Limited society. Complete society. What is a joint stock limited company
The concept and legal signs of full
society.
Legal personality problems of complete
Features: legal status participants
complete societies.
The nature of the responsibility of the participants
a full company for the obligations of the company.
The question of recognizing participants as full
society by subjects of entrepreneurial activity
nosti: the approach of domestic and foreign
legislation.
Restrictions on the movement of participants in full
society: reasons and content.
Management and conduct of the affairs of the complete society.
The concept and legal signs of a limited
society. The advantages of this organizational
legal form.
The concept of joint-stock limited partners.
Features of the legal status of depositors
in a limited society.
1. Legal signs of a complete society
Such a society is fully recognized, all participants
which are engaged in joint business
activities and bear joint responsibility for
obligations of the society with all its property (Art. 66
highlight the following main features of a complete society:
1) consists of two or more participants; In some
countries are prohibited from participating in the software of legal entities or
installed special rules such participation - on
Ukraine does not yet have such restrictions; number
there are few software participants - on average, from two to four
2) the authorized fund is not formed, contributions of participants
make up the contributed capital, the size and procedure for creating
which is determined exclusively by the participants
(ZHO does not contain provisions on the minimum amount
capital of the software, the timing of contributions by participants,
the procedure for changing the size of the contributed capital);
4) the participants of the PO bear subsidiary, joint and several
unlimited liability for obligations
society;
5) software has no organs - in relations with third parties
the society is represented by its participants;
6) the movement of participants is significantly limited.
The software lacks many important features
legal entity - bodies are not formed in society
management, participants are responsible for property
liability for the obligations of society - led to the fact that
in many countries, software (or other similar
structures) are not recognized as an independent legal
personality, they are considered only as a set
individual participants united to implement
commercial activities. This approach does not affect
the ability of software to act as an enterprise
material corporation - associations of entrepreneurs
under a common name, since such associations
endowed with commercial legal capacity. Lack of software
legal entity status entails:
requirement for members of the company to have status
merchant, merchant (business entity
activity);
possibility of legal action by the company's creditors
directly to the participants of the software, bypassing the society itself;
application of a simplified account management system;
no double taxation (no software is paid
taxes levied on legal entities).
Since software (partnerships) in a number of countries do not pass
special registration, then arbitrage practice often
faces the challenge of establishing a relationship
partnerships.
According to the legislation of Ukraine, software has the rights
legal entity, which gives rise to both positive and
negative consequences for their functioning.
2. Legal status and change
full company membership
Software participants have property and
non-property corporate rights (the right to
receiving part of the company's profit for management
society, to receive information about activities
society, etc.). The content of each of these rights in detail
was considered in the sections of the General part.
The responsibilities of software participants are quite extensive in terms of
compared with the obligations of a shareholder or member of an LLC,
which is due to the personal nature of such
associations as software. For the existence of this society
it is not only its investment that matters
participants, but also personal entrepreneurial activity
each of them, carried out on behalf and in the interests
society. So, in the very definition of software, enshrined in
article 66 of the ZHO, it says that the participants in the PO.
Software participants must:
make basic and additional property
contributions to the capital of the company;
participate in the management of society;
realize entrepreneurial activity from
the name of the society;
comply with the provisions of the memorandum of association;
not to disclose trade secrets and confidential
social information about the company's activities;
bear other obligations stipulated by the founding
telny agreement.
Participants can be released from duties
by operational management society and its
entrepreneurial activity if these functions are
on the basis of a common decision, all participants are entrusted
several or one of them.
A distinctive feature of the software is that it
participants have unlimited liability to all
their property for obligations
society.
Article 74 of the ZHO states that if upon liquidation of software
it turns out that the available property is not enough to pay
of all debts for society in the missing part are borne
joint responsibility of its participants to all their
property for which, in accordance with the legislation
Ukraine may be levied execution. Participant
society is responsible for the debts of society, regardless of whether
they arose after or before his entry into society.
The participant who will pay the debts of the society in full,
has the right to apply with a recourse claim to
of the corresponding part to the rest of the participants carrying
responsibility to him in proportion to his share in
property of the society. Thus, this norm determines
the responsibility of the software participant for his debts as:
1) subsidiary;
2) solidary;
3) with the right of recourse to the rest of the participants.
ZHO does not fully name the grounds
the occurrence of liability of participants for obligations
BY. The law only says that attraction
participants to direct property responsibility
property is possible with the liquidation of society. On
practice, based on the provisions of the Law,
participants in the software may be liable for its debts
and without liquidating the company.
The question of responsibility is not covered in the ZHO
participant of the software after his exit from the society. Foreign
legislation usually provides that a participant
In case of leaving the company, the software is responsible for
debts of society, formed before the release of this
participant, within the legal time
(for example, in the Russian Federation this period is 2 years, in France -
5 years). Civil Code of the Ukrainian SSR in 1922 also included a similar
requirement by setting a two-year response time-
the property of the participant who left the partnership (term
calculated from the date of approval of the report for the year in which
the participant dropped out of the full partnership).
It should be borne in mind that the responsibility of the software participant
after his exit from the society, only
in cases where there is no legal succession. Otherwise
case, liability for the obligations of the company will be
to bear not the retired participant, but his assignee.
Speaking about the legal status of a participant in the software
it should be noted that Ukrainian legislation is not
provides for the mandatory status of him
subject of entrepreneurial activity. Similar
the requirement is contained in the laws of many foreign countries.
Its incorporation into corporate law
due to non-recognition in many countries of software
a legal entity. Is it advisable to introduce a similar
the norm and in the legislation of Ukraine? It appears that
no, since the RO participant carries out his
acting on behalf, at the expense and under the responsibility
society, which is law and recognized as a subject
entrepreneurial activity with all the attendant
of this the consequences. So, if the activity,
carried out by a complete society, falls under
licensing, then the license will be issued to you
society, and the participants do not need it. Complete
society as a business entity
will be responsible for all kinds of violations
current legislation, admitted in their work
bots - participants to self-responsibility
should not be involved.
The law imposes on software participants some
restrictions on their activities. Art. 70 ZHO
establishes that the members of the company are not entitled from their
in the name and in their own interests to implement agreements,
homogeneous with the goals of the society, as well as
take part in any other societies (except
joint stock companies) having a homogeneous with full
society is the goal of the activity. Software participants must
compensate the company for losses caused
violations of this rule.
The activities of the software participant may be limited to:
firstly, to eliminate unfavorable for society
competition; secondly, in order to ensure
proper performance by the software participant of their personal
(non-property) obligations to society;
thirdly, to ensure the solvency of the software.
The current legislation of Ukraine prohibits
only the homogeneous activity of the PO participant (in their
interests or as a participant in another HO, except
joint stock), i.e. only competition is prohibited
participant with software. The Civil Code of Ukraine project provides
the introduction of another restriction - physical or
entity can be a member of only one
complete society. This limitation is aimed at protecting
third parties - software lenders. Participation of a person in several
The software may result in the inability to answer
responsibility for the obligations of each company in full
Domestic legislation provides
the possibility of collecting losses from the participant
caused to society by competitive activity
participant. The amount of such losses in practice is determined
quite difficult. The legislation of many countries follows
another way: liability is applied not to restore
innovative, and of a penal nature - from the participant,
violated the prohibition to compete with society, collect
all the profit received by him from such
activities.
ZHO names the following reasons for the change
composition of software participants:
1. Assignment of a share (parts 1, 2 of article 69 of the Law of Ukraine).
Transfer by the software participant of his share to others
members of this company or third parties may be
carried out only with the consent of all participants. Participant
not the whole share may be given up, but part of it. With share transfer
(its part) to a third party is simultaneously carried out
transfer of all (or part) of the rights and obligations,
owned by a participant who retired from the software or
to the one who ceded part of his share.
2. Succession (inheritance) of a share (parts 3-4
art. 69 ZHO).
In the event of the death of a participant - an individual or
reorganization of a participant - a legal entity, Legal
the successors or heirs of these members have
preferential right to join the society.
The remaining members of the software agree to join
new members, and if such consent is not obtained or
the assignee (heir) refuses to join the software, then
he is paid the value of the share owned
reorganized legal entity (heir).
The size of the share in the property of the software is determined by the day
reorganization (death) of a participant. Assignees or
heirs in any case (they enter society or
no) are responsible for the participant's debts incurred
during the activity of the society, in front of society, as well as
for debts of the company to third parties.
3. Withdrawal of the participant from the society (Article 71 of the Law of Ukraine).
The participant must notify in advance of his withdrawal
from society: in 3 months - if the society was created on
indefinite period and for 6 months - if the company
created for a specific period. Out of society
created for an indefinite period is possible for any
reason, and from software created for a certain period -
only respectful. If when a participant leaves the software
society is preserved, then the participant is paid
the cost of his contribution in accordance with the balance,
compiled by the day of release. At the request of the participant and
with the consent of the society, the contribution can be returned
wholly or partly in kind. Retired
the participant is paid the part due to him
profit received by the company in a given year. If in
as a result of the participant's exit from the software, the society collapses
(such reason for the termination of the software activity may
provided by the memorandum of association), then
its liquidation is carried out in accordance with the law
okay. The allocation of the participant's share is not made, but
remaining after settlements with all creditors of the company
the property is distributed among the participants of the software.
4. Exclusion of the participant from the PO (Art. 72 of the Law of Ukraine).
Can be done if the participant
systematically fails or improperly
fulfills duties or actions
hinders the achievement of the goals of society. With the exception
the participant is allocated his share in the property
society and the payment of part of the profit due to him.
The law does not determine in what order the decision is made
about exclusion of a participant - this question referred to
the competence of the participants themselves and must be consolidated in
constituent agreement (first of all should be
determined the procedure for making a decision on this issue
su - unanimously, qualified or simple
majority).
5. Allocation of the share of the participant at the request of his
creditors (Article 73 of the Law of Ukraine).
The software is not responsible for the obligations of its
participants. However, the creditors of the debtor participant in
insufficient property of the participant himself to cover
his debts may require the company to allocate a share
participant - debtor or liquidation of the software itself. If a
the participants of the software agree to allocate the share of the participant
the debtor, the creditors are not entitled to insist on
liquidation of society.
6. Entry of new members.
The procedure for the entry of new participants into software by law
not regulated. It is determined by the participants themselves
in the memorandum of association. Part 1 of Art. 74 reinforces that
the participant of the software is also responsible for those debts of society that
arose before the moment of his entry into society.
3. Conducting the affairs of a complete society
The current legislation of Ukraine has not
removes such concepts as software management and maintenance
cases (carrying out entrepreneurial activity from
the name of the society).
Software management is the most essential solution
important issues of society's activities, for example, about
introduction by the participants of additional property
contributions, on the acceptance or exclusion of a participant, on
directions of the company, about the directions
use of the company's profits, etc.
society is carried out by common consent of all
participants (this is what the legislator had in mind in Part 1 of Article 68
ZHO). Sometimes a similar procedure for resolving issues
negatively affects the management of society, since
it is difficult for participants to reach agreement on all issues
software activities. The GC project offers a discretionary
the norm instead of the peremptory one, fixing in Art. 101:
Since nowadays for taking any
decisions regarding the activities of the company, the law requires
according to their share in the property of the society. GC project is underway
the constituent agreement may provide for another
Community management is an entrepreneurial
activities carried out by the \\ "software participant on behalf of
society, representation of society in relations with
third parties.
Business management in software can be carried out in various
ways;
1) all participants;
2) several of them;
3) one of the participants.
Part 3 of Article 68 establishes that if several
participants conduct the affairs of the society, then each of them can
act on behalf of society independently (for example,
conclude an agreement on behalf of the company). In the constituent
the agreement may indicate the actions that the participants
has the right to exercise only jointly.
If business is not conducted by all participants, then the volume
the powers of the participants entrusted with the conduct of business,
is drawn up by a contract of agency signed
other members of the company.
The powers of a participant to conduct the affairs of the company
are terminated due to:
the termination of the activities of the company itself;
refusal of the participant from the order;
cancellation of the order at the request of at least one of
other participants.
4. Concept and legal characteristics
limited society
In accordance with Article 75 of the ZHO, the limited
a society is recognized that includes, along with one or
more participants performing on behalf of the company
business activities and carriers
responsibility for the obligations of society with all its
property, also of one or more participants,
whose liability is limited to contribution to
property of the company (investors).
For COs, the following legal features are characteristic:
full participants (at least one of each category),
whose legal status varies significantly;
2) the authorized capital in the KO is not formed, deposits
participants make up the pooled capital, size and
the order of introduction of which is determined by ourselves
participants. At the same time, the total share of depositors did not
may constitute more than 50% of the capital of the company (part 2 of article 80
ZHO), by the time of registration of the CO, each of the depositors
must pay at least 25% of his contribution (part 3 of article 80 of the ZHO);
3) acts on the basis of the memorandum of association,
4) KO has no organs - in relations with third parties
society is represented by its members with full
responsibility;
5) reorganization in software is possible when all are retired
depositors;
6) mandatory liquidation upon retirement from the company
all full participants.
A special feature of the CO is the presence of two
categories differing in their legal status
participants - full participants (complements) and
depositors (limited partners). For full participants
responsibilities for the management of the company are assigned,
conducting business on his behalf,
they are liable with all their property for
obligations of society. The functions of depositors are limited
are provided by the provision of a certain capital to the company
in exchange for participation in the company's profits. The relationship between
society and depositors have not credit, but
investment nature, which is more profitable for
society (investors do not interfere in its activities,
capital gains are paid to depositors only when
the presence of profit from the company, capital is invested in
unlimited time). If full participants in the society
several, then they form a semblance of software, their activities
is governed by regulations designed to apply to
this type of society, which follows from Art. 77 ZHO.
FGM occurs when full participants
unable to form
capital necessary for the activities of the company. For
accumulation of such capital in the society
depositors are allowed, but without management rights
society.
In pre-revolutionary Russia, as well as in many
modern states are subject to the principle of anonymity
the personality of depositors, which is the main incentive
for their entry into the Society. So, paragraph 2 of Art. 60, art. 76
of the Russian Trade Regulations of 1903 consolidated the possibilities
depositors if they wish to remain unknown to
third parties. To register a limited partnership
(today's KO) to the city or merchant council
it was not the memorandum of association itself that was submitted, but an extract from it,
which indicated the names and residence of only those
depositors who wish it. In this way,
the depositor's identity was known only in the circle
partnerships, but not to third parties, including bodies
public authority. However, already the Civil Code of the Ukrainian SSR in 1922 established
liv that. And today the Ukrainian ZHO
does not ensure the anonymity of the identity of the depositors in the CO.
Abroad, the principle of anonymity is embodied in
the existence of a joint-stock limited partnership (KO with shares),
which is known to the legislation of many countries (Germany,
France, Italy, Spain, etc.). In this variety
KO is the amount of capital to be deposited
depositors, is broken down into shares spreading
then among the contributors.
5. Features of the legal status
depositors in limited society
Legal status of participants with full answer
in KO is similar to the legal status of the participants
The software that was discussed in 2 of this chapter.
Features of the legal status of depositors in CR
are fixed in Art. 78 - 83 ZHO.
Investors can join the society only by
making cash or material contributions. Full
participants can also contribute of various kinds
intangible assets such as intellectual
property, various property rights. Before
from the moment of registration of the KO, depositors must make not
less than 25% of their contribution, to participants with full
no such requirement is imposed by responsibility.
Investors' rights differ significantly from
the usual volume of corporate rights of the participants of the HO. So,
depositors do not have the right to manage CR, but are endowed
the right of priority return of the deposit (before
participants with full responsibility) in case
liquidation of society. This is the position of depositors
resembles the status of holders of preferred shares in
JSC. Contributors can act on behalf of the limited
society only if there is an order and in accordance with it.
If the depositor enters into an agreement on behalf of and in
the interests of society without appropriate authority, then,
in case of approval of his actions by the KO, he, together with
participants are fully responsible for
agreement to creditors with all their property, on
which, in accordance with the law, can be
levied execution. If approval is not obtained,
the depositor is liable to third parties independently
with all your property. Thus, if participants with
represent the company in full responsibility
relations with third parties based on the provisions
ZHO and memorandum of association without a power of attorney that
allows them to be equated to KO bodies, then depositors can
act only as contractual representatives for
on the basis of a power of attorney issued by the company. but
consequences of actions of depositors without power of attorney
are not regulated by the norms of the Civil Code on representation, but
special norms of the ZHO (Article 82).
Investors are entitled to receive a portion of the profits
society commensurate with their contribution, but they do not
participate in resolving the issue of the procedure for distributing profits
CO. Full participants themselves determine the share of the profit,
to be distributed among all participants of the KO.
Contributors have the right to receive information about
activities of the company: annual reports and balances,
documents confirming the correctness of their preparation.
The sole obligation of contributors is
making basic and additional capital contributions
CO. Personal participation of contributors in the management and activities
society is not only not necessary, but in some
cases is prohibited.
Contributors other than those mentioned above
cases of actions on behalf of society without
powers of attorney, do not bear property responsibility for
obligations of KO.
More on the topic Chapter 10. Complete society and limited society:
- §1. The history of the formation of the joint-stock form of management in Mongolia
- Chapter 1. Corporations and corporate law: history and modernity
- Chapter 2. Business company as a corporate subject of entrepreneurial activity
- Chapter 4. Property and property rights in a business society
- Chapter 6. Organization of management and activities of a business company
- § 3. Founders (participants) as subsidiary debtors for the obligations of commercial organizations
- § 1.4. Development of modern Russian legislation and foreign experience in legal regulation of relations of economic subordination of legal entities
The concept of a limited company.
Limited societyis a business company in which one or several participants carry out entrepreneurial activities on behalf of the company and bear additional joint liability for its obligations with all their property, which, according to the law, can be foreclosed (full participants), and other participants are present in the company's activities only by their own contributions (contributors).
Characteristics of a limited company.
1. In a limited society there are full participants and
depositors.
Limited society combines the features of a complete society and society with limited liability... Actually, part 3 of Art. 133 of the Civil Code provides for the application of the relevant rules on a complete society in relation to a limited company. The similarity with a full company is indicated, in particular, by the presence of participants who carry out entrepreneurial activities on behalf of the company and bear responsibility for its obligations with all their property (full participants), and with a limited liability company - the presence of persons (investors) who are liable for the debts of a limited company only to the extent of their contributions. Moreover, according to Part 7 of Art. 80 HC, only persons registered as business entities can be full participants in a limited company.
2. In accordance with Art. 135 CC legal status of full
members of a limited partnership and their responsibility
on the obligations of the company, provisions are established
mi of the legislation on the participants of the full company.
Full participants, in particular, manage
activities of a limited company. In this case, the face
can be a full member only in one comm
childish society. Full member of a limited partnership
state cannot be a member of a complete society, and
a contributor to the same society.
With regard to the contributors of Art. 136 of the Civil Code provides for a ban on participation in the management of the activities of a limited company and does not allow objections from them regarding the actions of full participants in managing the activities of the company. Investors in a limited company may act on behalf of the company only by power of attorney.
In accordance with Art. 137 of the Civil Code, a limited company investor is obliged to make a contribution to the authorized capital. At the same time, the aggregate amount of deposits of depositors should not exceed 50% of the authorized capital of a limited company.
3. Limited company is created and operates on the basis of
notifying the memorandum of association that is signed
all full participants (article 134 of the Civil Code). Constituent
a limited partnership agreement may contain an obligation
The intentions of the participants to create a company, the procedure for their joint activities regarding its creation, the conditions for transferring the property of the participants to the company, as well as information on the size and composition of the authorized capital of the company, the amount and procedure for changing the shares of any of the full participants in the authorized capital, the total amount of deposits of contributors. If, as a result of withdrawal, expulsion or retirement in the limited company, there is only one full participant left, the memorandum of association shall be reissued into a single statement signed by the full participant. If a limited company is created by one full participant, then the constituent document is a sole statement (memorandum), which contains all the information provided for in Art. 134 of the Civil Code regarding the founding agreement of a limited company.
MINISTRY OF EDUCATION OF UKRAINE
KIEV NATIONAL ECONOMIC UNIVERSITY
CRIMEAN ECONOMIC INSTITUTE
at the rate " Financial activities business entities "
on the topic: "Peculiarities of the activity of command-dit societies."
Performed by a student of the Faculty of Finance and Accounting, specialty "Finance", group F-41-99
Levshuk Natalia
Simferopol 2003
A limited company is a company in which, together with one or more participants who carry out entrepreneurial activities on behalf of the company and bear responsibility for the obligations of the company with all their property, there are one or more participants whose liability is limited to the contribution to the property of the company ( depositors).
If two or more participants with full responsibility participate in a limited company, they are jointly and severally liable for the company's debts.
A limited society, as well as a complete one, according to its legal characteristics, can be attributed to personal associations. A feature of a limited society, which distinguishes it from a complete society, is the presence in it of two categories of participants differing in their legal status - full participants (complementaries) and contributors (limited partners). Full participants are entrusted with the duties of managing the company, conducting entrepreneurial activities on its behalf, they are responsible with all their property for the obligations of the company. The functions of depositors are limited to the provision of a certain capital to the company in exchange for participation in the company's profits.
A limited society appears in those cases when full participants are not able to form the capital necessary for the activities of the society by their own efforts. To accumulate such capital, investors are allowed into the company, but without the right to manage the company. The relationship between the company and the investors is not of a credit, but of an investment nature, which is more profitable for the company (investors do not interfere in its activities, capital income is paid to investors only if the company has profit, capital is invested in unlimited time).
For a limited society, the following legal signs are characteristic:
2) the authorized capital in a limited company is not formed, the contributions of the participants constitute the joint capital, the amount and procedure for the formation of which is determined by the participants themselves. At the same time, the aggregate share of contributors cannot be more than 50% of the capital of the company; by the time of registration of the limited company, each of the contributors must make at least 25% of their contribution;
3) the limited company does not have management bodies - in relations with third parties, the company is represented by its participants with full responsibility;
4) acts on the basis of the memorandum of association, the content of which is determined by Art. 76 of the Law "On Business Companies".
The Memorandum of Association is the only document on the basis of which a limited company is created and operates.
The memorandum of association is drawn up in writing, and if the participants include individuals, then their signature on the contract must be notarized.
The constituent agreement, in addition to the information specified in Art. 4 of the Law "On business companies"(Information about the type of company, the subject and purposes of its activity, name and location), must include information about:
1) the amount of the joint stock capital of the company;
2) the amount, composition and procedure for making contributions by each of the participants with full responsibility;
3) the size of the share of each of the participants with full responsibility (determined by the ratio of the size of the participant's contribution to the total amount of the contributed capital; the share can be expressed as a fractional number or as a percentage);
4) the aggregate amount of the contributors' shares in the capital of the company; the size, composition and procedure for making contributions by them;
5) the liability of participants for untimely making a contribution;
6) the form of participation of participants with full responsibility in the affairs of the company (the procedure for managing the activities of the company and conducting business on behalf of the company must be regulated);
7) subsidiary, joint and unlimited property liability of participants with full responsibility for the obligations of the company;
8) the rights, duties and responsibilities of depositors (taking into account the provisions of Articles 79 - 82 of the Law "On Business Companies");
9) the procedure for the distribution of profits or losses of the command company (this procedure is not determined by the current legislation) - according to general rule profit and loss are distributed among the participants in proportion to their shares in the joint capital; another order of distribution (based on equal distribution of profits / losses or taking into account the personal contribution of each participant to the activities of the company) may be provided for in the articles of association or a separate agreement of the participants; it is not allowed to remove any of the participants from participation in the distribution of profits or losses.
10) additional grounds for the termination of a limited company (subject to the requirements of Art. 83 of the Law "On Business Companies").
In many modern states, the principle of anonymity of the identity of depositors operates, which is the main incentive for their entry into society.
The legislation of Ukraine regulates this issue in a contradictory manner, which leads to the non-proliferation of a commandite society as a form of joint business activities. So, in the second part of Article 76 it is stipulated that in the constituent agreement on a limited company in relation to investors, only the aggregate size of their shares in the property of the company is indicated, as well as the size, composition and procedure for making contributions by them. Should this provision be understood as excluding the requirement of Art. 4 of the Law "On Business Companies" indicate in the constituent documents the composition of the company's participants, and if so, what document should confirm the participation of investors in the company? The current legislation does not yet contain the means to resolve these issues.
Abroad, legal relationships between participants with full responsibility and investors in a limited company are often formalized as follows. In the constituent agreement, only the aggregate size of the share of contributors in the capital of the company is determined, and information on the personal composition of contributors is not indicated. The foundation agreement is signed only by participants with full responsibility. In parallel with the memorandum of association, an agreement on participation in a limited company is concluded, which is signed both by participants with full responsibility and by investors. This agreement is not subject to state registration, is of a confidential nature and determines the personal composition of the limited company contributors, the size, composition and procedure for each of them making a contribution.
Another scheme may also be used, according to which an agreement on participation in a limited company is concluded by full participants with each investor separately. This approach facilitates the procedure for making changes to documents related to the movement of depositors (exit, entry, exclusion of the depositor, assignment of a share, legal succession and inheritance, etc.)
This approach is not the only one used to ensure the anonymity of depositors.In some countries, the memorandum of association is confidential, and an extract from this agreement is presented to public authorities and other interested parties, which does not contain information about the identity of depositors The principle of anonymity is also embodied in the existence of a joint stock company (limited company with shares), which is known to the legislation of many countries (Germany, France, Italy, Spain, etc.). In this variety of limited limited company, the amount of capital that is subject to contribution by contributors is divided into shares, which are then distributed among contributors.
A limited society is created and functions on the same principles as a complete one. Therefore, the legislator, instead of developing special rules governing the activities of a limited company, subordinates it to the rules that determine the legal status of a complete society (with some exceptions).
The norms contained in Articles 67-74 of the Law "On Business Companies" shall be applied taking into account the provisions contained in Articles 78-83 of this Law. The latter reflect the peculiarities of the legal position of depositors in a limited society. Based on this rule, Articles 69, 71, 72, 73 of the Law "On Business Societies" apply equally to both participants with full responsibility and to investors. Articles 68, 70, 74 do not apply to depositors (they are excluded by the provisions of Articles 79 - 82).
If there are several participants with full responsibility in a limited company, then they form a semblance of a complete society within a limited company, and their joint activities are governed by norms designed to be applied to the participants of a complete society.
The investor can enter into a limited company by means of making cash or material contributions.
This norm is
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3. Limited society
1. The main features of a limited company are: the presence of two categories of participants: full participants and investors; subsidiary liability of full participants for the obligations of the company with all their property, the presence of contributed capital, in which the fate of depositors cannot exceed fifty percent; the constituent agreement as the constituent document of the company, the absence of governing bodies; the obligation for full participants to participate in the management, business activities of the company; prohibition for investors to participate in the management of the company; an indication of the organizational and legal form and the names (names) of the full participants in the name of the company; certain restrictions for full participants in relation to membership in business companies, the presence of common features with a full company, the application to the limited provisions of the legislation governing the activities of general partnerships.
Thus, a limited company has many features in common with a full company, but at the same time differs from it primarily in that, in addition to full participants who have the same status as participants in a full partnership, it includes participants with a special legal status - depositors. The term “full participants” is an innovation in the Civil Code of Ukraine. Prior to the entry into force of the Civil Code in the new edition
the legislator used the term "participants with full responsibility", borrowed from the Law of Ukraine "On Business Companies", and in the legal literature the terms "complementary", "full comrades" and others were used. A limited partnership may include one or more full members and one or more contributors. The minimum number of participants in a limited partnership is two people, of whom one must be a full participant and the other a contributor. The maximum number of full members and investors of a limited partnership is not limited by law.
One of the main differences in the legal status of full participants and investors of a limited partnership is the extent of liability for the company's obligations. A full participant bears subsidiary liability for the company's obligations with all of its property (if the company includes two or more full participants, they are jointly and severally liable). Investors of a limited company are not liable for the obligations of the company, but bear the risk of losses associated with the activities of the company, within the amount of their contributions, with the exception of cases stipulated by law (Article 138 of the Civil Code).
The second significant difference between the legal status of full participants and contributors of a limited partnership is their participation in the management of the company. The management of the activities of a limited company is carried out only by full participants who carry out entrepreneurial activities on behalf of the partnership. Investors of a limited company do not have the right to participate in the management of the company (Article 136 of the Civil Code).
2. According to the general rule established by Art. 90 of the Civil Code of Ukraine, a legal entity must have its own name, which contains information about its organizational and legal form. That is, the name of a limited company must necessarily contain the words "limited company". This makes it possible to identify the specified legal entity as a business company created as a business company with the corresponding legal status.
According to Art. 133 of the Civil Code (part 2) in the name of a limited company, the names (names) of the full participants must be indicated.
The name of a limited company may look like this:
1) the words "limited company" and a list of names (titles) of all full participants;
2) the words "limited partnership", the name (name) of at least one full participant with the addition of the words "and company".
It should be noted that only the names (names) of the full participants, and not the contributors, should and may be included in the name of a limited company. The novelty of the Civil Code of Ukraine is the provision of the commented article, according to which if the name of the depositor is included in the name, such a depositor becomes a full participant in the company.
Other information may be included in the name of the limited company. In addition to its full name, a limited company may also have an abbreviated name. At the same time, the legislation does not establish the amount of information that should be contained in an abbreviated name.
3. The legal nature of a limited company has many features in common with a complete company. These both organizational and legal forms function according to the same principles (taking into account the peculiarities associated with the presence of contributors in the composition of the members of a limited partnership). In this regard, the legislator extended the provisions of the Civil Code on complete companies (Articles 119-132) to limited companies. The provisions of these articles apply to limited liability companies if
otherwise is not established by this Code or other law (see the commentary to these articles).
The use by the participants of relations in the sphere of management of such types of business entities as full and limited (also called trust companies or limited companies) happens quite rarely.
The reason for this is a higher degree of responsibility for the obligations of such companies for all participants in a general partnership and for full participants in a limited partnership, compared with the liability of shareholders in joint stock company and participants in limited and additional liability companies.
A complete society (like a limited society, which was already mentioned earlier) is created and operates on the basis of articles of association, which is signed by all participants. Memorandum of Association of a complete company, except general requirements of legislation to the content of constituent documents, must contain information on the size and procedure for changing the shares of each of the participants in the joint capital of the company, on the size, composition and procedure (including the term) of their contributions, as well as on the form of their participation in the affairs of the company (Article 120 Civil Code of Ukraine and Article 67 of the Law of Ukraine "On Business Societies").
The conduct of the affairs of a complete society can be carried out either by the general consent of all participants, or by one or more of them, who act on behalf of the society. In the latter case, the scope of powers of the participants is determined by the memorandum of association and the order, which must be signed by the rest of the participants.
The participants who were entrusted with the conduct of the partnership's affairs are obliged to provide other participants, upon their request, with complete information about the actions carried out on behalf and in the interests of the society. The participants of a full partnership shall not be entitled, on their own behalf and in their own interests, to conclude transactions that are homogeneous with the goals of the company, as well as to participate in any companies (except joint stock companies) that have a goal of activity similar to that of the full company.
According to Part 2 of Article 119 of the Civil Code of Ukraine, a person can be a member of only one full partnership. Such a restriction on participation in a complete society is quite reasonable, since the participants in the partnership are engaged in joint business activities and bear joint additional (subsidiary) liability for the obligations of the company with all their property.
This means that each participant is liable for the obligations of the company in addition to the property of the company with all of its property, which, in accordance with the legislation of Ukraine, can be foreclosed, regardless of the size of its contribution to the full company and the amount of contributions of other participants. A participant in a full partnership shall be liable for the debts of the company, regardless of whether they arose after or before his entry into the company. A participant who has fully paid the debts of the company has the right to apply with a recourse claim to the rest of the participants, who are liable to him in proportion to their shares in the property of the company.
A participant in a full company, which was created for an indefinite period, can leave the company at any time, notifying the other participants about this no later than 3 months in advance. The withdrawal of a participant from a full society, created for a certain period, is allowed only if there are good reasons (moving to a permanent place of residence in another region or state, conscription for military service, etc.), provided that a warning about this was received no later than in 6 months.
The transfer by a participant of a full company of his share (its part) to other participants of such a company or to third parties can be carried out ?? only with the consent of all participants. At the same time, along with the transfer of a share (its part) to a third party, a simultaneous transfer of the entire set of rights and obligations that belonged to a participant who left the company, or one that ceded part of his share is carried out.
The peculiarities of the legal status of the partnership should also include the absence of instructions in the current legislation of Ukraine on the compulsory formation of the constituted capital and on its minimum size, which is explained by solidarity the liability of the participants in a full partnership for the obligations of the partnership with all their property... The name of a complete company must contain the names (names) of the participants (Article 2 of the Law of Ukraine "On Business Companies").
A limited company is a kind of hybrid and combines the characteristics of a complete company from which it historically arose and a limited liability company. Therefore, for some participants in such a company (full participants), the main elements of the partnership are, since such full participants carry out entrepreneurial activities on behalf of the company and bear additional joint and several liability for its obligations with all their property, which can be foreclosed in accordance with the law, and for other participants (investors) - the main elements of the LLC are, since they do not take part in the management of affairs and are present in the activities of the company only by their contributions, and their liability for the obligations of the company is limited by the value of the contribution.
The legal status of a limited company is determined by the norms of Part 6 of Art. 80 of the Civil Code of Ukraine, Art. 133-139 of the Civil Code of Ukraine and Art. 67-74 of the Law "On Business Companies" (regulating the creation and operation of complete companies, including requirements regarding the name of the company, on the procedure creation and liquidation, no requirements for the minimum authorized capital society, etc.) Taking into account the specifics provided for in Articles 78-83 of the same Law (belonging directly to limited partners). Founding agreement of a limited company, in addition to general requirements for the constituent documents of business entities (Article 4 of the Law "On Business Companies" and Article 88 of the Civil Code of Ukraine), as well as requirements for the founding agreement of a full partnership (Article 67 of the Law of Ukraine "On Business Companies" and Article 120 Civil Code of Ukraine), must contain information on the aggregate size of the shares of investors in the property of the company, as well as on the size, composition and procedure for making contributions by them.
Legal status of full participants in a limited companyis similar to the above-described legal status of the participants in the partnership (part and article 135 of the Civil Code of Ukraine). Therefore, it seems appropriate to dwell on the features of participation depositors in a limited society.
Investors can join a limited company by making cash or material (property) contributions.
Investors can act on behalf of the limited company only if they have a power of attorney. Instead, they have the right to demand a priority return of the deposit (as opposed to full participants) in the event of a liquidation of the company, to demand that they be provided with annual reports and balances for verification.
The aggregate size of the shares of the contributors must not exceed 50% of the value of the authorized capital of the company specified in the memorandum of association. At the time of registration of a limited company, each of the contributors must make at least 25% of their contribution.
Management of the affairs of a limited companycarried out by full participants only. If there is only one full participant in a limited company, then the management of the affairs of the company is carried out by this participant independently.
In addition to the general grounds for the termination of the activities of business entities (provided for by Article 91 of the Civil Code of Ukraine, Article 104 of the Civil Code of Ukraine and Article 19 of the Law of Ukraine "On Business Companies"), the limited company is also terminated in the event of the retirement of all full participants. In the event of the retirement of all investors, full participants have the right, instead of liquidating the limited company, to reorganize it into a general partnership.
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