Federal law on a limited liability company. Law on LLC with the latest amendments
The shares owned by the company are not taken into account when determining the results of voting at the general meeting of the company's participants, as well as when distributing the company's profits and property 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 be, by decision of the general meeting of participants in the company, distributed among all participants in the company in proportion to their shares in the authorized capital of the company or sold to all or some of the participants in 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 redeemed with a corresponding reduction in the authorized capital of the company. The sale of a share to the participants of the company, as a result of which the size of the shares of its participants is changed, 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 a decision of the general meeting of the participants of the company, adopted by all the participants of the company unanimously.
Documents for the state registration of changes in the constituent documents of the company provided for by this article, and in the event of a sale of a share, also documents confirming payment for the share sold by the company, must be submitted to the state registration body. legal entities, within one month from the date of the decision to approve the results of payment of shares by the participants of the company 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 that carries out the state registration of legal entities.
Distribution of a share owned by a company of strategic importance for ensuring the country's defense and state security in accordance with the Federal Law "On the procedure for making foreign investments in business companies of strategic importance for ensuring the country's defense and state security" 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, which includes a foreign investor, can establish or have established control over such a company, shall be carried out in the manner prescribed by the said Federal Law.
Foreclosure on 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 other property of the company participant is insufficient to cover the debts of the company participant.
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 participants in the company, adopted by all participants in the company unanimously, the actual value of the share (part of the share) of the participant in the company whose property is foreclosed may be paid to creditors by the remaining participants in the company in proportion to their shares in the authorized capital of the company, if there is a different procedure for determining the amount of payment is not provided for by the charter of the company or by the decision of the general meeting of participants in the company.
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 filing a claim against the company to levy execution on the share (part of the share) of the company's participant for its debts.
3. In the event that within three months from the date of presentation of a claim by 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’s participant against which the execution is levied, the levy of execution on the share (part of the share) of the company’s participant is carried out by its sale at public auction.
Withdrawal of a member of the company from the company
1. A participant in a company has the right to withdraw from the company at any time, regardless of the consent of its other participants or the company.
2. In the event that a participant in a company withdraws from the company, his share shall be transferred to the company from the moment of filing an application for withdrawal from the company. At the same time, the company is obliged to pay to the company participant who submitted the application for withdrawal from the company, the actual value of his share, determined on the basis of the financial statements of the company for the year during which the application for withdrawal from the company was submitted, or, with the consent of the company participant, give him in kind property of the same value, and in case of incomplete payment of his contribution to authorized capital company the actual value of the part of its share, proportional to the paid part of the contribution.
3. The company is obliged to pay to the participant of the company who filed an application for withdrawal from the company the actual value of his share or to give him property of the same value in kind within six months from the end of the financial year during which the application for withdrawal from the company was submitted, if less period is not provided for by the charter of the company.
The actual value of the share of a member of the company is paid out of the difference between the value of the net assets of the company and the size of the authorized capital of the company. If such a difference is not enough to pay the participant of the company who has submitted an application for withdrawal from the company the actual value of his share, the company is obliged to reduce its authorized capital by the missing amount.
4. Withdrawal of a participant of the company from the company does not release him from the obligation to the company to make a contribution to the property of the company that arose before filing an application for withdrawal from the company.
Contributions to the company's property
1. The participants of the company are obliged, if it is provided for by the charter of the company, by decision of the general meeting of the 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 by all the company's participants unanimously.
The decision of the general meeting of participants of the company on making contributions to the property of the company may be taken by a majority of at least two-thirds of the votes of total number votes of the company's members, if necessary more votes for making such a decision is not provided for by the charter of the company.
2. Contributions to the property of the company are made by all participants in the company in proportion to their shares in the charter capital of the company, unless another procedure for determining the amount of contributions to the property of the company is provided 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 in the company, and other restrictions related to making contributions to the company's property may also be provided. Restrictions related to making contributions to the property of the company, established for a certain member of the company, in the event of the alienation of his share (part of the share) in relation to the acquirer of the share (part of the share), do not apply.
The provisions establishing the procedure for determining the amount of contributions to the company's property disproportionately to the size of the shares of the company's participants, as well as the provisions establishing restrictions related to making contributions to the company's property, may be provided for by the company's charter upon its establishment or included in the company's charter by decision of the general meeting of the company's participants adopted by all members of the company unanimously.
Change and exclusion of the provisions of the company's charter that establish the procedure for determining the amount of contributions to the company's property disproportionately to the size of the shares of the company's participants, as well as restrictions related to making contributions to the company's property, established for all participants in the company, are carried out by decision of the general meeting of the company's participants, adopted by all participants society unanimously. Amendment and exclusion of the provisions of the company's charter that establish the specified restrictions for a certain member of the company are carried out by decision of the general meeting of members of the company, adopted by a majority of at least two-thirds of the total number of votes of the members of the company, provided that the member of the company for whom such restrictions are established, voted for the adoption of such a decision or gave written consent.
3. Contributions to the company's property shall be made in money, unless otherwise provided by the charter of the company or by a decision of the general meeting of the company's participants.
4. Contributions to the company's property do not change the size and nominal value of the shares of the company's participants in the company's charter capital.
Distribution of the company's profit between the participants of the company
1. The company has the right to quarterly, once every six months or once a year make a decision on the distribution of its net profit between members of the society. The decision to determine the part of the company's profit to be 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 amending the charter of the company by decision of the general meeting of participants in the company, adopted by all participants in the company unanimously, may establish a different procedure for distributing profits among the participants in the company. Change and exclusion of the provisions of the charter of the company, establishing such a procedure, are carried out by the decision of the general meeting of participants in the company, adopted by all participants of the company unanimously.
Restrictions on the distribution of the company's profits among the company's participants. Restrictions on the payment of company profits to company participants
1. The company is not entitled 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 signs of insolvency (bankruptcy) in accordance with the federal law on insolvency (bankruptcy) or if the indicated signs appear in the company as a result of such a decision;
if at the time of making such a decision, the value of the net assets of the company 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 is not entitled to pay the participants of the company the profit, the decision on the distribution of which among the participants of the company 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 indicated signs appear in the company as a result of payment;
if at the time of payment the value of the net assets of the company is less than its authorized capital and reserve fund or becomes less than their size as a result of payment;
in other cases stipulated by federal laws.
Upon termination of the circumstances specified in this paragraph, the company is obliged to pay the participants of the company the profit, the decision on the distribution of which among the participants of the company 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 in the amount provided for by the charter of the company.
federal law No. 138-FZ of July 27, 2006, Article 31 of this Federal Law was amended
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 prescribed by the legislation on securities.
Federal Law No. 192-FZ of December 29, 2004 in paragraph 2 of Article 31 of this federal law changes made
2. Issue of bonds by a company is allowed 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 amount 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 collateral provided by third parties, the issue of bonds is allowed not earlier than the third year of the company's existence and subject to the proper approval of the annual financial statements for two completed financial years. These restrictions do not apply to mortgage-backed bond issues and in other cases established by federal securities laws.
3. Has expired.
Chapter IV. Management in society
Society bodies
1. The supreme body of the company is the general meeting of participants in the company. The general meeting of the company's participants may be ordinary or extraordinary.
All members of the company have the right to be present at the general meeting of members of the company, take part in the discussion of agenda items and vote when making decisions.
Regulations constituent documents company or decisions of the company's bodies that restrict the specified rights of the company's participants are void.
Each member of the company has a number of votes at the general meeting of members of the company, proportional to his share in the charter capital of the company, except for the cases provided for by this Federal Law.
The charter of the company upon its establishment or by amending the charter of the company by decision of the general meeting of participants in the company, adopted by all participants in the company unanimously, may establish a different procedure for determining the number of votes of the participants in the company. Change and exclusion of the provisions of the charter of the company, establishing such a procedure, are carried out by the decision of the general meeting of participants in the company, adopted by all participants of the company unanimously.
2. The company's charter 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 the formation executive bodies companies, early termination of their powers, resolving issues of committing big deals in the cases provided for in Article 46 of this Federal Law, resolving issues related to the conclusion of transactions in which there is an interest, in the cases provided for in Article 45 of this Federal Law, resolving issues related to the preparation, convening and holding of a general meeting of participants in the company, 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 an extraordinary general meeting of the company's participants.
The procedure for the formation and operation 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 collegial executive body of the company may not constitute more than one-fourth of the board of directors (supervisory board) of the company. A person exercising the functions of the sole executive body of the company cannot be simultaneously the chairman of the board of directors (supervisory board) of the company.
By decision of the general meeting of participants in the company, members of the board of directors (supervisory board) of the company during the period they perform their duties may be paid remuneration and (or) reimbursed for expenses related to the performance of these duties. The amounts of said remunerations and compensations are established by the decision of the general meeting of the company's participants.
3. Members of the board of directors (supervisory board) of the company, the person exercising the functions of the sole executive body of the company, and members of the collegial executive body of the company who are not members of the company may participate in the general meeting of members 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 participants in the company and the board of directors (supervisory board) of the company.
5. 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 allowed.
6. The charter of the company may provide for the formation audit commission(election of 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 member of the audit commission (auditor) of the company may also be a person who is not a member of the company.
The functions of the audit commission (auditor) of the company, if it is provided for by the charter of the company, may be performed by an auditor approved by the general meeting of participants in the company who is not connected by property interests with the company, members of the board of directors (supervisory board) of the company, with the person exercising the functions of the sole executive body of the company, members collegial executive body of the company and members 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 exercising 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 participants of the company
1. The competence of the general meeting of participants in 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 participants in the company includes:
1) determining the main directions of the company's activities, as well as making a decision on participation in associations and other associations of commercial organizations;
2) changing the charter of the company, including changing the amount of the authorized capital of the company;
3) amendments to the memorandum of association;
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 - the manager), approval of such a manager and the terms of the contract with him;
5) election and early termination of the 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 net profit of the company among the participants in the company;
8) approval (adoption) of documents regulating internal activities company (internal documents of the company);
9) making a decision on the placement of bonds and other issue-grade securities by the company;
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 referred to the exclusive competence of the general meeting of participants in the company cannot be transferred to them for decision by the board of directors (supervisory board) of the company, except as provided by this Federal Law, as well as for the decision of the executive bodies of the company.
The next general meeting of the company's members
The next general meeting of the company's participants is held within the time limits specified by the company's charter, but at least once a year. The next general meeting of the company's participants is convened by the company's executive body.
The charter of the company 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 specified general meeting of the company's 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 participants of the company
1. An extraordinary general meeting of the company's participants is held in cases specified by the company's charter, as well as in any other cases if 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 company's executive body 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 the company's participants who in aggregate have at least one tenth of the total votes of the members of the society.
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 request and make a decision to hold an extraordinary general meeting of the company's participants or to refuse to hold it. The decision to refuse to hold an extraordinary general meeting of the company's participants may be taken by the company's executive body only if:
if the procedure established by this Federal Law for submitting a request to hold an extraordinary general meeting of participants in the company is not observed;
if none of the issues proposed for inclusion in the agenda of the extraordinary general meeting of participants in the company does not fall within its competence or does not comply with the requirements of federal laws.
If one or more issues proposed for inclusion in the agenda of an extraordinary general meeting of participants in the company do not fall within the competence of the general meeting of participants in the company or do not comply with the requirements of federal laws, these issues are not included in the agenda.
The executive body of the company is not entitled to make changes to the wording of issues proposed for inclusion in the agenda of the extraordinary general meeting of the company's participants, as well as change the proposed form for holding the extraordinary general meeting of the company's participants.
Along with the issues proposed for inclusion in 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 on 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 to hold it.
4. If, within the period established by this Federal Law, no decision has been made to hold an extraordinary general meeting of the company's participants or a decision has been made to refuse to hold it, the extraordinary general meeting of the company's participants may be convened by the bodies or persons requiring it to be held.
In this case, the executive body of the company is obliged to provide the indicated bodies or persons with a list of the company's 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 the company's participants at the expense of the company's funds.
1. The body or persons convening a general meeting of the company's participants are obliged not later than thirty days before its holding to notify each participant of the company about it by registered mail at the address indicated in the list of the company's participants, or in another way provided for by the charter of the company.
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 member of the company has the right to make proposals for the inclusion of additional issues in the agenda of the general meeting of members of the company 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 participants in the company or do not comply with the requirements of federal laws, are included in the agenda of the general meeting of participants in the company.
The body or persons convening the general meeting of the company's participants are not entitled to make changes to the wording of additional issues proposed for inclusion in the agenda of the general meeting of the company's participants.
If, at the suggestion 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 the company's participants of the changes made to the agenda no later than ten days before it is held. referred to in paragraph 1 of this article.
3. The 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 the audit of the company's annual reports and annual balance sheets, information about the candidate (candidates) in 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.
Unless a different procedure for familiarizing the company's participants with information and materials is provided for by the charter of the company, 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 within thirty days before the general meeting of the company's participants must be provided to all the company's participants for review in the premises of the company's executive body. The company is obliged, at the request of a member of the company, to provide him with copies of these documents. The fee charged by the company for the provision of these copies may not exceed the cost of their production.
4. The charter of the company may provide for shorter periods than those specified in this article.
5. In case of violation of the procedure established by this article for convening a general meeting of the company's participants, such a general meeting shall be recognized as competent if all the company's participants participate in it.
The procedure for holding a general meeting of participants in the company
1. The general meeting of participants in the company is held in the manner prescribed by this Federal Law, the charter of the company and its internal documents. To the extent not regulated by this Federal Law, the charter of the company and internal documents of the company, the procedure for holding a general meeting of participants in the company is established by a decision of the general meeting of participants in the company.
2. Before the opening of the general meeting of participants in the company, the registration of the arrived participants in the company is carried out.
Members of the company have the right to participate in the general meeting in person or through their representatives. Representatives of the participants in the company must present documents confirming their proper authority. A power of attorney issued to a representative of a company participant must contain information about the person being represented and the representative (name or title, place of residence or location, passport details), be drawn up in accordance with the requirements of paragraphs 4 and 5 of Article 185 Civil Code Russian Federation or notarized.
An unregistered member of the company (representative of a member of the company) is not entitled to take part in voting.
3. The general meeting of the company's participants opens at the time specified in the notice of the general meeting of the company's participants or, if all the participants of the company are already registered, earlier.
4. The general meeting of participants in the company is opened by the person exercising the functions of the sole executive body of the company, or by the person heading the collective executive body of the company. The general meeting of participants of the company, convened by the board of directors (supervisory board) of the company, the audit commission (auditor) of the company, the auditor or members 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, the auditor or one of the participants in the company who convened this general meeting.
5. The person who opens the general meeting of the company's participants elects the chairman from among the company's participants. Unless otherwise provided by the company's charter, when voting on the issue of electing the chairman, each participant in the general meeting of the company's participants has one vote, and the decision on the specified issue is taken by a majority vote of the total number of votes of the company's participants entitled to vote at this general meeting.
6. The executive body of the company organizes the keeping of the minutes of the general meeting of the company's participants.
The minutes of all general meetings of the company's participants are filed in the protocol book, which must at any time be provided to any member of the company for review. At the request of the participants of the company, they are issued extracts from the protocol book, certified by the executive body of the company.
7. The general meeting of the company's participants has the right to make decisions only on the agenda items communicated to the company's participants in accordance with paragraphs 1 and 2 of Article 36 of this Federal Law, except for cases when all the company's 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 taken by a majority of at least two-thirds of the votes of the total number of votes of the company's participants, if a larger number of votes is required for adoption of such decision is not provided for by this Federal Law or the charter of the company.
Decisions on the issues specified in subparagraphs 3 and 11 of paragraph 2 of Article 33 of this Federal Law shall be taken by all participants of the company unanimously.
The remaining 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 charter of the company may provide for cumulative voting on the election of 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 case of cumulative voting, the number of votes belonging to each member of the company is multiplied by the number of persons to be elected to the body of the company, and the member of the company has the right to give the number of votes thus obtained in full for one candidate or distribute them among two or more candidates. The candidates who receive the largest number of votes are considered elected.
10. Decisions of the general meeting of participants in the company are made by open vote, unless a different decision-making procedure is provided for by the charter of the company.
The decision of the general meeting of the company's participants, taken by absentee voting (by poll)
1. The decision of the general meeting of the company's participants can be taken without holding a meeting (joint presence of the company's participants to discuss agenda items and make decisions on issues put to vote) by absentee voting (by poll). Such voting may be carried out by exchanging documents by means of postal, telegraphic, teletype, telephone, electronic or other communication, which ensures the authenticity of transmitted and received messages and their documentary confirmation.
The decision of the general meeting of participants in the company on the issues specified in subparagraph 6 of paragraph 2 of Article 33 of this Federal Law cannot be taken by absentee voting (by poll).
2. When a decision is made by the general meeting of the company's participants by 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 part of their deadlines.
3. The procedure for conducting absentee voting is determined by the internal document of the company, which should provide for the obligation to inform all participants of the company of the proposed agenda, the opportunity to familiarize all participants of the company with all the necessary information and materials before the start of voting, the opportunity to make proposals for the inclusion of additional issues in the agenda, the obligation notification to all members of the company prior to the start of voting of the amended agenda, as well as the deadline for the end of the voting procedure.
Adoption of decisions on issues related to the competence of the general meeting of participants of the company, the sole participant of the company
In a company consisting of one participant, decisions on issues related to the competence of the general meeting of participants in the company are taken by the sole participant of the company individually and are drawn up in writing. In this case, the provisions of Articles 34, 35, 36, 37, 38 and 43 of this Federal Law shall not apply, except for the provisions relating to the timing of the annual general meeting of the company's participants.
Sole executive body of the company
1. Sole executive body of the company ( CEO, president and others) is 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 not from among its participants.
An agreement between the company and the person exercising 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 exercising the functions of the sole executive body of the company was elected, or by the company's participant authorized by the decision of the general meeting of the company's participants.
2. Only an individual may act as the sole executive body of a company, except for the case provided for by Article 42 of this Federal Law.
3. Sole executive body of the company:
1) acts on behalf of the company without a power of attorney, 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 employees of the company, on their transfer and dismissal, applies incentive measures and imposes disciplinary sanctions;
4) exercises other powers that are not referred by this Federal Law or the charter of the company to the competence of the general meeting of participants in 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 the adoption of decisions by it 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 exercising the functions of its sole executive body.
Collegial executive body of the company
1. If the charter of the company provides for the formation, along with the sole executive body of the company, of a collegial executive body of the company (management board, directorate and others), such body is elected by the general meeting of participants in the company in the number and for the period determined by the charter of the company.
A member of the collegial executive body of the 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 charter of the company to its competence.
The functions of the chairman of the collegial executive body of the company are performed by the person exercising the functions of the sole executive body of the company, unless 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 the adoption of decisions by it 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 the contract the powers of its sole executive body to the manager, if such a possibility is directly provided for by the charter of the company.
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's participant authorized by the decision of the general meeting of the company's participants.
Appeal against decisions of the management bodies of the company
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 charter of the company and violating the rights and legitimate interests of a company participant may be declared invalid by a court upon application of a company participant who did not take part in voting or voted against the contested decision. Such an application may be filed within two months from the day when a member of the company found out or should have found out about decision. If a member of the company took part in the general meeting of members of the company that adopted the appealed decision, the said application may be filed within two months from the date of such decision.
2. The court shall have the right, taking into account all the circumstances of the case, to uphold the contested decision if the vote of the company member who filed the application could not affect the voting results, the committed violations are not significant and the decision did not cause losses to this company member.
3. The 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 member of the company, may be recognized by the court as invalid 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 fulfilling their duties, must act in the interests of the company in good faith and reasonably.
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, shall be liable to the company for losses caused to the company by their guilty actions (inaction), unless other grounds and amount of liability are established by federal laws. At the same time, 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 the company is joint and several.
5. With 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 a manager, the company or its participant may apply to the court.
Interest in the company's transaction
1. Transactions in which there is an interest of a member of the board of directors (supervisory board) of the company, a person exercising 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 member of the company having, together with its affiliates, twenty or more percent of the votes of the total number of votes of the company's participants cannot be made by the company without the consent of the general meeting of the company's participants.
These 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 the transaction or act in the interests of third parties in their relations with the company;
own (each individually or in aggregate) twenty or more percent of shares (shares, shares) 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;
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 charter of the company.
2. The persons specified in the first paragraph of paragraph 1 of this article must bring to the attention of the general meeting of participants in the company 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 the ongoing or proposed transactions known to them, in the commission of which they can be recognized as interested.
3. The decision to conclude a transaction by the company, in which there is an interest, is taken by the general meeting of the company's participants by a majority of votes from the total number of votes of the company's participants who are not interested in making it.
4. The conclusion of a transaction in which there is an interest does not require a decision of the general meeting of the participants of the company, provided for in paragraph 3 of this article, in cases where the transaction is concluded in the course of an ordinary economic activity between the company and the other party that took place until 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 by this article may be declared invalid at the claim of the company or its participant.
6. This article does not apply to companies consisting of one participant who simultaneously performs 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, the adoption of a decision on making transactions in which there is an interest may be referred by the charter of the company to its competence, except in cases where the amount of payment under 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.
big deals
1. A major transaction is a transaction or several interconnected transactions related to the acquisition, alienation or the 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 acceptance decisions on the conclusion of such transactions, unless the charter of the company provides for a higher amount of a major transaction. Major transactions are not recognized as transactions made in the course of the company's ordinary business activities.
2. For the purposes of this article, the value of the property alienated by the company as a result of a major transaction is determined on the basis of the data of its accounting, and the value of the property acquired by the company - on the basis of the offer price.
3. The decision to conclude a major transaction is taken by the general meeting of the company's participants.
4. In the event that a board of directors (supervisory board) of the company is formed in the company, the decision to make major transactions related to the acquisition, alienation or the 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 charter of the company to the competence of the board of directors (supervisory board) of the company.
5. A major transaction made in violation of the requirements provided for by this article may be declared invalid at the suit of the company or its participant.
6. The charter of the company may provide that the conclusion of major transactions does not require a decision of the general meeting of participants in the company and the board of directors (supervisory board) of the company.
Audit Commission (auditor) of the company
1. The audit commission (auditor) of the company is elected by the general meeting of participants in the company for a period determined by the charter of the company.
The number of members of the audit commission of the company is determined by the charter of the company.
2. The audit commission (auditor) of the company has the right to conduct audits of the financial and economic activities of the company at any time 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 exercising 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 obliged to give the necessary explanations orally or in writing.
3. The audit commission (auditor) of the company in without fail checks the annual reports and balance sheets of the company prior to their approval by the general meeting of the company's participants. The general meeting of participants in the company is not entitled to approve annual reports and balance sheets company in the absence of conclusions of the audit commission (auditor) of the company.
4. The procedure for the work of the audit commission (auditor) of the company is determined by the charter and internal documents of the company.
5. This article shall apply 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.
Company audit
In order 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 involve 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, acting as the sole executive body of the company, members of the collegial executive body of the company and participants in 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 comply with the requirements established by part one of this article. In the event of such an audit, payment for the services of an auditor is carried out at the expense of the participant of the company, at the request of which it is carried out. Expenses of a member of the company for paying for the services of an auditor may be reimbursed to him by decision of the general meeting of members of the company at the expense of the company.
The involvement of an auditor to verify and confirm the correctness 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 event of a public placement 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 keep the following documents:
constituent documents of the company, as well as amendments and additions made to the constituent documents of the company and duly registered;
the minutes (minutes) of the meeting of the founders of the company, containing the decision on the establishment of the company and on the approval of the monetary value 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 equity securities of the company;
minutes of general meetings of the company's 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, the auditor, state and municipal financial control bodies;
other documents stipulated by federal laws and other legal acts of the Russian Federation, the charter of the company, internal documents of the company, decisions of the general meeting of participants in the company, the board of directors (supervisory board) of the company and the executive bodies of the company.
2. The company shall store 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 a company
Society reorganization
1. The company may be voluntarily reorganized in the manner prescribed by this Federal Law.
Other grounds and procedure for the reorganization of a company are determined by the Civil Code of the Russian Federation and other federal laws.
2. The reorganization of the company may be carried out in the form of merger, accession, division, separation and transformation.
3. The company is considered reorganized, except for cases of reorganization in the form of affiliation, from the moment of state registration of legal entities created as a result of reorganization.
When a company is reorganized in the form of a merger with another company, the first of them is considered reorganized from the moment an entry is made in the unified state register of legal entities on the termination of the activities of the merged company.
4. State registration of companies established as a result of reorganization and making entries on the termination of the activities of reorganized companies, as well as state registration of amendments to the charter, shall be carried out in accordance with the procedure established by federal laws.
5. Not later than thirty days from the date of the adoption of the decision on the reorganization of the company, and in the event of a reorganization of 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 all the creditors of the company known to it and publish in the press, which publishes data on the state registration of legal entities, a message about the decision. At the same time, the creditors of the company, within thirty days from the date of sending notifications to them or within thirty days from the date of publication of the notice of the decision taken, have the right to demand in writing early termination or fulfillment of the relevant obligations of the company and compensation for their losses.
The state registration of companies established as a result of reorganization and the entry of records on the termination of the activities of the reorganized companies shall be carried out only upon presentation of evidence of notification of creditors in the manner prescribed by this paragraph.
If the separation balance sheet does not make it possible to determine the legal successor of the reorganized company, the legal entities created as a result of the reorganization shall be jointly and severally liable for the obligations of the reorganized company to its creditors.
Merger of societies
1. The merger of companies is the creation of a new company with the transfer of all rights and obligations of two or more companies to it 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 shall decide 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 deed of transfer.
3. The merger agreement, signed by all participants in the company created as a result of the merger, is, along with its charter, its constituent document and must comply with all the requirements of 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 the reorganization in the form of a merger makes a decision on such reorganization and on the approval of the merger agreement, the charter of the company created as a result of the merger, and the deed of transfer, the election of the executive bodies of the company created as a result of the merger, is carried out at a joint general meeting of participants in the companies participating in the merger. The terms and procedure for holding such a general meeting are determined by the merger agreement.
The sole executive body of a company created as a result of a merger carries out actions related to the state registration of this company.
5. In the event of a merger of companies, all rights and obligations of each of them shall be transferred to the company created as a result of the merger, in accordance with the deeds of transfer.
Accession of society
1. The merger of a company is the termination of one or several 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 affiliation makes a decision on such reorganization, on approval of the agreement on accession, and the general meeting of participants of the merging company also makes a decision on approving the deed of transfer.
3. The joint general meeting of participants in the companies participating in the merger shall make changes to the constituent documents of the company to which the merger is carried out, related to the change in the composition of the company's participants, the determination of the size of their shares, other changes provided for by the merger agreement, and also, if necessary, decide other issues, including issues on the election of the bodies of the company to which the accession is carried out. The terms and procedure for holding such a general meeting are determined by the accession agreement.
4. When one company joins another, all the rights and obligations of the merged company pass to the latter in accordance with the deed of transfer.
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 in a company being reorganized in the form of a division shall decide on such reorganization, on the procedure and conditions for the division of the company, on the creation of new companies and on the approval of the separation balance sheet.
3. Members of each company created as a result of the division sign a memorandum of association. The general meeting of the 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 are transferred to the companies created as a result of the division, in accordance with the separation balance sheet.
Society spin-off
1. The separation of a company is the creation of one or several companies with the transfer to him (them) of the rights and obligations of the company being reorganized without terminating the latter.
2. The general meeting of participants in a company being reorganized in the form of a spin-off shall decide on such a reorganization, on the procedure and conditions for spin-off, on the creation of a new company (new companies) and on the approval of the separation balance sheet, and shall include in the constituent documents of the company being reorganized in the form of a spin-off, changes related to a change in the composition of the company's participants, determination of the size of their shares, and other changes provided for by the decision on separation, and also, if necessary, resolves other issues, including issues on the election of the company's bodies.
The participants of the spin-off company sign the memorandum of association. The general meeting of participants in the spin-off company approves its charter and elects the bodies of the company.
If the reorganized company is the sole participant of the spin-off company, the general meeting of the latter decides on the reorganization of the company in the form of a spin-off, on the procedure and conditions for spin-off, and also approves the charter of the spin-off company and the separation balance sheet, and elects the bodies of the spin-off company.
3. When one or several companies are separated from the 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.
Society transformation
1. The company has the right to be transformed into joint-stock company, an additional liability company or a production cooperative.
2. The general meeting of participants in a company being reorganized in the form of a transformation decides on such a reorganization, on the procedure and conditions for 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, additional liability company or production cooperative created as a result of the transformation, as well as on the approval of the deed of transfer.
3. Participants in a legal entity created as a result of transformation shall decide 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 a legal entity created as a result of transformation.
4. When a company is reorganized, all the rights and obligations of the reorganized company are transferred to the legal entity created as a result of the transformation in accordance with the deed of transfer.
Federal Law No. 31-FZ of March 21, 2002 amended Article 57 of this Federal Law. The amendments shall enter into force on July 1, 2002.
Society liquidation
1. A company may be liquidated voluntarily in accordance with the procedure established by the Civil Code of the Russian Federation, subject to 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.
The 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 participants of the company on the voluntary liquidation of the company and the appointment of a liquidation commission is adopted at the proposal of the board of directors (supervisory board) of the company, the executive body or the participant of the company.
The general meeting of participants in a voluntarily liquidated company decides on the liquidation of the company and the appointment of a liquidation commission.
3. From the moment of appointment of the liquidation commission, all powers to manage the affairs of the company are transferred to it. The liquidation commission, on behalf of the liquidated company, acts in court.
4. If the Russian Federation, a constituent entity of the Russian Federation or a municipal entity is a participant in the liquidated company, a representative of the federal state property management body shall be included in the liquidation commission, specialized agency selling federal property, a state property management body of a constituent entity of the Russian Federation, a seller of state property of a constituent entity of the Russian Federation, or a local government.
5. The procedure for the liquidation of a company is determined by the Civil Code of the Russian Federation and other federal laws.
Distribution of the property of the liquidated company among 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 participants of the company in the following order:
in the first place, the distribution to the participants of the company of the distributed, but unpaid part of the profit is carried out;
in the second place, the distribution of the property of the liquidated company between the participants of the company is carried out 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
No. 193-FZ of December 31, 1998, Article 59 of this Federal Law was amended
No. 96-FZ of July 11, 1998, Article 59 of this Federal Law was amended
Article 59 Entry into force of this Federal Law
2. From the moment this Federal Law enters into force, the legal acts in force on the territory of the Russian Federation until they are brought into line with this Federal Law shall be applied to the extent that they do not contradict this Federal Law.
Constituent documents of limited liability companies (limited liability partnerships) from the moment this Federal Law enters into force shall apply to the extent that does not contradict this Federal Law.
3. Constituent documents of limited liability companies (limited liability partnerships) established prior to the entry into force of this Federal Law shall be subject to alignment with this Federal Law no later than July 1, 1999.
Limited liability companies (limited liability partnerships), the number of participants of which exceeds fifty at the time this Federal Law enters into force, must be transformed into joint-stock companies or production cooperatives before July 1, 1999, 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, they may be transformed into closed joint-stock companies without limiting the maximum number of shareholders of a closed joint-stock company established by the Federal Law "On Joint-Stock Companies". The said closed joint stock companies are not subject to the provisions of paragraphs two and three of paragraph 3 of Article 7 of the Federal Law "On 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 shall also 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 the entry into force of this Federal Law exceeds fifty, shall be taken 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 adoption of a decision on its transformation or did not take part in the voting shall 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 in line 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 that carries out state registration of legal entities, or other government agencies or bodies of local self-government, to which the right to present such a demand is granted by federal law.
4. Limited liability companies (limited liability partnerships) specified in paragraph 3 of this article shall be exempted from paying the registration fee when registering changes to their legal status in connection with its bringing into conformity 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
the 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
society.
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
products are determined by federal laws.
On the specifics of the creation of credit organizations, see the Law "On Banks and Banking
Commentary on article 1.
1. Federal Law "On Limited Liability Companies" (hereinafter
Law; the commented Law) was developed in accordance with the Civil Code (clause 3, article 87 of the Civil Code)
and applied in conjunction with it, as well as with other legislative acts,
supplementing and developing the provisions of the Code, thus creating a legal
the basis for the formation and activities of these societies. Clause 1, Article 1 lists
the main issues regulated by the Law: the legal status of a limited company
creation, reorganization and liquidation of the company. At the same time, the Law significantly
attention is paid to the requirements for persons acting as its founders;
the procedure for the adoption and content of constituent documents; formation of the statutory
the company's capital; organization of management of the company and control over its activities
and others. A significant place is occupied by the norms that determine the rights of participants in the company,
ways to protect them, including the right to withdraw from society (Article 26), preferential
the right of participants to acquire shares in the authorized capital alienated by others
participants (Article 21). Measures aimed at ensuring economic
the stability of society, the protection of its interests, establishing, in particular,
restrictions on the distribution of the company's profits among its participants in cases where
when it can lead to negative consequences for him, including
insolvency (Article 29 of the Law); responsible for the persons who
senior positions in the management bodies of the company, for harm (losses) caused
him by the guilty actions or inaction of these persons (Article 44 of the Law), etc.
The norms of the Law are based not only on those provisions of the Civil Code, which are contained
in articles that directly regulate the principles of creation and operation of the
companies (Article 87-94 of the Civil Code), but also on general rules on legal entities (Article 48-65 of the Civil Code),
as well as on business companies (Article 66-68 of the Civil Code).
The effect of the Law applies both to previously established companies and
and on those formed after its entry into force. The law also regulates the activities
limited liability partnerships (see Article 13 of the Law of the RSFSR dated 25
December 1990 "On enterprises and entrepreneurial activity"), which
part one of the Civil Code of the Russian Federation" from the moment of entry
responsibility and must bring their founding documents in line with
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, unless otherwise provided
titled article *.
According to paragraph 2 of article 48 of the Civil Code, participants in a limited liability company
have rights of obligation in relation to him, but the scope of these rights and the ways
their implementation is significantly different from the rights of obligations 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 defined
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 the part of the value
net assets of the company, proportional to its size (clause 2, article 14 of the Law), and,
therefore, at any time can be determined in terms of money.
When a member withdraws from a limited liability company, the last
is obliged to pay him the actual value of his share (or to give property
in kind of the same value - in the manner and within the time limits established by the Law).
The shareholder, as is known, cannot declare to the company about 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 by selling shares or alienating
them in a different way. (The shareholder has the right to a certain share in the property of the company
can appear only when it is eliminated). But the shareholder is at the same time more
free to alienate his shares (especially in an open society),
in receiving income due to the exchange rate difference in their market value (with
favorable situation on the stock market), etc.
2. The effect of the commented Law applies to companies created
in any spheres of production, economic, commercial activity. Together
however, 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
regulated by the Banking Law and the CBR Law. The Banking Law establishes
requirements for legal and individuals, speaking
as founders of credit institutions (hereinafter - banks), - first of all
in relation to their economic solvency and reliability; provided,
that the authorized capital of the bank to be established must not be less 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, trade and insurance activities
(Art. 5); established a special procedure for registering banks and licensing their activities
the Bank of Russia (Articles 12-17 of the Banking Law); defined control functions Jar
Russia in relation to commercial banks and a number of other special rules. Rights
of the Bank of Russia on the regulation of banking activities and the exercise of control
for commercial banks are also defined by the Law on the Central Bank (see Art. 55-76). Him
granted broad powers to issue regulations governing
activities of commercial banks (in addition to the named laws and in the established
within them). Among the regulations of the Bank of Russia affecting significant
issues of legal regulation of banking structures, we can call the Instruction
licensing of banking activities" (RG. 1996. N 211, 220, 230);
on the specifics of the reorganization of banks in the form of mergers and acquisitions, approved
Acts contain many rules applicable to any commercial banks, therein
including operating in the form of limited liability companies.
organizations of the insurance business" (Vedomosti RF. 1993. N 2. Art. 56; SZ RF. 1998.
N 1. Article 4). Legal capacity of insurance companies is limited by special legislation.
organizations - they cannot be engaged in production, trade and intermediary
and banking activities; there is a special procedure for licensing
insurance activities; measures to ensure financial sustainability are defined
insurers. In order to guarantee their solvency, insurers are obliged,
for example, observe the normative relationship between assets and the assets accepted by them
obligations (Article 27). Control functions in relation to insurance
organizations is carried out by the federal executive body for supervision
for insurance activities, endowed with the right to issue regulations specifying
norms of the law.
in the RSFSR" (Vedomosti RSFSR. 1991. N 29. St. 1105) does not contain norms defining
features of the creation and legal status of companies operating in the investment
sphere. It must be assumed that they will be reflected in the new investment law,
which is being worked on.
When establishing companies in the investment field before the adoption of the relevant
law should be guided by the existing by-laws that determine
the procedure for licensing their activities, establishing limited legal capacity.
There is no federal law yet that defines the specifics of the legal status
companies engaged in agricultural production. To those of them
which were created on the basis of reorganized collective farms and state farms, can be used
the relevant provisions of decrees of the President of the Russian Federation and government decrees
RF, which determine the procedure for the formation and operation of new agricultural
measures for the implementation of land reform in the RSFSR" (Vedomosti RF. 1992. N 1.
reorganization of collective farms and state farms "(SP RF. 1992. N 1-2. St 9); Regulation on
reorganization of collective farms, state farms and privatization of state agricultural
g. N 708 (SA RF. 1992. N 12. Art. 93) and a number of others. Attention should be paid
that the commented Law, pointing to the possibility of special regulation
certain issues of the creation and activities of companies in the field of agricultural
production, does not name the companies engaged in servicing agricultural
producers, construction of inter-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 companies
responsibility, not directly engaged in agricultural activities,
and those serving agricultural producers should be guided by
this Law without exception.
Clause 2, Article 2 of the Law names a limited range of issues that may be
regulated in special federal laws, - features of the legal status,
the procedure for the creation, reorganization and liquidation of companies operating in certain
spheres. Consequently, in all other respects these societies should be guided by
general provisions of the Law, including those defining ways to protect the rights of shareholders
and the interests of society.
3. A company, like any legal entity, is considered established from the moment
its state registration. The procedure for doing so must be established.
federal law on state registration of legal entities (Article 51 of the Civil Code).
Until the adoption and enactment of such a law, the previously established
procedure (see Article 8 of the Law "On the Entry into Force of the First Part 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 in force, as well as
Regulations on the procedure for state registration of business entities
activities. Companies created in the banking, insurance and investment
areas are registered in the manner prescribed by special legislation.
(For more 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 articles of association.
4. To carry out activities, the company must have a banking
account(s). The law provides for the right of the company to open accounts as
territory of the Russian Federation and beyond its borders. Legal
persons, including business entities, on the territory of the Russian Federation,
usually commercial banks. When opening an account between a company (client)
and the bank draws up a bank account agreement (see Articles 845-859 of the Civil Code), which
the rights and obligations of the parties, the procedure for disposing of funds,
on the account, bank transactions 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 the institutions of the State Bank
Accounts in foreign banks can be opened by Russian legal entities
persons with the permission of the Bank of Russia.
5. Society must have a seal. Paragraph 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 society. This rule is imperative, and derogate
society is not entitled to it. However, the seal may contain his company name.
name in any language of the peoples of the Russian Federation and in a foreign language.
The question of the need for these designations is decided by the society optionally.
The company is also entitled to have stamps and letterheads with its company name,
own emblem, duly registered trademark.
The procedure for registration, use and protection of trademarks is determined by the 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 - the company) is recognized
business company founded by one or more persons, statutory
whose capital is divided into shares determined by constituent documents
sizes; members of the company are not liable for its obligations and bear the risk
their contributions.
Participants of the company who have made contributions to the authorized capital of the company not in full,
are jointly and severally liable for its obligations up to the value of
unpaid part of the contribution of each of the participants in the company.
2. The company owns separate property accounted for
on its independent balance sheet, may, on its own behalf, acquire and exercise
property and personal non-property rights, bear obligations, be a plaintiff
and defendant in court.
Society may have civil rights and bear civil obligations,
necessary for the implementation of any activities not prohibited by federal
laws, if it does not contradict the subject and goals of the activity, definitely
limited company charter.
Separate types of activities, the list of which is determined by the federal
law, the company can only engage on the basis of a special permit
(licenses). If the conditions for granting a special permit (license)
for the implementation of a certain type of activity, there is a requirement
carry out such activities as exclusive, the company during the period
actions of a special permit (license) are entitled to carry out only types of
activities provided for by a special permit (license), and related
activities.
3. The company is considered to be established as a legal entity from the moment of its state
registration in the manner prescribed by the federal law on state
registration of legal entities.
The company is created without a time limit, unless otherwise established by its
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 company name.
name in Russian and an indication of the location of the company. Seal
of the company may also contain the trade name of the company in any language
peoples of the Russian Federation and (or) a foreign language.
The Company has the right to have stamps and letterheads with its company name,
own emblem, as well as a duly registered trademark
sign and other means of individualization.
Commentary on article 2.
1. Paragraph 1 of Article 2 defines a limited liability company,
coinciding with that contained in paragraph 1 of Article 81 of the Civil Code. It lists the main features
limited liability companies. However, a number of provisions that supplement
the legal characteristics of the society in question is 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) a limited liability company is one of the varieties
economic companies created, as a rule, by pooling 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 (cf.
Article 50, 66 of the Civil Code);
2) the company may be founded by one or more persons. Wherein,
however, the number of its founders cannot be more than fifty limit number
participants, established by paragraph 3 of article 7 of the Law. Moreover, society cannot
have as the sole founder (participant) another business
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) is divided into shares of sizes determined by the constituent documents.
The size of the shares owned by each participant is fixed in the constituent
the contract and in the charter of the company;
4) a limited liability company is not entitled 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 amount of the contribution made in accordance with the norms of the Civil Code
and Law;
5) the participants 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 contributed
their contributions. This is a universal position; it defines the principles of relationships
in business companies, including joint-stock companies, except for companies with additional
responsibility (see Article 95 of the Civil Code).
The law at the same time provides that participants who have made contributions to
the authorized capital of the company is not completely, are jointly and severally liable for
its obligations within 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 one year
from the moment of its creation (clause 1, article 16 of the Law). Therefore, the responsibility of the shareholder
for the obligations of the company within the unpaid part of its share in the charter
capital is essentially its liability for its debt (statutory
capital is seen as minimum size property that guarantees the interests
creditors of the company - Article 14 of the Law). With joint and several 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). To the participants of the company, creditors may present
claims only in 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 a mandatory
participation of persons creating it in the production, economic, commercial
activities of society, implies, at the same time, the establishment of closer
corporate and economic ties between its members and society than,
say, in a joint-stock company, which is manifested in: a special procedure for joining a company
with limited liability; permitted by law restriction of acceptance
in its structure of new persons; the possibility of redemption by the company of the share owned by the participant;
the right of a participant to withdraw from the company with the payment of the actual cost to him
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 address which was revealed in the practice of applying the Law on Joint Stock
societies.
2. Clause 2 of the commented article fixes the main provisions (signs),
necessary for the company to acquire the status of a legal entity:
a) a limited liability company owns a separate
property accounted for on an independent balance sheet. Source of formation
it is, as already noted, the funds contributed by the founders (participants)
companies 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
from Article 48 and Clause 2 of Article 213 of the Civil Code, cash and other material
values, as well as property or other rights having a monetary value.
The Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation in Resolution of the Plenums N 6/8
clarified that an object cannot be passed directly as a contribution
intellectual property (patent, copyright, including software
computer, etc.) or "know-how", but the right to use such an object, transferred
to the company in accordance with the license agreement, can be accepted as a contribution
At the same time, the society may own the objects created by it in the course of its
activities objects of intellectual property - the right to industrial
samples, certain technologies, trademark, etc.;
b) the company may, in its own name, acquire and exercise property
and personal non-property rights. This is manifested in the exercise of the powers of the owner
on the possession, use and disposal of property to satisfy their own
needs, conducting production and economic activities, in charitable
and other purposes. The company can make transactions for the alienation of its own property
and the acquisition of a new one (contracts of sale, exchange, donation); transfer of his
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 freely exercised by the company, except in cases where
when legal restrictions apply. So, article 575 of the Civil Code does not allow donation
commercial organizations of property to each other and employees of state
bodies and bodies of municipalities in connection with the execution of their
duties (exceptions are ordinary gifts of small value).
use by a person who is the founder, participant of this organization,
as well as its director, a member of the collegiate 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 obligations related to the exercise of the rights of the owner,
Caring for the maintenance of his property (Article 209, 210 of the Civil Code), with the implementation
obligations under contracts and other transactions, etc. At the same time, it must
exercise without violating the rights and legitimate interests of other persons (Article 10 of the Civil Code);
c) another sign 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
appearance in court as a plaintiff and defendant is determined by the Arbitration and
Codes of Civil Procedure (see APC and CPC).
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 obligations necessary for the implementation
any 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 purposes specifically limited in the charter of the company. Such restrictions
can 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 the implementation of which this company is created. Necessary
while ensuring that relevant activity restrictions are clearly
reflected in the charter - by indicating in it an exhaustive (completed) list
or the inclusion in the charter of a clause that prohibits certain types of activities,
etc. (see clause 18 of the Decree of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 6/8). committing
transactions by the company in conflict with the objectives of the activity, specifically limited
in its constituent documents, is the basis for the recognition by the court of their
invalid upon the claim of this company, its founder (participant) or the state
body exercising supervision over the activities of this legal entity,
if it is proved that the other party to the transaction knew or should have known
know about its illegality (Article 173 of the Civil Code). Making transactions in connection with employment
activities prohibited by law or with other violations of the law and other
legal acts entails their recognition as null and 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 may be engaged only on the basis of a special
permits (licenses). Before the adoption of the law on licensing, there are rules
"On licensing certain types of activities" (SZ RF. 1995. N 1. Art. 69).
It determined the list of licensed types of activities, bodies authorized
to carry out licensing, the procedure for registration and issuance of licenses. banking,
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 indicates the type of activity that is permitted,
and, as a rule, the period of its validity. For the implementation of 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
other persons.
In cases where a license is issued to engage in any activity
as exclusive, the company is not entitled during the period of its validity to engage in other
activity. Violation of this rule is grounds for recognition
transactions that go beyond the special legal capacity of this legal
persons are invalid.
The legislation specifies cases when it is possible to refuse to issue a license,
its suspension or annulment (see article 16 of the Banking Law,
Clauses 4 and 9 of the Procedure for Conducting Licensing Activities, approved by the Resolution
in the issuance of a license, its suspension or cancellation is
exhaustive. Unjustified refusal (suspension, cancellation of license)
can be appealed to the arbitration court according to Article.22 APC.
Since a limited liability company has general legal capacity,
Except as noted above, he cannot be denied a license
(With general legal capacity, there is no need to list in the constituent
documents all types of activities that a legal entity can engage in.)
In case of refusal to extradite 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
denial of a judicial order as unlawful (see paragraph 2, clause 18 of the Resolution of the Plenums
Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation N 6/8).
A transaction made by a company in the absence of a license (after the expiration of
her actions), may be challenged and declared invalid (Article 173 of the Civil Code).
Engaging in activities subject to licensing without an appropriate
permits (licenses), as well as activities prohibited by law, or with
repeated or gross violations of the law is, in accordance with
with clause 2 of article 61 of the Civil Code as a basis for filing a claim for liquidation with an arbitration court
legal entity (see also article 13 of the Banking Law). With such claims
apply to the prosecution authorities, tax authorities, in relation to commercial
banks - the Bank of Russia, as well as the body that carries 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 liable for its obligations to all belonging
him property.
2. The company is not liable for the obligations of its members.
3. In case of insolvency (bankruptcy) of the company through the fault of its participants
or through the fault of other persons who have the right to issue binding
instructions or otherwise have the ability to determine its actions, on the specified
participants or other persons in case of insufficiency of the property of the company may
be liable for its obligations.
4. Russian Federation, subjects of the Russian Federation and municipal
entities are not liable for the obligations of society, as well as
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 is responsible
on his obligations with all his property, corresponds to clause 1
Article 56 of the Civil Code on the liability of legal entities. It should be emphasized that the responsibility
companies in question are no less than other commercial organizations,
and the definition of "limited liability" carries a different semantic load.
It means that the participants in such a society are not liable for its debts owned by
their property (with the exception of one case), their risk, as already noted,
limited by the size (value) of contributions to the authorized capital
society. This distinguishes the position of participants in a limited liability company
from the position of participants in general partnerships (see clause 2 of article 75 of the Civil Code), companies with additional
responsibility (see clause 1 of article 95 of the Civil Code) and production cooperatives (see clause 2
107 of the Civil Code), which, under certain conditions, bear subsidiary liability
for the obligations of the legal entity, participants (members) of which they are.
The property of a limited liability company, which may
be foreclosed on its obligations, includes cash,
his securities (for example, bonds) and other current assets
(including stocks of raw materials, materials, finished products, etc., for which
foreclosure may be levied 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, article 66 of the Civil Code), and therefore they are also subject to
collection of his debts. There is only one exception; it is associated with the cases
when not 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). She can't be
collection was levied on the debts of the company (by alienating it to cover the specified
debts), since the thing continues to be the property of the person
granted it for use. (See clause 17 of the Decree of the Plenums of the Supreme Court of the Russian Federation and
VAC RF N 6/8.)
The composition of the property, which may be levied on obligations
society, is determined on the basis of its balance sheet. When foreclosing real estate
the belonging of a particular object to society is also determined by the data of the state
registration of real estate and transactions with it "- SZ RF. 1997. N 30. Art. 3594).
Claims are made in the manner established by law about
executive production.
2. The company is not liable for the obligations of its members. It's fixed
in the commented Law, the rule follows from general principles demarcations
civil liability - each subject of civil law relations
is solely responsible for its obligations.
3. Paragraph 3 of the commented article establishes an exception to the general rule
that the members of the company are not liable for its debts. In him
we are talking about cases of insolvency (bankruptcy) of the company
the fault of its participants or other persons who have the right to issue binding
instructions for him or otherwise determine his actions. In case of insufficiency
the company's property to pay off their debts, they may be assigned
subsidiary, that is, additional, liability (in the manner prescribed
article 399 of the Civil Code). Foreclosure on the property of these persons may be levied in that
the part in which the debts are not covered by the company's own property
with limited liability. The persons named in this paragraph are
participants, as well as other persons who are members of the management bodies of the company and endowed
relevant powers, as well as participants owning a significant share
in the authorized capital and having, by virtue of this, the opportunity to exercise decisive
influence on decision-making by the general meeting. The question of whether a specific
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 damages resulting from
acceptable business risk, persons who have taken the appropriate
decision, do not answer.
4. Clause 4 reproduces the general provision of civil law,
according to which the state and its bodies are not responsible for the obligations
legal entities (except for cases of liability provided for by law
on obligations of state-owned enterprises and public institutions- art.115,
120 of the Civil Code), and legal entities are not liable for the obligations of the state and its
bodies, subjects of the Russian Federation and municipalities.
Article 4. Firm name of the company and its location
1. The company must have a full and have the right to have an abbreviated company
name in Russian. The company is also entitled 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". abbreviated
the trade name of the company in Russian must contain the full or
abbreviated name of the company and the words "limited liability"
or the abbreviation OOO.
The trade name of the company in Russian cannot contain other
terms and abbreviations reflecting its organizational and legal form, including
number borrowed from foreign languages unless otherwise provided by federal
laws and other legal acts of the Russian Federation.
registration. The articles of incorporation of a company may state that
the location of the company is the place of permanent location of its bodies
management or principal place of business.
communication, and is obliged to notify the authorities carrying out state registration
legal entities to change 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 have the right to have an abbreviated company name
in Russian, that is, the state language of the Russian Federation. It
can also use the appropriate 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 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, individualizing it. For example, a limited company
responsibility "Quantum". The abbreviated name can be used
abbreviation "OOO". The law prohibits the inclusion in the corporate name of the company
in Russian, other terms and abbreviations reflecting its organizational and legal
form, including those 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 certain 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,
engaged in specialized activities, should contain words,
indicating belonging to these organizations, for example, "bank" (see
article 7 of the Banking Law). However, organizations involved in other types of
activities are not entitled to use these words in their names. So,
Article 7 of the Banking Law states that "not a single legal entity in the Russian
Federation, with the exception of the one that 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
names "Russia", "Russian Federation" and formed on their basis
words and phrases in the names of organizations and other structures" (Vedomosti
RF. 1992. N 10. Art. 470) these names can only be used
with the consent of the Government of the Russian Federation and in the manner prescribed by it.
The trade name of the company is registered by including the company
under it in the state register of legal entities (for registration of a company, see
Article 13 of the Law and commentary to it). Registered trade name
refers to the exclusive rights of society and is protected in accordance with the law
okay. If this name is misused by another person, the company
has the right, on the basis of clause 1, article 54 of the Civil Code, to demand that its use be stopped
and compensate for the damages caused by it.
Losses may amount to losses of society caused by unfair use
its name, undermining as a result of this the business reputation of the company, etc.
Appropriate claims are filed in a judicial-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, where, however, it is said that in the constituent documents of a legal entity
may be otherwise provided by law. Commented norm
(which in this case is such a law, i.e. allows you to establish
other) provides that the company's constituent documents specify its location
may be determined by the permanent location of its governing bodies
or principal place of business.
A clear indication of the location of the company is important for resolving a number of legal
issues arising in its activities, in particular to determine the place
fulfillment of obligations, when it is not specified in the contract or in the legal act
(see Article 316 of the Civil Code), establishing the territorial jurisdiction of disputes involving
companies (see Article 25 of the APC), etc.
In the Decree of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation N 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, in accordance
with Article 8 of the Federal Law "On the entry into force of the first part of the Civil
Code of the Russian Federation" until the introduction of the law on registration of legal
persons, the current procedure for registration of legal entities is applied, with the permission
disputes should proceed from the fact that the location of the legal entity is
location of his organs.
3. The company must have a postal address at which it is carried out
communication, and is obliged to notify the state registration authorities of legal
persons to change their address. It is also necessary to notify counterparties of this.
under contracts and other persons with whom the company has business relations,
judicial and arbitration authorities, if the address of the company has changed, when a dispute with
participation of this society is under consideration in one of these bodies.
The negative consequences of failure to fulfill such an obligation will be borne by the company,
for example, it will not be entitled to file claims for 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 for
decision of the general meeting of participants of the company, adopted by a majority of at least
society.
Creation of branches by the company and opening of representative offices in the territory
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, in 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 subdivision located
outside the location of the company and performing all or part of its functions,
including representation functions.
3. The representative office of the company is its separate subdivision,
located outside the location of the company, representing the interests of the company
and protecting them.
4. Branch and representative office of the company are not legal entities
and act on the basis of regulations approved by the company. Branch and representative office
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 carry out their activities 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 about changes in the charter of the company, information about its branches and representative offices
submitted to the body responsible for the state registration of legal
persons. These changes in the charter of the company come into force for third parties
from the moment of notification of such changes to the body exercising 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, moreover, adopted by the majority,
if the need for a larger number is not provided for by the charter of the company. Should
note that this is a qualified majority vote
members of the company, and not the persons present at this meeting.
The creation of branches and representative offices enables the company to expand
scope of its activities, representation and protection of its 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
Federation they open in accordance with Russian legislation(federal
laws), and outside of Russia - in accordance with Russian laws and
the legislation of the state in whose territory the branch is established 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. The branch may perform all or part of the functions of the company,
what should be indicated in the regulation on it, as well as to carry out representative
responsibilities. According to the Banking Law, for example, a branch of a bank makes
on his behalf, all or part of the operations provided for by the license issued to the bank
(Article 22). It is not required for branches to obtain licenses and 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 tasks of the representative offices are more modest. They only represent society and protect
his interests. This includes, among other things, the commission on behalf of society (according to
his power of attorney) transactions and other legally significant actions.
Despite the noted differences, branches and representative offices have
much in common - in the conditions and order of creation, legal status, leadership
their activities, etc. The general is as follows:
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,
as well as in other states;
c) the company endows branches and representative offices with a part of its property.
It is taken into account on their separate balance sheets and on the company's balance sheet. staying
property owner, a 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. At the same time, specific transactions on behalf of the company are signed by
respectively heads of branches and representative offices;
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 authorization must be issued with
compliance with the requirements of Article 185 of the Civil Code - to be signed by the head of the company
or by 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 with the seal of 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 the actions
any other unit or for the actions of its employees; in the same time
property transferred to branches and representative offices may be levied
on the debts of society.
Information about the created branches and representative offices should be contained
in the company's charter. When abolishing a branch or representative office or creating
the new charter shall be amended accordingly. They are reported to the authority
carrying out registration of legal entities, in a notification manner, i.e.
this issue is resolved by the legal entity independently, without any approvals,
and the direction of the information is informational in nature. For third parties, these
changes come into force from the moment of notification of them to the body carrying out
state registration of legal entities. Up to 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,
that branches and representative offices of commercial banks may be opened with notification
about this to the Bank of Russia, which is simultaneously informed: the postal address of the branch
(representative offices), its powers and functions, information about the leaders, the scope
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 prescribed 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 N 6/8 they gave the following explanation: "When
resolution of 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 contract has been concluded
on behalf of a legal entity and by his power of attorney, it should be clarified whether there were
whether the head of the branch (representative office) at the time of signing the contract
the relevant powers expressed in the regulation on the branch and the power of attorney.
Transactions made by the head of the branch (representative office), if any
(item 20)**. The Decree of the Plenums of the Supreme Arbitration Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation N 6/8 emphasizes, in addition to
In addition, the need to take into account that the relevant powers of the head
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
person, position on a branch (representative office), etc., or appear from the situation
(paragraph 2, item 20). This clarification, based on the norms of the new Civil Code, excludes the previous
approach when, in order to recognize that the head of a branch (representative office) has
powers were sufficient to indicate this in the regulation on the branch
(another 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 APC, the claim
to a legal entity arising from the activities of its separate subdivision,
presented at the location of this unit ***, but by the party
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
the 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 legislation
foreign state on whose territory a subsidiary or dependent
economic company, unless otherwise provided by international treaties
Russian Federation.
2. The company is recognized as a subsidiary, if another (main) economic
company or partnership by virtue of the predominant participation in its authorized capital,
either in accordance with an agreement concluded between them, or otherwise
has the ability to determine the decisions made by such a society.
3. The subsidiary is not liable for the debts of the main economic company
(partnerships).
The main economic company (partnership), which has the right to give
obligatory instructions to the subsidiary, is jointly and severally liable with the subsidiary
company under transactions concluded by the latter in pursuance of such instructions.
In case of insolvency (bankruptcy) subsidiary company through the fault of the main
economic society (partnership) the latter bears in case of insufficiency
property of a subsidiary company subsidiary liability for its debts.
Members of a subsidiary company have the right to demand compensation from the parent company
(partnership) of losses caused through his fault to a subsidiary company.
4. The company is recognized as dependent, if another (predominant, participating)
economic 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, which publishes data on the state
registration of legal entities.
The federal law
"On Limited Liability Companies" (On LLC)
dated 08.02.1998 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 beginning of the editorial action is 10/21/2009.
The end of the edition - 31.12.2009.
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Attention! There is uncertainty about the effective date of the revision due to the first official publication of the amending document. The changes introduced 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 day of official publication (published in the "Collection of Legislation of the Russian Federation" - 07/20/2009, in " Russian newspaper" - 07/22/2009). For details, see the Reference Information.
For the procedure for applying this document in connection with the entry into force of the Federal Law of December 30, 2008 N 312-FZ, 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 (paragraph 2 of Article 11 of the Federal Law of October 27, 2008 N 175-FZ).
For a question regarding the application of this document, see the Decree of the Plenum Supreme Court Russian Federation N 90, Plenum of the Supreme Arbitration Court of the Russian Federation N 14 dated 09.12.1999.
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 a company) is a business company founded by one or more persons, the authorized capital of which is divided into shares of the 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 value of their contributions.
Members of the company who have not fully contributed to the charter capital of the company shall be jointly and severally liable for its obligations to the extent of the value of the unpaid part of the contribution of each of the members of the company.
2. The company owns separate property recorded on its independent balance sheet, can acquire and exercise property and personal non-property rights on its own behalf, incur obligations, be a plaintiff and defendant in court.
A company may have civil rights and bear civil obligations necessary for the implementation of 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 charter of the company.
Certain types of activities, the list of which is determined by federal law, may be carried out by a company 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 a requirement to carry out such activity as exclusive, the company, during the period of validity of the special permit (license), is entitled to carry out only the types of activities provided for by the special permit (license), and related species activities.
3. A company is considered established 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 provided by its charter.
4. The Company shall have the right to open bank accounts in the Russian Federation and abroad in accordance with the established procedure.
5. The company must have a round seal containing its full company name in Russian and an indication of the location of the company. The seal of the company may also contain the trade name of the company in any language of the peoples of the Russian Federation and (or) a foreign language.
The Company has the right to have stamps and letterheads with its company 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 liable for the obligations of its members.
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 instructions binding on the company or otherwise have the opportunity to determine its actions, the specified participants or other persons in the event of insufficient property of the company may be assigned subsidiary liability for its obligations.
4. Russian Federation, subjects 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. Firm name of the company and its location
1. The company must have a full and have the right to have an abbreviated company name in Russian. The Company is also entitled to have a full and (or) abbreviated company 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 trade name of a company in Russian cannot contain other terms and abbreviations reflecting 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 of March 21, 2002)
3. Excluded. - Federal Law of March 21, 2002 N 31-FZ.
Article 5. Branches and representative offices of the company
1. The 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, if the need for a larger number of votes to make such a decision is not provided for by the charter of the company.
The establishment by the company of branches and the opening of representative offices on the territory of the Russian Federation shall be 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 subdivision 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 subdivision, 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 the regulations approved by the company. A branch and a 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. Responsibility for the activities of the branch and representative offices of the company shall be borne by the company that created them.
5. The charter of the company must contain information about its branches and representative offices. Notifications of changes in the charter of the company, 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 charter of the company come into force for third parties from the moment of notification of such changes to the body that carries out the 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 established 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 is created. or a dependent economic 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, by virtue of its predominant participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise, has the ability to determine decisions made by such a company.
3. A subsidiary company is not liable for the debts of the main economic company (partnership).
The main economic company (partnership), which has the right to give instructions to the subsidiary that are obligatory for it, is jointly and severally liable with the subsidiary for transactions concluded by the latter in pursuance of such instructions.
In case of insolvency (bankruptcy) of a subsidiary due to the fault of the main economic company (partnership), the latter bears subsidiary liability for its debts in case of insufficiency of the property of the subsidiary.
Participants in a subsidiary company have the right to demand compensation from the parent company (partnership) for losses caused through its fault to the subsidiary company.
4. A company is recognized as dependent if another (predominant, participating) economic 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 charter capital of another limited liability company is obliged to immediately publish information about this in the press, which publishes data on state registration of legal entities.
Article 7
1. Members of the company may be citizens and legal entities.
Federal law may prohibit or restrict participation certain categories citizens in societies.
2. State bodies and bodies of local self-government are not entitled to act as participants in companies, unless otherwise established by federal law.
A society can be founded by one person who becomes its sole participant. The company may subsequently become a company with one member.
The company cannot have as its sole participant another economic company consisting of one person.
The provisions of this Federal Law shall apply to companies with one participant insofar as this Federal Law does not provide otherwise and in so far as this does not contradict the essence of the relevant relations.
3. The number of participants in the company 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 reorganized and the number of participants in the company does not decrease to the limit established by this paragraph, it is subject to liquidation in a judicial proceeding at the request of the body carrying out state registration of legal entities, or other state bodies or local governments, to which the right to present such a requirement is granted by federal law.
Article 8
1. Members of the company have the right:
participate in the management of the affairs of the company in the manner prescribed 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 prescribed by its constituent documents;
take part in the distribution of profits;
sell or otherwise assign its share in the authorized capital of the company or part of it to one or more participants in this company in the manner prescribed by this Federal Law and the charter of the company;
withdraw from the company 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 a company may provide for other rights (additional rights) of a participant (participants) of the company. These rights may be provided for by the charter of the company upon its establishment or granted to the participant (participants) of the company by decision of the general meeting of participants in the company, adopted by all participants of the company unanimously.
Additional rights granted to a certain member of the company, in the event of the alienation of his share (part of the share) to the acquirer of the share (part of the share), do not pass.
Termination or limitation additional rights provided to all participants of the company, is carried out by decision of the general meeting of participants of the company, adopted by all participants of the company unanimously. Termination or restriction of additional rights granted to a certain member of the company is carried out by decision of the general meeting of members of the company, adopted by a majority of at least two-thirds of the votes of the total number of votes of the members of the company, provided that the member of the company who owns such additional rights voted for the adoption of such decision or gave written consent.
A participant in a company who has been granted additional rights may refuse to exercise his additional rights by sending written notice about this society. From the moment the company receives the said notice, the additional rights of the company's participant cease.
Article 9. Obligations of the participants of the company
1. Participants of the company are obliged:
make contributions in the manner, in the amount, in the composition and within the time limits provided for by this Federal Law and the constituent documents of the company;
not disclose confidential information about the activities of the company.
Members of the company shall also bear other obligations stipulated by this Federal Law.
2. In addition to the obligations provided for by this Federal Law, the charter of a company may provide for other obligations (additional obligations) of a participant (participants) of the company. These obligations may be provided for by the charter of the company upon its establishment or assigned to all participants in the company by decision of the general meeting of participants in the company, adopted by all participants in the company unanimously. The imposition of additional obligations on a certain member of the company is carried out by decision of the general meeting of participants in the company, adopted by a majority of at least two-thirds of the votes of the total number of votes of the participants in the company, provided that the member of the company who is entrusted with such additional obligations voted for such a decision or gave written agreement.
Additional obligations imposed on a certain member of the company, in the event of the alienation of his share (part of the share) to the acquirer of the share (part of the share), do not pass.
Additional obligations may be terminated by a decision of the general meeting of participants in the company, adopted by all participants in the company unanimously.
Article 10
The participants of the company, whose shares in the aggregate amount to 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 obligations or by his actions (inaction) makes the activities of the company impossible or significantly complicates it.
Chapter II. COMPANY ESTABLISHMENT
Article 11
1. The founders of the company conclude a memorandum of association and approve the charter of the company. The memorandum of association and the articles of association of the company are the founding documents of the company.
If the company is founded by one person, the constituent document of the company is the charter approved by this person. In the event of an increase in the number of participants in the company to two or more, a memorandum of association must be concluded between them.
The founders of the company elect (appoint) the executive bodies of the company, and in case of making non-monetary contributions to the authorized capital of the company, approve their monetary value.
The decision to approve the charter of the company, as well as the decision to approve the monetary value of the contributions made by the founders of the company, is taken by the founders unanimously. Other decisions are taken 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 shall be jointly and severally liable for the obligations associated with the establishment of the company and arising before its state registration. The company is liable for the obligations of the founders of the company associated with its establishment, only in the event of subsequent approval of their actions by the general meeting of participants in the company.
3. Features of the establishment of a company with the participation of foreign investors are determined by federal law.
Article 12
1. In the foundation agreement, the founders of the company undertake to create a company and determine the procedure joint activities on its creation. The memorandum of association 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 amount and composition of contributions, the procedure and terms for their introduction into 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 exit of the company's participants from the company.
2. The charter of the company must contain:
full and abbreviated corporate 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 constituting 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 decisions on which are taken unanimously or by a qualified majority of votes;
information on the size of the authorized capital of the company;
information on the size and nominal value of the share of each member of the company;
rights and obligations of the company's participants;
information on the procedure and consequences of the withdrawal of a company participant from the company;
information on the procedure for the transfer of a share (part of a share) in the authorized capital of the company to another person;
information on the procedure for storing documents of the company and on the procedure for providing information by the company to participants in the company 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 member of the company, an auditor or any interested person, 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 changes. The company is obliged, at the request of a member of the company, to provide him with copies of the current memorandum of association and articles of association. The fee charged by the company for the provision of copies may not exceed the cost of their production.
4. Changes to the constituent documents of the company are made by decision of the general meeting of participants in the company.
Changes made to the constituent documents of a company are subject to state registration in the manner prescribed by Article 13 of this Federal Law for registering a 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 of the state registration authority.
5. In case of inconsistency between the provisions of the memorandum of association and the provisions of the charter of the company, the provisions of the charter of the company shall prevail for third parties and participants in 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 for creation, liquidation and reorganization. Features of the transformation, formation and termination of the work of enterprises in the areas of investment, banking, private security, insurance activities and in the field of agricultural production are also regulated by other industry regulations.
14-FZ "On LLC" ("Garant")
In Art. 2 of the normative act under consideration provides the main 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 obligations of the company related to its activities, within the value of their contributions. Entities must fully pay up their equity shares. Participants who have made only a partial investment are jointly and severally liable for the obligations of the enterprise within 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 may acquire and sell from own name non-property and property rights, be liable for their obligations, represent their interests in court as a defendant or plaintiff. The company can conduct any activity that is not prohibited by regulatory enactments and does not contradict the goals of its creation, established in the charter. Certain types operations are allowed to be performed only 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 in accordance with the rules provided for in current regulations. The company is created for an indefinite period, unless otherwise stipulated in the charter.
Individualization
Law No. 14-FZ "On LLC" (the current version) requires the company 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 and other
In accordance with the Federal Law "On Limited Liability Companies", an enterprise must have a full and may have an abbreviated name. There are certain requirements for the name. In particular, the name must contain the phrase "limited liability" in the name, in the abbreviated version it is allowed to use the abbreviation. Other requirements for the name are determined by the provisions of the Civil Code.
The specifics of the 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 company does not fulfill the obligations of its members. In case of bankruptcy (insolvency) of the 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, the guilty persons in case of insufficiency of the company's property shall be held subsidiary liability.
Representative offices and branches
According to the Federal Law "On Limited Liability Companies", an enterprise has the right to form separate divisions. Appropriate decisions are made at the meeting of participants. The resolution is considered approved if the majority (not less than 2/3) of the total number of votes speaks in favor of it, unless a different number is specified in the charter.
The formation of representative offices and branches is carried out in compliance with the requirements stipulated by the 14th Federal Law "On Limited Liability Companies" and other regulations, and abroad - the legal provisions of the state in whose territory the divisions are formed, unless otherwise provided for 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 subdivision 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 subdivision located outside the location of the LLC and performing all or part of its functions. Representation is one of them. The appointment of the management of divisions is carried out by the company. To exercise their powers, they are given 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 parent company has the ability to determine the decisions that it approves. Such a right may arise by virtue of a concluded agreement, a predominant participation in the capital, or for other reasons. is not liable for the obligations of the parent company. The main enterprise can send instructions binding on it. At the same time, it is jointly and severally liable with it for transactions made in the course of the execution of these orders. In the event of the insolvency of a subsidiary due to the fault of the main enterprise, the latter is provided for by its debts, if its property turned out to be insufficient for this. Participants may demand compensation from the main firm for losses incurred through its fault.
Associated 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. To do this, information is published in the official publication containing data on the state registration of legal entities. Relevant information must be made public as soon as possible after the transaction.
Members
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. State bodies and local authorities do not have the right to join an LLC, unless otherwise provided by federal law. An enterprise can be established by one person. It thus becomes the sole participant. A company can be formed by several persons. In the course of its activities, an enterprise can become a company with one member. The maximum number of founders cannot be more than 50. If the number of participants exceeds the specified one, the enterprise must be transformed into or OJSC within a year. 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 requirement of the registering authority or other authorized instances.
Participant rights
The Federal Law "On Limited Liability Companies" (the current version) provides for the following legal options:
- Participate in the management of the current affairs of the enterprise in accordance with 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 Federal Law 14 "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 carried out by the participant selling his share (if this possibility is provided for in the articles of association) or by presenting a demand for the acquisition of his contribution by the enterprise in the cases specified in the regulatory act.
- Receive part of the property when the Participant has the right to acquire material assets remaining after settlements with creditors. Upon liquidation, in accordance with 14-FZ "On LLC", an independent appraiser performs the proper calculations. In exchange for 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 a decision of the meeting, adopted unanimously. Additional rights in the event of alienation of a participant's share or part of it do not pass to the acquirer. Their termination or limitation in relation to all participants is carried out on the basis of a decision taken 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 the approval of the resolution. The participant may waive the additional rights granted to him by sending a notification.
Responsibilities
In accordance with 14-FZ "On LLC", the participants of the enterprise must:
- Make payment of shares in the capital of the company in the amount, manner and terms specified normative act and articles of incorporation.
- Maintain confidentiality of information about the company's activities.
Additional obligations 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 particular subject, when his share or part of it is alienated, they do not pass to the acquirer.
Enterprise establishment
The formation of the company 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 the 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 term and procedure for its payment, the nominal value and the size of the share must be determined. Participants enter into a written agreement, which establishes the rules for conducting joint activities. The agreement also determines the amount and term for payment of shares.
Charter
It acts as the founding document of the enterprise. The articles of association must state:
- Company name (abbreviated and full).
- Location data.
- Information on the competence and composition of the executive bodies, including on issues related to their exclusive jurisdiction, on the procedure for making decisions by them.
- Data on the amount of capital.
- Obligations and rights of participants.
- Information about the rules and consequences of the withdrawal of subjects from the company, if such a possibility is provided.
- Data on the procedure for the transfer of 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 value of the shares, is determined in rubles. Capital determines the minimum amount of property that secures the fulfillment of obligations to creditors. The value 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 charter may provide for a limit on the maximum amount of the share. Its actual value should correspond to the part of the price of the net assets of the enterprise, proportional to the size of the contribution. Restrictions on the size of shares can be established for individual members of the company in the charter at the time of establishment, as well as introduced into the document, changed or excluded from it on the basis of a meeting decision taken 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 that 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 member of the company 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 member of the company corresponds to the part of the value of the net assets of the company, proportional to the size of its share.
3. The charter of the company may limit the maximum size of the share of a member of the company. The charter of the company may restrict the possibility of changing the ratio of the shares of the company's participants. Such restrictions cannot be established in relation to individual members of the company. These provisions may be provided for by the charter of the company upon its establishment, as well as included in the charter of the company, amended and excluded from the charter of the company by decision of the general meeting of participants in the company, adopted by all participants of the company unanimously.
If the charter of the company contains the restrictions provided for in this clause, the person who has acquired a share in the charter capital of the company in violation of the requirements of this clause and the relevant provisions of the charter of the company has the right to vote at the general meeting of participants in the company with a part of the share, the amount of which does not exceed the amount established by the charter of the company the maximum size of the share of a member of the company.
Judicial practice under article 14 of the Federal Law of February 8, 1998 No. 14-FZ
Ruling dated January 21, 2019 in case No. А11-10050/2015
Having assessed in aggregate and interconnections the evidence presented in the case file, including the conclusions of forensic examinations, in the manner prescribed by Chapter 7 of the Code, guided by the provisions of Articles 14, 23, 26 of the Federal Law of February 8, 1998 No. liability,” the Court of Appeal, upheld by the District Court, concluded that...
Ruling dated December 26, 2018 in case No. А63-5733/2017
Supreme Court of the Russian Federation - Civil
The essence of the dispute: Corporate dispute - invalidation of the constituent documents of companies (charter, contract) or changes made to them
Cases of evidence, including conclusions forensic examination 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 February 8, 1998 No. 14 - FZ "On Limited Liability Companies", the court of first instance, supported by the courts of the appellate and cassation instances, came to the conclusion ...
Decision dated October 16, 2018 in case No. А14-9352/2018
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 February 8, 1998 No. 14 - FZ “On Limited Liability Companies” (hereinafter referred to as the Federal Law “On Limited Liability Companies”), a company participant has the right to withdraw from the company by alienating a share to the company, regardless of .. .
Decision dated October 10, 2018 in case No. А42-7132/2018
Court of Arbitration 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 amount of the company's authorized capital must be at least ten thousand rubles. In accordance with paragraph 4 of Article 30 of Law No. 14 - FZ, if the cost ...
Decision dated October 4, 2018 in case No. А32-14403/2018
Court of Arbitration Krasnodar Territory(AC of the Krasnodar Territory)
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 - FZ). According to Article 128 of the Civil Code of the Russian Federation, objects of civil rights are things, including money and securities; other property, including property rights; work and...
Ruling dated October 4, 2018 in case No. А21-4494/2016
Thirteenth Arbitration Court of Appeal (13 AAS)
On the invalidation of the guarantee agreement dated December 29, 2012 No. 06-20-2012 / DP-3 (hereinafter - the guarantee agreement) and the application of the consequences of the invalidity of the transaction. Court ruling dated 14 . On 06.2016 this claim was accepted for proceedings. The case was assigned No. А44-4494/2016. In addition, Lapina M.V. On June 30, 2016, she filed a lawsuit with the arbitration court against ...
Ruling dated October 1, 2018 in case No. А82-8648/2018
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 the Federal Law of February 8, 1998 No. 14 - FZ “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 share of the participant ...