Business societies
These are the main participants in commercial turnover. The most popular organizational and legal form is LLC.
Limited Liability Company (LLC) – definition of clause 1. Art. 87 Civil Code of the Russian Federation –
A limited liability company is a company founded by one or more persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents; Participants in a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of their contributions. Participants of the company who have not made full contributions bear joint liability for its obligations to the extent of the value of the unpaid part of the contribution of each participant.
This definition contains the most common features. It is most fully regulated by a special law.
Signs:
1. LLC is an organization that can be created by one or more persons;
2. the organization is endowed with property - authorized capital. Function authorized capital– a minimum guarantee of protecting the interests of creditors. The law establishes the minimum amount of authorized capital. Its size may change (increase) during activity. The authorized capital is divided into shares of certain sizes. The size of the share is determined based on the value of the participant’s contribution to the company’s property. A share in the authorized capital certifies the scope of the participant’s rights; this is a quantitative indicator. Minimum – 100 minimum wage.
All property that is transferred as a contribution becomes the property of the company, and the founders do not have any property rights;
3. constituent documents – charter and constituent agreement. The constituent agreement is concluded when there is more than one participant in the company. In practice, there is a discrepancy between the charter and the memorandum of association. See art. 173. What is more important? How to recognize a transaction? Which document is more important? The Charter is aimed at third parties. See resolutions of the Supreme Arbitration Court T 90/14 dated December 9, 1999. If there are contradictions between the charter and the constituent agreement, then the charter takes priority for external transactions.
Participants
The number of participants can be almost any, but there cannot be more than 50 people. If the quantity exceeds, then the LLC must be reorganized into an OJSC or production cooperative or liquidated.
Changes in the composition of participants:
1. Regardless of each participant, this does not affect the activities of the company. Even one person can continue his activities;
2. Participants can transfer their share in the authorized capital to other participants or third parties. The constituent agreement may stipulate that the transfer of shares to third parties is not allowed or is carried out only with their consent;
3. the share cannot go to the company itself. But there are exceptions.
Transfer of your share to third parties
A participant can transfer his share to a third party, but other participants have the right of first refusal.
1. the right arises only in the event of alienation for compensation;
2. The law establishes the period during which this right can be exercised - 1 month from the date of notification of the conditions of paid alienation. Only after the expiration of this period can this share be sold to third parties on previously established conditions.
Withdrawal of a participant from the company
A participant can leave at any time, regardless of the consent of other participants. Upon exit, his share in the authorized capital passes to the company from the moment of application for withdrawal, and the company is obliged to pay the participant the actual value of his share, which is determined based on the financial statements for the year in which this participant left the company. For example, withdrew from the company in 2006, calculated from data for 2006. The cost is paid within 6 months from the end of the financial year. For example, a participant left on July 1, 2006, he will receive his share during the first 6 months of 2007.
Controls
The highest governing body is the meeting of its participants. Meetings must be held at least once a year, but there may also be extraordinary meetings. The number of votes is proportional to the size of the shares. This is one of the most vulnerable elements of an LLC.
The competence of the meeting is divided into general, alternative and exclusive.
The general competence includes issues that are classified as issues of the general meeting. Alternative competence includes issues that can be resolved or general meeting, or other body as defined in the constituent document. Issues that can only be resolved by a general meeting are within the exclusive competence.
Along with the general meeting there may be a board of directors. This is a collegial body that exercises control over the activities of the company. Its creation is not necessary.
There must be an executive body. He can be either individual or collegial. Sole body – director, collegial body – board, directorate. Its functions are management of the current activities of the company. The executive body is appointed by the general meeting of participants, reports to it, and its powers can be terminated.
The sole executive body is sole, but can carry out transactions and other legally significant actions on behalf of legal entity without additional registration. The executive body is always alone, only it acts by virtue of the Charter, all the rest - only on the basis of a power of attorney. This body carries out all transactions on behalf of the company, it forms the will to complete the transaction and carries it out.
There are a number of deals with in a special way committing (for the purpose of protection):
1. transactions in which there is an interest: these are transactions in which a member of the board of directors or a person performing the functions of the executive body of an LLC, or the so-called, is interested. affiliated person (see antimonopoly legislation regarding affiliated person). According to the law: 1) any persons who have an interest must bring to the attention of the general meeting of the company, about legal entities controlled by themselves or their affiliates, 20% of the shares. 2) they must bring to the attention of the general meeting of the company information about legal entities in which they themselves or their affiliates hold positions in the management bodies. 3) these persons must bring to the attention of the general meeting information about all transactions carried out or proposed to be carried out, in which they are interested.
For such cases, a decision of the general meeting of participants is necessary; persons who have an interest in completing the transaction do not participate in this meeting. If this has been violated, the transaction may be declared invalid at the suit of the company or its participants.
2. major transactions. These are those transactions as a result of which the company may lose most of its property. This is a transaction or several interrelated transactions that are directly or indirectly related to the possibility of alienation of property, the value of which is more than 25% of the book value of the company’s property. To carry out these transactions, it is necessary to obtain the consent of the general meeting of participants. In the absence of such consent, the transaction may be declared invalid at the request of the company or its participants.
There is a significant risk with these transactions, this happens in practice. it is impossible to prevent negative consequences.
Additional liability company (ALS) – definition – Art. 95 Civil Code of the Russian Federation –
1. A company with additional liability is a company founded by one or several persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents; Participants of such a company jointly and severally bear subsidiary liability for its obligations with their property in the same multiple of the value of their contributions, determined by the constituent documents of the company. In the event of bankruptcy of one of the participants, his liability for the obligations of the company is distributed among the remaining participants in proportion to their contributions, unless a different procedure for the distribution of liability is provided for by the constituent documents of the company.
2. The corporate name of a company with additional liability must contain the name of the company and the words “with additional liability”.
3. The rules of this Code on a limited liability company apply to an additional liability company to the extent that otherwise is not provided for by this article.
Overall legal status coincides with an LLC, but there is one exception: participants bear subsidiary liability for the obligations of the company in an amount that is a multiple of the value of their contributions to the authorized capital of the ALC.
This form of society is very beneficial for creditors, but there is no particular meaning to this design.
Joint-stock companies – clause 1 of Art. 96 – only general outlines are given + laws on JSCs, which are constantly changing, there is extensive judicial practice –
A joint stock company is a company whose authorized capital is divided into a certain number of shares; Participants of a joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of the shares they own.
Shareholders who have not fully paid for the shares bear joint liability for the obligations of the joint stock company to the extent of the unpaid portion of the value of the shares they own.
Signs:
1. A JSC is a commercial organization that is created by one or more persons. These persons are not liable for the obligations of the JSC, but only bear the risk of losses within the value of their deposits;
2. The authorized capital of the joint-stock company is divided into a certain number of shares, and the rights to these shares are certified by securities - shares.
The difference from an LLC is that the rights to shares are formalized in shares, the personal composition of the participants does not matter.
Advantages of JSC:
1. ample opportunities for concentration of capital;
2. The fate of the company does not depend on the participants.
Disadvantages of JSC:
1. JSC has the most complex internal organizational structure. High costs for internal organs. Contradictions arise between owners and governing bodies;
2. extremely wide opportunities for financial fraud.
All this leaves an imprint on the legal regime.
The only one founding document- Charter. A memorandum of association is concluded, but it is only needed at the time of creation.
The authorized capital of a joint-stock company consists of the par value of shares acquired by the shareholder. The par value stated on a stock is the original price at which it is offered for sale. Shares are purchased under a purchase and sale agreement concluded between the shareholder and the company. If the shareholder is late in paying for the shares, the agreement is automatically terminated and cannot be preserved even by a decision of the company.
All transactions are registered in the register of shareholders of the company. This is a very important document in the activities of the company, since it has priority when the question of rights to shares arises. The register can be maintained by the society itself or by professional organizations - the registrar. Therefore, shareholders should always check and “keep their finger on the pulse.”
Types of shares:
1. ordinary
Securities that certify the right of the person specified in them to participate in the general meeting of shareholders with the right to a casting vote, the right to receive information about the activities of the company, the right to receive dividends, and the right to receive part of the liquidation quota.
2. privileged
Owners of these shares have a preferential right to receive dividends over holders of ordinary shares.
Shares are also divided into:
1. posted
The owners of the placed shares are known.
2. announced
The company can additionally release them, additionally place them. A JSC cannot arbitrarily resolve these issues; the number of authorized shares must be indicated in the Charter of the JSC; to change them, it is necessary to make changes to the Charter.
At the time of creation of the JSC, the authorized capital must consist of ordinary shares and cannot include more than 25% of preferred shares. All shares have the same par value.
The authorized capital of a joint-stock company is the main guarantee of the interests of the company’s creditors, and is made up of the nominal value of shares acquired by shareholders. The company must monitor its net assets. Net assets must at any time be no less than the amount of the authorized capital. If the value of net assets is less than the authorized capital, then special rules come into force: the company must reduce the size of the authorized capital to the real value of private assets, but not less minimum size authorized capital.
Increasing and decreasing the authorized capital of a joint-stock company:
The increase occurs through the placement of additional shares or an increase in the par value of the issued shares;
The reduction occurs through the par value of the shares or the depreciation of the shares, i.e., reducing the number of shares. Depreciation occurs through the purchase of part of the shares by the company itself.
If the authorized capital is reduced, this negatively affects the interests of creditors. Therefore, the law provides special guarantees to protect the interests of creditors:
1. when reducing the authorized capital, the company must notify all creditors in advance;
2. creditors have the right to demand early repayment, performance, and compensation for losses.
JSC management bodies
1. supreme body management – general meeting of shareholders. They solve the most important issues related to the life of society. 1 share = 1 vote.
2. A board of directors (supervisory board) may be created in the JSC. If a company has more than 50 shareholders, then its creation is mandatory. The Board of Directors exercises control over the activities of the company and resolves those issues that fall within their competence in accordance with the Charter. The charter must provide for the exclusive competence of the board of directors. These are issues that cannot be referred to other bodies for resolution.
3. executive body. It can be individual, it can be collegial. In a single-person body, decisions are made by one person, in a collegial body - by several persons; the procedure for making decisions can be additionally established in the Charter of the JSC.
Management can be transferred on the basis of a civil contract to another commercial organization or individual entrepreneur.
The law provides for a special procedure for companies created through privatization. See the law on privatization. “Golden share” is a special right to participate in the management of a joint stock company. This right can belong only to public legal entities (RF, constituent entities of the Russian Federation). This right is not transferable, it is established in special cases (when it is necessary to ensure defense capability, etc., see paragraph 1 of Article 38 of the privatization law).
Scope of rights of the “golden share”:
1. organ state power who represents this public entity has the right to appoint a representative to the Board of Directors;
2. the owner of the “golden share” may make proposals to the agenda and may demand the convening of an extraordinary meeting of shareholders;
3. The owner of the “golden share” has the right of veto when making decisions on certain issues. These are the most key issues - changing the charter of the company, reorganization, liquidation, changing the authorized capital, etc., as well as making decisions on major transactions and transactions in which there is an interest.
The opportunity to secure a “golden share” for a public entity appears only after the alienation of 75% of the shares of the joint-stock company from state ownership.
The law establishes two types: CJSC and OJSC. These are variations of the same organizational and legal form. If a closed joint stock company wants to become an open joint stock company, this will not be considered a transformation.
OJSC - shares of this company are distributed by open subscription during the initial placement. Any person can buy them. Once shares are allocated, they can be transferred, purchased, etc. without any restrictions. The minimum authorized capital is 1000 minimum wages.
Requirements for the activities of the JSC:
1. the obligation to annually publish for public review the balance sheet, statements, etc. The rules of the board of directors apply.
2. When placing shares, registration of the issue prospectus is required (this is the information about securities that is disclosed before the placement of the security).
JSC is strange legal education. Shares are distributed among a predetermined circle of people. After their placement, all shareholders have the right of first refusal to purchase these shares. The minimum authorized capital is 100 minimum wages.
In its main features, a closed joint-stock company coincides with an LLC. A share is a share, the significant difference is that in an LLC the share goes to the company, the company must pay the real value, in a CJSC this is impossible, the shareholder can only sell his shares, but cannot demand that the company pay him anything.
The authorities are now considering the issue of abolishing the closed joint stock company, since the LLC performs the main functions. (see on the ministry website economic development and trade - the concept of reform of legal entities).
Subsidiaries – definition – clause 1 of Art. 105 of the Civil Code of the Russian Federation.
The signs are alternative in nature; one of them is enough:
1. if another business company or partnership has the opportunity to determine decisions made by the subsidiary due to the predominance of capital in the authorized capital of the subsidiary.
2. some other business company or partnership has the opportunity to determine the decisions made by the subsidiary in accordance with the agreement concluded between them.
3. another business company or partnership may in some other way determine the decisions made by its subsidiaries.
The meaning of this category: subsidiaries are not independent, cannot independently determine financial policy and other issues, must obey, therefore subsidiaries sometimes make decisions that are unfavorable for themselves. This is a threat to society itself, to creditors. Therefore, the law establishes the following guarantees:
1. the subsidiary is not liable for the debts of the main company or partnership. This is a mandatory norm and cannot be changed by agreement.
2. The main company or partnership, under certain conditions, is liable for the obligations of the subsidiary:
a) the main company or partnership bears joint liability together with the subsidiary company for those transactions that the subsidiary company entered into in pursuance of the instructions of the main company or partnership;
b) the main company or partnership has subsidiary liability for the debts of a subsidiary, if the subsidiary is declared bankrupt as a result of the guilty behavior (action) of the main company (partnership).
Additional warranty for the remaining participants of the joint-stock company: the subsidiary has the right to demand compensation from the main company for losses caused to the subsidiary through its fault.
Dependent companies
The company is recognized as dependent on the grounds set out in paragraph 1 of Art. 106. A dependent company is a company in which the dominant company has more than 20% of the voting shares of a joint stock company or more than 20% of the authorized capital of an LLC.
Peculiarities:
2. The law establishes certain amounts of mutual participation of the company in each other’s authorized capital.
Production cooperatives (artels)(in pre-revolutionary literature - labor partnerships)
Production cooperatives are associations of individuals for joint management entrepreneurial activity on the basis of their personal labor and other participation. The initial property consists of share contributions from members of the association. Producer cooperatives are usually created by producers agriculture, fishing enterprises, etc. The main thing is their personal participation in the activities of the cooperative, and the property element is of subordinate importance.
Peculiarity legal status– members of the cooperative bear subsidiary liability for the obligations of the cooperative in the amount and manner provided for by the charter of the cooperative and the law.
1. Civil Code;
2. law on production cooperatives (special federal law).
Production cooperatives are similar to general partnerships. General partnership is created to carry out entrepreneurial activities, a production cooperative is created to participate in labor activity. There may even be a legal entity in the PC, but their number is limited - no more than 25% of the total number of PC members.
Because the purpose of the activity is production activity, should be distinguished from other organizations - consumer and credit cooperatives (these are non-profit organizations).
The number of members cannot be less than 5. The only constituent document is the charter, which is approved by the general meeting of members of the cooperative.
The initial property consists of the share contributions of its members, common property is divided into shares in accordance with the share contribution of each member. By the time of registration, each member must contribute at least 10% of his share contribution. This is a manifestation of the fact that the main thing is not how much they bring, but the main thing is how much they earn. They must pay the rest within a year.
A share is different from a share in an LLC or a share in a JSC.
The volume of rights that is fixed by the share. The cost of a share consists of two parts: 1 part – fixed – the size, the figure that corresponds to the size of the share contribution; Part 2 – incremental – i.e. that part of the net asset of the production cooperative from which the mutual fund and indivisible fund are subtracted.
A mutual fund is what is initially contributed, the existing value of all share contributions.
An indivisible fund is a special part that may be provided for by the charter of the PC. This property is used for the purposes specified in the charter. This fund is insured against collection of personal debts of members of the cooperative.
The peculiarity of the share is that the rights of the members of the cooperative do not depend on the size of the share (unlike LLC, JSC, partnerships). The liquidation balance and profit are distributed depending on labor participation.
Controls:
1. The highest governing body is the general meeting of members of the cooperative. Determines key priorities, etc.
2. if there are more than 50 members, then a supervisory board can be created. This is the body that controls the activities of the executive body of the PC.
3. The executive body can be either individual (chairman) or collegial (board). The peculiarity of the governing body is that they may include members of the cooperative, since personal labor participation prevails. The identity of the participants is important, the composition may change.
Lineup changes:
1. withdrawal of a member from the PC
Each member may withdraw at his own discretion at any time. The value of the share is paid or property corresponding to the size of the share is issued. Issue is carried out upon the end of the financial year and approval of the annual balance sheet.
2. exclusion of a member from the PC
Any member of the cooperative can be expelled by decision of the general meeting of participants. The reason may be improper performance or failure to fulfill obligations.
Special grounds for the exclusion of persons who are members of management bodies: these persons can be excluded if these persons participate in another production cooperative.
The consequences of an exception are the same as for leaving.
3. transfer of shares under the transaction
Each member of the cooperative can transfer his share to another member of the cooperative, unless otherwise provided by law or the charter. The transfer of a share to a third party can only be carried out with the consent of the members of the PC, and in this case the right of first refusal to purchase the share by the members of the cooperative applies.
4. death of a participant ( individual) or reorganization of a legal entity
In the event of the death of a participant or reorganization of a legal entity, legal successors may be accepted into the PC, unless otherwise provided by the charter. If the charter provides otherwise, the value of the share is paid to the legal successors or the property is issued.
5. collection by creditors
Foreclosure of a share by creditors of a cooperative member. Collection is made last.
The legal status of subsidiaries and dependent organizations is determined by the Civil Code of the Russian Federation and the legislation of the Russian Federation on individual subjects of corporate law of the Russian Federation.
Subsidiaries and dependent companies carry out entrepreneurial activities. There are main organizations (business partnership in the form of a general partnership, joint stock company, etc.) and derivatives (subsidiaries and dependent companies).
AND business companies, and business partnerships have the right to establish dependent or subsidiary companies.
There are two types of non-independent companies: subsidiaries and dependent companies.
subsidiaries, if another (main) business company or partnership, by virtue of a predominant participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise has the opportunity to determine the decisions made by such a company.
The economic company is recognized dependent, if another (dominant, participating) company has more than 20% of the voting shares of a joint stock company or 20% of the authorized capital of a limited liability company.
Subsidiaries and dependent companies are divided into several types on various grounds, for example, domestic and foreign dependent companies, companies derived from joint-stock companies, limited liability companies and other organizational and legal forms are distinguished corporate organizations. There are dependent and subsidiaries of a joint stock company and a limited liability company.
Limited Liability Company may have subsidiaries and dependent companies with the rights of a legal entity on the territory of the Russian Federation, created in accordance with federal laws, and outside the territory of the Russian Federation - in accordance with the legislation of a foreign state at the location of the subsidiary or dependent company, unless otherwise provided by an international treaty of the Russian Federation.
Joint stock company may have subsidiaries and dependent companies with the rights of a legal entity on the territory of the Russian Federation in accordance with federal laws, and outside the territory of the Russian Federation - in accordance with the legislation of a foreign state at the location of the subsidiary or dependent company, unless otherwise provided by an international treaty of the Russian Federation. A company is recognized as a subsidiary if another (main) business company (partnership), due to its predominant participation in its authorized capital, either in accordance with an agreement concluded between them, or otherwise has the opportunity to determine the decisions made by such company.
The parent company (partnership), which has the right to give mandatory instructions to the subsidiary, is jointly and severally liable with the subsidiary for transactions concluded by the latter in pursuance of such instructions. The parent company (partnership) is considered to have the right to give mandatory instructions to the subsidiary company only if this right is provided for in the agreement with the subsidiary company or the charter of the subsidiary company.
The concept of "holding"
holding joint stock legal company control
To understand the clear content of such a concept as “holding”, then for this you will need to consider various points views on this issue.
T.F. Efremova points out: “A holding is a joint-stock company that owns or seeks to own a controlling stake in another or other companies with the aim of establishing control over them.”
A holding (translated from English as “ownership”) is a combination of a parent company and subsidiaries. This is a business figure of each organizational and legal form that owns controlling stakes in other enterprises for the implementation of control and management functions.
The parent company, also called the “holding company,” has a controlling interest in the subsidiaries and performs supervisory or management work in relation to these enterprises. The holding company has an important right to make and reject any decision without exception at the general meeting of participants of the managed companies, because it has a controlling stake. So, if the parent company is engaged in entrepreneurial activities, then we will be talking about a mixed holding; this issue is discussed in more detail below. Unlike a mixed holding, there is also a pure holding, where the company is directly involved in the holding itself.
A holding company is an enterprise, regardless of its legal form, whose assets include controlling stakes in other enterprises.
Thus, holdings are a form of association that consists of a group of enterprises built on relationships of economic verification, the participants of which, in turn, retain legal independence and in their own business activities are subordinate to a selected participant from the group - the holding company. It, since it is the center of the holding association, due to its ownership of controlling stakes, directly influences the decision-making of other members of the holding.
I would like to note that due to the lack of a clear definition of such a concept as “holding” in the legislation, there are disputes on this issue in the literature.
V.A. Laptev considers a holding as a set of interconnected participants (economic entities) carrying out joint activities. Moreover, V.A. Laptev actually distinguishes between the concepts of “holding” and “holding company” when he says that “in holdings... the functions of acquiring rights and obligations on behalf of the holding (holding participants) are performed by the holding company, acting in the interests of the holding participants on the basis of an agreement on the creation of a holding company."
“In modern domestic legal and economic literature, corporations generally mean complex economic structures organized according to a hierarchical principle (such as concerns, holdings, financial and industrial groups, etc.) and based primarily on joint stock ownership.. Legal regulation of the organization and the activities of corporations, and above all corporations with the participation of state capital, along with legislative acts, are also carried out by decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation,” this definition of a holding is given by V.N. Petukhov.
“In science, there is an understanding of holding in a broad and narrow sense. Thus, a holding in a broad sense is understood as a combination of parent (parent) and subsidiaries and dependent companies. In a narrow sense they define holding company as a legal entity primarily in the form of a business company, with the right to control other participants in the association. At the same time, not all representatives of science differentiate between the concepts of “holding” and “holding company”. So, E.A. Sukhanov defines a holding as a combination of the main and subsidiary (subsidiaries) companies or a non-legal association. This definition corresponds to the understanding of a holding in a broad sense. As for the lack of legal personality of such an association, one can completely agree with E.A. Sukhanov, since in accordance with Russian legislation the holding is not a full-fledged subject of legal relations.”
O.V. Osipenko notes that “even if we are guided by paragraph 1 of Art. 105 of the Civil Code of the Russian Federation, which reveals the concept of a subsidiary business company, guaranteed corporate control in the sense of the possibility of prospects for making key management decisions is ensured not only by the participation system (dominance in the structure of the authorized capital), but also by the so-called personal union (say, dominance of employees of a certain company on the board of directors another business company, which is not a consequence of the possession of a controlling stake), as well as a special kind of contractual relationship, in particular implemented by the transfer by the general meeting of participants of the managed company of the powers of the sole executive body of the management organization.”
These are the approaches to the concept of “holding” and “holding companies”, which are discussed in legislation and in legal literature
Types of holdings
Enterprises that merge into holding associations receive economic rewards and also strengthen their positions in the market.
The main types of holdings can be identified as follows.
Firstly, holding companies, depending on the type of activity of the parent company itself. Thus, it may deal exclusively with the element of owning shares in subsidiaries, without engaging in any other or, in other cases, commercial activities. The following types of holdings can be distinguished:
a) pure holdings,
b) mixed holdings.
As for pure holdings, they do not carry out commercial activities at all, but perform management functions, having controlling stakes in subsidiaries.
In turn, in mixed holdings the parent company, in addition to the functions mentioned above, carries out commercial activities, which fundamentally distinguishes them from pure holdings. This is their difference.
In this holding, the parent company plays a kind of dual role: on the one hand, it is a management company, but on the other, it is an industrial enterprise, a bank or a trading enterprise.
Secondly, holdings are classified depending on the characteristics of the owners themselves, and in particular these are municipal, private and state.
Thirdly, holdings can be separated from other types, depending on the industry of the subsidiaries, thus, there are insurance, automobile, banking and others.
In Russia, too, the process of consolidation of agro-industrial production proceeds mainly along the development path of agro-industrial companies and holdings: poultry farms join neighboring farms and organize the production of feed grain on these lands; meat processing plants are adding fattening farms, etc., since large-scale agro-industrial production is possible thanks to the development of holding forms of both business associations engaged in the production, processing and trade of agricultural products, and integrator firms whose subsidiaries specialize in the processing of agricultural products produced by farmers farms under contract with the integrator company, and trade in it.
The fourth classification criterion is division depending on the functions of subsidiaries. These holdings are either controlling or equity holdings of securities and capital.
In a controlling holding, the parent company has controlling stakes in other participants and therefore has a decisive influence on their activities.
Share participation: the parent company owns share property in other enterprises.
The fifth criterion for distinguishing types of holdings and associations, depending on the location of the activities of enterprises, exists: transnational holding and national holding.
A transnational holding is a holding whose business entities are located in different countries.
The sixth criterion for differentiation is, depending on the nature of the economic relations between the participants of the holding and the method of its organization, through this, horizontal, vertical and diversified holdings are distinguished.
Horizontal holdings are otherwise called “sales holdings” - an association of companies operating in the same market (for example, telecommunications and others.
Vertical holdings or production holdings are associations of enterprises in one production chain. Examples include associations involved in the processing of agricultural products, metals, and oil refining.
Diversified holdings are structures that are not directly connected by either trade or production relations, such as banks that invest funds in some business entities and thus perform the functions of the parent company.
The above types helped to consider such a multifaceted and versatile concept.
According to paragraph 1 of Article 105 of the Civil Code of the Russian Federation and paragraph 2 of Article 6 of the Law, economic
a company is recognized as a subsidiary if another (main) business company
or the partnership has the ability to determine decisions made by such company:
Due to the predominant participation in its capital;
In accordance with the agreement concluded between them;
Or in any other way (i.e. in any way that does not contradict the law).
A company can be recognized as a subsidiary if at least one of these characteristics is present. As you can see, the conditions for recognizing a business company as a subsidiary are set out
in the very general view, for example, the minimum amount of capital that
The main company must have a subsidiary in its capital. There are no other restrictions
capable of preventing a strong joint stock company from taking over more
weak economic companies, if this is not direct violation of the law,
in particular criminal.
Thus, the position of a company as a subsidiary may
depend not only on strictly formal criteria. For example, in what way
you can find out, establish informal relationships in which one society
has the ability to influence the decisions of another society? Very often
this can only be clarified in court, in order for it to appear
the ability to use any legal consequences of actual dependence
one society from another.
A subsidiary business company, including a joint stock company, is not a special organizational and legal form. In principle, it can become any economic
society. As for the specifics of the legal status of subsidiaries,
then they are determined by special relationships with the main, controlling
societies (partnerships), which are often also called mother societies.
These features include the ability of major societies to influence the actions of
subsidiaries, as well as their liability for the debts of subsidiaries.
Paragraph 3 of Article 6 of the Law regulates some provisions protecting
very important interests of the subsidiary. Firstly, the subsidiary does not
is liable for the debts of the main company (partnership). Secondly, the main thing
the company is considered to have the right to give obligatory
last indication only when this right is provided for in the contract
with a subsidiary company or in the charter of a subsidiary company. Moreover, the main
a company that has the right to give to a subsidiary company obligatory for the latter
instructions shall be jointly and severally liable with the subsidiary for transactions concluded by the latter
in pursuance of such instructions (Article 322 of the Civil Code of the Russian Federation).
An agreement under which a joint-stock or other business company
recognized as a subsidiary, is very important for him. The conditions for such
agreements subordinate, one way or another, the activities of the subsidiary to the interests
main Therefore, the subsidiary needs to insure itself in case
if his interests and the interests of the main society diverge.
Therefore, the agreement between the main and subsidiary companies must consistently
and clearly state the conditions declared therein, mutual obligations,
the interests of the parties, their responsibilities, are stated in such a way that in the future
exclude the possibility of free interpretation of the contract. For these purposes, with joint
when developing the terms of the contract, it is necessary to strictly follow the provisions
Chapters 27 - 29 of the Civil Code of the Russian Federation.
Article 6, paragraph 3, specifically addresses the issue of the responsibility of the principal
company in the event of insolvency (bankruptcy) of a subsidiary under its
guilt. In this case, the main company bears subsidiary liability (Article 399
Civil Code of the Russian Federation) for the debts of the subsidiary. Here is the condition under which
The main company may be found guilty of bankruptcy of a subsidiary.
Mainstream society is considered guilty only if it has used
its right and (or) opportunity to give obligations to the subsidiary
instructions for the purpose of performing certain actions by a subsidiary, knowingly
knowing that this will result in the bankruptcy of the latter.
Clause 3 of Article 6 grants the shareholders of a subsidiary the right
demand compensation from the main company (partnership) for losses caused
through his fault to the subsidiary company. Losses are considered caused by the fault of the main
company (partnership) only in the case when it used the existing
he has the right and (or) opportunity for the purpose of committing an action by the subsidiary,
knowing in advance that as a result of this the subsidiary will incur losses.
After reading the provisions of paragraph 3 of Article 6, it inevitably arises, in particular,
the following questions.
1. The parent company is jointly and severally liable with the subsidiary company for transactions
concluded by the latter in pursuance of the instructions of the main company. However, such
transactions may turn out to be unprofitable solely due to the fault of the subsidiary.
Why, then, should the main society be jointly and severally liable?
together with the real culprit that the deal turned out to be unprofitable?
As in the first case, there may be many reasons why
the subsidiary company will go bankrupt, following the instructions of the main company,
but the latter did not know, could not know that these instructions would lead to bankruptcy
subsidiary company through the fault of the latter. In this case, the main society is basically
should not bear any financial liability. However, according to the provisions
Article 6(3), the parent company is still liable.
In this regard, the question arises: do these provisions of the definition contradict
guilt to the standards given in Article 401 of the Civil Code of the Russian Federation?
It is obvious that the developers of the Law on Joint Stock Companies in this issue
invaded that area of economic relations that is already regulated
the relevant articles of the Civil Code of the Russian Federation, and they did it not entirely successfully. Such
the action could not help but cause numerous legal disputes, however, as a result
establishing joint liability main companies for transactions of subsidiaries,
if the latter turn out to be unprofitable, allegedly due to the fault of the main companies.
Trying to correct the inconsistency of the specified provisions of the Law on Joint Stock
societies to the standards established by the Civil Code of the Russian Federation, the Plenum of the Supreme and Supreme Arbitration
the following clarification.
Courts should bear in mind that, according to Article 6 of the Joint Stock Law
companies, the liability of the parent company for the debts of the subsidiary
in case of insolvency of the latter, as well as in cases of causing losses to a subsidiary
society can occur only if there is guilt of the main society (Article 401
Thus, as one would expect, the Supreme and Supreme Arbitration
The courts have clarified that the concept of guilt should not be interpreted in relation to the point
3 of Article 6 of the Law on Joint Stock Companies, and more broadly, based
on the provisions of Article 401 “Grounds of liability for violation of obligations”
From this it follows, in particular, that the main society can be recognized
guilty of bankruptcy of a subsidiary if it has assumed responsibility for
certain obligations to him, naturally, in proper writing
decorated.
2. It is completely unclear why shareholders, and not the subsidiary itself
the company has the right to demand compensation from the main company for losses caused
through his fault to the subsidiary, especially since they are not the owners
the latter's property. It is obvious that here, too, there is an inaccuracy, essentially
excluding the possibility of a subsidiary to defend its interests in court
In this regard, the Supreme and Supreme Arbitration Courts, which do not have the opportunity
directly clarify the provisions of the Law on Joint Stock Companies by its Resolution
Shareholders' demands for compensation by the main company for losses caused
through his fault to a subsidiary, can be declared by means of an appeal from shareholders
to court with a corresponding claim, but not in the interests of the shareholders themselves, but in the interests
subsidiary company. The Supreme and Supreme Arbitration Courts thus corrected
inaccuracy contained in the text of paragraph 3 of Article 6 of the Law on Joint Stock Companies
societies.
Only a business company, including a joint stock company, can be a subsidiary,
The main one is not only a company, including a joint stock company, but also a partnership.
The main company (partnership) and subsidiary (subsidiaries) constitute
system of economically interconnected commercial organizations, known in
American law called "holding". Such economic relationships
as well as the term itself, have already become widespread in our country.
Note that the holding is not an independent legal entity, i.e. legal
Participation in companies of other companies and partnerships can lead to the fact that the latter, having a controlling stake (or a majority of shares) and, in fact, determining therefore all the actions of the controlled company, formally remain aloof from the possible negative results of their management, for example from the consequences of unsuccessfully completed transactions by a controlled company. After all, if such a risky or obviously unprofitable transaction is imposed on a controlled company by the main, “parent” company, the latter will either receive a large part of the income or provide creditors with the property of the subsidiary, avoiding any liability for losses caused as an ordinary participant in the legal entity (company). In this case, not only potential counterparties of the subsidiary may lose, but also its other participants who do not control its activities (in particular, the remaining minority shareholders).
In a developed market economy, unique combinations of companies have become increasingly widespread, in which one (“parent”) company somehow controls the activities of its associated subsidiaries or even specifically creates them. In German law, such associations are called concerns, and in Anglo-American law - holdings (from English, holder - holder, because such "holding" companies are the owners of large blocks of shares or shares in the authorized capital of numerous subsidiary corporations). The companies within them, in most cases, essentially do not have or do not express their own will, although they are formally independent and independent participants in property turnover.
And here, therefore, traditional tasks for corporate, including joint stock, law arise - protecting the interests of creditors and the minority of shareholders (other participants in controlled companies). This problem does not arise in relation to the activities of partnerships, because the general partners participating in them always bear unlimited personal liability for their debts (which removes the issue of protecting the interests of creditors) and are in personal trust relationships with each other (which removes the issue of protecting their personal interests). Therefore, only business entities can act as controlled subsidiaries. Both companies and partnerships can act as controlling, main (“parent”) companies.
Developed legal systems have found a solution to this problem by recognizing, under certain conditions, the possibility of assigning property liability for transactions of subsidiaries not only to the legal entity that made them, but also to its participants, who actually determined its actions. Since in this case the law neglects the shell of a legal entity, designed to prevent creditors from accessing the property of its participants (founders), this opportunity is called “removing corporate veils” * (186).
A subsidiary is a business company whose actions are determined by another (main) business company or partnership, either by virtue of a predominant participation in the authorized capital, or in accordance with an agreement concluded between them, or otherwise (clause 1 of article 105 of the Civil Code; clause 2 of article 6 of the Law on Joint Stock Companies; paragraph 2 of Article 6 of the Law on Limited Liability Companies).
Because of this, the relationship between two companies can be recognized as a relationship between a “parent” and a subsidiary if at least one of three conditions is met.
Firstly, we are talking about the predominant participation of one company in the authorized capital of another, which gives it a decisive voice in the management of affairs. The law does not require the presence of a known controlling stake (for example, 50% plus one share) or participation shares, since dominance is a matter of fact. It is known that in some large companies with a large number of shareholders, 5-10% of shares may be sufficient for control.
Secondly, there may be an agreement on the subordination of one company to another, for example, in the form of an agreement with a management company to which the powers of the executive body of the company are transferred. Thirdly, we mean any ability of one company to otherwise determine the decisions of another company, for example, to impose its will on it to carry out one specific transaction.
From this alone it is clear that a subsidiary is not any special organizational and legal form or type of business company. Any business company can be recognized as a subsidiary if at least one of the above situations is proven, including only in relation to a specific transaction, i.e. even in a single legal relationship. Subsidiaries cannot be identified with subsidiaries, which are a type unitary enterprises(Clause 7, Article 114 of the Civil Code), and not business companies.
The consequences of recognizing a society as a subsidiary (and “parent”) are twofold.
Firstly, a company that has the right to give mandatory instructions to a subsidiary is jointly and severally liable with the subsidiary for transactions concluded in pursuance of such instructions (which allows creditors to immediately foreclose on the property of the “parent” company). Such a right, of course, belongs to both the company with a predominant participation in the authorized capital and the company managing another (subsidiary) company under the agreement. However, the possibility of proving the existence of such a right in other situations is not excluded.
Secondly, if the guilt of the main company in the bankruptcy of a subsidiary is proven, its subsidiary liability arises to the creditors of the subsidiary. Under no circumstances is the subsidiary company liable for the debts of the “parent” company, because it cannot influence the formation of its will * (187).
As for protecting the interests of a minority of participants in a subsidiary, current Russian legislation is limited to providing them with the opportunity to demand directly from the parent company compensation for losses caused by its fault to the subsidiary (since as a result of this, in particular, their dividend amount may decrease) *(188 ). In developed legal systems, shareholders of subsidiaries are provided with other opportunities, for example the right to exchange (convert) their shares for shares of the “parent” company * (189). As market turnover develops and becomes more complex, we can expect similar rules to appear in domestic legislation.
A business company is recognized as dependent in the authorized capital of which another (predominant, participating) company has more than 20% participation (voting shares or shares) (clause 1 of Article 106 of the Civil Code; clause 4 of Article 6 of the Law on Joint Stock Companies; clause 4 Art. 6 of the Law on Limited Liability Companies).
Participation of companies in each other's capital can be mutual and even equal, which excludes the possibility of unilateral influence. This situation in itself does not lead to control of one company over another (unless this participation is predominant in comparison with the shares of other participants in the company), and therefore the liability of the dominant company for the debts of the dependent does not arise.
The law establishes two consequences of such dependence. Firstly, the dominant company must publicly announce its participation in the dependent company for the information of all other participants in the property turnover. This, in particular, may mean public information about the founders of a particular company and the size of their participation in its authorized capital. Secondly, antimonopoly legislation, as well as legislation on banks, insurance and investment companies, may provide for restrictions (limits) of such participation, including mutual, in particular in order to prevent the exclusion of small participants in companies from real participation in the management of their affairs .
The process of transition to them includes the use of control and influence mechanisms between organizations, as well as their mastery. For USA and countries Western Europe this stage is considered completed. Regarding Russian Federation, then there is still a long way to go before its completion.
General information
The above is explained by the weakness of the domestic regulatory framework. It regulates relationships of dependence. However, there is a plus in this situation. We are talking about the possibility of using other people's experience, which has been tested by time. However, this is not always implemented by the legislator. In this case, it is advisable to study theoretical issues that are related to the relationships of interdependence between commercial organizations. Thanks to this, there will be a significant reduction in the list of problems that arise in practice.
Basic Information
What does the concept of subsidiaries and dependent companies include? The relevant law must be consulted. According to it, a company is considered a subsidiary if another economic organization has the ability to determine the decisions that he makes. This can be done by virtue of a concluded agreement, (dominant) participation in the authorized capital, or in another way. Still in the same article, the concept that defines the term “dependent society” is indicated. It is recognized as such if the dominant organization concentrates more than 20% of the relevant shares of the first.
Management of subsidiaries and dependent companies
Here the presence of an element of indirect economic and legal control is noted. This can be seen both in the relations of the dominant-dependent and the main-subsidiary societies. The presence of control indicates the existence of a relationship of subordination and power. This also applies to subordination. Thus, subsidiaries and dependent companies are connected with each other. The main ones, to one degree or another, can manage the subordinates. That is, they influence the decisions made by the subsidiary. In particular, this applies to those adopted by the board of directors or general meeting of shareholders.
Subsidiaries and dependent companies. Features of operation
They are not deprived of the status of a legal entity due to the presence of an element of subordination. That is, we are talking about an independent subject of civil law relations. In accordance with this circumstance, subsidiaries and dependent companies are fundamentally different from representative offices and branches. The latter are considered only as divisions of the organizations that created them. In this case, there are a number of other nuances. For example, subsidiaries and dependent companies can be created in any location. This also applies to the location of the main organization. This is excluded for representative offices and branches.
Nuances of creation
This organizational and legal form is not named in the legislation. In this regard, we can conclude that subsidiaries and dependent companies can be created in any form permitted by the legislation of the Russian Federation. We are talking about the following business companies:
- With additional responsibility.
- Shareholder.
- Limited liability.
Main differences
Subsidiaries and dependent business companies are separated one by one common feature. We are talking about a legal relationship. However, there are certain differences between them. The basis of a subsidiary is the criterion of the ability of the dominant structure to determine its decisions. At the same time, the dependent is determined by the formal condition of the participation of the dominant organization in its authorized capital.
Target orientation
Authorized capital
There are certain difficulties when using this criterion. The question is how to define the term “predominant”. As for the lack of a formal size of participation in the authorized capital, this makes it possible to recognize the organization as the main one, even if it has a stake of less than 20% of the voting shares of the subsidiary. Predominant participation also has a number of specific nuances. It does not mean at all that the main society will influence absolutely all decisions of the subsidiary.
Financial and industrial groups, concerns and holdings
A system of companies bound by control and economic dependence is formed by the main company together with its subsidiaries. It can be called a financial and industrial group (RF), a holding (England, USA) and a concern (Germany). The content of these formations is identical. Thus, for further convenience, one general term will be used - “holding”. Its creation is objective from the point of view of business practice.
So, the enterprise has become quite large. is increasing, extensive investment projects. Becomes necessary creation divisions of the company, as well as subsidiaries. A certain hierarchy is needed. Minimization of tax and other mandatory payments is also required. This situation is quite natural for business development. Accordingly, we can say that the holding arises independently. What, in essence, are the largest Western companies currently? These are entire systems consisting of main and subsidiary communities that are interconnected. We are talking about groups of individuals who have united under one brand name.
According to statistics from the Monde Diplomatic publication, in the 90s. There were about 37 thousand transnational organizations functioning. They, in turn, had approximately 170 thousand branches and subsidiaries. In Russia there are several largest companies, which have So, there are subsidiaries and dependent companies of Russian Railways, RAO Gazprom, YUKOS, LUKOIL. Currently for a number domestic enterprises, related to medium and small businesses, are characterized by a similar organization of corporate activities in one form or another. Using the structure of the holding system, many important problems can be solved, including:
- organizing the implementation of a coordinated sales and production policy;
- effective management of subordinate enterprises.
At the same time special legal regulation absent. At the same time, in Western countries it exists. Thus, the potential of this structure is not fully realized.
