There are business partnerships. Business partnerships and companies

18. Business partnerships: concept, signs, types

Business partnerships and companies in accordance with Art. 66 of the Civil Code of the Russian Federation commercial organizations are recognized with the authorized (pooled) capital divided into shares (contributions) of the founders (participants). The property created at the expense of the founders' contributions, as well as produced and acquired by a business partnership or society in the course of its activities, belongs to it by right of ownership. Anything that has a value can be a contribution to property: property rights, securities, money, property in kind, etc.

Difference between partnership and society lies in the fact that a partnership is an association of persons not only by capital, but also by its activities, and a society is only an association of monetary and other financial investments.

As a legal entity, a business partnership has general and special characteristics.

First of all, a business partnership is a legal entity, and therefore, by virtue of Art. 48 GK is endowed with all the signs (features) of the latter: 1) has a separate property; 2) is responsible for its obligations to you with this property; 3) exercised and acquired rights and obligations on its own behalf; 4) can be a plaintiff and a defendant in court; 5) has an independent balance. Business partnership belongs to commercial organizations(Clause 2 of Art. 50 of the Civil Code), that is, the main purpose of its creation is to make a profit. Thus, a business partnership is an organizational and legal form of a commercial organization. By virtue of paragraph 2 of Art. 48 of the Civil Code, business partnerships are legal entities in respect of which their participants have rights of obligation. In other words, between a business partnership and its participants, legal obligations arise.

Business partnerships have special characteristics.

1) the business partnership is contractual association of several persons for joint management entrepreneurial activity ... This essential feature makes it possible to distinguish between business partnerships and business entities; the latter are associations of capitals of persons participating in the creation of societies. A business partnership is characterized by a fiduciary (fiduciary) nature of relations between its participants.

2) a business partnership as an association of persons presupposes joint liability of the participants for the partnership's debts, and in case of insufficiency of his property, the participants (general partners) are responsible with all their property, on which a claim can be levied. On the contrary, the participants of a business company are not liable for its debts and bear the risk of losses associated with the activities of the company, within the limits of the value of their contributions (clause 1 of article 87 of the Civil Code).

3) participants in general partnerships and general partners in limited partnerships can be individual entrepreneurs and (or) commercial organizations(Clause 4, Article 66 of the Civil Code).

4) the constituent document of the partnerships is memorandum of association(Articles 70, 83 of the Civil Code). Civil law does not include the charter among the constituent documents of partnerships, which follows from the nature of a partnership as a contractual association of persons.

5) the contribution to the property of a business partnership may be money, securities, other things or property rights or other rights that have a monetary value, forming a joint capital (clauses 1, 6, article 66 of the Civil Code). Share capital- secondary (additional) sign of partnerships, which is also predetermined by the origin of business partnerships as an association of persons.

6) the conduct of business in partnerships is carried out directly by the participants (general partners), while in other legal entities (including in business companies) these functions are performed by the relevant management bodies.

Business partnerships : general and limited partnerships. Individual entrepreneurs and (or) commercial organizations can be participants in general partnerships and general partners in limited partnerships.

Members full partnership (Art. 69-81 of the Civil Code of the Russian Federation)(general partners) in accordance with the agreement concluded between them, carry out entrepreneurial activities on behalf of the partnership and in its interests and are responsible for the obligations of the partnership with their property. Unless otherwise established by the memorandum of association, each participant in a full partnership shall have the right to act on behalf of the partnership in relations with persons around him, otherwise it is possible for all partners to conduct business jointly or to entrust their conduct to individual partners. Each member of a full partnership has the right to receive income from the partnership's profit in the amount established by the memorandum of association. A participant in a full partnership has the right to withdraw from it by declaring his refusal to participate in the partnership.

Fellowship on Faith (Art. 82-86 of the Civil Code of the Russian Federation) (limited partnership)- a legal entity, in which, along with general partners, persons who are not engaged in entrepreneurial activities on behalf of the partnership, but who have made their contributions to it and are responsible for the obligations of the partnership in proportion to these contributions, participate. Characteristic features of a limited partnership: management of the partnership is carried out only by general partners; contributors are obliged to make contributions of a certain value to the joint capital, which is certified by the certificates of participation issued to them; investors have the right to receive a part of the partnership's profit attributable to their share in the contributed capital.

Business companies : joint stock companies, companies with limited liability, additional liability companies. Members of business companies can be citizens and legal entities.

Joint Stock Companies (Art. 96-104 of the Civil Code of the Russian Federation)- legal entities, the authorized capital of which is divided into a certain number of shares. Shares of an open joint stock company can be alienated by their owner without agreement with the rest of the company. In a closed joint-stock company, shares are subject to distribution among the founders of the company or among other predetermined circle of persons.

Limited liability company (Art. 87-94 of the Civil Code of the Russian Federation)- a legal entity created by one or more persons, the charter of which is divided into certain shares. The participants of such a company are not liable for its obligations and bear the risk of losses only within the limits of their share.

Additional liability company (art. 95)- a legal entity, the authorized capital of which is divided into shares; the participants of such a company jointly and severally bear subsidiary liability for its obligations with their property in the same multiple for all to the value of their shares, determined by the charter of the company. In the event of the bankruptcy of one of the participants, his liability for the company's obligations is distributed among the other participants in proportion to their contributions, unless a different procedure for the distribution of liability is provided for by the constituent documents of the company.

Business partnerships and companies are a generic concept that denotes several independent species commercial legal entities, which have in common the fact that their authorized (pooled) capital is divided into shares. This is what distinguishes business partnerships and companies from other commercial organizations.

These are the most common types of legal entities in commercial circulation, the common feature of which is, according to Art. 66 of the Civil Code is that their property is conditionally divided into shares, in which the obligations of the participants in relation to the legal entity are expressed:

• - to receive a share from the distribution of profits;
• - to receive a share of the value of the property when the participant leaves the legal entity;
• - to receive a share of the liquidation balance;
• - to participate in the management of a legal entity.

The basic rights and obligations of participants in business partnerships and companies are enshrined in Art. 67 of the Civil Code, are mandatory and can be supplemented constituent documents.

Participants have the right to:

• - manage the affairs of the company in one form or another,
• - receive information about its activities,
• - participate in the distribution of profits
• - to receive part of the property left after the liquidation of the legal entity.

Participants are required to:

• - participate in the formation of the property of the company;
• - not to disclose confidential information about its activities.

The constituent document of the partnership is the constituent agreement.

Since a partnership is created for the joint conduct of entrepreneurial activities, only entrepreneurs and commercial organizations can be its full members; such a restriction is not provided for companies.

The general partners bear unlimited joint and several liability for the obligations of the partnership, in contrast to the rest of the participants who bear limited liability; in this regard, a person can be a full partner in only one partnership.

To protect the interests of creditors of business entities whose members bear limited liability, the law more strictly regulates the issues of forming the authorized capital of the company, changing it, maintaining the company's assets at a level not less than the authorized capital;

The number of participants in a partnership, as a rule, is small, and their relationship is of a personal and confidential nature: decisions are made on the basis of mutual consent, there is no system of governing bodies, the partnership is run by the participants themselves.

The society has a system of governing bodies established by its constituent documents on the basis of the law: decision-making and the conduct of the company's affairs are carried out by its governing bodies on the basis of the powers granted to them by law and the constituent documents of the company.

In the legal regulation of societies, the weight of peremptory norms is quite high; partnerships are mainly governed by dispositive rules.

Full partnership in accordance with Art. 69 of the Civil Code is a business partnership, the participants of which jointly bear subsidiary liability for its obligations with all their property.

Full partnership in accordance with Art. 70 GK arises on the basis of articles of association between the participants.

Management of a partnership in accordance with Art. 71 of the Civil Code is carried out in the manner in which decisions are made by all participants unanimously, unless otherwise provided by the contract. The conduct of business is carried out by each of the participants, or by all participants jointly, or by some of them, who in these cases have the right to act without a power of attorney, and the other participants have the right to represent the partnership only on the basis of a power of attorney.

Change in the personal composition of participants in accordance with Art. 76 of the Civil Code, i.e. their withdrawal, exclusion, loss of legal capacity by a citizen, liquidation or reorganization of a legal entity, as well as a change in their property status, i.e. declaring bankrupt, levying execution on a share in the capital, as a general rule, entails the liquidation of a full partnership, unless otherwise provided by the contract.

The retired comrade according to Art. 75 of the Civil Code is responsible for the obligations of the partnership that arose before its retirement, within 2 years from the date of approval of the report for the year in which it retired.

The basic rights and obligations of participants in business companies and partnerships in general view and can be supplemented in the constituent documents. Participants have the right to manage the affairs of the company in one form or another, receive information about its activities, participate in the distribution of profits and receive part of the property remaining after the liquidation of the enterprise (the so-called liquidation balance). At the same time, they are obliged to participate in the formation of the property of the enterprise and not to disclose confidential information about its activities. The norms of the Civil Code are imperative in nature, therefore, it is impossible to deprive a participant of any of the listed rights or release him from duty.

A business partnership, the participants of which jointly bear subsidiary (additional) liability for its obligations with all their property, is called a general partnership. It arises on the basis of an agreement between several participants (general partners), which can only be entrepreneurs - individual or collective.

The legislator distinguishes between cases of managing a general partnership (and conducting the affairs of a partnership. as a general rule, is carried out by each of the participants. In this case, a general partnership as a legal entity has several independent and equal bodies (according to the number of participants). The constituent agreement may establish other schemes for the bodies of a full partnership, for example: the conduct of business by all participants jointly (one collegial body ) or some of them (one or more sole bodies) .It is important to note that the listed options organizational structure partnerships cannot be applied at the same time. Therefore, entrusting the conduct of a full partnership to one of the participants deprives the other of the rights to represent the interests of the firm without a power of attorney.

Legislative regulation of the size of the joint stock capital of a full partnership is important only for its registration. In the future, neither a decrease in the contributed capital, nor even its complete loss will entail dramatic consequences. This is not surprising, since the claims of the creditors of the partnership can be satisfied at the expense of the property of its participants.

A general partner is prohibited from acting in a similar capacity in more than one enterprise. This rule, by the way, is unusual for the majority of foreign legislation, established in the interests of the creditors of the partnership. To protect the interests of the partners themselves, there is a prohibition for a participant to make transactions without the consent of others that are similar to those made by the partnership, that is, to compete with it.

Changes in the personal composition of participants (withdrawal, expulsion, death or loss of full legal capacity by a citizen, recognition of him as missing, liquidation or forced reorganization of a legal entity), as a general rule, entails the liquidation of a full partnership. Otherwise, it may be provided by the memorandum of association or the agreement of the remaining participants. Changes in the property status of a participant have similar consequences - declaring him bankrupt or levying execution on his share in the pooled capital by creditors.

Being by its nature an association of persons, a general partnership cannot consist of sole participant and, if this does happen, it must be transformed into a business entity or liquidated.

A business partnership, consisting of two categories of participants: general partners (complements), jointly and severally bearing subsidiary liability for its obligations with their property, and fellow contributors (partners) who are not responsible for the obligations of the enterprise, is called a limited partnership (or limited partnership).

Similarly to a general partnership, the corporate name of a limited partnership must contain the names (titles) of all or at least one full partner (in the latter case, with the addition of the words “... and the company”).

According to the Civil Code, fellow investors may not even participate in the signing of the memorandum of association, i.e. the principle of anonymity of limited partners is observed. The relationship between fellow contributors and general partners should be regulated by an agreement. And if this is not a constituent agreement, then it means some other, conventionally called an agreement on participation in a partnership. Such a legal structure, indeed, allows keeping the absolute secrecy of the person of the limited partner (even from the state), but it still seems extremely contradictory.

A limited partnership, as it were, includes two relatively independent structures: a general partnership and a group (or one) of fellow contributors. On the one hand, the limited partners are completely excluded from participation in the management and conduct of the partnership. On the other hand, they manage their deposits completely independently of their general comrades. Distinctive feature the rights of the limited partner to the property of the partnership lies in the fact that when leaving the enterprise, he has the right to claim only the return of his contribution, and not to receive an appropriate share in the property of the company. However, in the event of the liquidation of the company, the investor partner participates in the distribution of the liquidation balance on an equal basis with the general partners.

The grounds for the liquidation of a limited partnership have significant specificity. In particular, a limited partnership is preserved if at least one full partner and one limited partner remain in it (part 2, clause 1, article 86 of the Civil Code). This means that in all cases of changes in the personal composition of the participants, the partnership, as a general rule, continues to exist.

In the part that does not affect the legal status of limited partners, a limited partnership is similar to a full partnership, therefore, everything that has been said about full partnerships applies to limited partnerships (see paragraph 5 of Article 82 of the Civil Code).

A commercial organization, the authorized capital of which is divided into shares of certain sizes, formed by one or more persons who are not liable for its obligations, is called a limited liability company.

The constituent documents of a limited liability company are the charter and the constituent agreement (the latter cannot be concluded if the company has only one participant). The firm name of the company is based on general rules... A limited liability company belongs to the so-called. "Pooling of capital", and, unlike partnerships, the personal element plays a subordinate role in it. However, in comparison with joint-stock companies, limited liability companies are distinguished by closer relations of participants, a more closed nature of membership. That is why clause 3 of Art. 7 of the Law on Limited Liability Companies sets the maximum number of its participants - 50 people. If it is exceeded, the company must be transformed into an open joint-stock company, a production cooperative or liquidated.

The authorized capital of a limited liability company consists of the nominal values ​​of the shares of all its participants.

The presence of a share in the authorized capital, of course, does not mean any real rights to the property of the enterprise. The rights of participants in relation to society (to participate in management, information, share of profit, liquidation balance, etc.) are realized within the framework of a single obligation, which can be characterized as a share obligation with an active plurality of persons, since the company itself is its obligated party, and entitled, all participants. Therefore, the transfer of a share in the authorized capital means in fact the assignment of a share in a single set of rights belonging to all participants taken together, i.e. cession.

The legal status of the company's governing bodies is regulated in detail by the Law. The supreme governing body of the company is the general meeting of its participants, the number of votes in which each participant has in proportion to his share in the authorized capital. Exceptional competence general meeting listed in clause 2 of Art. 33 of the Law and include yourself: changing the charter of the company and the size of its authorized capital, formation and termination of the executive bodies of the company, approval of annual reports and balances, distribution of profits and losses, reorganization and liquidation of the company, election of its audit commission (auditor) and a number of other issues. Along with the exclusive competence of the general meeting, a number of authors emphasize its general and alternative competence. The company's charter may provide for the creation of a board of directors (supervisory board), the position of which is generally similar to the status of the supervisory board in a joint-stock company.

A commercial organization, the authorized capital of which is divided into shares of predetermined sizes, formed by one or more persons jointly bearing subsidiary liability for its obligations in an amount that is a multiple of the value of their contributions to the authorized capital, is called an additional liability company.

The specificity of a company with additional liability lies in the special nature of the property liability of the participants for its debts. Firstly, this liability is subsidiary, which means that claims against participants can be presented only if the company's property is insufficient for settlements with creditors. Secondly, liability is joint and several; therefore, creditors have the right to present claims in full or in any part against any of the participants who are obliged to satisfy them. Thirdly, the participants have the same responsibility, i.e. equally a multiple of the size of their contributions to the authorized capital (clause 1 of article 95 of the Civil Code). Fourth, the total amount of responsibility of all participants is determined by the constituent documents as a multiple (two-, three-fold, etc.) of the size of the authorized capital.

A commercial organization formed by one or more persons not liable for its obligations, with the authorized capital divided into shares, the rights to which are certified by securities - shares, is called a joint stock company.

The main difference between a joint-stock company and other legal entities lies in the way of securing the rights of a participant in relation to the company: by certifying them with shares. This, in turn, determines the specifics of the exercise of rights under shares and their transfer.

The charter is recognized as the only constituent document of the joint-stock company, which emphasizes the formal nature of personal participation in the company (clause 3 of article 98 of the Civil Code), and is approved at the meeting of the founders. At the same time, the Civil Code also speaks about the conclusion of a constituent agreement regulating the relations of founders in the process of creating a joint-stock company (clause 1 of article 98 of the Civil Code). Such an agreement serves as an auxiliary tool facilitating the creation of a joint-stock company, as a rule, it is not submitted for registration and can subsequently be terminated without prejudice to the society itself.

The authorized capital of the JSC is equal to the par value of the shares acquired by the shareholders - ordinary and preferred (Art. 99 of the Civil Code). Making a contribution to the authorized capital of a company means at the same time the conclusion of a share purchase and sale agreement. The seller in this agreement is the company itself, which has no right to refuse to conclude it with the founder. One of the features of the share purchase and sale agreement is that the delay in payment for a share in excess of the terms determined by the charter of a joint-stock company or the decision to place additional shares automatically leads to the termination of the agreement. Moreover, the company does not have the right to forgive the buyer for such a delay in payment, since the corresponding norm of Part 2, Clause 4, Art. 34 of the Law "On Joint Stock Companies" is mandatory.

An increase in the authorized capital of a JSC is made either by increasing the par value of existing shares, or by placing (issuing) additional shares. In the latter case, the procedure for placing shares depends on the type of joint stock company. A closed joint-stock company is obliged to distribute all shares of new issues between specific previously known persons. An open joint-stock company has the right to offer shares for purchase to an unlimited number of persons, that is, to conduct an open subscription to them (clauses 1 and 2 of article 97 of the Civil Code).

The methods of forming the authorized capital do not exhaust the differences between open and closed joint-stock companies. The number of participants in a closed JSC can not exceed fifty, and if it is exceeded, the company is transformed into an open JSC or liquidated. Shareholders of a closed JSC have the right of pre-emptive purchase of shares alienated by other shareholders (similar to the transfer of shares in a limited liability company). The noted differences between open and closed joint-stock companies still do not lead to the splitting of joint-stock companies into two independent organizational and legal forms, because they fit into the framework of a single concept of JSC and do not contradict general principles joint-stock form enterprises.

The law refers to the governing bodies of a joint-stock company the general meeting of shareholders, as well as the board of directors (supervisory board), which must be created if the company has more than 50 members. The bodies of the JSC as a legal entity, i.e. the executive bodies, are the sole and (or) collegial body (board, directorate, etc.). Their competence, the formation procedure and the order of work are determined by Art. 103 Civil Code, Art. 47-71 of the Law "On Joint Stock Companies" and the charter of a joint-stock company. In addition, the management of the company may be entrusted by agreement to third-party managers - legal or individuals.

The legal status of open joint-stock companies created in the process of privatization of state and municipal enterprises is distinguished by significant features. These JSCs are regulated by special legislation on privatization, while the provisions of the Federal Law "On Joint Stock Companies" are applied to them only subsidiary.

Mentioned in Art. 105 and 106 of the Civil Code, as well as Art. 6 of the Law "On Joint Stock Companies" subsidiaries and dependent business companies are not independent organizational and legal forms of legal entities. Their allocation is aimed at protecting the interests of creditors and members of companies (joint-stock and limited liability companies) that have found themselves under the influence of other business organizations.

The company or partnership (called the main company) that influenced the decisions of another company (subsidiary) due to the prevailing participation in its authorized capital, in accordance with the agreement or for other reasons, bears joint and several liability with the subsidiary for transactions made as a result of such influence. Shareholders of a subsidiary have the right to demand compensation for losses caused by the parent company. In case of insolvency of the subsidiary through the fault of the main company, the latter is subsidiary liable for its debts.

Dependent companies are distinguished according to a purely formal criterion: ownership of more than 20% of their authorized capital (and in joint-stock companies - more than 20% of voting shares) to another economic company (prevailing).

Affiliated companies and partnerships (or rather, affiliated persons, since citizens can also be such) are also not a special organizational and legal form of legal entities.

The main obligation of the dominant and affiliated persons is to provide (including publication) relevant information to the competent state authorities and (or) organizations dependent on them.

Thus: Legal entities can be classified: by type of ownership. Depending on the form of ownership underlying the legal entity, state and private (non-state) legal entities are distinguished. The state (in the broad sense, that is, including municipal) includes all unitary enterprises as well as some institutions.

Business partnerships and companies (Scheme 2.2) are commercial organizations with authorized (joint-stock) capital divided into shares (contributions) of founders (participants). In European countries and Japan, economic societies and their associations are referred to as companies, in the USA - corporations.

The property created at the expense of the contributions of the founders (participants), as well as produced and acquired by a business partnership or company in the course of its activities, belongs to it by right of ownership. In some cases, a business company can be created by one person, who becomes its only participant.

Business partnerships can be created in the form full partnership and limited partnership (limited partnership).

Business companies can be created in form of a joint stock company, a limited company or with additional responsibility.

Business partnerships

The organization of business partnerships and the organization of their activities established by the Civil Code of the Russian Federation are presented in schemes 2.5 and 2.6.

From the point of view of commercial activity, it is important to note the following features of business partnerships:

• o general partners conduct entrepreneurial activities on behalf of the partnership, but a different procedure for doing business may be established by the memorandum of association;
• o contributing participants (limited partners) do not participate in entrepreneurial activities and in the management of the partnership;
• o full comrades carry responsibility for all property belonging to them, contributing members bear the risk of losses only within the limits of their contributions;
• o profits and losses of both a general partnership and a limited partnership are distributed among the general partners in proportion to their shares in the contributed capital or in accordance with the terms of the agreement (agreement) between the participants. The investor participant has the right to receive a part of the profit due to his share, in the manner prescribed by the memorandum of association (which is signed by all general comrades).

Let us dwell in more detail on the responsibility of the participants in a full partnership. The legislative norm providing for unlimited joint and several liability of general partners is established in the interests of the participants

Scheme 2.5.

Scheme 2.6.

property turnover and cannot be canceled or limited by the contract.

Unlimited liability participants in a full partnership for its debts makes it very attractive to potential counterparties, and also increases the reliability and creditworthiness of the partnership in the eyes of other participants in property turnover. Let's consider the main issues related to this responsibility.

The partnership itself is primarily responsible for the debts of the partnership as an independent subject of law that has its own property. That's why the property of a partnership cannot be subject to collection for the debts of individual partners.

At the same time, a general partnership is an association of persons, from whose contributions the capital of the partnership itself is created. The participants in the partnership derive profit from the use of this capital, directly participating in the affairs of the partnership, and also bear additional (subsidiary) liability for its debts. That's why the share of the participant in the property of the partnership may be enforced by his personal creditors in the event of a lack of other property of the partner to cover the debts.

Thus, the creditor of a participant in a full partnership cannot foreclose on the private debts of a participant on the property of a full partnership, however, he can foreclose on the share of his debtor in this property, demanding the allocation of part of the property of the partnership.

The share of the property to be allocated or its value is determined according to the balance sheet drawn up at the time the creditors presented the claim for the allocation. Levy of execution on property corresponding to the share of a participant in the contributed capital of a full partnership terminates his participation in the partnership. However, during the next two years, he will be responsible but the debts of the partnership (Article 80 of the Civil Code of the Russian Federation).

If such a participant has transferred any property to the partnership on the right of use, then this property can be foreclosed on its debts, since it is not the property of the partnership, but of the comrade who contributed it. If such property is sufficient to satisfy the claims of the creditor, then the creditor does not have the right to demand also the allocation of the share of such a participant.

It should be noted that a person who enters the partnership after its formation is liable on an equal basis with the founders of the partnership, including for those obligations that arose before joining the partnership. Such responsibility lies with him and in the event that he, joining the partnership, not knowing about certain obligations lying on the partnership, and even if these obligations were deliberately hidden from him. In the latter case, this partner has the right, in addition to a general recourse claim against the other partners, to bring a claim against them for losses incurred by him as a result of misleading him.

If the participant pays the debt of the partnership, he has the right to reclaim the other participants in proportion to the share of each of them in the losses of the partnership. This participation share must be specified in the contract. If there is no such indication, then the debtor who has fulfilled the joint and several obligation has the right to reclaim the remaining debtors in equal shares, unless otherwise provided by law or contract. Unpaid by one of the co-debtors falls in equal shares on all the others.

In accordance with paragraph 2 of Art. 75 of the Civil Code of the Russian Federation, a participant who retired from the partnership is responsible for the partnership's debts within two years from the date of approval of the report on the activities of the partnership for the year in which he retired. The responsibility of the retired partner remains the same as if he remained in the partnership, that is, unlimited and joint and several. It applies not only to obligations arising during his stay in the partnership, but also to those obligations that arise during the entire time during which he will remain responsible.

The comrades bear joint and several liability for all the obligations of a full partnership, no matter what the grounds for these obligations arise(transactions, offenses, unjust enrichment). In addition, the partners bear the same responsibility for obligations arising from transactions concluded by any of the partners, even if not on behalf of the partnership, but in its interests.

1. Definition. Business partnerships and companies are the main type of commercial organizations with the authorized (joint-stock) capital divided into shares (contributions) of the founders (participants), which belongs to the partnership or company by right of ownership (Article 66 * of the Civil Code of the Russian Federation).
2. Common features... The number of business companies and partnerships includes:
a) full partnership;
b) limited partnership;
c) limited liability company;
d) additional liability company;
e) joint stock company.
Each of these societies can be established and consist of one person - a subject of civil law.
The Civil Code of the Russian Federation determines in what types of partnerships and companies and in what capacity individual entities can participate, including - individual entrepreneurs and / or commercial organizations. Thus, state and municipal bodies are not entitled to act as participants in business companies and as investors in limited partnerships.
A contribution to the property of a business partnership or society can be a variety of property - money, securities, other things or property rights that have a monetary value.
Many provisions on business partnerships and companies, enshrined in the Civil Code of the Russian Federation and in special laws, relate to detailing the features and practical activities of individual commercial organizations, including the rights and obligations of their participants, transformations of partnerships and companies, etc .; in each case, they require special elaboration, taking into account the exact text of the Civil Code of the Russian Federation and special laws, constituent documents. In this textbook, they are reflected only on fundamental, fundamental issues in accordance with the provisions of Russian civil law.
3. A general partnership is a partnership whose participants (general partners), in accordance with the constituent agreement concluded between them, are engaged in entrepreneurial activity on behalf of the partnership and are responsible for its obligations with the property belonging to them (Article 69 * of the Civil Code of the Russian Federation).
Among the norms established in the Civil Code of the Russian Federation in relation to a full partnership (Art. 69-81 *), the following are of significant importance:
- the management of the partnership is carried out by the general agreement of all its participants. Each participant in the partnership has the right to act on behalf of the partnership, if the contract does not establish that all its participants conduct business jointly, or the conduct of business is entrusted to separate participants;
- a participant in the partnership is not entitled, without the consent of the other participants, to make transactions on his own behalf and in his own interests or in the interests of third parties that are similar to those that constitute the subject of the partnership;
- the profits and losses of the partnership are distributed among its participants in proportion to their shares in the joint capital, unless otherwise provided by the memorandum of association or other agreement of the participants;
- a participant in the partnership has the right to withdraw from it by declaring its refusal to join the partnership (at least six months before the actual withdrawal from the partnership).
4. A limited partnership (limited partnership) is a partnership in which, along with the participants who carry out entrepreneurial activities on behalf of the partnership and are responsible for the obligations of the partnership with their property (general partners), there are one or more participants - investors. These contributors (limited partners) bear the risk of losses associated with the activities of the partnership, within the amount of their contributions, and do not take part in the partnership's entrepreneurial activities (Article 82 * of the Civil Code of the Russian Federation).
In this type of partnership, fundamental differences have been established between general partners (their positions and actions are mainly regulated by the rules on full partnership) and investors - partnerships, whose status, rights and obligations are mainly determined by the position of the "investor".
According to the Civil Code of the Russian Federation, a person can be a general partner only in one limited partnership. Management of the activities of a limited partnership is carried out by general partners (guided mainly by the rules on a full partnership). Investors have the right to participate in the management and conduct of the partnership's affairs, to act on its behalf only by power of attorney. They do not have the right to challenge the actions of the general partners in the management and conduct of the affairs of the partnership.
The Civil Code of the Russian Federation establishes the rights of limited partners, the main of which is to receive a part of the partnership's profit due to their share in the contributed capital, in the manner prescribed by the memorandum of association. In the event of the liquidation of the partnership, the investors shall have a preferential right over the general partners to receive their contributions from the property of the partnership remaining after the satisfaction of the creditors' claims.
5. A limited liability company is a company whose charter capital is divided into shares. The members of the company are not liable for the obligations of the company - they bear the risk of losses associated with the activities of the company, within the limits of the value of their contributions.
Among the norms established in the Civil Code of the Russian Federation (Art. 87-90 *) and the special Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies" (SZ RF. 1998. N 7. Art. 785), in relation to a limited liability company, the following are essential:
- the constituent document of the company is the charter;
- the number of members of the company should not exceed the limit established by law; otherwise, it is subject to transformation into a joint stock company within a year, and then (in the absence of transformation) - liquidation in judicial procedure... A limited liability company is not entitled to have another company consisting of one person as the sole participant;
- the authorized capital of the company determines the minimum amount of property that guarantees the interests of its creditors.
The Civil Code of the Russian Federation and a special law establish rules related to the reduction and increase of the authorized capital;
- supreme body society is a general meeting; the company also creates an executive body - collegial and (or) sole, accountable to the general meeting;
- the company can be reorganized or liquidated voluntarily by the unanimous decision of its participants. It has the right to transform itself into a joint stock company or a production cooperative;
- the only member of the company does not have the right to leave the company.
6. A company with additional liability is a company, the authorized capital of which is divided into shares, and the participants of the company jointly bear subsidiary liability for its obligations with their property in the same multiple for all to the value of their contributions, determined by the constituent documents of the company (Art. 95 * Civil Code RF).
In the event of the bankruptcy of one of the participants in the company, his liability for the obligations of the company is distributed among the other participants in proportion to their contributions.
When regulating relations associated with this company, the norms established for a limited liability company are applied.
7. Joint-stock company- a company, the authorized capital of which is divided into a certain number of shares, the owners of which (shareholders) are not responsible for its obligations and bear the risk of losses associated with the activities of the company, within the value of the shares they own (Article 96 * of the Civil Code of the Russian Federation).
Among the norms established in the Civil Code of the Russian Federation and other laws in relation to joint stock companies (Art. 96-104 of the Civil Code of the Russian Federation; Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies" (SZ RF. 1996. N 1. Art. . 1) with subsequent editions, including the edition of August 7, 2001 N 120-FZ), the following are essential, in particular:
- the legal status of joint-stock companies and related relations are regulated by the Civil Code of the Russian Federation, the Federal Law of December 26, 1995, as well as the constituent documents (charter for each company);
- joint stock companies are divided into two types:
a) open - companies whose members can alienate their shares without the consent of other shareholders;
b) closed - companies whose shares are distributed only among its founders or other predetermined circle of persons. The shareholders of this type of joint-stock companies have the preemptive right to purchase shares sold by other shareholders of this company. Number of participants closed society must not exceed the limit established by law; otherwise, it is subject to transformation into an open joint-stock company within a year, and then (in the absence of transformation) - liquidation in court;
- a joint-stock company does not have the right to have another business company consisting of one person as the sole participant, unless otherwise provided by law;
- property contributed as a contribution by shareholders during the founding of the company or joining it, forms the capital of the company, which has an indivisible (until the liquidation of the company) character. Moreover, as determined by the highest courts of Russia (by a joint decision of the Plenums The Supreme Court RF and the Supreme Arbitration Court of the RF dated July 1, 1996 N 6/8 // VVAS RF. 1996. N 9), "the conditions of the constituent agreement providing for the right of the founder (participant to withdraw the property he made as a contribution) in kind upon leaving the business company, must be invalidated";
- the authorized capital of the company is made up of the par value of the shares acquired by the shareholders. It determines the minimum amount of property that guarantees the interests of its creditors. The Civil Code of the Russian Federation and a special law establish detailed rules on the procedure and limits for reducing and increasing the authorized capital;
- the management of a joint-stock company is carried out according to the rules, according to a number of points close to the norms governing the relations of representative democracy (as a political institution) in general. The management bodies of the company are: general meeting, board of directors, collegial and / or sole executive body - director, general manager... The Civil Code of the Russian Federation and the law establish exclusive competence in relation to a number of governing bodies;
- a joint stock company can be liquidated or reorganized voluntarily. It has the right to transform into a limited liability company or a production cooperative, as well as into non-profit organization in accordance with the law. (On some issues of application of the Federal Law "On Joint Stock Companies" see: Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 18, 2003 N 19 // VVAS RF. 2004. N 1.)
In a number of countries under the conditions of developed capitalism, primarily in the United States, joint-stock companies have taken a dominant position among economic entities. This, to a certain extent, influenced the state of the entire society, when oligarchic tendencies arose and corporate relations began to rise above the status of an individual, and at the same time speculative operations with shares were legalized and expanded. In a number of others, economically and socially developed countries with deep democratic traditions, joint-stock companies are of limited importance, they are used mainly when it is necessary to concentrate capital for the implementation of national and other major economic tasks.
In Russia in the 1990s, in the course of economic reforms, joint-stock companies (moreover, in the absence of developed capitalist relations) were widely used at the initiative of the government at that time. Incl. for privatization purposes. Hence - the privileged position that joint stock companies have received in law and in practice.
However, in the Russian context, joint stock companies (based on the examples of some countries, such as the United States), although they brought some positive results in the development of market relations, characteristic of the stage of initial capital accumulation, did not realize to any extent the hopes that they had on them. were imposed, but on the contrary, entailed some negative phenomena in the economy and social life... In many cases, they became a source of enrichment for a number of entrepreneurs associated with the power (oligarchs), a way of dividing and redistributing property, creating the illusion that market relations were already dominating in Russia. Many facts speak not only of the need for improvement legal regulation shareholder relations, but also on the need to use a wider arsenal of means of privatization, denationalization and intensification of economic activity, especially in the field of small and medium-sized businesses.
8. Subsidiaries and dependent companies. Along with the main types and varieties of business partnerships and companies, the Civil Code of the Russian Federation identifies the subjects, so to speak, of the "second row". It:
- subsidiary business company (Article 105 * of the Civil Code of the Russian Federation: a company created and operating in conditions when another - the main - company or partnership has the ability to determine the decisions of the subsidiary company);
- a dependent business company (Article 106 * of the Civil Code of the Russian Federation: a company created and operating in conditions when another - predominant, participating - company has more than 20% of the voting shares of this joint-stock company or 20% of the authorized capital of a limited liability company).
The Civil Code of the Russian Federation and laws regulate complex liability issues arising here. So, in case of insolvency (bankruptcy) of a subsidiary through the fault of the parent company, the latter bears subsidiary liability for its debts.
At present, the categories of "main" and "subsidiary (dependent)" companies have become a legal prerequisite for the formation of high-rank companies (associations) that do not have the status of a legal entity - holding companies, in which a kind of management relations are developing. Business practice shows that at present there is a need for the development of civil legislation on this range of issues - the recognition in the law of the structure of the holding as a legal entity with a strict definition of its property management (intrafirm) relations.

Collective economic activity of individuals and legal entities in the territory Russian Federation most often takes the form of a business partnership or society. The key similarity of these legal entities is that their property is divided into the contributions of the founders and formed in certain shares. However, between different kinds these legal entities have their own differences, which make it possible to more accurately determine the nature and purpose of the existence of organizations.

Definition

Business partnership Is an association of individuals, the main purpose of which is to make a profit. Company property is owned by the entire organization. The partnership can be full and limited. All members of the society are responsible for the debts of their organization with their own property. At the same time, in a limited partnership there are general comrades who have the right to manage, and limited partners (investors) who are deprived of such a right.

Economical society Is a commercial organization that owns equity property (capital), divided by contributions from participants. A legal entity conducts economic activities aimed at making a profit. An organization can take the form of a company with additional (ALC) or limited (LLC) liability, a closed or open joint stock company (CJSC or OJSC). Members of a legal entity are liable for the company's debts only within the limits of their contributions.

Comparison

There are several fundamental differences between business companies and partnerships. They were formed by virtue of certain traditions and are enshrined in regulatory legal acts. First, it concerns participants in legal entities. Organizations and citizens can be members of an LLC, OJSC or ALC, with the exception of a number of restrictions. Only private entrepreneurs or business entities can participate in the partnership. Secondly, there is a difference in securing the debts of a legal entity. For the obligations of the partnership, the participants are responsible with all their own property, for the debts of the economic society - only within the limits of their share.

There is also a difference in approaches to managing an organization, the freedom to exit from it. Your share in LLC, OJSC or ODO can be freely sold, donated, transferred. If we are talking about a business partnership, then, in the general case, only compensation is provided in case of withdrawal. Members of a full partnership may alienate their share only with the consent of other members of the organization.

Conclusions site

1. The composition of the legal entity. In a partnership, commercial organizations (private entrepreneurs and firms) can be represented, in a business society - any individuals and legal entities (within the framework of the law).
2. Control. The partnership is managed by its members by convening a general meeting, the economic society creates its own administration.
3. Responsibility of members. For the debts of the partnership, its participants are responsible with their own property. Members of a business company only incur losses within the limits of their contribution in the event of unprofitable activities of the enterprise.
4. Alienation of a share. A joint-stock company (with the exception of CJSC) assumes free disposal of shares or its part of the property. Exit from an economic partnership is much more difficult and sometimes can only consist in obtaining a share of its property.