23 and Part 2 of Article 24 of Law No. 14 - Federal Law). According to Article 128 of the Civil Code of the Russian Federation, the objects of civil rights are things, including money and securities; other property, including property rights; work and...
Resolution of October 4, 2018 in case No. A21-4494/2016
Thirteenth Arbitration Court of Appeal (13 AAC)
On the invalidation of the guarantee agreement dated December 29, 2012 No. 06-20-2012/DP-3 (hereinafter referred to as the Guarantee Agreement) and the application of the consequences of the invalidity of the transaction. By court ruling dated 14. On 06.2016 this claim was accepted for proceedings. The case was assigned No. A44-4494/2016. In addition, Lapina M.V. On June 30, 2016, she filed a claim with the arbitration court against...
Resolution of October 1, 2018 in case No. A82-8648/2018
Arbitration Court of the Yaroslavl Region (AC of the Yaroslavl Region)
Federations as well as indigenous communities small peoples Russian Federation. In accordance with paragraph 1 of Article 90 of the Civil Code of the Russian Federation in conjunction with the provisions of Article 14 of Federal Law No. 14 of 02/08/1998 - Federal Law “On Limited Liability Companies”, the authorized capital of a company is made up of the nominal value of the shares of its participants. The actual value of the participant's share...