It is customary to call constituent documents that serve as the basis for the activities of any legal entity... Article 52 of the Civil Code of the Russian Federation directly explains that today the constituent document can be considered:
- Charter;
- Memorandum of association;
- both of these documents.
The difference between them is that the memorandum of association is concluded between several participants, and the Charter is only approved by them. The composition of the necessary constituent documents, as well as individual nuances of their registration, depend solely on the organizational and legal form chosen by the company.
What is customary to refer to the necessary constituent documents?
What kind of documents will be considered constituent in each specific case is prescribed by the norms of the relevant laws. So, business partnerships can conduct permitted activities based solely on the memorandum of association, and private companies and all kinds of associations - on the basis of two documents at once. Today, an exception is made only for a narrow circle of non-profit organizations. Current legislature provides that sometimes they can work on the basis of the Regulation.What information should be included in the constituent documents?
First of all, they indicate the name of the organization, its legal address and location, the procedure for the organization of the activities for which it is created, the specifics of elections or the appointment of the company's management. The purpose of the activity and its subject matter must be prescribed only for non-profit organizations, a number of unitary enterprises, as well as some commercial firms. Other organizations can also reflect this information in the constituent documents, but the legislators do not oblige them to do so.The memorandum of association usually contains information about the procedure for creating a company, the specifics of its implementation. different directions activities, the conditions for the transfer of property by the founders, the process of accepting new participants to the company or withdrawal of any of the founders from its composition, as well as issues related to the procedure for distributing profits or covering possible losses.
The purpose of the constituent documents is to regulate all aspects related to the formation of a company, its current activities, the specifics of regulating the financial flows generated by the organization, as well as, if necessary, the curtailment or complete termination of activities. Obviously, the more detailed these moments are reflected in the constituent documents, the less the risk of disagreements between the participants of the company on issues arising in the course of its activities will be. It is clear that it is impossible to foresee absolutely all the nuances, therefore, a number of technical issues are regulated by drawing up all kinds of internal regulations and instructions. The main thing is that they do not conflict with the constituent documents of the company.
A limited liability company is a legal entity that independently participates in civil relations. The LLC is established by the owners of the business, and their decision to create a company is documented.
The constituent documents of a legal entity are needed not only at the stage of creating a company, but also in the process of its activity. They can be requested at any time not only by the tax office, but also by banks, counterparties, notaries, investors, creditors and other interested parties. With this in mind, it is important to know what belongs to the constituent documents, how to store and restore them, and who is responsible for their integrity.
The charter is the only constituent document of the company
Indeed, in Article 52 of the Civil Code of the Russian Federation and Article 12 of the Law "On LLC" in the list of constituent documents of a legal entity in 2019, it is only mentioned. The charter contains basic information on the procedure for interaction of participants with each other, the size of the authorized capital, transactions with shares, the competence of the company's bodies, etc.
However, in business practice, the list of constituent documents includes not only the charter. This list is much broader. On the basis of a single charter, it is impossible to obtain sufficient information about the activities of an LLC.
The statutory documents do not contain information about who runs the company and owns the business. There is no registration data in the charter - TIN, KPP, OGRN codes, types of activities, the number of the Federal Tax Service, where the organization is tax-registered, full legal address. And without this information, it is impossible to check the counterparty before the transaction, get a loan or attract investments.
From June 25, 2019, the Order of the Ministry of Economic Development and Trade comes into force, which approved 36 options for model charters for LLC. From this date, already operating companies have the right to transfer to model charters. In this case founding document will not have individual characteristics, it will be enough to know the number of the version of the model charter that the organization has chosen.
Full list of constituent documents of LLC
So, although talking about the constituent documents of a legal entity in plural not entirely correct, but practice dictates otherwise, and their full list looks like this:
- or the creation of a legal entity. This is the first document confirming the intention of the founders to register an LLC.
- Charter. We have already discussed the significance of this document above. If a company operates on the basis of one of the options for a model charter, it can be found in the public domain.
- Certificate of state registration limited liability companies (if the LLC was created before 2017) or the Unified State Register of Legal Entities.
- Certificate of tax registration of the organization at the place of the legal address.
- Establishment agreement. A few years ago, the founding agreement also referred to the constituent documents. But although now this is no longer the case, the obligation to conclude an agreement is established by Article 89 of the Civil Code of the Russian Federation and Article 11 of the Law "On LLC". The document is drawn up only if the company is registered by several founders. The sole proprietor does not need a founding agreement.
- List of participants. The list of participants contains up-to-date information on the composition of the company's owners. For each of them, the passport data (or the main registration data of the organization, if the participant is a legal entity), the size of the share in the authorized capital, the date of transfer of the share are indicated. And although this information is already available in other constituent documents, the law obliges to keep the list of participants.
- Extract from the Unified State Register of Legal Entities, which contains detailed information about the company, including the data of the participants, the distribution of shares in the authorized capital between them, types of economic activities, legal address, etc. A full statement is ordered from the tax office for a fee, but it can be replaced with a shorter version - information obtained from a free service FTS.
- A document confirming the appointment of the head (protocol or order). This is a very important document, without which it is impossible to conduct business transactions. If you do not make sure that the person acting on behalf of the LLC is its manager, the transactions made by him are considered null and void.
- Help with statistics codes. The certificate can be requested from the territorial department of Rosstat (then it will have an official seal) or printed from the official website of the department.
- Information about the presence of branches and separate subdivisions if any.
Thus, the constituent documents are a kind of full passport of a limited liability company, and the attitude towards them should be appropriate.
Storage of constituent documents
The obligation to keep the documents of the LLC is established by law N 125-FZ of 22.10. 2004, and a specific list is given in the Order of the Ministry of Culture of the Russian Federation of August 25, 2010 N 558. And according to these regulations, the constituent documents of a legal entity must be kept permanently, even after its liquidation. Also, indefinitely, it is necessary to store accounting annual reports, personal files of the organization's leaders, issued licenses and certificates of conformity.
Of course, given the trend towards electronic document management, someday both this law and the order will become invalid. But so far, the head of the company is personally responsible for the safety of documents. When appointing a new director, the former must necessarily transfer to him the affairs, including the constituent documents.
If they are lost, then they must be restored. Registration documents issued by the Federal Tax Service Inspectorate can be obtained there. For the issuance of duplicates, a fee is charged from 200 to 800 rubles.
An extract from the Unified State Register of Legal Entities is not restored, but a new one is requested for a specific date. Internal documents of the organization, which do not have the seal of state bodies, are restored independently.
Civil Code of the Russian Federation Article 52. Constituent documents of legal entities
1. Legal entities, with the exception of business partnerships and state corporations, act on the basis of the charters, which are approved by their founders (participants), with the exception of the case provided for in paragraph 2 of this article.
(see text in previous edition)
A business partnership shall act on the basis of a constituent agreement, which is concluded by its founders (participants) and to which the rules of this Code on the charter of a legal entity apply.
A state corporation acts on the basis of the federal law on such a state corporation.
2. Legal entities can act on the basis of a standard charter approved by an authorized state body. Information that a legal entity acts on the basis of a standard charter approved by an authorized state body is indicated in a single state register legal entities.
The model charter approved by the authorized state body does not contain information about the name, company name, location and size of the authorized capital of a legal entity. Such information is indicated in the unified state register of legal entities.
(see text in previous edition)
3. In the cases provided for by law, an institution may act on the basis of a single standard charter approved by its founder or an authorized body for institutions created to carry out activities in certain areas.
4. The charter of a legal entity, approved by the founders (participants) of the legal entity, must contain information about the name of the legal entity, its organizational and legal form, its location, the procedure for managing the activities of the legal entity, as well as other information provided for by law for legal entities corresponding organizationally - legal form and type. The charters of non-profit organizations, the charters of unitary enterprises and, in cases stipulated by law, in the charters of other commercial organizations, must define the subject and objectives of the activities of legal entities. The subject and specific objectives of a commercial organization may be provided for by the charter also in cases where this is not mandatory by law.
(see text in previous edition)
5. The founders (participants) of a legal entity have the right to approve the governing corporate relations (paragraph 1 of Article 2) and internal regulations and other internal documents of the legal entity that are not constituent documents.
The foundations, in accordance with which the companies operate, are the constituent documents of the legal entity. The general norms of the law are described in detail and concretized in them. The article discusses in detail what these documents are, their content and the process of adoption, as well as changes.
general characteristics
Different legal entities have their own set of constituent documents. For example, LLCs, unions and associations operate on the basis of a charter and a memorandum of association. For business partnerships, only a memorandum of association is required. The rest of the legal entities need a single contract to carry out their activities: the charter.
The paramount importance of the documents shows how important they should be treated when processing. A legal entity is created after registration, which, in turn, implies a procedure for the adoption of constituent documents by the registering body.
Concept
Thus, the aforementioned papers are the basis according to which the organization is registered and then functions.
The types of constituent documents of a legal entity are as follows:
- Charter.
- Memorandum of association.
- General provision on such organizations.
Functions
The following functions are assigned to such documents:
- representative;
- internal.
The first implies bringing information about the characteristics of a particular company to the public, about its name, structure, location and everything that matters. This information, for example, is very important for those who conclude a deal with the organization.
The internal function is to regulate the relationship between the founders of legal entities. persons, questions of profit and so on.
Types of constituent documents for different organizations
Limited partnerships and general partnerships function with only one memorandum of association.
Both the charter and the memorandum of association are necessary for the implementation of the activities of companies with additional and limited liability, as well as associations of legal entities.
The charter is the only document required for JSC, LLC and additional liability company (if they are created by one person), municipal and state enterprises unitary type, consumer and industrial cooperatives, foundations, public associations, as well as non-profit partnerships, organizations and institutions.
At the same time, a number of these organizations in some cases draws up other constituent documents of a legal entity. For example, an NPO can also conclude a memorandum of association. At the same time, in cases stipulated by law, these organizations can act on the basis of a regulation. But for commercial structures, such an assumption is not provided.
All constituent documents of a legal entity are drawn up in writing. No notarial approval is required for these. The documents must contain at least all the information that is necessary for the functioning of this type of organization, namely:
- title;
- finding;
- form of management and other information provided by law.
For each type of company, the Civil Code contains specific information that must be reflected in the constituent documents of a legal entity.
So, for organizations with special legal capacity, it is necessary to include data on the subject and purpose of the activity. Commercial companies can provide this information, but they are not required to do so.
Note that the subject matter is the specific activities that the organization can carry out. The goal at the same time means the achievement of a result - commercial or non-commercial.
In addition to the information that the documents must contain, they may indicate various provisions that do not conflict with the law. These requirements are called optional.
Conditions for making changes
In terms of internal content, there may be the following changes that are made to the constituent documents of a legal entity:
- charter - a statement that changes the legal status and regulates the relationship between the participants and the organization itself;
- memorandum of association - an obligation that regulates the relationship between the founders in the course of the organization.
All transformations must go through the registration procedure. In this case, the necessary papers, as well as the application, are submitted to the appropriate registering authority. This condition must be observed by all organizations when making changes to the constituent documents of a legal entity, whatever they may be provided for by law.
For this purpose, the following are submitted to the registering authority:
- statement;
- decision about changes;
- the changes themselves.
Registration of transformations will be made if the following information is reflected in the documents:
- Name of the organization;
- its form;
- information about members or founders;
- finding;
- for joint stock companies- information about the holders of the register;
- changes in the amount of the authorized capital;
- succession;
- change of the CEO or his passport data;
- branch data;
- any other changes.
Features of the procedure
Changes are recorded within 5 working days. At the same time, the registering authority notifies about making an entry not later established by law for this procedure.
Amendments to the constituent documents of a legal entity for third parties come into force from the moment they are notified of this.
Refusal of registration can take place when not all the necessary documents have been submitted, or if they are drawn up in an inappropriate form. For example, originals must be submitted. If copies of the constituent documents of a legal entity are submitted, then they must be notarized.
Memorandum of association
The constituent agreement is a transaction of a consensual, multilateral and compensatory nature, which is made by the founders and regulates the relations of the participants, as well as the functioning of the organization.
The document is concluded between the founders, where the will of all is expressed. The paper is signed by each of the participants, in connection with which they receive certain rights and obligations.
Regardless of what the form of organization is, the memorandum of association must be drawn up in accordance with the following mandatory conditions:
- it should contain information on the composition of the founders;
- about the form of organization;
- how the activity will be carried out;
- on the transfer by the founders of contributions to the property of the organization;
- about the share of each founder;
- about their participation in the functioning of the organization;
- on the procedure for managing and leaving the legal entity.
For different organizations may be provided more conditions that are essential. For example, for a full partnership, it is necessary to provide information on the composition and amount of the contributed capital, as well as on the liability of partners for violation of obligations. In a limited partnership, there must be a condition on the amount of the commander's contributions. For LLC, information is reflected on the competence and composition of the management body, as well as on the procedure for making a decision.
The charter
For almost all organizations, a charter is necessary. The creation of a legal entity is impossible without it. Constituent documents may also include the need for a memorandum of association. Companies with other organizational and legal forms carry out their activities exclusively in accordance with the charter. Usually the document is approved by the incorporation or general meeting... With its entry into force, the organization is considered open and can carry out its activities.
According to legal scholars, the charter is a corporate normative legal act that contains the relevant rules. It is also considered as a regulatory act of a local nature, where the position of a legal entity is determined and relations between participants are regulated.
In order to determine the essence of the charter, it is necessary to consider which subjects are its founders, and how it was approved. So, if a legal entity is established by an entity of public law, and its charter is approved by the competent state authority of the Russian Federation, its subject or the local self-government agency, then the charter can be considered a by-law.
Essential conditions
Thus, the charter is a transaction signed by the founders or one of them, reflecting its terms.
Essential conditions can be qualified in the following order:
- prescribed by the legislator;
- imperatively defined, that is, necessary for implementation;
- dispositive-definite, that is, those that can be changed by the founders;
- proactive, meaning such conditions, the inclusion of which depends entirely on the will of the founders.
Procedure for the adoption of the charter
Both the entire list of constituent documents of a legal entity, and the charter itself must be in accordance with the law. The normative nature of the document is fully disclosed because there are a lot of imperatively defined conditions in it. In addition, as a deal, the charter is similar to an accession agreement, since new participants who enter a particular legal entity join the existing charter.
Unlike the founding agreement discussed above, it is not concluded, but approved. Not all founders should sign the document, but only authorized persons. The charter comes into force when the registration of the constituent documents of legal entities is completed.
According to some jurists, in developed countries the significance of the document invariably decreases, since many aspects are regulated by normative legal acts, and not by the rules that are formulated in it, even without it.
General position
This legal act indicates the status, activity and responsibility of a legal entity. The regulation on the organization is necessary for the functioning of NPOs of the municipal and state levels, which conduct their activities at the expense of budgetary funds. This procedure is regulated by Article 52 of the Civil Code. On this basis, branches of organizations, representative offices and departments also operate.
Such constituent documents of a legal entity are the following types provisions on organizations:
- typical;
- approximate;
- individual.
Typical and exemplary are developed by organizations that are engaged in similar activities. On their basis, individual documents are drawn up. They come into effect after they are approved by the parent organization. There are no mandatory requirements for this type of document. But it may include the following chapters:
- "General" (name, goals, subordination, seals, and so on).
- "Tasks and functions" (the main goals of the activity and the types of work for their implementation).
- "Rights and obligations".
- "Control".
- "Relationship".
- "Control and audit" (bodies carrying out these actions, frequency and order of the procedure).
- "Liquidation".
Conclusion
In conclusion, we can say that a legal entity is artificially created for some purpose that is achieved in the manner prescribed by law. The entire list (constituent documents of a legal entity) of securities must be registered in a certain order. Carrying out his external function, they bring to everyone information about the features of a particular organization, and thanks to the internal relationship between the founders, relationships are formed that characterize their participation in activities, as well as the distribution of profits and other issues.
The constituent documents fix all the main functions and tasks of the economic society. A package of constituent documents for different options legal entities can vary within a certain range. Therefore, it is very important to navigate this kind of documentation.
The list of constituent documents for different legal entities is legally enshrined in the Civil Code of Russia. Three main categories of persons are also assigned here, which, on the basis of following documents have the right to act:
Participants (founders) of autonomous and non-profit organizations and partnerships have the right to conclude any type of memorandum of association, i.e. form a charter for your organization, based on the type of existing obligations.
If a specific legal entity is created by only one founder, then it will act on the statutory basis, which was approved by this founder.
According to the new legislative norms, for LLC the main document from the constituent documentation should be the charter. The treaty plays a secondary role. After the registration of the LLC, it is considered to be actually executed.
Thus, the list of institutions for one founder includes the following list of documents:
- charter;
- contract.
For two or more founders, the same list of documentation will be needed. The difference is that in this state of affairs, the memorandum of association plays a large role because here it acts as a document in which the basic provisions on business interaction between several founders are fixed.
In addition, this kind of documentation includes documents that are used to form a legal entity. This list is given in the relevant section of the legislation. This includes the Founder's Decision and the Founders Meeting Minutes. In addition, this list may include:
It must be remembered that all documentation, its restoration and amendments become effective only after the implementation of state registration.
This procedure (including the steps required to restore the document) is carried out by the Federal Tax Service.
What the charter contains
One of the most important documents in the constituent documents, which determines the legal status for any institution, is the charter. Its purpose is to notify counterparties and other persons involved in cooperation with a specific economic society in the sphere of his practice, duties and rights.
For example, the charter of an LLC contains the following list of information:
- the rights of members of the organization and their direct responsibilities;
- all information related to leaving this community;
- data on the size of the available authorized capital. The nominal value for each individual share of the participant is also entered here;
- a list of rules for the transfer of shares from specific participants to specific persons;
- rules for storing documentation;
- abbreviated and full name of the company (company name);
- data on the location of the organization, its composition, as well as powers;
- other information.
This document should contain detailed information on interaction with various legal factors: decrease or increase in authorized capital, formation of a branch (s), etc. It is also necessary to enter information related to the first and second group of data (established by law).
The first group contains the following data:
- the size and changes of the reserve fund;
- information about all open representative offices;
- procedure for the board of directors.
The second group includes the following information:
- time and timing of meetings of participants;
- the procedure for holding meetings;
- the period for which the election of the sole executive body for the company is carried out.
In addition, the charter may contain additional information. For example, additional rules and obligations for all members of a particular company, information about property that does not fall under the authorized capital, and so on.
The charter of the organization is approved at a general meeting with the unanimous decision of all its participants. If there is one founder, this decision can be made by him alone.
What does the contract include
The Memorandum of Association contains information that determines the joint activities of the founders in the formation of a legal entity. In addition, the agreement provides for a list of conditions necessary for the transfer of property and participation in further activities. It defines the instructions and conditions for the distribution of losses and profits between the participants, the conditions for exiting the association of its participants.
A memorandum of association for an LLC type organization must have the following clauses:
- full name;
- all types of activities;
- legal status;
- participants;
- legal address;
- the size of the full authorized capital with the determination of the share for each participant;
- share transfer options;
- list of all rights and obligations;
- a description of the instruction on the division of losses and income;
- a list of the main issues that require a unanimous decision (sometimes a majority resolution is enough);
- procedure for changing the statutory documentation and liquidation of the company.
You need to know that usually in practice, this type of contract is not required. This applies to a limited liability company that was created by one founder. In this case, instead of it, a permit is used, confirming the fact of the creation of this organization (notarized).
But, if the company has a limited liability and was created by a group of participants, then this agreement necessarily concluded and included in the constituent documentation (although in fact it does not have such a status). It is usually interpreted as the most common civil law transaction.
This document is drawn up between all founders of an organization that has a category limited liability... But it is not considered mandatory for the procedure for registering the activities of a legal entity. In such a situation, the question of its conclusion remains at the discretion of the founders.
Considering the above, it is logical to conclude that the creation of an independent organization is a very troublesome business. Knowledge of the basic constituent documents will help to prepare the necessary foundation for the future organization, and its very activity will make it legal and legitimate.
Video " Application for registration of LLC in electronic form "
After watching this video, you can independently draw up an application for the tax office to register an LLC. The video shows an example of filling out an application in electronic form for opening an LLC. On the recording, a woman lawyer talks about all the pitfalls of filling out such a statement.