What are the characteristics of a limited liability company. The concept and signs of ooo. Explicit advantages of LLC

Society with limited liability(LLC) is a company founded by one or more persons who are not liable for the company's obligations and bear the risk of losses associated with its activities, within the value of their contributions (Article 87 of the Civil Code of the Russian Federation).

The legal status of an LLC is determined by the Civil Code of the Russian Federation and the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies".

As follows from the definition, the participants of the LLC are not liable for the obligations of the company, which is not entirely true. So, the provisions of clause 3 of Art. 56 of the Civil Code of the Russian Federation, according to which if the insolvency (bankruptcy) of a legal entity is caused by the founders (participants), the owner of the property of the legal entity or other persons who have the right to give instructions binding on this legal entity or otherwise have the ability to determine its actions, on such persons in case of insufficient property of a legal entity may be entrusted with subsidiary liability for its obligations. It should also be borne in mind and paragraph 1. Art. 87 of the Civil Code of the Russian Federation, which establishes joint liability (within the unpaid part) for the obligations of the company for participants who have not made their contributions in full.

An LLC can only be created by one person. They can be both citizens and legal entities. The only limitation is that society is prohibited from having as sole founder other economical society, also consisting of one person (clause 2 of article 88 of the Civil Code of the Russian Federation). The maximum number of participants is 50 (clause 3 of article 7 of the Federal Law "On limited liability companies").

If a company is created by several persons, its constituent documents are the charter and memorandum of association(Article 89 of the Civil Code of the Russian Federation); if by one person - only the charter.

One of necessary conditions the creation of an LLC is the presence of the authorized capital. The authorized capital determines the minimum size of the company's property and, therefore, guarantees the interests of its creditors. Therefore, the legislation establishes the minimum size of the authorized capital: 100 minimum wages (minimum wages) on the day the constituent documents are submitted to the registering authorities. For some types of LLCs engaged in certain types of activities (banks, insurance organizations), the law establishes other sizes of the minimum authorized capital.

When registering authorized capital must be paid at least half, the rest must be paid by participants during the first year of activity. It is not allowed to release the founder of the company from the obligation to make a contribution to the charter capital of the company, including by offsetting his claims against the company, except in cases provided for by law.

An increase in the authorized capital of a company is allowed only after its full payment. It can be carried out at the expense of the property of the company, and (or) at the expense of additional contributions of the members of the company, and (or), if it is not prohibited by the charter of the company, at the expense of contributions of third parties accepted into the company. The authorized capital can be increased only after its full payment (clause 6 of article 90 of the Civil Code of the Russian Federation).

A decrease in the authorized capital of a company can be carried out by reducing the nominal value of the shares of all members of the company in the authorized capital of the company and (or) canceling the shares owned by the company (Article 20. of the Federal Law "On Limited Liability Companies"). A decrease in the authorized capital of a company by reducing the par value of the shares of all members of the company must be carried out while maintaining the size of the shares of all members of the company.

The company does not have the right to reduce its charter capital if, as a result of such a decrease, its size becomes less than the minimum size of the charter capital determined as of the date of submission of documents for state registration corresponding changes in the charter of the company.

The law establishes two grounds for the compulsory reduction of the authorized capital:

In case of incomplete payment of the authorized capital of the company within a year from the date of its state registration. In this case, the authorized capital is reduced to its actually paid amount;

If at the end of the second and each subsequent financial year, the value net assets society will be less than its authorized capital. In this case, the authorized capital is reduced to a size that does not exceed the value of its net assets.

Within thirty days from the date of the decision to reduce its charter capital, the company is obliged to notify in writing of the decrease in the charter capital of the company and its new size to all creditors of the company known to it, and also to publish in the press, which publishes data on the state registration of legal entities, message about the decision... State registration of a decrease in the authorized capital of a company is carried out only upon presentation of evidence of notification of creditors in the manner prescribed by law.

The supreme body of an LLC is the general meeting of its members. His competence, as well as the procedure for making decisions, is determined by paragraph 3 of Art. 91 of the Civil Code of the Russian Federation, the law on limited liability companies and the charter of the company. Each participant has at the general meeting the number of votes proportional to his share in the authorized capital.

In accordance with the provisions of the Civil Code of the Russian Federation, an executive body (collegial and (or) sole) is created in an LLC, which carries out the current management of its activities and is accountable to the general meeting of its participants.

To control the financial and economic activities in the company, there may be an auditor or an auditing commission (their appointment belongs to the exclusive competence general meeting). But, in addition, the company has the right to engage a professional auditor annually to check and confirm the correctness of the annual financial statements... Such a check can be carried out by decision of the general meeting or at the request of any member of the company.

A member of the company has the right to leave the company at any time, regardless of the consent of the other participants (Article 94 of the Civil Code of the Russian Federation). Upon exit, he is paid a part of the property of the company, corresponding to his share in the authorized capital. The procedure, timing and methods of making payments are provided in the law on limited liability companies.

Also, the participants have the right to transfer their share (part of it) to another person (Article 93 of the Civil Code of the Russian Federation). The possibility of selling or assigning one's share in any other way to the rest of the members of the company is not limited by law. It is a different matter if a person wants to cede a share to non-participants. The charter of an LLC may prohibit the alienation by a participant of his share to third parties. If such a prohibition is not contained in the charter, then the alienation of shares can be carried out not only within the company, but also outside of it to third parties. However, in this case, the other members of the company have the preemptive right to purchase the participant's share (or part thereof).

Limited Liability Company (LLC)- a legal entity founded by one or more persons, the authorized capital of which is divided into certain shares (the size of which is established by the constituent documents). The LLC participants bear the risk of losses only within the limits of the value of their contributions. After making significant changes to the legislation on limited liability companies, from July 1, 2009, the only constituent document of the company is its charter, which indicates the size of the authorized capital, the address and name of the company, the procedure for the transfer of shares and others. prerequisite... At the present time, the sale of a share in the authorized capital of the company, if the charter already lacks information about the participants and their shares, does not entail the need to register changes in the charter of the company.

Number of LLC members

One to fifty. Participants can be capable Russian and Foreign citizens(as well as stateless persons) and legal entities.

In the case when one person acts as a participant in an LLC, then the activities of this LLC are fully controlled by this person. If there are several participants in the LLC, then some disagreements may arise. This is due to the fact that the supreme governing body is the general meeting of participants. Only it can make decisions on a number of issues related to the exclusive competence of the general meeting of LLC participants. And, as you know, how many participants, so many opinions can be (this, of course, will not happen if there is one participant in the LLC).

The current management of the LLC is carried out by an executive body (collegial or sole). Sole executive body society in practice is most often the General Director. As a rule, in companies with one participant, this same participant is the General Director of the company (the sole executive body).

Authorized capital of LLC

The authorized capital of the company is made up of the par value of the shares of its participants. The size of the share of a company participant in the charter capital of the company is determined as a percentage or as a fraction. The size of the share of a participant in the company must correspond to the ratio of the par value of his share and the authorized capital of the company.

The minimum size of the authorized capital of an LLC established current legislation, is 10,000 (ten thousand) rubles. The authorized capital can be contributed both in cash (opening a savings account to pay for the authorized capital in a bank), and property, property rights, or other rights that have a monetary value. When making a non-monetary contribution in the amount of more than 20,000 (twenty thousand) rubles, an opinion of an independent appraiser is required.

The purpose of establishing LLC

A limited liability company is created for the purpose of making a profit and can engage in any activity, except for those prohibited by law. At the same time, for certain types of activities, it is necessary to obtain a special permit (license). The term of activity is not limited, unless otherwise established by the Charter of the Company.

Governing bodies of LLC

The supreme governing body in an LLC is the General Meeting of Members of the Company. The exclusive competence of the General Meeting is established by the Law (Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies"). The general meeting of participants has the right to resolve any other issues if they are referred to the competence of the meeting by the charter of the Company.

Management current activities of the company is carried out by the sole executive body of the company (for example, the General Director) or the sole executive body of the company and the collegial executive body of the company (for example, the director and the management or the board). The executive bodies of the company are accountable to the general meeting of members of the company and the board of directors (supervisory board) of the company.

The charter of the company may provide for the formation of the board of directors ( supervisory board) society. The competence of the board of directors (supervisory board) of the company is determined by the charter of the company in accordance with the federal law "On limited liability companies".

The charter of the company may provide for the formation of an audit commission (election of an auditor) of the company. In companies with more than fifteen members, the formation of an audit commission (election of an auditor) of the company is mandatory. A member of the auditing commission (auditor) of a company may also be a person who is not a member of the company.

Responsibility of LLC

The company is responsible for its obligations with all property belonging to it. The company is not responsible for the obligations of its members, the members of the company are not responsible for its obligations and bear the risk of losses associated with the activities of the company, within the value of their contributions. The members of the company who have made contributions to the charter capital of the company not in full are jointly and severally liable for its obligations within the value of the unpaid part of the contribution of each of the members of the company.

In the event of the insolvency (bankruptcy) of the company through the fault of its participants or through the fault of other persons who have the right to give instructions binding on the company or otherwise have the opportunity to determine its actions, subsidiary liability may be imposed on these participants or other persons in the event of insufficiency of the company's property according to his obligations.

Constituent documents of LLC

The constituent documents of the Limited Liability Company, starting from July 01, 2009, are only the Charter of the Company. The earlier concluded constituent agreements are no longer constituent documents.

In addition, at present, when establishing a new Limited Liability Company, its founders sign the Agreement on the establishment of the company, which is not a constituent document of the company, but only determines the procedure for the founders' actions, their rights and obligations when creating a company. The Articles of Association of the company must indicate:

• full and abbreviated company name of the company;
• information about the location of the company;
• information on the composition and competence of the bodies of the company, including on issues that are the exclusive competence of the general meeting of the company's participants, on the procedure for making decisions by the bodies of the company, including on issues on which decisions are taken unanimously or by a qualified majority of votes;
• information on the size of the authorized capital of the company;
• the rights and obligations of the members of the company;
• information on the procedure and consequences of the withdrawal of a participant in the company from the company (if the right to withdraw a participant from the company is provided for by the charter);
• information on the procedure for the transfer of a share (part of a share) in the authorized capital of the company to another person;
• information on the procedure for keeping the company's documents and on the procedure for providing information by the company to members of the company and other persons.

LLC transformation

An LLC must be transformed into an OJSC or a production cooperative within a year, if the number of participants exceeds fifty. In other cases, the transformation, as one of the forms of reorganization, is voluntary.

Rights and obligations of LLC participants

An LLC participant has the right:

• participate in the management of the affairs of the company in the manner prescribed by the Law and the constituent documents of the company;
• receive information about the activities of the company and get acquainted with its accounting books and other documentation in accordance with the procedure established by its constituent documents;
• take part in the distribution of profits;
• sell or otherwise cede his share in the authorized capital of the company or part of it to one or several members of this company in the manner prescribed by the Law and the charter of the company;
• leave the company at any time, regardless of the consent of its other participants;
• to receive, in the event of liquidation of the company, a part of the property remaining after settlements with creditors, or its value. The charter of an LLC may provide for other rights (additional rights) belonging to a member of the company.

The LLC participant is obliged:

• to make contributions in the manner, in the amount, in the composition and in the terms provided for by the Law and the constituent documents of the company;
• do not divulge confidential information about the activities of the company.

The charter of an LLC may also provide for other obligations assigned to a member of the company.

The procedure for distribution of profits in LLC

The company has the right to make a decision on the distribution of its net profit among the members of the company on a quarterly, once every six months or once a year. The decision on determining the part of the company's profits to be distributed among the company's participants is taken by the general meeting of the company's participants.

The part of the company's profits intended for distribution among its participants is distributed in proportion to their shares in the authorized capital of the company.

The charter of the company at its foundation or by introducing amendments to the charter of the company by decision of the general meeting of the company's participants unanimously adopted by all participants in the company may establish a different procedure for the distribution of profits among the participants in the company. Changes and exclusion of the provisions of the charter of the company, establishing such a procedure, are carried out by a decision of the general meeting of the company's participants, adopted by all participants in the company unanimously.

Features of LLC

Limited Liability Company is the most common form of business entrepreneurial activity v Russian Federation, including in St. Petersburg. With relatively low costs for its creation, and relatively simple reporting - this organizational and legal form is one of the most attractive forms of doing business.

Limited liability company- is a business company, founded by one or more persons, the authorized capital of which is divided into shares of the size determined by the constituent documents.

The division of the authorized capital into shares does not make the property of the company the common share property of the participants, but serves only to determine the size of the participation of each of them in the management of the affairs of the company, profits and the liquidation quota. A limited liability company is responsible for its obligations with all property belonging to it and is not responsible for the obligations of its members. The members of the society are not liable for the debts of the society with their personal property. They bear only the risk of losses associated with the company's activities, within the value of their shares in the authorized capital of the company. The members of the company who have not paid for their shares in full are jointly and severally liable for its obligations with personal property, but only within the value of the unpaid part of their shares in the authorized capital of the company (Article 2 of the Law on LLC).

A limited liability company is the most widespread organizational and legal form of entrepreneurial activity in Russia. According to the Federal Tax Service, the number of commercial organizations operating as of March 1, 2013 was 3.9 million, of which 92.3% were limited liability companies and 4.4% were joint stock companies, 3.3% were other organizational and legal forms of commercial organizations * (358).

What are the circumstances that turn an LLC into the most attractive type of commercial organization for doing business? First of all, these are:

No need to issue and place shares;

Possibility to increase the authorized capital rather quickly (though at the expense of the "internal reserves" of the participants);

A high degree of confidentiality of doing business due to the lack of the need to disclose information about its activities;

The established restriction on the entry of unauthorized persons into the membership, provided by the need to indicate in the charter of the possibility of transferring the participation share to third parties, which protects the company from unauthorized change of participants;

The possibility of exclusion from the company of a participant who makes it impossible or significantly hinders the activities of the company;

A simpler management procedure, including the possibility of a more flexible choice of the management model and the competence of the bodies of society;

Significantly greater than in relation to AO, the degree of discretion legal regulation, which provides a limited liability company with a significant degree of discretion in the organization of internal life.

The only constituent document of a limited liability company is its charter. An agreement on the foundation of a company is not a constituent document.

Russian traditions in the field of legislation on business entities have no legal history. Only with the beginning of the reforms did the situation change. In 1985 N.N. Voznesenskaya wrote about limited liability companies as possible forms of joint ventures. Currently, the norms on business entities are contained in the Civil Code of the Russian Federation.

Legal regulation of the creation, management and liquidation of a limited liability company (hereinafter referred to as LLC) is carried out on the basis of Articles 87 - 94 of the Civil Code of the Russian Federation, Federal Law of February 08, 1998 No. No. 14-FZ "On Limited Liability Companies" (hereinafter referred to as the Law on LLC), as well as Federal Laws that amended the named legal acts.

Within the meaning of paragraph 1 of Article 87 of the Civil Code of the Russian Federation, a limited liability company is a company founded by one or several persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; members of a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their contributions. Members of the company who have not fully paid for the shares are jointly and severally liable for the obligations of the company within the value of the unpaid part of the share of each of the participants.

After analyzing general provisions on legal entities and Article 87 of the Civil Code of the Russian Federation, the following characteristics of a limited liability company as an organizational and legal form of a commercial organization can be established:

• 1) this commercial organization, the main purpose of which is to make a profit. Since a commercial organization is one of the types of legal entities, a limited liability company has all the characteristics of a legal entity. Consequently, it owns a separate property, recorded on its independent balance sheet, can, on its own behalf, acquire and exercise property and personal non-property rights, bear obligations, be a plaintiff and a defendant in court;
• 2) the authorized capital of a limited liability company is divided into shares, the sizes of which are indicated in the list of participants in the LLC;
• 3) members of a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their contributions.

A limited liability company belongs to the capital pooling model. Members of a limited liability company are not obliged to cooperate with the company themselves (for example, to work, to be in labor relations or conclude a work contract), they can only combine property.

The definition of LLC is more specific in the Law on LLC. It is recognized as a business company created by one or more persons, the authorized capital of which is divided into shares; members of the company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their shares in the authorized capital of the company. Members of the company who have not fully paid for their shares are jointly and severally liable for the obligations of the company within the value of the unpaid part of their shares in the authorized capital of the company. (Article 2 of the Law).

An LLC has all the main features of a legal entity, namely:

• 1. Organizational unity, including at least three elements:
  • a) the presence of a system of essential social relationships through which individual subjects are united into a single whole;
  • b) availability a specific purpose education;
  • c) the presence of internal structure and functional differentiation.
• 2. Possession of detached property transferred as contributions to the authorized capital, as well as created or acquired by the company for legal grounds in the process of activity. The number and value of objects of property rights of citizens and legal entities is not subject to limitation, unless such limitation is caused by the goals of protecting the foundations of the constitutional order, morality, health, rights and legitimate interests other persons, ensuring the country's defense and state security (paragraph 2, clause 2, article 1 of the Civil Code of the Russian Federation). Separate types activities, the list of which is determined federal laws, the company can be engaged only on the basis of a special permit (license) (part 3, paragraph 2, article 2 of the Law on LLC).
• 3. Substantive feature: independent property responsibility. The company is independently responsible for its obligations, its property liability is not related to property liability its participants. The members of the company bear the risk of losses that they may incur in connection with the activities of the company, only within the limits of their contributions to its authorized capital. The property of the participants is separated from the property of the company, and in case of unprofitable activities the company risks only within the limits of the value of the contributions made by them.

A limited liability company is liable for its obligations with all property belonging to it (part 1 of article 3 of the LLC Law). The Company is not responsible for the obligations of its investors. By general rule members of the company 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 their contributions. However from the above general rule The law provides for two exceptions. First, the members of the company who have not fully made contributions to the authorized capital are jointly and severally liable for the obligations of the company within the value of the unpaid part of the contributions of each member of the company (part 1 of article 2 of the Law on LLC). This provision means that all contributors who have not fully paid the share act as joint debtors (Articles 322-325 of the Civil Code of the Russian Federation) in relation to the entire unpaid part of the share value. Secondly, if the insolvency (bankruptcy) of the company through the fault of its participants or through the fault of other persons who have the right to give mandatory instructions or otherwise have the ability to determine its actions, the said participants or other persons, in the event of insufficiency of the company's property, may be entrusted with subsidiary responsibility for his obligations (part 3 of article 3 of the Law on LLC).

• 4. Procedural and legal sign - the ability to be a plaintiff and a defendant in the courts. According to the legislation, LLCs can not only act in courts as business entities to fulfill obligations, purchase products, works, services, etc., but also go to court with claims against members of the board of directors (supervisory board), collegial executive body (board, directorate) , as well as to the sole executive body ( to CEO, director), the manager of the organization or the manager on compensation for losses caused to the society by their guilty actions (inaction), unless other grounds and amount of responsibility are established by federal laws (Article 44 of the Law on LLC).
• 5. The most important characteristic limited liability companies and its advantage is the potential for the development of property relations. All legal entities are private owners of their property. In accordance with paragraph 1 of Art. 213 of the Civil Code of the Russian Federation, any property may be owned by legal entities, with the exception of certain types of property, which, in accordance with the law, cannot belong to citizens and legal entities.

A limited liability company can be established by one person or several persons. The founders of a society can be citizens, as well as legal entities.

• 6. An important feature is the fact that by its nature it is a closed economic society, ie. assumes a stable membership. Therefore, the Civil Code of the Russian Federation and the Law on LLC regulate in detail the procedures for excluding a member of the company from the company, his voluntary withdrawal from the membership, transfer or alienation of the participant's share, and the admission of third parties to the membership of the company.
• 7. The authorized capital of the company is made up of the par value of the shares of its participants. The size of the authorized capital cannot be less than the amount determined by the law on limited liability companies, currently this amount is 10,000 rubles. The size of the share of a company participant in the charter capital of the company is determined as a percentage or as a fraction. The size of the share of a participant in the company must correspond to the ratio of the par value of his share and the authorized capital of the company. It is not allowed to release a participant in a limited liability company from the obligation to make a contribution to the charter capital of the company, including by offsetting claims against the company. The charter of the company may limit the maximum size of the share of a participant in the company. The charter may restrict the possibility of changing the ratio of the shares of the company's participants. Such restrictions cannot be established in relation to individual members of the company.
• 8. A limited liability company, being a complex form of organizing entrepreneurship, knowingly does not require ordinary investors to participate in the affairs of the company, also presupposes a certain system of managing it - the presence of governing bodies, regulatory bodies, etc.

The expression of the common will of the members of the company is the general meeting of its members, which the law calls the supreme body of the company. For the current management of the activities of the LLC, an executive body is created, accountable to the general meeting of the company's participants. The executive body can be sole (director, manager, etc.) or collegial (directorate, board, etc.). The sole governing body of the company may also be elected not from among its members. Such a scheme for managing the interests of all participants and each separately with the interests of the limited liability company as a whole.

The company is not obliged to publish reports of its activities, except for the cases provided for by the Federal Law "On Limited Liability Companies", other federal laws. One of the cases when the obligation of public reporting is provided for a limited liability company is specified in paragraph 2 of Art. 49 of the LLC Law - if the company publicly places bonds and other emission securities society is obliged to publish annually annual reports and balance sheets, as well as disclose other information about its activities, provided for by federal laws and regulations adopted in accordance with them.

The reorganization of a limited liability company is carried out in accordance with the requirements of the civil legislation of the Russian Federation.

The reorganization of the company can be carried out in the form of a merger, acquisition, division, separation and transformation (clause 2 of Article 51 of the Federal Law on LLC).

The company has the right to transform itself into a business company of another type, business partnership or production cooperative. The general meeting of participants in a company reorganized in the form of reorganization makes a decision on such reorganization, on the procedure and conditions for the reorganization, on the procedure for exchanging the shares of the company's participants for shares. joint stock company, shares of participants in a company with additional liability, shares or contributions to the pooled capital of a business partnership or shares of members production cooperative, on the approval of the charter of the legal entity created as a result of the transformation, as well as on the approval of the deed of transfer.

Liquidation of a limited liability company is carried out in accordance with Art. 61-65 of the Civil Code of the Russian Federation. The Company may be liquidated voluntarily in the manner prescribed by the Civil Code of the Russian Federation, as well as by a court decision on the grounds provided for by the Civil Code of the Russian Federation.

The liquidation of a company entails its termination without the transfer of rights and obligations by way of succession to other persons. In addition to the Civil Code of the Russian Federation and the Law on LLC, the procedure for liquidating an LLC is also regulated by:

• - Chapter VII of the Federal Law of August 8, 2001 No. 129-FZ "On state registration of legal entities and individual entrepreneurs";
• - Federal Law of October 26, 2002 No. 127-FZ "On Insolvency";
• - Decree of the Government of the Russian Federation of June 19, 2002 No. 439 "On the approval of forms and requirements for the execution of documents used for state registration of legal entities, as well as individuals as individual entrepreneurs ";
• - By order of the Federal Tax Service of November 01, 2004. No. SAE-3-09 / 16 "On methodological explanations for filling out the forms of documents used for state registration of a legal entity and an individual entrepreneur";
• - Letter of the Federal Tax Service dated May 27, 2005 No. ЧД-6-09 / 439 "On state registration in connection with the liquidation of legal entities", etc. Official website of the Federal Tax Service of Russia // www.nalog.ru.

Federal Law No. 312-FZ of December 30, 2008 introduced a number of amendments to legislative acts regulating the activities of LLC. However, the legal norms governing the procedure for the liquidation of an LLC have not undergone any changes.

In our opinion, the listed features of a limited liability company favorably distinguish it from other organizational and legal forms of commercial legal entities, at the same time they have some negative points... The limited liability of the members of the company may at the same time affect the possibility of providing large loans. The detachment of the participants from the immediate economic activity companies and the inability to communicate with each other make it difficult for them to control the activities of the company and thereby timely identify the harmfulness of certain decisions made by the executive body of the company or the board of directors.

These are the main features of limited liability companies in the Russian Federation.

In paragraph 1 of Art. 2 of the Law on Companies, a definition of a Limited Liability Company is given, which coincides with that contained in paragraph 1 of Art. 81 GK. It indicates the main features of a Limited Liability Company. At the same time, a number of provisions supplementing the legal characteristics of an LLC are contained in other norms of the Civil Code and the Law on LLC. The Company possesses a number of characteristics that make it possible to establish its place among other economic Partnerships and Companies.

First, an LLC, like all business partnerships and companies, is a legal entity. The signs contained in the legal definition of a legal entity (Article 48 of the Civil Code of the Russian Federation) - organizational unity, the existence of property rights to property, independent responsibility, acting in circulation, on its own behalf, procedural personality, imply different concretization for different forms of a legal entity. The only point common to all legal entities is the ability to speak outside on their own behalf. The very concept of "organizational and legal form" of a legal entity indicates that the characterization of a subject as a legal entity means only recognition of it as a subject of civil law, since the content of the features included in the legal definition of a legal entity is not the same for all organizational and legal forms ...

The society is a commercial organization, that is, it is created by the participants to achieve the goal: making a profit and distributing it among the participants.

Secondly, the lack of responsibility of the members of the Company for the obligations of the LLC. The very name "limited liability company" is not entirely accurate. The Company bears full responsibility for its obligations with all property belonging to it 4, and the participants do not bear any responsibility for the obligations of the Company, except as provided by law.

Under Russian law, the members of the Company are not liable for its obligations. For all legal entities, this rule is formulated in clause 3 of Art. 56 of the Civil Code of the Russian Federation, according to which a participant in a legal entity is liable for the obligations of the latter only in cases provided for by the Civil Code of the Russian Federation or constituent documents.

However, there are exceptions from the principle of the absence of responsibility of the members of the Company for the obligations of the latter, due to the requirements for the condition of the property of the Company or the fact of economic dependence on another entity, with formal legal independence.

1. Members of the Company who have not made their contributions in full are jointly and severally liable for its obligations within the value of the unpaid part of the contribution of each of the participants (clause 1 of article 87 of the Civil Code of the Russian Federation; clause 1 of article 2 of the Law on Companies). This provision is mandatory and cannot be changed by agreement of the parties. The subjects of responsibility are all participants who have not fully made the contributions provided for by the constituent documents. Liability in this case is understood as unfavorable property consequences in the form of deprivation of the right or the imposition of an additional obligation. Therefore, in this case, we are dealing precisely with responsibility, since the participant is forced not to fulfill his contractual obligation - to make a contribution, but to reimburse part of the claims of the Company's creditor with that part of his personal property that corresponds to the value of the unpaid part of the contribution 5.

Members are responsible to the creditors of the Society, not to the community. At the same time, the company itself has the right to demand from the participant to fulfill his obligation - to make a contribution on time, in the prescribed manner and in the form in which it is provided for in the memorandum of association.

2. In accordance with paragraph 3. Art. 56 of the Civil Code of the Russian Federation and clause 3 of Art. 3 of the Law on Companies, if the insolvency of a legal entity is caused by its participants or other persons who have the right to give instructions binding on this legal entity or otherwise have the ability to determine its actions, such persons, in the event of insufficient property of the legal entity, may be entrusted with subsidiary responsibility for his obligations. The meaning of the norm consists in a certain compensation to creditors in the event that the obligations are accepted on behalf of the Company, but the participant or other persons had the opportunity to give binding instructions or determine the actions of the legal entity. To impose subsidiary liability, the following conditions are required:

insolvency (bankruptcy) of the Company established by a court decision;

the use by the participant or other persons of the right to give instructions binding on the Company or the use of the opportunity to determine the actions of the Company;

the fact that the reason for the insolvency of the Company was precisely the use of this right (opportunity);

insufficiency of the Company's property to meet the claims of creditors;

the guilt of these persons in any form.

The legal basis for the ability to determine the actions of the Company is participation in the capital, providing a majority of votes in comparison with other participants, or the existence of an agreement on the binding of instructions and the use of this opportunity.

3. In accordance with paragraph 2 of Art. 105 of the Civil Code of the Russian Federation and clause 3 of Art. 6 of the Law on Companies, the parent company, which has the right to give instructions to the subsidiary company that are binding on it, shall be jointly and severally liable with the subsidiary under the transactions concluded by the latter in pursuance of such instructions.

4. In the event that non-monetary contributions are made to the charter capital of the Company, the members of the Company and an independent appraiser, within three years from the date of state registration of the Company or the corresponding changes in the charter of the Company, jointly and severally bear subsidiary liability for its obligations in the amount of the overstatement of the value of non-monetary contributions in the event of insufficiency of the Company's property (Clause 2, Article 15 of the Law on Societies).

Thirdly, a limited liability company is an organization that brings together the property of the participants. Therefore, of course, one should turn to the question of the peculiarities of the authorized capital, that is, property. The presence of property ensures the property isolation of the company from its participants and independent responsibility. The company already at its inception must have a certain authorized capital, the amount of which is indicated in the constituent documents.

The company, like other business partnerships and companies, has separate property transferred by the participants and received in the process of activity, and recorded on an independent balance sheet (clause 2, article 2 of the Law on Companies). An independent balance sheet reflects all property rights and obligations, receipts and costs. The independent balance sheet includes the property of branches, representative offices and separate subdivisions.

Fourthly, the authorized capital of the company is divided into a certain number of parts (shares). The shares can be equal or unequal. By payment or the obligation to pay these shares in a certain amount, the right of membership in the society is acquired. The authorized capital itself consists of a set of contributions from participants.

A participant who has made a contribution loses any property rights to the contributed property, acquiring rights of claim against society. The size of a participant's share determines the size (scope) of the participant's legal obligations to the company. But besides the rights, the share also determines the amount of the participant's obligation to society. Thus, a share of participation is a set of rights and obligations in a certain amount of each participant in relations with society, that is, in a broad sense, a share is a complex of legal rights and obligations; in a narrow sense - the share of the participant in the property of the company 6. The meaning of the allocation of shares consists in the exercise by the participant of his rights to management, part of the profit, liquidation quota, obtaining the actual value of the share, as well as obligations to make a contribution in the amount determined by the size of the owned share in the capital. A share of participation in the form of a set of rights is a kind of counter-representation, an equivalent presented in an obligation in exchange for the participant's contribution.

The share of participation in the company is not expressed in a security or other document. a limited liability company is not entitled to issue shares (clause 7 of article 66 of the Civil Code). There may be documents that only prove the existence of a share and its size, and the transfer of such a document would not mean the transfer of a share of participation.

Fifthly, the presence of obligations between the participants in the society. Internal relations in a society consist of the relations of the participants among themselves and of the participants with the society. The fact of the existence of a memorandum of association signed by the participants implies the existence of the rights and obligations of the participants in relation to each other for the entire period of the society's functioning. The rights and obligations of the participants are of a continuing nature, and the memorandum of association does not terminate from the moment of registration of the company.

A limited liability company, although it is based on the pooling of capitals (like any business company) and does not provide for the mandatory participation of the persons creating it in the production, economic, commercial activities of the company, implies, at the same time, the establishment of closer corporate and economic ties between by its participants and society, than, say, in a joint stock company, which is manifested in: a special procedure for joining a limited liability company; restrictions on the admission of new persons to its membership allowed by the Law; the possibility of redemption by the company of the share belonging to the participant; the right of a participant to leave the company with payment to him of the actual value of his share and a number of other peculiarities characteristic of these structures. At the same time, limited liability companies are quite close to closed joint stock companies.

These relations arise on the basis of a civil law contract, which is a memorandum of association, bind certain persons and have as their content the obligation to perform active actions, that is, these are typical legal obligations.

Sixth, the internal structure of society implies the need for governing bodies, the actions of which are the actions of the society itself. The totality of all participants forms only the supreme body of the company, limited in its actions by the conditions contained in the constituent documents.

A company, like a joint-stock company, is a form of a commercial organization, where the presence of the status of a participant does not mean the obligation and necessity of its participation in the management of the company. Persons who are not members of the company can act as the executive body of the company, and the functions of the sole executive body can be transferred to the manager of a commercial organization or an individual entrepreneur (Article 42 of the Law on Companies).

Seventh, a society can be founded by one or more persons. In this case, however, the number of its founders cannot be more than fifty - the maximum number of participants established by paragraph 3 of Art. 7 of the LLC Law. In addition, a company cannot have as the sole founder (participant) another business company, consisting of one person (clause 2 of article 88 of the Civil Code, clause 2 of article 7 of the Law on LLC).

In paragraph 2 of Art. 2. The Law on LLC sets forth the main provisions necessary for a company to acquire the status of a legal entity:

a) a limited liability company owns a separate property recorded on an independent balance sheet. The source of its formation is, as already noted, the funds contributed by the founders (participants) of the company as a contribution to the authorized capital, as well as property acquired on other grounds provided for by law - as a result of production, economic, commercial activities, etc. (Art. 218-219 of the Civil Code).

As contributions to the property of a business entity in accordance with Art. 48 and clause 2 of Art. 213 of the Civil Code, cash and other material values, as well as property or other rights that have a monetary value, can be contributed. The Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation in the Resolution of the Plenums No. 6/8 7 clarified that the intellectual property object cannot be transferred directly as a contribution, but the right to use such an object transferred to the company in accordance with the license agreement can be accepted as a contribution eight .

At the same time, the society may own the objects of intellectual property created by it in the course of its activities - the right to industrial designs, certain technologies, a trademark, etc.

b) the company can, on its own behalf, acquire and exercise property and personal non-property rights, bear obligations. This is manifested in the implementation of the owner's powers to own, use and dispose of property to meet their own needs, to conduct production and economic activities, for charitable and other purposes. The company can conclude transactions for the alienation of its own property and the acquisition of new property (contracts of purchase and sale, exchange, donation); transfer of their property for rent or for temporary use (under a loan agreement); pledge it, make a contribution to the authorized capital of other business entities, etc.

These rights are exercised by the company freely, except in cases where legislative restrictions are in force. So, Art. 575 of the Civil Code does not allow commercial organizations to donate property to each other and employees of state bodies and bodies municipalities in connection with the performance of their duties (the exceptions are ordinary gifts of small value). Art. 690 of the Civil Code prohibits commercial organizations to transfer property for gratuitous use to a person who is a founder, a member of this organization, as well as its director, a member of a collegial management or control body. Transactions made in violation of these restrictions are void by virtue of Art. 168 GK.

The company bears obligations related to the exercise of the rights of the owner - cares for the maintenance of its property (Articles 209, 210 of the Civil Code), on the fulfillment of obligations under contracts and other transactions, etc. Moreover, it must exercise its rights without violating rights and legal interests of other persons (Article 10 of the Civil Code).

c) another sign of a legal entity is the right to be a plaintiff and a defendant in court. The right to judicial protection is provided for by Art. 11 GK. The procedure for appearing in court as a plaintiff and a defendant is determined by the Arbitration and Civil Procedure Codes. The company is independently liable for its obligations, except as otherwise provided by law.

d) society has organizational unity, which manifests itself primarily in a certain hierarchy, subordination of the governing bodies that make up its structure, and in a clear regulation of relations between its participants. Thus, many persons united in a society act in civil circulation as one person, one subject of law.

As a commercial organization, a company in accordance with Art. 49 of the Civil Code and clause 2 of Article 2 of the Law on LLC has general legal capacity, that is, it can have civil rights and bear civil obligations necessary to carry out any activities not prohibited by law. Along with this, Article 2 of the Law on LLC notes that the activities of the company should not contradict the subject matter and goals, which are definitely limited in the charter of the company. Such restrictions can be established in the charter by decision of either the founders (when creating a company), or the general meeting of participants (by making amendments and additions to the Charter), based on the goals for the implementation of which this company is created. At the same time, it is necessary that the corresponding restrictions on the types of activities are clearly reflected in the charter - by indicating in it an exhaustive (complete) list or by including a clause in the charter that prohibits certain types of activities, etc. 9 The performance of transactions by a company in contradiction with the objectives of its activities, definitely limited in its constituent documents, is the basis for the court to declare them invalid at the suit of this company, its founder (participant) or the state body supervising the activities of this legal entity, if it is proved that the other party to the transaction knew or knowingly should have known about its illegality (Article 173 of the Civil Code).

 

It might be helpful to read:

• Craft from plasticine for the day of cosmonautics;
• School riddles - fun activity for kids;
• How to mold a plasticine bat step by step with a photo;
• Embroidered keyrings Embroidered keychain scheme;
• Station game "fair";
• Games in the summer day camp for primary school children;
• Camp contests for children;
• Children's riddles about transport;