Forms of joint stock companies. Voluntary liquidation procedure

A joint stock company is one of the organizational and legal forms of enterprises. It is created by centralizing the pooling of capital of various persons, carried out through the sale of shares for the purpose of carrying out business activities and making a profit.

A joint stock company, in accordance with the Civil Code of the Russian Federation of October 21, 1994. and Federal Law of December 26, 1995 N208-FZ “On Joint-Stock Companies” recognizes a commercial organization whose authorized capital is divided into a certain number of shares certifying the obligatory rights of the company’s participants (shareholders) in relation to the company.

Participants can be individuals and legal entities.

At the same time, the participants are not liable for the obligations of the company and bear the risk of losses associated with its activities, within the limits of the value of the shares they own. Participants who have not fully paid for the shares bear joint liability for the obligations of the company to the extent of the unpaid portion of the value of the shares they own.

In the process of creating a company, its founders combine their property under certain conditions recorded in the constituent documents of the company. On the basis of such combined capital, economic activities will be conducted in the future with the aim of making a profit.

The contribution of a company participant to the combined capital can be cash, as well as any material assets, securities, rights to use natural resources and other property rights, including intellectual property rights.

The value of the property contributed by each founder is determined in monetary form by a joint decision of the company's participants. The combined property, valued in monetary terms, constitutes the authorized capital of the company.

The authorized capital is divided into a certain number of equal shares. Evidence of the contribution of such shares is a share, and the monetary expression of this share is called the par value (par value) of the shares.

Each participant in the joint capital is allocated a number of shares corresponding to the size of the share contributed by him.

A joint stock company is a legal entity. The procedure for its organization is regulated by the legislation of the Russian Federation.

A joint stock company acquires the rights of a legal entity from the moment of its registration with the State Registration Chamber or other authorized state body. Upon registration, a Certificate of Registration of the joint stock company is issued, which indicates the date and number of state registration, the name of the company, as well as the name of the registering authority.

The company is a legal entity and owns separate property, which is accounted for on its independent balance sheet; it can, in its own name, acquire and exercise property and personal non-property rights, bear responsibilities, and be a plaintiff and defendant in court.

Society has civil rights and bears the responsibilities necessary to carry out any types of activities not prohibited by the legislation of the Russian Federation. Companies can engage in types of activities the liver of which is determined by the legislation of the Russian Federation only on the basis of an appropriate permit (license). If the conditions for granting a special permit (license) to engage in a certain type of activity provide for the requirement to engage in such activity as exclusive, then the company during the period of validity of the special permit (license) has no right to carry out other types of activities, with the exception of the types of activities provided for by the special permit (license). ) and related ones.

The Company has the right to in the prescribed manner open bank accounts on the territory of the Russian Federation and abroad.

The company must have a round seal containing its full corporate name in Russian and an indication of its location. The seal may also indicate the company name of the company in any foreign language or language of nations Russian Federation. The Company has the right to have stamps and forms with its name, its own emblem, as well as a duly registered trademark and other means of visual identification.

Responsibility of society

The company is liable for its obligations with all its property.

The company is not liable for the obligations of its shareholders.

If the insolvency (bankruptcy) of a company is caused by the actions of its shareholders or other persons who have the right to give instructions binding on the company or otherwise have the opportunity to determine its actions, then these shareholders or other persons in the event of insufficiency of the company’s property may be assigned subsidiary liability for its obligations.

The functioning of a joint stock company is carried out with mandatory compliance with the conditions of economic activity established Russian legislation.

As a legal entity, the company is the owner of: property transferred to it by the founders; products produced as a result of economic activities; income received and other property acquired by him in the course of his activities.

The company has complete economic independence in determining the form of management, making business decisions, sales, setting prices, remuneration and distribution of profits.

The life of the company is not limited or is established by its participants.

A joint stock company is created and operates on the basis of a charter - a document that defines the subject and goals of creating the company, its structure, the procedure for managing affairs, the rights and obligations of each co-owner.

When combining their contributions, the participants of the company enter into an agreement on the procedure for maintaining, using and disposing of the combined property, i.e. common property.

The activities of the company are not limited to those established in the charter. Any transaction that does not contradict current legislation is recognized as valid, even if it goes beyond the limits defined by the charter.

All further activities of the joint-stock company are based on the mandatory implementation of the provisions regulated by the charter.

The charter and all changes and additions made to it, with the consent of the shareholders, must be registered with the authorized government bodies.

The insolvency (bankruptcy) of a company is considered to be caused by the actions of its shareholders or other persons who have the right to give instructions binding on the company or otherwise have the opportunity to determine its actions, only if they used the specified right and (or) opportunity for the purpose of committing an action by the company , knowing in advance that this will result in the insolvency (bankruptcy) of the company.

The state and its bodies are not liable for the obligations of society, just as the society is not liable for the obligations of the state and its bodies.

A joint stock company (JSC) is an enterprise whose authorized capital is divided into a number of shares. Each of these parts is represented in the form of a security (share). Shareholders (participants of a joint stock company) should not be liable for the obligations of the enterprise. At the same time, they may incur the risk of losses within the limits of the value of the shares they own.

Essence of JSC

A joint stock company is an association that can be either closed or open. Thus, shares of an open joint stock company (an open form of joint stock company) are transferred to other persons without the consent of the shareholders. And the shares of a closed joint stock company (a closed form of a joint stock company) can only be distributed among its founders or other persons agreed upon in advance.

Creation of an enterprise

A joint-stock company is an entity based on an agreement on its creation. This document is called an agreement on joint activities aimed at creating a company. It becomes invalid only after registration of the given company as a legal entity. Then another constituent agreement is drawn up - the charter.

The highest management body of a joint-stock company is the general meeting of shareholders. The executive body of such a company can be either collegial (in the form of a board or directorate) or individual (for example, in the person of the general director). If the company has more than 50 shareholders, then a supervisory board must be created.

A company is classified as a subsidiary if it is dependent on a parent company or partnership.

Definition of JSC

A joint stock company is an enterprise whose authorized capital is divided into a certain number of shares. In this case, the founders (shareholders) do not have to be liable for the obligations, but they may incur losses in the process of carrying out the activities of the enterprise in the amount of the value of the shares owned by them.

It is also necessary to take into account the fact that if the founders do not fully pay for their shares, they must bear joint liability for all obligations of the JSC in terms of the unpaid value of the shares owned by them.

The corporate name of a joint-stock company is a name with a mandatory indication of its shareholder status.

Types of joint stock companies

This type of enterprise can be divided into two main types:

• An open joint stock company is a company whose shareholders have the right to alienate shares owned by them without the consent of other shareholders. This JSC conducts an open subscription for shares issued by it. At the same time, this enterprise must publish annual reports every year for public review.
• A closed joint stock company is a company whose shares are subject to distribution among the founders or a certain circle of persons. The authorized capital of a joint stock company is the shares distributed among them.

Package of constituent documents

The enterprise in question is created either by several persons or by one citizen. If the founder acquired all the shares of the enterprise, then according to the documents he is recognized as one person. The charter of a joint-stock company is a document that contains information about the name of the company and its location, the rights of shareholders and the procedure for managing the activities of the joint-stock company.

The founders are characterized by joint liability for those obligations that arose even before its registration. The company is responsible for the obligations of shareholders that are associated with its creation, subject to the approval of the general meeting of founders.

The charter is the constituent document that is approved by the shareholders and contains certain information. The property of a joint-stock company is the investments of the founders, which are secured by the relevant agreement, which does not apply to the package of constituent documents. This agreement contains information regarding the procedure for shareholders to organize activities to create an enterprise, the amount of the company's authorized capital, and the procedure for their placement.

Essence of authorized capital

The authorized capital is a kind of nutrition for a joint stock company. Let's take a closer look at what this is.
The authorized capital of a joint-stock company is represented by the total nominal value of the enterprise's shares, which were acquired by the founders with the determination of the minimum amount of the enterprise's property. At the same time, the interests of all creditors of the company must be guaranteed. The release of the founder from the obligation to pay for shares (even when it comes to offsetting claims) is not allowed. It is necessary to take into account the fact that when creating a JSC, all shares must be distributed among the founders.

If, at the end of the year, the value of the assets of the joint-stock company is lower than the authorized capital, the company announces and must register in the prescribed manner a decrease in the amount of the authorized capital. If the size of the authorized capital is assessed below the minimum approved by current legislation, then in this case the enterprise is liquidated.

An increase in the size of a joint stock company may be adopted at a general meeting of shareholders. The mechanism for such an increase is an increase in the nominal value of the share or an additional issue of securities. In this case, one nuance must be taken into account. An increase in the amount of the authorized capital may be allowed after it has been fully paid. In no case can this increase be used to cover losses incurred by the enterprise.

Joint stock company management

As mentioned above, the main governing body of a joint-stock company is the general meeting of its founders. Their competence includes resolving issues regarding the authorized capital of the enterprise, forming a supervisory board and selecting an audit commission, as well as early termination of powers of these bodies, liquidation or reorganization of the company, as well as approval of annual reports.

In a joint stock company where the number of shareholders exceeds 50 people, a board of directors, called the supervisory board, can be created. It is within its competence to resolve issues that cannot be considered at the general meeting of shareholders.

The executive body is the board, directorate, and sometimes simply the director or general director. This body carries out the current management of the enterprise. He is accountable to the general meeting of founders and the supervisory board. By decision of the general meeting, the powers of the executive body are sometimes transferred to another organization or to a separate manager.

Thus, summing up the material presented, one can judge the complex system of functioning of a joint-stock company, the structural elements of which are: the management body, the executive body and ordinary shareholders.

Principles of classification. It is known that the economic basis of the private sector national economy private ownership of the means of production appears.

An analysis of reality shows that private property can be realized through different types. In practice, there are many variants of its manifestation, different combinations of the “bundle of property rights”. It is no secret that all this allows the private sector of the national economy to adapt quite flexibly to changing economic conditions.

As a consequence, the gradation of the forms of functioning of private enterprises has to be carried out on the basis of the use of different characteristics (see Fig. 5.4).

The use of different criteria for grading private enterprises leads to the emergence of many systems of their classification. Your specific names, or legalshape, private enterprises receive depending on the prevailing national economic conditions, as well as on the terminology used in the legislative framework.

Legal form of the enterprise- a set of legal and economic norms that determine the nature, conditions and methods

Rice. 5.4. Main criteria for classifying private enterprises

would form legal and economic relations between employees and the owner of the enterprise, between the enterprise and other economic entities and government bodies external to it (36, p. 77).

The simultaneous use of several classification features: along the lines of ownership of the means of production and the nature of the labor used (see Fig. 5.5).

In Fig. 5.5 reproduces the situation when, when classifying private enterprises vertically, the criterion is used nature of work(free or hired

Companies (LLC, ODO). Joint-Stock Company. Corporation

Rice. 5.5. Classification of private enterprises according to two criteria labor), and horizontally - degree of centralization

private property (individual or group private property). This fairly simple approach allows us to identify four main forms of private enterprise:

individual entrepreneurship (private labor enterprise);

private capitalist enterprise;

partnership (partnership) or cooperative, collective enterprise;

corporation (joint stock company). in a market economy, this is a kind of alternative to hired labor, a special and very worthy way of life, when a person highly values, first of all, free labor, private property and economic freedom, and involvement in management activities.

An individual entrepreneur carries out commercial activities on the basis of owned property, directly manages it and bears full property responsibility. In the real sector of production, this form is found as simple commodity production. Here we can highlight:

1) sole proprietorship or individual labor activity (one is both the owner and the employee);

2) family entrepreneurship (the labor force of family members is additionally used).

In our conditions, this form of business also includes individual entrepreneurship, when the number of employees does not exceed 3 people.

Individual entrepreneurs (traders) can work with or without education as a legal entity. In reality, these are owners of small agricultural farms, small retailers (shops, small stores), as well as entrepreneurs engaged in the service sector (hairdressers, repair shops, consultations), and peasant farms.

The activities of an individual entrepreneur are regulated by law. Usually, in order to engage in certain types of activities, it is necessary to obtain an appropriate license. Within the prescribed period, the entrepreneur submits a declaration of income. He is obliged to comply with standards governing product quality.

An individual entrepreneur conducts business activities, bears property responsibility for business results, provides himself with a job, and is responsible for his own debts and other financial obligations. Makes all decisions independently.

Working directly with consumers, individual entrepreneurs are well aware of the state of market demand and are able to respond to changing market conditions.

Self-employment and free labor create an incentive for high motivation for economic activity and guarantee the complete safety of material assets. Most individual entrepreneurs strive to ensure that their business passes to their heirs. Essentially, a sole proprietor does not receive a salary and does not pocket profits. He gets income, from which the corresponding expenses are reimbursed in a certain order. A modest income is quite sufficient for those who prefer to work only for themselves.

The disadvantages of this form of business include limited financial resources, insignificant opportunities to obtain a solid bank loan as collateral, the lack of conditions for making large deliveries of products, as well as the entrepreneur’s lack of special knowledge in the field of finance, accounting and analysis, marketing, etc. The entrepreneur becomes a hostage to his own business, he is liable for obligations not only with the assets of the enterprise, but also with his personal property and authority. This increases the degree of risk and inhibits innovative opportunities.

Private capitalist enterprise. An individual entrepreneur who uses hired labor, organizes economic activities (shop, workshop) with the formation of a legal entity, transforms into a private capitalist enterprise.

What is characteristic of such an enterprise is that the means of production, firstly, are privately owned (individual, family); secondly, they are driven by hired labor, attracted in significant volumes. In this case, the functions of enterprise management can be performed not by the owner himself, but by highly qualified hired personnel.

The main goal of such a private enterprise is to ensure cost recovery and make a profit. Within private unitary the enterprise is quite allowed to develop a subsystem production co-management, when hired personnel participate in production management on a parity basis and within clearly defined limits (for example, in Germany this procedure is prescribed by law).

Partnership (partnership). In this case, we are talking about cooperation between two or more individual entrepreneurs running a common business and acting as its joint owners (shared ownership). Partnership means integration of property and free labor(in Fig. 5.5, see the upper right quadrant), i.e., it involves the pooling of capital and joint activities (membership), personal participation in management.

This option of a private enterprise is common among specialists in a certain industry (doctors, lawyers, accountants, auditors). The partnership represents

closed association of entrepreneurs. As a rule, it does not lead to the creation of a legal entity. In many cases, only the conclusion of an appropriate contract (agreement) is provided. Decision-making on business matters requires unanimous approval. Each partner has unlimited personal liability for the debts of the business.

The partnership retains the advantages of individual entrepreneurship and reduces the degree of economic risk. In addition, an increase in the volume of attracted capital, the emergence of fresh forces and new ideas, the specialization of partners in performing individual functions, and a reduction in psychological stress due to the accepted risk of business determine Main advantages partnership.

The disadvantages of partnerships usually include unlimited financial liability, low efficiency in decision-making due to the need to ensure the participation of all partners in the decision-making procedure, and the likelihood of a struggle for leadership.

There are general partnerships and limited partnerships (commands).

Full economic partnerships in accordance with the concluded agreement, they conduct business activities on behalf of the formed legal entity (foundation agreement) and are liable for its obligations with all their property (unlimited liability). If a general partnership incurs losses, then their compensation is carried out in accordance with the fact that each of the partners is personally responsible for all debts of the enterprise, regardless of its share or form of participation in business activities.

Partnerships of Faith (commandant) consist of two types of participants: a) full founding members; b) participants-investors of capital. General partners bear joint liability for the obligations of the partnership with all their property, while participating participants (complementaries) only to the extent of their contribution to the capital of the enterprise.

Tia. They do not directly participate in business activities, but are entitled to income in accordance with the capital contributed. In the event of liquidation of the partnership, investors have a priority right over full members to the return of contributions from the property of the partnership.

Partnerships of faith make it possible to unite entrepreneurs with capital and carriers of promising ideas.

Cooperative (artel). In modern conditions there is a need to highlight cooperative- a voluntary association of citizens on the basis of membership, which is created to satisfy the personal or production needs of its members.

The cooperative is based on personal labor participation and the association of its members (participants) with property and monetary share contributions. The shared ownership of the cooperative is divided into shares; each member of the cooperative retains claims not only to the contributed share, but also to part of the property of the cooperative.

According to the Declaration of the International Co-operative Alliance (1995), a consumer cooperative is an independent organization of people who voluntarily unite to meet their socio-economic, social and cultural needs through a jointly owned and democratically managed enterprise. The main components of the cooperator ethic are honesty, openness, responsibility and care. The main tasks of the consumer society are to fulfill the social mission, satisfy the demand of the population, and provide its socio-economic support.

Among cooperatives, one should distinguish a consumer cooperative and an artel - a production cooperative.

Members of a production cooperative bear subsidiary liability for the obligations of the cooperative. Each member of the cooperative has the right to vote, regardless of the size of the property contribution. The cooperative is governed by a board or council from among its members. The basis of the cooperative is made up of individuals, although in some cases it is allowed

participation of legal entities. To carry out its statutory tasks, the cooperative may use hired labor.

For example, consumer cooperation comes down to creating a network of stores in populated areas. Consumer cooperatives can be considered a non-profit organization, since the main task is to satisfy the personal needs of its members. At the same time, shareholders bear property responsibility for the obligations of the cooperative and have the right to distribute the profits received.

A production cooperative, or artel, is created to jointly conduct economic activities through personal participation on the basis of shared ownership. It is allowed to attract hired labor to perform economic tasks.

Thus, farmers can create an enterprise or industrial cooperative (artel) for primary processing of agricultural products (dairy plant) or for transportation (export of milk to the city) and implementation cooperative products in the city (store). In this case, the cooperative is engaged in meeting the production needs of its shareholders. The cooperative, guided by economic considerations, can provide these types of services to other entrepreneurs. The cooperative may be entrusted supply all the same farms with fertilizers, equipment and spare parts, as well as execution of work on chemical protection of plants.

Economic societies. The synthesis of group private property and large-scale use of hired labor leads to the formation of private enterprises such as business societies.

A business company acts as a joint venture; it is a legal entity that has a charter (founding agreement), its own name indicating the organizational and legal form. At the same time, the founders of the business company retain their independence.

Among the business entities the following stand out:

limited liability companies;

additional liability companies;

joint stock companies open type(corporation);

closed joint stock companies (corporation). Limited Liability Company -(LLC or

Ltd; GmbH) operates as a private company with equity ka-

fed, which is responsible for the results of its activities within the authorized capital. In addition, each co-owner is also liable only to the extent of the contributed share.

Functions as a legal entity on the basis of a constituent agreement or charter, reflecting the main provisions of the organization and management of the company. An LLC is considered as an association of capital of a limited number of participants (citizens or legal entities), created to carry out joint economic activities.

In accordance with the legislation of the Republic of Belarus, the founders of an LLC can be 2 or more persons. The minimum size of the authorized capital of an LLC is 3,000 minimum wages (basic values).

The supreme body of the LLC is the meeting of founders. The General Meeting has exclusive competence with respect to changing the charter, the size of the authorized capital and approving financial statements. The composition of the founders may change. Unanimity (or a qualified majority) is required when determining, for example, the main directions of the company’s activities, amending the charter, etc.

In a limited liability company, management is usually two-level: (1) general meeting - (2) director (executive). A member of the company has the right to assign his share to one or several members of this LLC without the consent of other members. If alienation to a third party is impossible, the company is obliged to pay the retiring participant the due share or give the property in kind. The transfer of the founder's share to his heirs is permitted only with the consent of the remaining participants of the LLC.

Shares in the authorized capital of an LLC are not securities. LLC type companies are usually small in size.

Additional liability company (ALC) - an organizational form of entrepreneurship based on the pooling of capital of a limited number of participants who assume additional property responsibility for the obligations of the company determined by them.

IN company with additional liability participants carry subsidiary liability according to his obligation

corporations with their property, in the same multiple for all of the value of their contributions, determined by the constituent documents. The main debtor for the obligations remains ODO. But if it turns out that its assets are not enough to pay creditors, then the founders are required to additionally assume the balance of the debt in an amount that is a multiple of the authorized contribution.

All other characteristics given for LLCs also apply to ALCs.

Joint Stock Company (JSC)- is an enterprise (corporation) created by its founders and is in group private ownership.

A joint stock company may also contain state capital, and the founders may be legal entities and individuals. Joint-stock companies use hired labor without restrictions.

In some countries, the possibility of creating a JSC by one person, who in this case acts as the holder of the entire block of shares (pure S-corporation), is not excluded. By acquiring the rights of a legal entity, the JSC becomes the sole owner of the property. It turns out that shareholders are not owners of property, acting only as owners of shares. In this sense, JSC is not a form of shared ownership.

Historically, the overwhelming majority of joint stock companies were created literally from scratch. The founders were never prohibited from making contributions, including h out of monetary form, that is, at the expense of useful property (buildings, ships, technological raw materials, and in modern conditions in the form of know-how with market value, etc.).

But the creation of a joint stock company was always accompanied new systemgovernment and the construction of new production. In modern conditions, corporatization has already become widespread existing private and public enterprises.

A joint stock company (corporation) is, in essence, an immortal economic cell of national production. Thus, the founders themselves can continuously change, and the JSC will continue to maintain all its original details without any problems.

The liabilities and debts incurred by a corporation are its own debts. The corporation manages its authorized and equity capital and enters into contracts on its own behalf.

Let us pay attention to the fact that in a joint-stock company, management functions are separated from ownership. This determines the possibility of divergence of interests of shareholders, managers (managers) and employees.

Supreme body management of the joint-stock company acts as a general openthat meeting shareholders. This is followed by an elected supervisory board headed by the president of the joint-stock company, which is obliged control activities of a joint-stock enterprise. For these purposes, if the need arises, the supervisory board has the right to order an independent audit. The executive body of the JSC is the board (directorate) headed by the chairman.

The right to participate in the management of a joint-stock enterprise and to receive income in the form of dividends gives promotion- security. It is also necessary to highlight the right to sell shares and the right to receive information reflecting the state of affairs in the joint-stock company.

The issue and placement of shares is always strictly regulated. Shares do not have a set maturity date. In addition to paper media, a share can also be presented in the form of a conditional entry in the appropriate register (electronic entry).

A share has a par value and a market value. DenominationNaya The value is stated on the security itself and is used in accounting. Market the value of a security (share) is defined as a commercial monetary estimate of the par value and acts as market rate stock.

Among the shares, common and preferred shares are distinguished.

Common shares give the right to manage and receive income (dividends) depending on the performance of the joint-stock company.

Preference shares guarantee a fixed interest rate on invested capital. But they are headless

significant, since there is no opportunity to participate in voting at the general meeting when making relevant decisions.

Controlling stake is the number of common shares that gives a company participant the opportunity to make all strategic decisions and in this way control the activities of management bodies.

Theoretically, the controlling stake is equal to 50% of their total issue volume plus one common share. In practice, for this it is enough to have 12-15%, and often 2-5% of shares of the total volume. The fact is that small holders rarely appear at the general meeting of shareholders.

A factor capable of forming a controlling stake are trust companies and trust departments of reputable banks, which, on behalf of small holders of securities, monitor the profitability of shares.

In accordance with the legislation in force in the Republic of Belarus, the minimum authorized capital of a joint-stock company is equal to 10 thousand minimum wages. The number of founders must be at least 50. For certain types of joint stock companies (banking, insurance, etc.), higher minimum sizes of the authorized capital are established, and in hard currency. The participation of foreign capital in a joint stock company is particularly regulated.

A corporation is most often synonymous with a joint stock company.

Private corporation acts as a small company (joint stock company), where the majority of shares belong to one person, family or closed group of persons (the so-called S-corporation).

Open and closed type of corporation (JSC). It is customary to distinguish between open and closed joint stock companies.

Joint stock companies open type accumulate the capital of the founders on the basis of the free distribution of shares (securities) on the securities market (stock market). The JSC has the right to conduct an open subscription for its own shares and their free sale under the conditions established by law and other legal acts.

Participants in an open company have the right to sell their securities (certificates of participation in joint capital) without the consent of other shareholders.

If the need arises, a decision may be made on an additional free issue of shares of the enterprise,

which allows you to increase the authorized capital (capital). When preparing and carrying out such large financial transactions, open joint-stock companies require support from large banks and the presence of an institutionalized and attractive national securities market for investors.

Modern economic theory identifies two main models for the functioning of an open joint stock company:

A) continental model, when the founders seek to concentrate at least 70-80% of the company's authorized capital. The rest of the securities are released into the open market from time to time. In this way, additional cash capital is attracted and the market price of shares is determined. Part of the shares is used to consolidate partnerships with other companies (mutual exchange of shares, etc.),

b) Anglo-Saxon model, where the distribution of only 20-30% of the total shareholding is strictly controlled, and the rest circulates freely on the stock market and is the object of financial transactions.

JSC closed type differs in that its shares during the initial issue are distributed only among a predetermined circle of persons (founders). At the same time, there is no market price of shares. When a founder leaves a closed joint-stock company, the released shares are redeemed by the remaining members, and if there are no volunteers among the founders, temporarily at the expense of the equity capital of the joint-stock company (reserve funds, retained earnings, etc.). The founder's share in a closed joint-stock company is most often formalized as an entry in a special account.

It's time to highlight the very important advantages joint stock company:

opportunity in short time mobilize a significant amount of monetary capital, which is important when implementing large investment projects;

minimizing the financial risk for the investor based on the amount of his contribution to the authorized capital of the joint-stock company;

security financial stability joint-stock enterprise by reducing the dividend rate;

exchange rate (founding) profit replenishes the reserve fund of the joint-stock company;

the ability to attract professional managers to production management on a contract basis and stimulate their work in accordance with the results achieved;

significant democratization (socialization) of property relations, diffusion of property and the development of “people's capitalism”.

Democratization of economic relations, ample opportunities for the flow of capital between sectors of the real sector of the economy, the ability to attract additional investments at the right time and other features allow us to consider joint-stock enterprises as the most promising type of private property. Not by chance joint stock companies today act as the mainforms of organization of large business firms.

Of course, a joint stock company also has significant flaws. Such congenital ailments include the increasing role of technocracy in the management of share capital, the insignificant influence of small shareholders on the decision-making process and control itself, and the possibility of financial speculation. Therefore, to eliminate negative trends and stabilize a joint-stock enterprise, it is necessary to develop and implement special measures.

Other forms of private sector enterprises (organizations)ra. Following the main types, intermediate forms of private entrepreneurship should not be discounted. The specific names of such forms of management directly depend on the specific business conditions, as well as on the legislative framework used.

Holding company is a special organization that controls the activities of its member firms through the ownership of controlling stakes. All strategic decisions are made by the management of the holding - the holder of the securities. Firms united into one holding company formally retain all the attributes of economic independence. However financial aspects their activist

details are constantly monitored. The main criterion for business efficiency is profit.

A holding company can be created for different purposes: coordination of joint activities; flow of capital into profitable types of production; centralization of management within an industry or territory; redistribution of profits and support for low-profit enterprises; development of state entrepreneurship.

People's (collective) enterprises as a group owner they use only their own labor force.

The analysis shows that national or collective enterprises (the term was recently used in the name of more than a dozen fairly large Belarusian enterprises) in practice function as closed joint stock companies. The joint capital is divided into shares and distributed only among members labor collective.

A special option for the development of a private enterprise is the cultivation workers' property hired personnel, when the integration of labor and capital is ensured. In this case, each employee has his own share in the ownership of the enterprise where he currently works. (programESOP).

The starting point for the development of workers' property is the consent of the private owner to cede a certain share of property to the hired personnel of the enterprise in terms of its increase. To create working property, a special trust fund is created. It receives profits that are exempt from taxes by the state. The entrepreneur is interested in the development of workers' property, since deductions from profits directed to this fund are used for the development of production.

The individual share of the employee in the ownership of the enterprise is determined taking into account the length of service and salary level. An employee is recognized as a full owner of a share only if he has 5-7 years of work experience. When an employee is dismissed, his share is bought out at the expense of the same trust fund, remains at the disposal of the entire company for some time and then again distributed among the personal accounts of employees. The main forms of income for hired personnel are salaries, bonuses and dividends from capital (worker property).

It is in this version of the development of a private enterprise that small and medium-sized firms, which are constantly in need of additional financial resources, are especially interested.

This model of functioning of a private enterprise has much in common with a national enterprise. It has a positive effect on the formation of the social microclimate and directly supports the development of non-monopolized business in the national economy.

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

At a certain stage of its existence, the increased technological level, the organization of the financial sector and the scale of technological processes created the prerequisites for attracting the capital of many individuals into one enterprise, which various reasons do not independently engage in commercial activities. The liability of shareholders in such a merger is limited to the amount of their contribution. This condition, along with a high concentration of capital, allows for profitable investments not only in promising, but also in risky projects, which significantly speeds up implementation the latest developments scientific and technical sphere.

A joint stock company is a large enterprise and company. In the production sectors of any country in the world, such associations of capital and corporations are the most perfect mechanism in the economic sphere from a legal point of view.

The main characteristics include:

Division of total capital into shares;

Imposition of liability on shareholders for the obligations of the organization only in the amount of contribution to the authorized capital;

Organization of activities in accordance with the adopted charter, which is the foundation for mobile changes in the size of the total capital and the number of participants;

Concentration of enterprise management in the hands of the directorate (board).

A joint stock company has a number of advantages:

1. The company has a real opportunity to attract funds from shareholders, which will increase its authorized capital and allow it to expand its area of ​​activity.

2. The separation of general management from specific management allows the selection of the most suitable candidates for directors. Shareholders interested in production efficiency take a serious approach to the appointment of management personnel.

3. Each member of the workforce has the right to become a full owner by purchasing a certain share of shares.

4. It is possible to create a network of interested counterparties by purchasing securities of other companies and selling their own.

There are two types - closed and open. The first type of association requires the presence of no more than fifty participants. If this limit is violated, the Organization must be registered closed form exempted from the obligation to publish the results of their economic and financial activities. That is why they do not have control over the functioning of the enterprise by external users of information.

An open joint stock company is an organizational form that has the ability to attract large capital. A large number of participants ensures maximum favorable conditions to invest sufficiently large funds to develop production. Shareholders have the right to sell their share of securities to any buyer at an agreed price. In order to have control over the situation in the company and implement the owner’s policies, it is enough to have a package consisting of fifteen percent of the securities that make up the authorized capital.

A joint stock company is one of the main prerequisites for carrying out economic reforms in the country. The wide distribution and formation of this type of association creates normal conditions for the activities of enterprises. Being a convenient form for transferring state organizations to private ownership, joint stock companies make it possible to effectively control the work of management structures.

INTRODUCTION

Relations between forms of ownership play a fundamental role in the development and formation of the state.

Shareholder form property is one of the forms of ownership on which production relations are based, which, in turn, are the economic basis of the rule of law.

Joint stock companies were the result of a long, historical development forms of commercial organizations. They received the greatest development in market conditions. Due to a number of their inherent features (which will be discussed in more detail in subsequent sections of this work), joint stock companies have actually become the most widespread form of commercial organizations in all developed countries.

In this regard, it is natural that during the transition Russian society In the market economy, a significant role is assigned to joint-stock companies, allowing participation in the investment process, along with entrepreneurs, and a significant number of ordinary citizens, as well as facilitating the redistribution of capital in the country’s economy to the most productive areas of economic activity. The joint stock company is currently the predominant organizational and legal form of commercial organizations in Russia in terms of its number (up to 60% of the number of registered commercial organizations in the country).

Accordingly, studying trends in the development of this form of ownership, analyzing the characteristics of its types, legal status will always have a positive result, both in general - for understanding the general system of civil legal relations, and in particular - in relation to a specific legal entity. This is all the more obvious for this course work, the author of which is an employee of a joint-stock company and, due to his functional duties, is directly involved in issues of this issue.

1. HISTORY OF SHAREHOLDER RELATIONS IN RUSSIA

The first steps towards the creation of joint-stock companies in the Russian Empire were taken under Peter I in the Decrees of October 27, 1699, October 27, 1706, March 2, 1711 and November 8, 1723.

The first serious (and unsuccessful) project for creating a joint-stock company was presented to the Government Senate in 1739 by Lorenz Lang. The first joint-stock company can be considered the “Russian Trading Company in Constantinople”, established on February 24, 1757, the capital of which consisted of shares called shares. The rights of shareholders were certified by a ticket and could be freely alienated (in this case, not only the rights, but also the obligations to make additional contributions were transferred to the buyer).

Subsequently, other joint-stock companies were created (1762 - Joint Stock Bank, 1798 - Russian-American Company). The following were characteristic of these joint stock companies:

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

The shares were freely traded on the market; their acquisition provided the shareholder not only with rights, but also imposed certain obligations on him (for making additional contributions).

However, many issues were not formalized in the regulations in force at that time, and practice required further development legislation on joint stock companies. An important step In this direction, we must consider the enshrinement in the Decree of Alexander I of 1782 of the principle of limited (within the value of the contribution) liability of shareholders for the company’s debts.

Until 1807, the charters of joint stock companies were approved by royal decrees. Since August 1, 1807, the establishment of joint-stock companies has been regulated by the Manifesto “On the benefits, differences, advantages and new ways to spread and strengthen trade enterprises granted to the merchants,” which specified three forms of management: limited partnership, general partnership and partnership in plots. The latter was precisely a joint-stock company. This Manifesto was subsequently included in the Code of Laws of the Russian Empire and was allocated in the Trade Charter in a separate chapter “On Trade Partnership”.

On December 6, 1836, the “Regulations on Companies with Shares” were approved, which, among other provisions, introduced some mandatory requirements for the Charter, which, in particular, should have stipulated: the size of the authorized (share) capital, the procedure for the distribution of shares, the rights and obligations of shareholders and companies, reporting, distribution of dividends, procedure for closing and liquidating a company. For example. The provision allowed for the release and circulation only registered shares with a denomination of no less than 50 and no more than 1000 rubles. Despite the existence of the mentioned Regulations, a major role was still played by the charters of joint stock companies, which had to be approved by the Senate. In practice, the statutes were approved by the relevant ministry, published in the St. Petersburg Senate Gazette, and until 1912, also in the Complete Collection of Laws of the Russian Empire.

Since the mid-19th century, statutes have gradually become a means of circumventing existing legislation; law enforcement practice often runs counter to the law. In 1857, after a sharp reduction in interest rates in state banks, investors, wanting to preserve their income, began to actively invest in the purchase of shares of joint-stock companies. The result was a boom in shareholder swindling in 1857, 1864 and 1869. Cautionary stories from world practice did not have the desired effect on gullible Russian investors.

One of the most famous “soap bubbles” in world shareholder practice is the English “Company south seas", created in 171I. Not without the help of people holding prominent government positions, the company in 1720 managed to "push through" a special bill that significantly expanded its scope of activity. A successful advertising campaign generated a rush of demand for shares, a founder's fever began, and the Company's stock price South Seas increased 10 times and reached 1000 pounds per share. However, in September 1720, the company’s share price began to fall, which ended in a huge financial scandal that ruined the careers of many government officials who took an active part in speculation. Even Isaac Newton, who was at that time the manager of the Royal Mint, turned out to be “deceived investors” .

In the period from 1858 to 1897. Several drafts of new regulations on joint stock companies were developed, each of which had significant shortcomings. Apparently, this is why the joint stock legislation was not reformed until 1917, but this did not affect the further development of joint stock companies in Russia. Thus, according to statistics, by 1913 the number of joint-stock companies was about 2000.

With the beginning of the First World War, qualitative changes occurred in the economy: the growth in the number of newly created joint-stock companies decreased, and their mutual “connection” acquired significant proportions. At that time, the rather outdated Russian legislation did not yet know the familiar procedures for reorganizing legal entities (accession, merger, division, spin-off, transformation), so the process of merging companies was based on the mutual acquisition of shareholdings.

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

The October events of 1917 produced revolutionary changes in the legislation on joint stock companies. On December 14, 1917, the All-Russian Central Executive Committee submitted to the Supreme Council of the National Economy (VSNKh) a draft Decree providing for the nationalization of all joint-stock enterprises in Russia. The project was not adopted, but the steps it envisaged were gradually implemented in other regulations of the new workers' and peasants' government. There was a nationalization of joint-stock enterprises, the shares of which were still not cancelled. Owners of shares could dispose of them with the permission of local Soviets. The transfer of shares, including by inheritance, was accompanied by registration with the same Council. The size of the dividend on shares was limited by the rate on deposits in the State Labor Savings Banks and amounted to 4%.

During the NEP years the situation changed somewhat. Thus, the resolution of the All-Russian Central Executive Committee of May 22, 1922 “On the main private property shares” allowed the creation of joint-stock companies to all legally capable citizens. The Civil Code of the RSFSR, adopted in 1922, contained 45 articles devoted to joint-stock companies, the provisions of which regulated all necessary issues in sufficient detail. Some articles of the Civil Code of 1922 contained, in particular, the following provisions:

The authorized capital was formed from contributions from the founders, who, before the publication of the notice of registration of the company, could carry out all necessary transactions on behalf of the company, and if in the future the general meeting of shareholders of the company did not approve these transactions, then the liability of the founders for them to their counterparties was recognized as personal and solidary;

Shares were issued both registered and bearer;

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

The board of the joint stock company, which was executive body, could enter into any transactions on behalf of the company (it is noteworthy that the members of the board for losses caused by dishonest performance of their duties were jointly and severally liable to the company, and in the event of bankruptcy of the latter, also to creditors and shareholders).

The first joint-stock company of the Soviet period appeared on February 1, 1922. In total, 20 joint-stock companies were formed in 1922, and at the beginning of 1925 there were already over 150 of them, while many of them were truly developed structures that saturated the country's market with necessary goods and services. Corporatization also affected the banking sector, in which, in addition to the State Bank, there were 5 large joint-stock commercial banks with 95 branches in the most favored territories of the NEP.

Subsequently, in the course of “socialist construction”, a number of by-laws were issued to the Civil Code of the RSFSR of 1922, including the “Regulations on Joint Stock Companies” dated August 17, 1927, which in particular stated that the most important task of state joint stock companies (and there were more than 90% of the total number of joint-stock companies) is economic activity, and not an increase in the capital of the founders. As a result of these innovations, the very idea of ​​a joint stock company as a mechanism for increasing capital through successful economic activity loses all relevance.

State capital penetrates deeper and deeper into joint-stock enterprises, and the profits of companies are distributed by the relevant departments. A little more time passes, and joint-stock companies are transformed into state-owned enterprises, a pause begins that lasted for many decades.

By the beginning of the 30s, almost all joint-stock companies were transformed into state enterprises. Only 2 joint-stock enterprises: the Bank, created in 1924 foreign trade The USSR (later Vnesheconombank) and the All-Union Joint Stock Company "Intourist", formed in 1929, constituted the sphere of activity of the joint stock capital. However, these enterprises were joint-stock companies only formally, because their activities were carried out on the same principles as the activities of all other state organizations.

In the period from the early 30s to the mid-80s, only one joint stock company was created in the USSR - in 1973, Ingosstrakh USSR (Insurance Joint Stock Company of the USSR) was organized on the basis of the Foreign Insurance Administration. Ingosstrakh, like Vneshtorgbank and Intourist, was formally a joint-stock company. The joint-stock form of business was almost forgotten for a long time.

Once again, the prerequisites for the revival of the joint-stock form of organizing economic activity began to take shape under the conditions of radical economic reform. The first major precedent in this area was created in 1986-1987. Lviv production association "Conveyor". He carried out the issue of securities - shares, which was very specific, because it was an attempt to find unconventional methods placement of stock instruments in order to create a “socialist mechanism of a joint-stock company, different from a capitalist one in its essence,” mainly due to ideological reasons.

The right to purchase shares of the association was granted only to persons working for it. At the same time, there were strict restrictions on the amount of shares purchased by members of the workforce at the expense of personal funds or at the expense of the material incentive fund. The maximum amount of payment for shares from the material incentive fund was differentiated depending on the length of service. For violation labor discipline the holder of securities could be deprived of dividends or excluded from the number of shareholders, which in itself contradicted the norms for the protection of personal property, including those established by the previous Constitution of the Russian Federation.

Resale of shares was prohibited. Shares purchased from the material incentive fund could be returned back to the enterprise only upon dismissal from work, for which they were reserved special means. Shares purchased with your own money were allowed to be returned to the enterprise at any time. At the beginning of 1987, Conveyor sold shares worth more than 1 million rubles.

The status of a “state joint-stock socialist enterprise” that the Conveyor association received contained an internal contradiction in itself, since the association remained state-owned and its issue of securities, called shares, did not change property relations.

In addition to Conveyor, by the end of 1988, a number of other socialist farms attempted to issue their own shares, without waiting for appropriate legal support.

Enterprises that began issuing shares were driven by two main motives: the desire to create employee interest in the results of their work, awakening in them a sense of ownership, and the desire to attract additional resources for technical re-equipment. The shares were distributed only among members of labor collectives and did not change the status of farms. The conditions and procedure for distributing shares by each enterprise differed significantly.

In order to streamline the spontaneous practice of issuing securities by enterprises and organizations, the Council of Ministers of the USSR on October 14, 1988 adopted a resolution “On the issue of securities by enterprises and organizations,” which established the status of the so-called shares of the labor collective and allowed the issue of “shares of enterprises and organizations" intended for placement among legal entities.

The appearance of this regulatory document gave a certain impetus to the practice of farms issuing their own stock documents. In the period following the publication of this resolution, the Council of Ministers of the USSR made separate decisions on the transfer of some farms to a joint-stock form of ownership. So, on May 26, 1990, the Resolution of the Council of Ministers of the USSR “On the creation of the joint-stock association “Scientific Instruments” was adopted, and on June 26, 1990, the Resolution of the Council of Ministers of the USSR “On the transformation of the KamAZ production association into the joint-stock company KamAZ” was adopted. The resolution provided for the possibility of selling part of the shares of this association not only to legal entities, but also to individuals, including foreigners, as well as the possibility of leaving dividends due to the state at the disposal of the joint-stock company for their use for accumulation purposes. All property of the association was subject to corporatization with a total value of approximately 4.7 billion rubles. The attempt to transfer KamAZ to a joint-stock form of ownership was actively covered in the press and was supposed to contribute to the influx of domestic and foreign investment in the automotive industry.

Adopted on June 19, 1990, the Resolution of the Council of Ministers of the USSR “On approval of the Regulations on joint-stock companies and limited liability companies and the Regulations on securities” provided for the possibility of creating joint-stock companies and issuing shares by them, which could be distributed to both legal entities and individuals . The appearance of this document created the prerequisites for the active development of the joint-stock form of ownership. In just over a year that has passed since the publication of this resolution (as of September 26, 1991), the Unified State Register Joint-stock companies and limited liability companies of the USSR Ministry of Finance included 1,432 companies, of which 402 were based on the joint-stock form of ownership, and 1,030 were limited liability companies.

Division of powers between Russian and Soviet authorities led to the emergence of a separate “Regulation on Joint Stock Companies”, approved by the Resolution of the Council of Ministers of the RSFSR of December 25, 1990, which subsequently (as amended in April 1992) until January 1, 1995 (the entry into force of part one of the Civil Code of the Russian Federation) and January 1, 1996 (entry into force of the Federal Law "On Joint Stock Companies") and became fundamental normative document regulating the basic principles of the legal status of joint stock companies in Russia.

With the adoption and entry into force on the territory of the Russian Federation of the first part of the Civil Code, the legal status of joint-stock companies has undergone quite significant changes, due to the fact that the new Code was supplemented with quite significant innovations in comparison with the Law of the Russian Federation “On Enterprises and Entrepreneurial Activities” and the government Regulations on joint stock companies that no longer meet the needs of Russian economic and legal realities.

However, most of the regulatory instructions of the Civil Code of the Russian Federation were references, and therefore, within a year from the moment it came into force, the emergence of a new Federal Law designed to radically reform the corporate industry was eagerly awaited Russian law. The Federal Law "On Joint Stock Companies" came into force on January 1, 1996. With its advent, the stage of formation of the basic legislative framework of joint-stock companies in Russia at the present stage was completed.

2. CONCEPT AND TYPES OF JOINT STOCK COMPANIES

2.1. Joint stock company, concept

A joint stock company (hereinafter referred to as the company, JSC) in accordance with the Civil Code of the Russian Federation of October 21, 1994 and the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies” is recognized as a commercial organization whose authorized capital is divided into a certain number shares certifying the obligatory rights of company participants (shareholders) in relation to the company.

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

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

Other commercial organizations also have authorized capital (limited liability company, additional liability company - see Articles 90, 95 of the Civil Code). A general partnership and a limited partnership (limited partnership) have share capital (Article 69-86 of the Civil Code). State and municipal unitary enterprises also have an authorized capital (see Article 114 of the Civil Code). But only in a joint stock company the authorized capital is divided into shares expressed in shares, i.e. securities, which are documents certifying, in compliance with the established form and mandatory details, property rights, the exercise or transfer of which is possible only upon presentation of such documents (for securities, see Chapter 7 of the Civil Code; for shares, for more details, see: Art. Art. 25, 27, 34, 36-39, 41 of the Law on JSC and comments to them).

The Company is a legal entity and owns separate property, which is accounted for on its independent balance sheet.

A feature of a joint stock company as a legal entity is also the ability to act in civil transactions (to be a participant) on its own behalf - to acquire and exercise property and personal non-property rights, bear responsibilities, be a plaintiff and defendant in court (meaning courts of general jurisdiction, arbitration and arbitration courts).

Society exercises its civil rights and bears responsibilities for carrying out any type of activity not prohibited by federal laws.

The company can engage in certain types of activities, the list of which is determined by federal laws, only on the basis of a special permit (license). If the conditions for granting a special permit (license) to engage in a certain type of activity provide for the requirement to engage in such activity as exclusive, then the company during the period of validity of the special permit (license) has no right to carry out other types of activities, with the exception of the types of activities provided for by the special permit (license). ) and related ones.

The company is considered created as a legal entity from the moment of its state registration in the manner prescribed by federal laws. A company is created without a time limit, unless otherwise established by its charter.

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

The second paragraph of paragraph 1 of the commented article distinguishes between the obligations of shareholders and the obligations of the company, bearing in mind that each of the persons named in it is an independent participant in civil transactions. The property of shareholders is separate from the property of the joint-stock company, and in case of unprofitable activity of the company, the shareholders risk only within the limits of the value of the shares they own.

Another essential feature of a joint stock company as a legal entity is independent property liability (see Article 48 of the Civil Code). In the Law on JSC, a separate article is devoted to the rules on liability of the company (see Article 3 of the Law on JSC and the commentary to it).

A traditional feature of a joint stock company, like any other legal entity, is its organizational unity.

The presence of this characteristic in a joint stock company is confirmed by Art. 48 of the Civil Code, which gives the characteristic “organization” to any legal entity, as well as paragraph 1 of the commented article, indicating that a joint-stock company is an organization, i.e. as one whole. Such integrity, i.e. The organizational unity of a joint stock company implies that the company has a stable structure and stable management bodies with their own competence. The management bodies of the company carry out internal organizational, executive and administrative activities in the company and represent the company (act on its behalf) in external relations horizontally and vertically (with counterparties, state, municipal and other bodies).

The authorized capital of a joint-stock company, as stated above, is made up of the par value of shares acquired by shareholders. When establishing a JSC, all shares are placed among the founders. All shares are registered.

The number and par value of outstanding shares of each category of each specific company are determined by the charter of the joint-stock company.

The charter of a joint-stock company may determine the number and par value of declared shares, the rights under them, the procedure and conditions for their placement.

The register of shareholders of the company contains information about each registered person, the number and categories (types) of shares recorded in the name of each registered person, and other information provided for by the legal acts of the Russian Federation.

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

The holder of the register of shareholders of a company can be this company or a professional participant in the securities market engaged in maintaining the register of owners of registered securities (hereinafter referred to as the registrar).

In a company with more than 50 shareholders, the holder of the register of shareholders of the company must be a registrar.

A company that has entrusted the maintenance and storage of the register of shareholders of the company to the registrar is not released from responsibility for its maintenance and storage.

The placement of shares by joint stock companies is carried out in accordance with With The Federal Law “On the Securities Market” and the Standards of the Federal Securities Commission in the form of separate issues (an issue of securities is a set of securities of one issuer that provides the same scope of rights to the owners and has the same conditions of issue (primary placement). All securities of the same issue must have one state registration number).

All issues of shares must be properly registered. The requirement for state registration of securities has been in effect in Russia for nine years. However, in reality the situation is far from the legal norm. Thus, in the article by A. Ponomarenko “Joint Stock Company of the Third Millennium” it is indicated that, according to the regional branch of the Federal Securities Commission of Russia in the Far Eastern Federal District, out of 5,000 existing joint-stock companies, approximately 2,000 have not registered the issue of their shares. And according to the State Statistics Committee of the Russian Federation, it says O. Kodratyeva’s article “There are tricks against scrap” - currently there are about 430 thousand joint-stock companies operating in Russia, of which only 110 thousand have properly registered issues of their shares.

It should be borne in mind that unregistered shares cannot be placed among the first owners, cannot be sold, or donated. Strictly speaking, such securities are not shares, since they have not undergone the registration procedure provided for by law, and cannot provide their owners with the rights certified by shares, including making decisions at general meetings of shareholders, receiving income from securities, electing management bodies that , thus, do not acquire the right to act on behalf of the company.

However, in practice, the existence of joint-stock companies with such securities in Russia is possible - despite the declarations of the Civil Code of the Russian Federation, given the existing gaps in the current legislation on state registration of legal entities in many constituent entities of the federation, the situation is quite real when the joint-stock company is registered, and the issue of shares is No. And, what is most sad, often due to the lack of necessary knowledge in this area among the heads of the joint-stock company, society learns about the need for state registration of the issue of shares, when the prosecutor’s office or the Federal Commission for the Securities Market (FCSM of Russia) has already “been concerned” with this issue and an audit is underway JSC.

The authorized capital of a company can be increased by increasing the par value of shares or placing additional shares.

The decision to increase the authorized capital of the company by increasing the par value of shares and to make appropriate changes to the company's charter is made by the general meeting of shareholders or the board of directors.

The authorized capital of the company can also be reduced by reducing the par value of shares or reducing their total number, including by purchasing part of the shares, in cases provided for by Federal Law.

Reducing the authorized capital of a company by acquiring and redeeming part of the shares is permitted if such a possibility is provided for in the company's charter. The company does not have the right to reduce the authorized capital if, as a result, its size becomes less than the minimum authorized capital of the company, determined in accordance with the Federal Law on the date of registration of the relevant changes in the company's charter.

Shareholders who have not fully paid for the shares bear joint liability for the obligations of the company to the extent of the unpaid portion of the value of the shares they own.

State registration of joint-stock companies is carried out, as a rule, by municipal authorities or bodies of constituent entities of the Russian Federation, and joint-stock companies with the participation of foreign capital - by a federal body (the State Registration Chamber under the Ministry of Economy of the Russian Federation, acting on the basis of the Resolution of the Council of Ministers of the RSFSR dated November 28, 1991 "On Registration enterprises with foreign investments" - SP RSFSR, 1992, N 1-2, art. 6 - and Decree of the Government of the Russian Federation of 06.06.1994 N 655 "On the State Registration Chamber under the Ministry of Economy of the Russian Federation" - SP RF, 1994, N 8, art. 866).

Since July 2002, with the entry into force of the Federal Law of the Russian Federation dated 08.08.2001 No. 129-FZ “On State Registration of Legal Entities”, registration must be carried out by the federal executive body authorized in the manner established by the Constitution of the Russian Federation and the Federal Constitutional Law “On Government of the Russian Federation."

In accordance with this law, the documents named therein are submitted for registration in person or by mail, and registration must be carried out within 5 days from the date of submission of the necessary documents.

State registration data, incl. for a joint stock company - a company name, are included in the unified state register of legal entities, open to the public.

Violation of the procedure established by law for the formation of a joint-stock company or non-compliance of its constituent document with the law entails refusal of state registration of such a company.

Refusal of registration based on the inexpediency of creating a joint stock company is not permitted. Refusal of state registration, as well as evasion of such registration, can be appealed to an arbitration court in accordance with the rules on the jurisdiction of disputes (see Article 22 of the Arbitration Procedure Code).

The company is liable for its obligations with all its property.

The company is not liable for the obligations of its shareholders.

The state and its bodies are not liable for the obligations of society, just as the society is not liable for the obligations of the state and its bodies.

The company has its own corporate name, which must contain an indication of its organizational and legal form and type (closed or open).

The Company has the right to have full and abbreviated names in Russian, foreign languages ​​and languages ​​of the peoples of the Russian Federation.

A company whose corporate name is registered in accordance with the procedure established by legal acts of the Russian Federation has the exclusive right to use it.

The location of the company is determined by the place of its state registration, unless otherwise established in the company's charter in accordance with federal laws.

The company must have a postal address at which it can be contacted, and is obliged to notify the state registration authorities of legal entities about changes in its postal address.

The Company has the right to choose any company name, as long as it does not coincide with the existing names of other legal entities and does not include designations prohibited by law. For example, the inclusion of the words “Russia”, “Russian Federation” is not allowed (see Resolution of the Supreme Council of the Russian Federation dated February 14, 1992 “On the procedure for using the names “Russia”, “Russian Federation” and words and phrases formed on their basis in names of organizations and other structures" - Gazette of the Russian Federation, 1992, No. 10, Art. 470). If we are talking about a joint stock company created for financial transactions, then the inclusion of the designation “bank” in its name is permissible only if there is a license to conduct banking activities (see Gazette of the RSFSR, 1990, No. 27, Art. 357). The JSC Law does not require the indication of the subject of activity in the corporate name of the joint stock company, although from the point of view of the interests of participants in civil transactions, such an indication should be considered useful.

The company name is subject to registration simultaneously with the state registration of the company. Illegal use of someone else's registered brand name entails the obligation of the violator, at the request of the owner of the right, to stop using it and compensate for the losses caused (see Part 3, Clause 4, Article 54 of the Civil Code).

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

The development of the rule on the location of a joint stock company can be considered the rule on the postal address, about which the company must notify the body carrying out state registration of legal entities. Separate from the registration of the location, notification of the postal address is made only when it changes. It should be noted that the joint stock legislation of foreign countries does not have a special rule on registering a postal address.

The Company may create branches and open representative offices on the territory of the Russian Federation in compliance with the requirements of this Federal Law and other Federal Laws.

The creation by the company of branches and the opening of representative offices outside the territory of the Russian Federation are also carried out in accordance with the legislation of the foreign state at the location of the branches and representative offices, unless otherwise provided by an international treaty of the Russian Federation.

The branch of the company is its separate division located outside the location of the company and performing all of its functions, including the functions of representation, or part thereof.

A representative office of a company is its separate division, located outside the location of the company, representing the interests of the company and protecting them.

The branch and representative office are not legal entities; they act on the basis of regulations approved by the company. A branch and representative office are endowed with property by the company that created them, which is accounted for both on their separate balance sheets and on the balance sheet of the company.

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

The branch and representative office operate on behalf of the company that created them. The company that created them is responsible for the activities of the branch and representative office.

The company's charter must contain information about its branches and representative offices. Messages about changes in the company's charter related to changes in information about its branches and representative offices are submitted to the state registration body of legal entities in a notification manner. The specified changes in the company's charter come into force for third parties from the moment of notification.

The 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 the current Russian legislation, 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 international agreement 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, or in accordance with an agreement concluded between them, or otherwise has the opportunity to determine the decisions made by such company.

The subsidiary is not liable for the debts of the parent company (partnership). 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.

A company is recognized as dependent if another (dominant) company has more than 20 percent of the voting shares of the first company.

A company that has acquired more than 20 percent of the company's voting shares is obliged to immediately publish information about this in the manner determined by the federal executive body for the securities market and the federal antimonopoly body (as amended by Federal Law No. 120-FZ of August 7, 2001).

2.2. Advantages of joint stock ownership

Joint-stock ownership is a natural result of the process of development and transformation of private property, when at a certain stage of development the scale of production, the level of technology, and the financial organization system create the prerequisites for a fundamentally new form of organization of production based on the voluntary participation of shareholders.

The joint stock form allows you to attract the capital of many people into one enterprise, even those who themselves cannot, for any reason, engage in entrepreneurial activity. In addition, limiting liability to the size of the contribution made, together with its high diversification, makes it possible to invest in very promising, but also high-risk projects, significantly accelerating the implementation of scientific and technological progress. There are also many other positive aspects of the joint-stock form of ownership, making it truly universal and applicable wherever there is a need and opportunity to limit the extent of the entrepreneur’s liability.

The latter circumstance is especially important in an unstable economy, when an unforeseen production situation can lead to huge losses and debts, which may not be covered by all available property. Individual entrepreneurs and some legal entities that have a different organizational and legal form are subject to similar liability. Joint-stock companies make it possible to use material and other resources more efficiently and to optimally combine the personal and public interests of all participants.

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

• division of share capital into equal, freely tradable shares - shares;
• limiting the liability of participants for the obligations of the company only by contributions to the capital of the company;
• the statutory form of the association, which allows you to easily change the number of participants and the size of the share capital;
• separation of general management from the management of the enterprise itself, which is concentrated in the hands of a special body - individual and/or collegial (board (directorate) of the company).

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

Firstly, the company has the opportunity to attract funds from shareholders to replenish the authorized capital and expand its activities, and these funds are not subject to return (with the exception of complete elimination company), since shares are not redeemed by the company, but are only resold to other shareholders.

Secondly, general leadership The activities of the company are separated from specific management, which makes it possible to recruit and select the most suitable managers and directors, forcing shareholders to take seriously the selection of management personnel, since each shareholder is responsible for the effective operation of the company with invested funds.

Thirdly, it creates the possibility of actually transforming the entire workforce of the enterprise into owners through the acquisition of shares in the company by each of them.

Fourthly, it is possible to attract your regular counterparties to the shareholders, thereby creating a common interest in the results of the company’s activities. Also, the company itself can purchase securities of other companies, thereby forming entire networks of organizations interested in each other’s work, connected by ownership relations and the right to participate in management.

Thus, a joint stock company, uniting on a single legal basis of all participants, provides a unique form of realization of collective property, while creating interest in the final results of the work. The issue and distribution of shares provides a real opportunity to control and manage activities on the part of shareholders.

2.3. Types of joint stock companies

In accordance with the Civil Code of the Russian Federation of October 21, 1994 and Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies,” a joint stock company can be open or closed (hereinafter referred to as OJSC and CJSC), which is reflected in its charter and corporate identity name.

An open company has the right to conduct an open subscription for the shares it issues and carry out their free sale, taking into account the requirements of this Federal Law and other legal acts of the Russian Federation. An open company has the right to conduct a closed subscription for the shares it issues, except for cases where the possibility of conducting a closed subscription is limited by the charter of the company or the requirements of legal acts of the Russian Federation (as amended by Federal Law dated 07.08.2001 N 120-FZ).

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

In an open company, it is not allowed to establish the preemptive right of the company or its shareholders to acquire shares alienated by the shareholders of this company (paragraph introduced by Federal Law No. 120-FZ of August 7, 2001).

A company whose shares are distributed only among its founders or another predetermined circle of persons is recognized as a closed company. Such a company does not have the right to conduct an open subscription for the shares it issues or otherwise offer them for acquisition to an unlimited number of persons.

Number of shareholders closed society should not exceed fifty.

If the number of shareholders of a closed company exceeds the limit established by this paragraph, the specified company must be transformed into an open company within one year. If the number of its shareholders does not decrease to the limit established by this paragraph, the company is subject to liquidation through a judicial procedure.

Shareholders of a closed company enjoy the preemptive right to purchase shares sold by other shareholders of this company at the offer price to a third party in proportion to the number of shares owned by each of them, unless the company's charter provides for a different procedure for exercising this right. The charter of a closed company may provide for the company's preemptive right to acquire shares sold by its shareholders if the shareholders have not exercised their preemptive right to purchase shares (as amended by Federal Law No. 120-FZ of August 7, 2001).

A shareholder of a company who intends to sell his shares to a third party is obliged to notify in writing the other shareholders of the company and the company itself, indicating the price and other conditions for the sale of shares. Notification of the company's shareholders is carried out through the company. Unless otherwise provided by the company's charter, notification of the company's shareholders is carried out at the expense of the shareholder who intends to sell his shares (as amended by Federal Law No. 120-FZ of August 7, 2001).

In the event that the shareholders of the company and (or) the company do not exercise the preemptive right to acquire all shares offered for sale within two months from the date of such notification, if more short term is not provided for by the company's charter, shares can be sold to a third party at a price and on terms that are communicated to the company and its shareholders. The period for exercising the preemptive right provided for by the company's charter must be at least 10 days from the date of notification by the shareholder intending to sell his shares to a third party, the remaining shareholders and the company. The period for exercising the preemptive right is terminated if, before its expiration, written statements on the use or refusal to use the preemptive right are received from all shareholders of the company (paragraph introduced by Federal Law No. 120-FZ of August 7, 2001).

When selling shares in violation of the preemptive right of acquisition, any shareholder of the company and (or) the company, if the company's charter provides for the preemptive right of acquisition by the company of shares, has the right, within three months from the moment the shareholder or company learned or should have learned of such a violation, to demand judicial procedure for transferring the rights and obligations of the buyer to them (paragraph introduced by Federal Law of 07.08.2001 N 120-FZ).

The assignment of the said preemptive right is not permitted (paragraph introduced by Federal Law No. 120-FZ of August 7, 2001).

Companies whose founders are, in cases established by federal laws, the Russian Federation, a constituent entity of the Russian Federation or a municipal entity (with the exception of companies formed in the process of privatization of state and municipal enterprises) can only be open.

Amount of authorized capital:

For OJSC - at least 1000 minimum wages as of the date of registration of the company

For closed joint stock companies, at least 100 minimum wages as of the date of registration of the company

The openness of a joint stock company is also expressed in the fact that the JSC is obliged to regularly publish to the public and submit to regulatory authorities a number of information about its activities (annual report, balance sheet, profit and loss account, securities reports, etc.).

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

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

In accordance with paragraph 3 of Art. 7 of the Law “On Joint Stock Companies”, closed companies include those companies whose shares are distributed only among its founders or another predetermined circle of persons.

Comparison of this definition with the definition given in Regulations on joint stock companies, approved by Resolution of the Council of Ministers of the RSFSR on December 25, 1990 No. 601, allows us to conclude that the definition of a closed joint stock company has undergone significant changes. Thus, the Regulations recognized a closed company as one whose shares “can be transferred from one person to another only with the consent of the majority of shareholders...”. Thus, in the Law, the definition of a closed company is given through a description of the possibilities of the company itself to exercise the rights to distribute shares, in the Regulations - through a description of the possibilities of the shareholders themselves to dispose of their own shares. Different approaches to the definition of a closed society also determined qualitative differences in the mechanism of “closing” the society. And if in the first option the “closedness” of the company consisted in the additional consent of some shareholders to the alienation of shares by others, then in the latter this is not the case. The closure of the company in the new law is achieved through the distribution of shares by the company only among its founders or another, predetermined circle of persons.

This approach to “closing” a joint stock company is unusual for Russian practice, therefore it can lead to a lot of errors when using it. First of all, difficulty will arise in designating the so-called predetermined circle of persons. There are a number of questions to which the law does not answer, but which will certainly arise when this rule is applied.

Firstly, where is the line beyond which a predetermined circle of people will not turn into an unlimited circle of people? After all, the law says nothing about the criteria for determining such a circle. This may be tied to a place of work, or to a profession, or to education, or to nationality; a more complex option such as shareholders and employees of the company is also possible. There are many options, but the law does not explain which one is correct.

Secondly, what about the criteria for legal entities that can also be (and most likely will be) shareholders of closed companies? Practice shows that when preparing amendments and additions to the charter or when developing its new edition, it is this issue that eludes the attention of the managers of closed joint stock companies. The Law of the Russian Federation “On Joint-Stock Companies” established a deadline for bringing the charters of joint-stock companies into compliance with the new law - until July 1, 1997, but in most cases the decoding of this provision was not reflected in the charters. But if the charter does not define the circle of persons among whom shares can be distributed, then it will actually be limited only to the founders of the joint-stock company. This means that the joint stock company will be deprived of the opportunity to increase the number of its shareholders. Depending on the situation, this can play both positive and negative role. An example of the latter is a situation where, even if there are authorized shares and the possibility of the board of directors making a decision to increase the authorized capital and amend the charter, it will not be possible to sell the shares to a possible investor without additionally convening a meeting of shareholders and making a decision on this by three-quarters of the voting shares. To eliminate the possibility of this kind of complications, the following wording can be proposed in the company’s charter, which is already used in the practice of joint-stock companies: “The company has the right to place its shares among shareholders, as well as among legal entities and/or individuals according to the list approved by the board of directors (supervisory board ) when deciding on the terms and conditions of a closed subscription."

At the same time, by granting the right to the company itself to determine the circle of persons among whom it will be possible to distribute shares, establish their quantity and thus regulate the “quality” and number of accepted shareholders, the Law opens up unlimited opportunities for “penetration” of any individuals and legal entities into a closed joint-stock company through the purchase of shares from the shareholders themselves . This is the second group of questions that require clarification..

If we analyze the provisions of paragraphs 2 and 3 of Art. 7 of the Law of the Russian Federation “On Joint-Stock Companies” from the angle of contrasting an open company with a closed one, a new question will inevitably arise: why, in relation to the shareholders of an open company, the Law specifically stipulates the right to alienate the shares they own without the consent of other shareholders of this company? After all, if the Law does not stipulate any restrictions on the alienation of shares by shareholders of a closed company, then a special provision on this for shareholders of an open company loses its meaning. If we perceive this provision as a norm defining differences in the powers of shareholders of different types of companies, then the norms regulating the rights of shareholders of a closed company must contain some restrictions regarding the alienation of their shares.

In this situation, it would be logical to link the ability of shareholders to alienate their shares precisely with those persons who fall into that very “predetermined circle of persons.” But the Law does not directly provide for such a connection, nor does it provide for the establishment of any restrictions in this regard in the company’s charter.

It would seem that to confirm the absence of the need for such restrictions, a rule is introduced on the preemptive right of shareholders of a closed company to purchase shares sold by other shareholders. However, this right can be exercised by the shareholder only at the “offer price to another person.”

The provisions of the Law do not contain any regulators for the implementation of such rights. Therefore, the developers of the charters of closed joint stock companies The following recommendation can be made to fill this gap: it is necessary to specifically “decipher” the meaning of the provision “offer price to another person” and the procedure for applying this norm in the charter. For example, this can be done in the following form: “The offer price to another person is the price of the share set by the shareholder-seller himself, at which the person who agreed to purchase it can buy it back only after the expiration of the preemptive rights to purchase shares by the shareholders and the company itself.

If the share is not repurchased at this price and the selling shareholder sets a new, lower offer price, this again entails the emergence of a preemptive right for the company’s shareholders and the company itself. Next, the procedure for purchasing shares and the consequences of not purchasing them are repeated. The establishment of each new offer price to another person restores the preemptive right of the shareholders of this company and the company itself to purchase shares sold by other shareholders of this company."

But even following this recommendation does not exclude the possibility of a situation arising when the company itself does not have the right to conduct an open subscription for the shares it issues or otherwise offer them for purchase to an unlimited number of people, and a shareholder, regardless of the size of his block of shares, can actually offer his shares without any restrictions. Moreover, a situation is possible when a shareholder transfers his shares free of charge, for example in the form of a gift. In such cases, the Law does not at all provide for the emergence of any preferential rights for other shareholders. As a consequence of this, not only the “quality” of shareholders is uncontrollable, but also their quantity, although the maximum number of shareholders established by the Law should not exceed fifty people.

The third group of questions is related to this point.

Indeed, by limiting the maximum number of shareholders of a closed company to fifty shareholders, the Law would seem to have provided for the impossibility of unlimited distribution of shares. Additionally, this requirement is ensured by the fairly strict norm of paragraph 3 of Art. 7 of the Law of the Russian Federation "On Joint Stock Companies", which determines that if the number of shareholders of a closed company exceeds the established limit, then within one year it must be transformed into an open one. If the number of shareholders is not reduced to fifty, the company is subject to judicial liquidation

At the same time, in paragraph 4 of Art. 94 The Law limited the application of this norm, extending it only to closed companies that were created after January 1, 1996, and accordingly excluded the possibility of its application to closed joint-stock companies created before the entry into force of the Law, i.e. before January 1, 1996

Analysis of paragraph 4 of Art. 94 of the Law shows that the provisions of this paragraph were formulated by the legislator in a rather unique way. This paragraph reads: “The provisions of paragraph 3 of Article 7 of this Federal Law do not apply to closed companies created before the entry into force of this Federal Law.”

At the same time, we have just examined three groups of issues that are regulated by the provisions of paragraph 3 of Art. 7 of the Law: first - the powers of the company itself to distribute its shares; the second - the preemptive rights of the company's shareholders to acquire shares sold by other shareholders; third - restrictions on the number of shareholders.

However, from the text of paragraph 4 of Art. 94 of the Law it follows that none of the provisions regulating these issues apply to closed companies created before the entry into force of the Law. Is it so?

Let's start with the company's powers to distribute its shares. First, the Regulations on Joint Stock Companies of December 25, 1990, then Art. 97 of the Civil Code of the Russian Federation clearly established a ban for closed joint stock companies to conduct an open subscription and to offer their shares for acquisition to an unlimited number of persons and, accordingly, the possibility of their distribution among the founders or another predetermined circle of persons.

Article 97 of the Civil Code of the Russian Federation extended these obligations and rights to all closed joint-stock companies, regardless of the date of their establishment, since Art. 5 of the Federal Law “On the entry into force of part one of the Civil Code of the Russian Federation” clearly established: “Part one of the Code applies to civil legal relations that arose after its entry into force. For civil legal relations that arose before its entry into force, part one of the Code applies to those rights and obligations that will arise after its entry into force." Thus, the provision of the Civil Code of the Russian Federation on the possibility of a closed company to distribute its shares only among the founders or another, predetermined circle of persons, taking into account the prohibitions already described, cannot be removed from the regulation of the powers of a closed company.

Next, about the preferential rights of shareholders. Along with the above argumentation, which is also applicable in this case, the right of pre-emption to purchase shares is also exercised by shareholders in accordance with general rules, set out in Art. 250 Civil Code of the Russian Federation. These rules are that when selling a share in the right of common shared ownership to an outsider, the remaining participants in the shared ownership have a pre-emptive right to purchase the sold share at the price for which it is sold, and on other equal conditions, except in the case of sale at public auction. When selling a share in violation of the pre-emptive right, any other participant in shared ownership has the right, within three months, to demand in court the transfer of the rights and obligations of the buyer to him. Thus, the preferential rights of shareholders of a closed joint-stock company to purchase shares sold by other shareholders of this company cannot be withdrawn from the regulation of the powers of shareholders.

And finally, restrictions on the number of shareholders. On this issue, Art. 97 of the Civil Code of the Russian Federation does not establish any restrictions, indicating that specific quantitative restrictions will be established by the Law “On Joint Stock Companies”. Having delegated to the Law the decision on the maximum number of shareholders of a closed joint-stock company, the Civil Code of the Russian Federation made it possible for the Law to determine the circle of closed joint-stock companies to which this restriction will apply.

Thus, despite the unclear wording of clause 4. Art. 97 of the Law of the Russian Federation “On Joint-Stock Companies”, all the arguments presented prove that the norms of paragraph 3 of Art. 7 of the Law, which does not apply to closed joint stock companies created before January 1, 1996, relates only to the provision establishing the maximum number of their shareholders and does not affect all other provisions.

The consequences of this approach are assessed ambiguously. On the one hand, this assessment is positive, since in the process of transforming a number of enterprises into joint-stock companies (for example, rental enterprises that have the right to purchase property or have already purchased it), a large number of closed joint stock companies with a number of shareholders significantly exceeding fifty - from two hundred to several thousand. Provision of Art. 94 of the Law of the Russian Federation “On Joint-Stock Companies” creates calm conditions for the work of those organizations that, in accordance with the law in force at the time of their creation, could choose a completely specific type of joint-stock company and not change it. On the other hand, this assessment can be considered negative, since the Law not only does not contain any regulators of the number of shareholders for such closed joint-stock companies, but also does not provide for any “fixation without the right to change” their number at specific date. Currently, this provokes the emergence of a completely abnormal, in our opinion, situation, when the number of shareholders of a closed company, several times greater than the maximum, may continue to increase. And if we connect this with the ability of shareholders to sell their shares to an unlimited number of people, then we will see that an attempt to close a company through a quantitative criterion is not always applicable.

3. LEGAL STATUS OF JOINT STOCK COMPANIES

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

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

• a relatively short period of time for the formation of a system of normative acts;
  • the presence of four “special” groups of joint-stock companies, the specifics of the creation and legal status of which are regulated by special regulations (clauses 3, 4, 5 of Article 1 of the Law of the Russian Federation “On Joint-Stock Companies”. Law of the Russian Federation “On the Peculiarities of the Legal Status of Joint-Stock Companies of Employees ( national enterprises)" dated July 19, 1998 No. P5-FZ).

In accordance with the classical approach to the system of sources of law, all legislation on joint stock companies can be systematized in the following way according to the degree of decrease in legal force:

Constitution of the Russian Federation- many call it as an element of the legislation on joint stock companies. The role of the Constitution of the Russian Federation in regulating joint-stock relations is as follows: firstly, Article 30 of the Constitution guarantees the right of everyone to associate, and a joint-stock company is precisely an association to achieve common goals; secondly, Article 35 of the Constitution guarantees the right of private property in the Russian Federation. The form of ownership characteristic of a joint-stock company is private; thirdly, the Constitution proclaims a number of general provisions, which in many situations can serve as a reliable guarantee for ensuring the rights of a joint-stock company as a subject of law. Article 46 of the Constitution guarantees the protection of rights and freedoms, allows you to appeal against actions (inaction) of state authorities, local government bodies and officials. In practice, there are unfounded refusals of state registration of joint stock companies, which are subsequently successfully appealed in court.

Generally recognized norms of international law and international treaties of the Russian Federation in accordance with Article 15 of the Constitution of the Russian Federation and Article 7 of the Civil Code of the Russian Federation, they are an integral part of the legal system of the Russian Federation. The norms of international law are contained in the UN Charter, declarations and recommendations of the UN General Assembly and other documents. International law generally applies to shareholder relationships with a foreign element. Generally recognized norms of international law and international treaties have priority over the legislation of the Russian Federation in the event of a conflict. An example of such an international treaty is the Agreement between the Government of the USSR and the Government of the Republic of Cyprus on the avoidance of double taxation of income and property dated October 29, 1982. International treaties concluded by the USSR retain legal force (since the Russian Federation is the legal successor of the USSR) until one of the parties announces its denunciation.

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

codified act - the Civil Code of the Russian Federation, in which Chapter 4 “Legal Entities” is of particular importance;

Law of the Russian Federation "On Joint Stock Companies" dated December 26, 1995 No. 208-FZ (as amended by Federal Law dated 08/07/2001 N 120-FZ);

Law of the Russian Federation "On the privatization of state property and on the principles of privatization of municipal property in the Russian Federation" dated July 21, 1997 No. 123-FZ;

Law of the Russian Federation “On the peculiarities of the legal status of joint-stock companies of employees (national enterprises) dated July 19, 1998 No. 115-FZ;

Law of the Russian Federation “On the Securities Market” dated April 22, 1996 No. 39-FZ and some other laws containing separate rules relating to joint-stock companies.

For relations that arose before the entry into force of the relevant law, it applies only to those rights and obligations that arose after its entry into force, however, if the adopted law expressly states that its effect extends to relations that arose earlier, then it is considered that such a law is given retroactive force. Retroactive force may be given to a law as an exception. Usually, a law with a later date of adoption has priority (which does not apply to the Civil Code of the Russian Federation, which has absolute priority among all civil laws). The law is valid, as a rule, throughout the entire territory of the Russian Federation in relation to all persons located in the specified territory, and until the period specified in it or until direct repeal, or until a new law comes into force, repealing or replacing the content of the previously in force.

By-laws play a significant role in regulating shareholder relations. These include: Decrees of the President of the Russian Federation, Decrees of the Government of the Russian Federation, regulations of ministries, departments, and other federal executive bodies, among which the Federal Commission for the Securities Market and the Ministry of State Property stand out. Ministry of Finance, Ministry of Economy, Ministry of Justice and Ministry of Antimonopoly Policy and Entrepreneurship Support.

IN Lately Interdepartmental by-laws often appear.

Decrees of the President and Government Decrees are subject to official publication (except for acts or their piecework provisions that constitute state secrets), departmental acts must be registered with the Ministry of Justice of the Russian Federation.

By-laws can be of a general or special nature. By-laws of a general nature establish rules common to all joint-stock companies (Resolution of the Federal Commission for the Securities Market of the Russian Federation "On approval of the Regulations on maintaining the register of owners of registered securities" dated October 2, 1997 No. 27), while acts of a special nature regulate the features peculiar to individual joint-stock companies companies (Order of the Ministry of Economy of the Russian Federation “On the procedure for registering joint-stock companies with foreign investments” dated February 7, 1996 No. 2).

Separately, it is worth dwelling on the by-laws of the USSR and the Russian Federation, adopted before the entry into force of the Civil Code of the Russian Federation. In practice, these acts create the greatest difficulties, because they are still used to the extent that they do not contradict the Civil Code. As an example of one of such acts, which is in force to this day (with amendments and additions), we can cite the well-known Order of the President of the Russian Federation No. 58-RP “On the Board of Directors of RAO Gazprom” and the placement of its shares among citizens of the Russian Federation, well known to participants in the securities market " dated January 26, 1993. Regulatory acts of the President of the Russian Federation and the Government on issues that, by virtue of the Civil Code, must be regulated by federal laws, are applied until the relevant laws are put into effect (Decree of the President of the Russian Federation “On streamlining the state registration of enterprises and entrepreneurs on the territory of the Russian Federation dated July 8, 1994 No. 1482 was in force until the adoption of the Law of the Russian Federation "On State Registration of Legal Entities").

Legal customs (business customs), those. such rules, which, firstly, are sufficiently established and defined in their content, secondly, widely applied and not of a highly specialized nature, thirdly, the scope of their application is limited to business relations, fourthly, not provided for by current legislation. Based on an analysis of the content of Articles 5 and 6 of the Civil Code of the Russian Federation, we can conclude that legal customs are applied where and when gaps in the legislation are found that are not filled by agreement of the parties. As legislation improves, a number of business customs are enshrined in regulations. Thus, the unwritten rule that the general meeting of shareholders is chaired by the chairman of the Board of Directors is reflected in paragraph 2 of Article 67 of the Federal Law “On Joint-Stock Companies”.

The question of whether the sources of legislation on joint stock companies acts of judicial and arbitration practice, is the subject of much debate. The specified acts do not belong to such (sources), although they play a significant role in filling the gaps in the current legislation. Let us give one practical example: in the judicial authorities carrying out state registration of legal entities, when trying to register changes to the Charter of a joint-stock company, registration was refused under the pretext that the size of the authorized capital of the company on the date of registration of the changes was lower than the limit established by law - 100 Minimum wage. Clause 5 of the joint resolution of the Plenum Supreme Court RF and the Supreme Arbitration Court No. 4/8 dated April 2, 1997, explained that in this case we mean the size of the authorized capital at the time of initial registration of the company.

Local acts of joint stock companies - in the appearance of these acts, which, however, can very conditionally be attributed to the sources of law regulating shareholder relations, the method of civil law regulation is fully manifested, which is characterized by the autonomy of the will of participants, freedom of contract, the inadmissibility of arbitrary interference in private affairs, the possibility of choice between various options behavior. Local acts of joint stock companies can be reasonably divided into two groups: internal acts and state sanctioned charters and other documents (authorization is manifested in state registration and approval, for example, of the charters of joint-stock companies created during the privatization of state unitary enterprises). Among the internal acts, it is necessary to highlight various provisions, namely, on the distribution and use of profits, on securities of companies, on the list of shareholders of the company, etc. It is impossible not to note the exceptional importance of local acts of a joint stock company, which make it possible to fill the gaps in the legislation. In a joint stock company, in the absence of a Board of Directors, the question arises: “Who will sign a contract with the General Director on behalf of the company?” Introducing a norm into the charter obliging shareholders, together with the decision on the election of the General Director, to appoint a person who will sign a contract with him, allows us to resolve the legal impasse.

In the literature, some authors also include among the sources of “shareholder law” contracts. This position seems controversial, since, although the founders enter into a written agreement between themselves on its creation, which is a simple partnership agreement, such an agreement gives rise to legal consequences only for a certain circle of persons - the founders of the company. In addition, in accordance with paragraph 3 of the joint resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 4/8 dated April 2, 1997, the agreement on the creation of a joint-stock company is not the constituent document of the latter, which further narrows the scope of its application.

At the same time, an agreement may be concluded between the main and subsidiary companies, allowing the main company to give mandatory instructions to the subsidiary. The legal nature of such an agreement raises a lot of questions. Thus, the practice of privatization knows a number of examples when a holding is created on the basis of the head office of a ministry. The main board is transformed into an open joint-stock company, part of the shares of which is distributed among employees of enterprises previously united in the specified main board. The former central administration (now JSC) becomes the owner of 100% of the shares of all enterprises that were part of it (now also JSC). It is obvious that refusal to sign this agreement in practice will lead to the immediate dismissal of the general director of the subsidiary. In such conditions, it is simply inappropriate to talk about freedom of contract, because the previously existing administrative dependence acquired a new quality, entrenched through abuse of rights within the framework of shareholder relations.

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

Article 1 (clauses 3, 4, 5) of the Law of the Russian Federation “On Joint-Stock Companies” establishes that its effect extends to all joint-stock companies created or being created on the territory of the Russian Federation, but with certain restrictions established by Federal laws relating to four groups society These restrictions apply to:

• joint-stock companies in the field of banking, investment and insurance activities;
• joint-stock companies created on the basis of collective farms, state farms and other agricultural enterprises reorganized in accordance with the Decree of the President of the Russian Federation "On urgent measures for the implementation of land reform in the RSFSR", as well as peasant (farm) farms, service and service enterprises of the agro-industrial complex: enterprises of material- technical supply, repair, agricultural chemicals, forestry, rural energy enterprises, seed growing stations, vegetable processing enterprises;
• joint stock companies created in the process of privatization of state and municipal enterprises;
• joint-stock companies of workers (national enterprises).

Features of the creation and legal status of joint stock companies first group regulated by: Law of the RSFSR "On Banks and Banking Activities" dated December 2, 1990 No. 395-1, Law of the RSFSR "On the Central Bank of the RSFSR (Bank of Russia)" dated December 2, 1990 No. 394-1, Law of the Russian Federation "On the Organization of Insurance Business" in the Russian Federation" dated November 27, 1992 No. 4015-1, Law of the RSFSR "On investment activities in the RSFSR" dated June 26, 1991 No. 1488-1. as well as other legal acts of the Russian Federation adopted before the entry into force of the Law of the Russian Federation “On Joint Stock Companies”. Characteristics special regulations are:

a) establishing a closed list of activities;

b) determination of the minimum size of the authorized capital and the ratio of its monetary and non-monetary parts;

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

Joint stock companies owned by second group, are enterprises of the agro-industrial complex. Some of the Federal laws to which the Law of the Russian Federation “On Joint-Stock Companies” refers have not yet been adopted, therefore, in accordance with paragraph 5 of Article 94 of this law, the named group of joint-stock companies acts on the basis of legal acts of the Russian Federation adopted before the entry into force of the Law RF "On joint stock companies", which include: Decree of the President of the RF "On urgent measures to implement land reform in the RSFSR" dated December 27, 1991 No. 323; Decree of the President of the Russian Federation "On the peculiarities of the privatization of enterprises for the primary processing of agricultural products, production and technical services and logistics of agricultural complexes" dated December 20, 1994 No. 2005; Decree of the Government of the Russian Federation "On the procedure for the reorganization of collective farms and state farms" dated December 29, 1991 No. 86, Decree of the Government of the Russian Federation "On the procedure for privatization and reorganization of enterprises of the agro-industrial complex" dated September 4, 1992, "Regulations on the transformation of cooperative-state enterprises into joint-stock companies, organizations and their associations in the agro-industrial complex", approved by Decree of the Government of the Russian Federation of March 29, 1994 No. 200 and others. The main features of the creation and legal status of joint-stock companies in the agro-industrial complex are mainly due to the fact that the main component of the production process in agriculture is land. For individual enterprises when they are transformed into joint stock companies, mandatory conditions are established for maintaining one or more types of activities. These restrictions apply, for example, to breeding stud farms.

To the third group include joint stock companies created during the privatization of state and municipal enterprises. It is obvious that during the privatization process, which is regulated by a significant number of regulations, the joint stock company itself does not yet exist. The specifics of the creation and legal status of these joint stock companies are established by regulations on privatization. These include the Law of the Russian Federation “On the privatization of state-owned and on the basis of the privatization of municipal property” dated July 21, 1997 No. 123-FZ, Decrees of the President of the Russian Federation “On organizational measures for the transformation of state enterprises, voluntary associations of state enterprises into joint-stock companies” dated July 1, 1992 of the year No. 721, "On the state program for the privatization of state and municipal enterprises in the Russian Federation" dated December 24, 1993 No. 2283, "On the main provisions of the state program for the privatization of state and municipal enterprises in the Russian Federation" dated July 22, 1994 No. 1535, "On measures for protecting the rights of shareholders and ensuring the interests of the state as an owner and shareholder" dated August 18, 1996 No. 1210; decisions of the Government of the Russian Federation. The privatization of individual enterprises may be regulated by special regulations.

In a row characteristic features inherent in joint stock companies created through privatization, it is necessary to highlight the following:

a) in case of application of a special right (golden share) representatives of the Russian Federation, constituent entities of the Russian Federation, municipalities have the right to participate in the general meeting of shareholders, and also have the right of veto when the general meeting of shareholders makes decisions on introducing amendments and additions to the charter of an open joint-stock company or on approving the charter of an open joint-stock company in a new edition , on the reorganization of an open joint-stock company, on the liquidation of an open joint-stock company, the appointment of a liquidation commission and on the approval of interim and final liquidation balance sheets, on changing the size of the authorized capital of an open joint-stock company, on the conclusion of large transactions and transactions of an open joint stock company in which there is an interest;

b) special requirements are imposed on the subject composition of buyers of state and municipal property: during the privatization of state and municipal property, state and municipal unitary enterprises, state-owned enterprises, state and municipal institutions, as well as other legal entities in whose authorized capital there is a share of the Russian Federation, constituent entities of the Russian Federation Federations and municipalities exceed 25% cannot be buyers of such property;

c) a special voting procedure at the general meeting of shareholders in certain cases: of the shares of an open joint stock company created during the privatization process that are subject to sale and owned by a specialized institution (Ministry of State Property, etc.), no more than 25% of the shares plus one share of the total number of shares of the specified open joint stock company may have the right to vote at general meetings of shareholders joint stock company. Other shares of an open joint-stock company owned by a specialized institution, regardless of their number, until the moment of sale to investors, are non-voting and are not taken into account when determining the quorum and counting votes at general meetings of shareholders;

d) a special procedure for the emergence of ownership rights to shares of joint-stock companies created through privatization when they are acquired through a competition: ownership rights to shares of an open joint-stock company from state or municipal property, which is sold at a commercial competition, passes to the winner of such a competition after he completes certain investment and/or social conditions.

Law of the Russian Federation "On Joint Stock Companies" " defines the time frame privatization process. Legal norms establishing the peculiarities of the legal status of the considered group of joint-stock companies are valid from the moment the competent authority makes a decision on privatization until the state or municipality alienates 75% of the shares owned by them, but not late the end of privatization established by the privatization plan for this particular enterprise. In practice, it is not difficult to determine the start date of privatization, but many difficulties arise with establishing the end date of privatization. There are cases when a significant block of shares is owned by the state or municipality for several years or a “golden share” is declared for a long period. In this case, the privatization process is considered incomplete. The end date of privatization is usually not specified, which makes it difficult to apply this criterion. To eliminate uncertainties and ensure a uniform interpretation of the considered norms of the Law of the Russian Federation “On Joint Stock Companies,” the joint Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation in Resolution No. 4/8 of April 2, 1997 explained:

1) that if, in accordance with the legislation on privatization, a block of shares in a company (51.38 or 25.5%) is assigned to state ownership for a certain period, then the deadline for completing privatization is the period for which the specified block of shares is assigned to state ownership;

2) at the end of the privatization period or from the moment when the number of shares owned by a state or municipal entity is less than 25% of their total number, the company’s activities completely become subject to regulation by the Law of the Russian Federation “On Joint-Stock Companies”,

3) if a “golden” share was issued during the privatization of an enterprise, then the rights granted to it are retained by its holder for the entire period of its validity.

To the fourth group includes joint-stock companies of workers (national enterprises), the features of the creation and legal status of which are determined by the Law of the Russian Federation “On the peculiarities of the legal status of joint-stock companies of workers (national enterprises)” dated July 19, 1998 No. 115-FZ, which came into force on October 1, 1998.

A national enterprise can only be created as a result of the reorganization of an existing commercial organization, except for state and municipal unitary enterprises and open joint-stock companies in which employees own less than 49% of the shares. Despite the fact that a people's enterprise is a closed joint-stock company, its authorized capital cannot be less than 1,000 minimum wages on the date of registration, the par value of one share should not exceed 20% of the minimum wage on the specified date, and the number of shareholders can be up to 5,000 people.

An employee of a national enterprise cannot own more than 5% of the company's shares. If the specified amount is exceeded, he is obliged to sell to the company, and the latter is obliged to buy the excess shares at their par value. In case of dismissal from the enterprise, the employee is also obliged to sell his shares to the company, but at the redemption price, and the company must buy back these shares. The law establishes the liability of the company for fulfilling the obligation to repurchase shares - Article 395 of the Civil Code of the Russian Federation applies. The employee's responsibility for fulfilling the obligation to sell shares has not been established.

At the request of the shareholder's creditors, if the debtor's other property is not sufficient to satisfy the latter's demands, the company is obliged to buy back the shares from him and pay their redemption price.

An employee of a national enterprise has the right to sell only 20 percent or less of the shares he owns to other employees of the enterprise or to the company itself.

Dividends on shares can be paid no more than once a year.

Article 75 of the Law of the Russian Federation “On Joint-Stock Companies” applies only to those shareholders who are not employees of the enterprise, which may include legal entities.

For some issues on the agenda of the general meeting of shareholders (reorganization of the company), a special voting procedure is used: 1 shareholder - 1 vote.

Concluding the consideration of the features of the creation and legal status of selected groups of joint-stock companies, it should be noted, since the Law of the Russian Federation “On Joint-Stock Companies” refers to special legal regulation only the features of the creation and legal status of the considered groups of companies (except for national enterprises, about which the law does not say anything) , then in everything else that is not regulated by special legislation, one should be guided by the general law, which is the Law of the Russian Federation “On Joint Stock Companies” dated December 26, 1995 No. 208-FZ.

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

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

Firstly. A maximum number of shareholders in a closed company has been established, which should not exceed 50 persons. An exception to this restriction is the creation of a closed company with a larger number of shareholders before January 1, 1996 (clause 3 of article 1 , clause 4 art. 94 of the new Law on JSC).

Secondly. A ban has been established on the placement by a closed company of additional shares and other issue-grade securities convertible into shares through private subscription (clause 3 of article 7, clause 2 of article 39 of the new Law on JSC).

Third. By virtue of Art. 92 of the new JSC Law establishes different regimes for disclosing information of closed and open companies.

Fourthly. The preemptive right of shareholders of a closed company to purchase shares sold by other shareholders to third parties has been established (Clause 3, Article 7 of the new Law on JSC).

Fifthly. Different requirements have been established for the minimum amount of authorized capital of closed and open companies (Article 26 of the new Law on JSC).

At sixth. The Russian Federation, a constituent entity of the Russian Federation, or a municipal entity cannot act as shareholders of closed companies (Clause 4, Article 7 of the new Law on JSCs).

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

Limit number of shareholders

The new Law on JSC has amended the unsuccessful norm of paragraph 4 of Art. 94 of this Law in the old version (hereinafter referred to as the old Law on JSC").

Indeed, by virtue of paragraph 4 of Art. 94 of the old JSC Law, it was established that the provisions of paragraph 3 of Art. 7 of the Law on JSCs do not apply to closed companies created before January 1, 1996. Moreover, with the formal application of this regime, closed joint stock companies created before the specified period not only had the opportunity to have a number of shareholders exceeding 50 persons, but in fact, when shares were sold by shareholders to third parties, other shareholders did not have the opportunity to exercise the preemptive right to purchase shares.

New edition of clause 4 of Art. 94 of the Law on JSC suggests that not all the norms of the paragraph in question, but only the provisions of paragraphs two and three of clause 3 of Art. 7 of the Law on JSC (restrictions on the number of shareholders) do not apply to closed companies created before January 1, 1996.

Thus, these companies can have an unlimited number of shareholders. In all other respects, they are subject to the general regimes established by the new Law on JSCs for closed companies.

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

Indeed, suppose that a closed joint stock company had 100 shareholders as of January 1, 1996. This company has the right to have the specified number of shareholders at the present time. At the same time, the question arises: can the number of shareholders become more than 100 both as a result of the placement of shares by private subscription, and as a result of the alienation of shares to third parties by the company's shareholders?

There is an opinion that the number of shareholders of such companies should not increase in relation to the number of shareholders the company had as of January 1, 1996.

Apparently, one should agree with this approach. Under the stated circumstances, the legislator has granted the right to exist for closed companies with the number of shareholders exceeding 50 persons, however, the possibility of further increasing the number of shareholders is not provided for by the JSC Law.

Preemptive right to purchase shares

The biggest questions regarding the specifics of the legal status of a closed company are raised by the procedure for exercising the pre-emptive right to purchase shares sold by shareholders to third parties.

The new Law on JSC has clarified this procedure (Clause 3, Article 7 of the Law on JSC). Thus, the old Law on JSC, which provided that shareholders of a closed company have a preemptive right to purchase shares sold by other shareholders of this company at the offer price to another person, nevertheless did not specify the procedure for exercising this preemptive right.

Indeed, some alternative to the procedure for exercising the pre-emptive right to acquire shares was allowed. Which can be illustrated by the following example.

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

Let's assume that shareholder A, having the desire to sell all the shares he owned, he found a potential buyer who was not a shareholder of the company, with whom the price of the shares and other essential terms of the proposed transaction were agreed upon.

Based on the requirements of paragraph 3 of Art. 7 of the old Law on JSC, shareholder A notified shareholders B, C, D in writing of his desire to sell shares to a third party and, accordingly, invited these shareholders to exercise the preemptive right to purchase shares.

Shareholder B, having a desire to purchase all the shares being sold, submitted the corresponding written acceptance to shareholder A after 10 days from the date of sending the offer.

Shareholder B also expressed a desire to purchase all shares being sold. However, the corresponding letter was received by shareholder A after 20 days from the date of the offer.

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

Thus, two shareholders expressed their desire to buy shares, but at different times.

Exercising the preemptive right under the above circumstances is possible in three different ways.

Firstly, the entire package of 51 shares can be acquired by shareholder B due to the fact that he was the first to accept the offer.

Secondly, shareholder B and shareholder C acquire an equal number of shares being sold, due to the fact that each of them accepted the offer within the period established by the Law (charter). This procedure is subject to application if it is assumed that this pre-emptive right is exercised in proportion to the requirements stated by shareholders for the acquisition of shares. (It should be noted that when applying the old Law on JSC in the case considered, shareholders B and C could not purchase an equal number of shares, since the formation of fractional shares was not allowed by the Law. Some of them had to purchase 26 shares, and some - 25 shares. The new Law on JSC, by virtue of paragraph 3 of Article 25, allows for the formation of fractional shares under the stated circumstances).

Third, shareholders B and C each acquire 21 shares, the remaining 9 shares can be sold by shareholder A to a third party, due to the fact that shareholder B did not exercise the preemptive right granted to him to purchase shares. This procedure is subject to application if we assume that this pre-emptive right is exercised in proportion to the number of shares owned by each shareholder of the company.

The old Law on JSC did not answer how the pre-emptive right to purchase shares by shareholders of a closed company should be exercised, thereby suggesting that this issue should be resolved by the charter (clause 3, Article 7 of the old Law on JSC). The charters of closed societies provided for different legal regimes, and in some cases did not contain any clarifying rules, which caused significant difficulties when conflict situations arose.

The new Law on JSC contains a dispositive norm establishing the procedure for exercising this pre-emptive right.

So, in accordance with paragraph 3 of Art. 7 of the new Law on JSC, shareholders of a closed company have a preemptive right to purchase shares sold by other shareholders of this company at the offer price to a third party in proportion to the number of shares owned by each of them, unless the company's charter provides for a different procedure for exercising this right. A shareholder of a company who intends to sell his shares to a third party is obliged to notify in writing the other shareholders of the company and the company itself, indicating the price and other conditions for the sale of shares. If the company's shareholders and (or) the company do not exercise the pre-emptive right to acquire all shares offered for sale, the shares may be sold to a third party at a price and on terms that are communicated to the company and its shareholders.

The assignment of the said preemptive right is not permitted.

Thus, by default in the articles of association, shareholders enjoy a pre-emptive right to acquire shares in proportion to the number of shares owned by each of them.

It seems that such a procedure will not always be convenient, especially since in some cases it can lead to a violation of the rights of the seller or buyer of shares. In addition, the ambiguous wording of the stated regime may lead to different interpretations.

Indeed, what did the legislator mean by establishing that if the shareholders of the company and (or) the company do not exercise the preemptive right to acquire all shares proposed for sale, the shares can be sold to a third party. What shares can be sold to a third party?

In relation to the example discussed above, in the first case, shareholder A has the right to sell 9.36 shares to a third party. (Shareholders B and C, having declared their desire to use the pre-emptive right, will each acquire 20 point 82 hundredths of the shares being sold in proportion to the shares they have. Due to the fact that shareholder D has not expressed a desire to purchase shares, the 9.36 shares provided for him may be sold to a third party). However, this procedure significantly violates the rights of the shareholder-seller of shares. Most likely, he will not be able to sell the indicated 9.36 shares to a third party. A third party was ready to purchase 51 percent of the company's shares, thereby obtaining a controlling stake. It is hardly advisable for him to spend money on acquiring less than a ten percent stake. The seller was not only unable to sell the entire block of shares, but was also left with part of the shares, which are unlikely to be acquired by anyone in the future.

In the second case, shareholder A will be able to sell to a third party all of his 51 shares, which, apparently, will completely suit this shareholder. However, in this case, the morals of the remaining shareholders of the company are violated. Indeed, when applying this approach, in the case where at least one shareholder of a closed company does not take advantage of his pre-emptive right, all other shareholders of the company are also deprived of this right. Moreover, by virtue of clause 3 of Art. 7 of the new Law on JSC, the assignment of the specified preemptive right is not allowed.

Another interpretation of the procedure for applying the pre-emptive right provided for in paragraph 3 of Art. 7 of the new Law on JSC). Shareholders have a pre-emptive right to purchase shares being sold in proportion to the number of shares owned by each of them. However, the basis for determining the share of the preemptive right of each shareholder is not the arithmetic sum of all shares of the company’s shareholders potentially possessing this preemptive right, but the sum of the shares of shareholders who, within the period established by the new JSC Law (charter), exercised this right.

The third option seems to be the most preferable, since in this case the shareholders have a real opportunity to exercise the preemptive right to purchase shares, and the seller has a real opportunity to sell all the shares for which the decision to sell has been made. However, as already indicated, the formal reading of paragraph 3 of Art. 7 of the new Law on JSC does not answer which of the stated options for applying this preemptive right was intended by the legislator. In this regard, based on the dispositive nature of the analyzed norm, paragraph 3 of Art. 7 of the new Law on JSC, it seems necessary to establish a detailed procedure for exercising this preemptive right in the company’s charter.

Preemptive right of the company

Also, the charter of a Closed Company may provide for the company's pre-emptive right to acquire shares sold by its shareholders, if the shareholders have not exercised their pre-emptive right to purchase shares (Clause 3, Article 7 of the new JSC Law).

In relation to the case considered above, the content of the specified norm in the charter will mean that the company has the right to acquire on its balance sheet shares that shareholder G refused to purchase. In practice, some problems may arise in the implementation of this preemptive right by the company.

Really, general order The acquisition by the company of placed shares on its balance sheet is established by Art. 72 of the new Law on JSC. At the same time, this article of the Law does not provide for the possibility of non-application of the regimes established by it in the event of the company acquiring placed shares in the exercise of the preemptive right established by clause 3 of Art. 7 of the new Law on JSC.

In accordance with Art. 72 of the new JSC Law, the decision on the acquisition of shares by a company is made by its general meeting of shareholders or board of directors. This decision must determine the categories (types of shares acquired, the number of shares acquired by the company of each category (type, acquisition price, form and term of payment, as well as the period during which the acquisition of shares is carried out (Article 72 and 4 of the new JSC Law) .

In addition, no later than 30 days before the start of the period during which the acquisition of shares is carried out, the company is obliged to notify shareholders who own shares of certain categories (types), the decision to purchase which has been made. Moreover, each shareholder - the owner of shares of certain categories (types), the decision to purchase which has been made, has the right to sell these shares, and the company is obliged to purchase them. The period during which shares are purchased cannot be less than 30 days.(Clause 4, Clause 5 of Article 72 of the Law on JSC).

In accordance with clause 13 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 21, 1998 No. 33 “Review of the practice of resolving disputes on transactions related to the placement and circulation of shares”, a transaction for the acquisition by a joint-stock company of the shares placed by it, carried out in violation of the requirements of Art. 72 of the Law on JSC is void.

Thus, if the company wants to purchase the placed shares (including when exercising the pre-emptive right established by paragraph 3 of Article 7 new Law on JSC), it is obliged, among other things, to offer each shareholder of the company (and not just the shareholder who wants to sell shares to a third party) to sell shares to the company. In this case, the period from the moment of such notification to shareholders until the acquisition of shares by the company cannot be less than 60 days. (30 days before the start of the acquisition, the company is obliged to notify the shareholders; another 30 days are allotted for the acquisition of shares. At the same time, the company cannot purchase shares before the end of the last 30 days, since it is possible that the number of shares, the demand for the acquisition of which is stated by the shareholders, will exceed the number shares desired to be acquired by the company. In this case, the applications of shareholders by virtue of clause 4 of Article 72 of the new Law on JSC must be satisfied proportionally).

However, in accordance with paragraph 3 of Art. 7 of the new Law on JSC, the company (as well as its shareholders) can exercise the pre-emptive right to purchase shares within two months from the date of notification by the shareholder-seller of the shares.

Consequently, there is a contradiction between two norms of the new Law on JSC. The Company has the right to exercise the pre-emptive right to purchase shares within two months from the date of its notification of this, and by virtue of clause 4 of clause 5 of Art. 72 of the new Law on JSC, a company cannot purchase placed shares earlier than 60 days from the date of the decision to do so.

In connection with the above, it appears that when the company exercises this preemptive right, Art. 72 of the new Law on JSC should not be applied (in any case, in terms of compliance with the deadlines for the acquisition of outstanding shares). Otherwise, the preemptive right of the company established by clause 3 of Art. 7 of the new Law on JSC cannot be implemented.

There is another conflict between the new Law on JSC and the Federal Law “On the Securities Market” (hereinafter referred to as the Law on Securities Markets).

In accordance with paragraph 1 of Art. 8 of the Law on the Securities Market, a legal entity engaged in maintaining the register of securities owners does not have the right to carry out transactions with securities of an issuer registered in the system of maintaining the register of securities owners. Thus, based on the fact that closed joint-stock companies, as a rule, maintain the register of shareholders themselves, it can be assumed that these companies do not have the right to carry out transactions to acquire their outstanding shares.

Judicial and arbitration practice has resolved this contradiction. In accordance with the resolution of the Presidium of the Supreme Arbitration Court RF dated February 1, 2000 No. 5784/99 it is indicated that the named norm of paragraph 1 of Art. 8 of the Law on the Securities Market regulates exclusively the activities of professional participants in the securities market (as indicated by the section of the Law on the Securities Market in which it is contained).

Consequently, the prohibition on transactions with shares by a legal entity maintaining a register of shareholders of these shares applies only to professional registrars. Such a prohibition cannot be applied to joint stock companies that independently maintain a register of shareholders.

When a company exercises its preemptive right to purchase shares, problems may arise with the formation of fractional shares.

Indeed, in accordance with paragraph 3 of Art. 25 of the new Law on JSC provides that if, when exercising the preemptive right to purchase shares sold by a shareholder of a closed company, the acquisition by a shareholder of a whole number of shares is impossible, parts of the share are formed (fractional shares).

Thus, this provision of the Law allows the formation of fractional shares only among shareholders and does not imply their occurrence in the company. Consequently, in relation to the above example, the acquisition by the company of 9.36 shares (which shareholder G refused to purchase) seems problematic.

Procedure and deadline

The old Law on JSC did not provide for a procedure for notifying shareholders of a closed company about their pre-emptive right to purchase shares. In this regard, the seller of shares obliged to carry out the specified notification could have practical problems. Indeed, in order to send a notice to shareholders, it is necessary to have information about their mailing addresses. This information is contained in the system for maintaining the register of shareholders of the company. However, for a shareholder owning less than 10 percent of the company's shares, this part of the shareholder register was inaccessible. (In accordance with clause 5 of the Decree of the President of the Russian Federation of August 18 1996 No. 1210 “On measures to protect the rights of shareholders and ensure the interests of the state as an owner and shareholder”, data from the register of shareholders, including the addresses of shareholders, should have been provided to shareholders owning 10 percent of the company’s shares).

Thus, the shareholder owning fewer shares did not have technical feasibility send the notice in question to other shareholders of the company. Nor was such a responsibility assigned to society itself.

The new Law on JSC established this procedure, according to which notification of the company’s shareholders is carried out through the company. At the same time, unless otherwise provided by the company's charter, notification of the company's shareholders is carried out at the expense of the shareholder who intends to sell his shares (Clause 3, Article 7 of the new Law on JSC).

The charter may provide that notification of shareholders about their pre-emptive right to purchase shares is carried out by the company at its own expense.

By virtue of clause 3 of Art. 7 of the new Law on JSC provides that if the shareholders of the company and (or) the company do not exercise the preemptive right to acquire all shares proposed for sale within two months from the date of such notification, unless a shorter period is provided for by the company’s charter, the shares may be sold to a third party at a price and on terms communicated to the company and its shareholders. The period for exercising the preemptive right provided for by the charter must be at least 10 days from the date of notification by the shareholder intending to sell his shares to a third party, the remaining shareholders and the company.

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

The presence of this alternative is determined by the balance of interests of the shareholder-seller of shares and other shareholders of the company. The two-month period may be inconvenient for the seller of shares, since not every third-party buyer is willing to wait two months.

Conclusion

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

1. Forms of ownership are one of the defining elements of production relations, which, in turn, constitute economic basis legal state.

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

2. Shareholder relations in Russia have a fairly long history of development, distinguished by a certain originality and specificity, especially in the period after October revolution. A new great impetus in the development of the joint-stock form of ownership in Russia began in the 90s of the last century, with the beginning of the construction of the rule of law.

3. The joint-stock form of ownership provides the possibility of centralization Money(a combination of capital) of various persons, carried out through the sale of shares for the purpose of carrying out business activities and making a profit. This form of association of entities gives joint stock companies a number of advantages, which are the basis for their wide distribution at this stage of the state’s development.

4. Legal status joint stock companies in Russia are determined and regulated by law. By now, domestic legislation regulating the activities of joint stock companies should be considered sufficiently established. At the same time, its analysis makes it possible to verify that a number of its norms require further development and refinement in order to eliminate existing and newly emerging legal conflicts.

BIBLIOGRAPHY

List of used literature

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

2. Dolinskaya V.V. “Law on JSC: bodies of a legal entity”, magazine “State and Law”, No. 7, 1996.

3. Law of the Russian Federation “On Joint Stock Companies” dated December 26, 1995, Civil and business law - general part, collection of documents. Compiled by: Bogacheva T.V.; M - 1996, Manuscript.

4. History of shareholder relations in Russia. http://rocotech.narod.ru/

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

Kitaygorodsky N. How to create a joint-stock company., Economics and Life, 1996 No. 27.

6. Commentary on the Civil Code of the Russian Federation (part 1), Yurinformtsentr, M-1997, rep. editor - prof. Sadikov O.N.

7. Commentary on the federal law “On Joint Stock Companies,” ed. M. Yu. Tikhomirov. Moscow, 1998

8. Kodratyeva O. “There are tricks against scrap,” http://www.mpg.ru

9. Lanskikh V., Joint-stock companies as legal entities, Ural State Technical University, Ekaterinburg, 1999, 22 p.

. http://rocotech.narod.ru/ (Russian corporate technologies - information resource server about JSC).

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

http://rocotech.narod.ru/ (Russian corporate technologies - information resource server about JSC).

14. Khropanyuk V.N. Theory of Government and Rights: Tutorial for higher educational institutions, ed. Professor V.G. Strekozova.- M.: “Dabakhov, Tkachev, Dimov”, 1995.- 384 p.

List of used regulations

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

Regulations on maintaining the register of owners of registered securities (approved by Resolution of the Federal Securities Commission of the Russian Federation dated October 2, 1997 N 27).

Standards for issuing shares when establishing joint stock companies, additional shares, bonds and their prospectuses, approved. Resolution of the Federal Commission for the Securities Market of November 11, 1998 N 47