Closed joint-stock company gk rf. AO in a new way: how to apply the Civil Code of the Russian Federation after the amendments

1. A public joint stock company (clause 1) is obliged to submit for inclusion in a single State Register legal entities information about the company name of the company, containing an indication that such a company is public.

A joint-stock company has the right to submit information about the company name of the company, containing an indication that such a company is public, for entry into the unified state register of legal entities.

The joint-stock company acquires the right to publicly place (by open subscription) shares and securities convertible into its shares, which can be publicly traded under the conditions established by the laws on securities, from the date of entry into the unified state register of legal entities of information about the company name of the company, containing an indication that such a company is public.

2. The acquisition by a non-public joint stock company of the status of a public company (paragraph of this article) entails the invalidity of the provisions of the charter and internal documents of the company that contradict the rules on a public joint stock company established by this Code, the law on joint stock companies and laws on securities.

3. In a public joint-stock company, a collegial management body of the company is formed (clause 4), the number of members of which cannot be less than five. The formation procedure and the competence of the said collegial management body are determined by the law on joint stock companies and the charter of the public joint stock company.

4. Responsibilities for maintaining the register of shareholders of a public joint stock company and performing the functions of the counting commission shall be carried out by an organization that has a license provided by law.

5. In a public joint-stock company, the number of shares owned by one shareholder, their total nominal value, as well as the maximum number of votes given to one shareholder, cannot be limited. The charter of a public joint-stock company cannot provide for the need to obtain anyone's consent to alienate the shares of this company. No one may be granted the right of pre-emptive purchase of shares of a public joint-stock company, except for the cases provided for by paragraph 3 of this Code.

The charter of a public joint stock company cannot be attributed to the exclusive competence of the general meeting of shareholders to resolve issues that do not relate to it in accordance with this Code and the law on joint stock companies.

6. A public joint stock company is obliged to publicly disclose information provided by law.

7. Additional requirements for the establishment and operation, as well as for the termination of public joint stock companies, are established by the law on joint stock companies and laws on securities.

A public joint-stock company (clause 1 of Article 66.3) is obliged to submit, for inclusion in the Unified State Register of Legal Entities, information on the company name of the company, containing an indication that such a company is public.

The joint-stock company acquires the right to publicly place (by open subscription) shares and securities convertible into its shares, which can be publicly traded under the conditions established by the laws on securities, from the date of entry into the unified state register of legal entities of information about the company name of the company containing an indication that such a society is public.

The acquisition by a non-public joint stock company of the status of a public company (paragraph 1 of this article) entails the invalidity of the provisions of the charter and internal documents of the company that contradict the rules on a public joint stock company established by this Code, the law on joint stock companies and laws on securities.

In a public joint-stock company, a collegial management body of the company is formed (paragraph 4 of Article 65.3), the number of members of which cannot be less than five. The formation procedure and the competence of the said collegial management body are determined by the law on joint stock companies and the charter of the public joint stock company.

The duties of maintaining the register of shareholders of a public joint-stock company and the performance of the functions of the counting commission are carried out by an organization that has a license provided by law.

In a public joint-stock company, the number of shares owned by one shareholder, their total nominal value, as well as the maximum number of votes given to one shareholder, cannot be limited. The charter of a public joint-stock company cannot provide for the need to obtain anyone's consent to alienate the shares of this company. No one may be granted the right of pre-emptive purchase of shares of a public joint-stock company, except for the cases provided for by paragraph 3 of Article 100 of this Code.

A public joint stock company is obliged to publicly disclose information provided by law.

Additional requirements for the establishment and operation, as well as for the termination of public joint stock companies, are established by the law on joint stock companies and laws on securities.

1. A public joint-stock company (clause 1 of Article 66.3) is obliged to submit, for entry into the Unified State Register of Legal Entities, information about the company name of the company, containing an indication that such a company is public.

The joint-stock company acquires the right to publicly place (by open subscription) shares and securities convertible into its shares, which can be publicly traded under the conditions established by the laws on securities, from the date of entry into the unified state register of legal entities of information about the company name of the company containing an indication that such a society is public.

2. The acquisition by a non-public joint stock company of the status of a public company (paragraph 1 of this article) entails the invalidity of the provisions of the charter and internal documents of the company that contradict the rules on a public joint stock company established by this Code, the law on joint stock companies and laws on securities.

3. In a public joint-stock company, a collegial management body of the company is formed (clause 4 of Article 65.3), the number of members of which may not be less than five. The formation procedure and the competence of the said collegial management body are determined by the law on joint stock companies and the charter of the public joint stock company.

6. A public joint stock company is obliged to publicly disclose information provided by law.

Comments to Art. 97 of the Civil Code of the Russian Federation

In accordance with the commented article and article 7 of the Federal Law "On Joint Stock Companies", joint stock companies can be open (OJSC) or closed (CJSC), which is reflected in the charter and corporate name of the corresponding joint stock company.

One of the main characteristics of an OJSC is the right to conduct an open subscription to the shares issued by it and to carry out their free sale. OJSC has the right to conduct a closed subscription to the shares issued by it, except for cases when the possibility of conducting a closed subscription is limited by the company's charter or legislation.

The number of OJSC shareholders is not limited by law.

In an OJSC it is not allowed to establish the preemptive right of the company or its shareholders to purchase shares alienated by the shareholders of this company.

Joint-stock companies, the founders of which are the Russian Federation, a constituent entity of the Russian Federation or a municipal entity (with the exception of companies formed in the process of privatization of state and municipal enterprises) can only be open.

A distinctive feature of a CJSC is the distribution of its shares only among the founders or another, predetermined circle of persons. The CJSC is not entitled to conduct an open subscription to the shares issued by it or otherwise offer them for purchase to an unlimited number of persons.

The number of shareholders of a CJSC should not exceed fifty. If the number of shareholders of a CJSC exceeds the specified maximum, it is obliged to transform into a JSC within one year. If the number of shareholders does not decrease to fifty, the CJSC is subject to liquidation in court.

Shareholders of a CJSC (as well as members of an LLC) enjoy the pre-emptive right to purchase shares sold by other shareholders of this company at the offer price to a third party in proportion to the number of shares owned by each of them, unless the charter of the CJSC provides for a different procedure for exercising this right. The charter of a CJSC may provide for the preemptive right to acquire shares sold by its shareholders by the company itself (provided, however, that the shareholders did not use the preemptive right to purchase).

The cession of the said preemptive right is not allowed.

Civil Code, N 51-FZ | Art. 97 of the Civil Code of the Russian Federation

Article 97 of the Civil Code of the Russian Federation. Public Joint Stock Company (current edition)

The joint-stock company acquires the right to publicly place (by open subscription) shares and securities convertible into its shares, which can be publicly traded under the conditions established by the laws on securities, from the date of entry into the unified state register of legal entities of information about the company name of the company containing an indication that such a society is public.

6. A public joint stock company is obliged to publicly disclose information provided by law.

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Commentary on Art. 97 of the Civil Code of the Russian Federation

1. The most significant changes in the regulation of organizational and legal forms of legal entities are in the division of business entities into public and non-public (see the commentary to Article 66.3 of the Civil Code of the Russian Federation). Public joint-stock company - a joint-stock company whose shares and securities convertible into its shares are publicly placed (by open subscription) or publicly traded under the conditions established by the laws on securities. Rules about public societies also apply to joint stock companies, the charter and company name of which contain an indication that the company is public. A business company that does not meet the above criteria is considered non-public.

As noted by I.S. Shitkina, when dividing business companies into public and non-public, the legislator correctly took into account the principle of differentiation not according to some formal criteria, just as it was established for joint-stock companies that are obliged to disclose information, but for objective reasons - depending on whether ( traded) shares are public or not. The application of the rules established for public companies also to joint-stock companies, the charter and company name of which contain an indication that the company is public, is also justified, since such a company positions itself as public and announces this to potential investors and other participants in property turnover. In general, this approach allows a business company from non-public to become public and, on the contrary, from public to non-public, if its shareholders want it.

Information about the company name of the company, which contains an indication that such a company is public, must be submitted for entry into the Unified State Register of Legal Entities. From the day the specified information is entered into the Unified State Register of Legal Entities, the joint-stock company acquires the right to place (by open subscription) shares and securities convertible into its shares, which can be publicly traded under the conditions established by the laws on securities.

2. The provisions of clause 2 of the commented article determine the sanctions against a non-public joint-stock company that has declared itself public. Acquisition of an invalid status in this case entails the invalidity of the provisions of the charter and internal documents of the company, which contradict the rules on a public joint stock company.

3. A novelty is the consolidation in the Civil Code of the Russian Federation of the requirement to form a collegial management body in a public joint-stock company (see the commentary to Article 65.3 of the Civil Code of the Russian Federation). Such a body is a supervisory or other council that controls the activities of the executive bodies of the company and performs other functions assigned to it by law or the charter of the company.

Previously, the necessity and expediency of forming such a body was determined by the shareholders themselves. So, in particular, the formation of a board of directors in a joint-stock company, the number of shareholders of which was less than 5 (five) entities, did not seem appropriate, therefore a number of joint-stock companies were limited to a two-tier management system: general meeting shareholders and the sole executive body (director).

The number of members of the collegial management body in a public joint stock company may not be less than 5 (five). The formation procedure and the competence of this collegial management body are determined by the Law on Joint Stock Companies and the charter of the public joint stock company. Here you should also take into account the requirements of par. 1 p. 4 art. 65.3 of the Civil Code of the Russian Federation that the persons exercising the powers of the sole executive bodies of corporations and the members of their collegial executive bodies cannot make up more than one quarter of the composition of the collegial governing bodies of corporations and cannot be their chairmen.

4. Register of shareholders of a company - a systematized collection of information, which contains information about each registered person, the number and categories (types) of shares recorded in the name of each registered person, other information provided for by legal acts Russian Federation... The company is obliged to ensure the maintenance and storage of the register of shareholders of the company in accordance with the legal acts of the Russian Federation from the moment of state registration of the company.

In accordance with the Federal Law of 22.04.1996 N 39-FZ "On the Securities Market", the activity of maintaining the register of securities owners is the collection, recording, processing, storage of data that make up the register of securities owners, and the provision of information from the register of securities owners. Only legal entities are entitled to maintain the register of securities holders. Persons who maintain the register of securities holders are referred to as registrants (registrars). The registrar is not entitled to conclude transactions with the issuer's securities, the register of the owners of which he maintains.

The register of shareholders of a public joint-stock company is maintained by the registrar. This situation is dictated by the practice of some joint stock companies. So, in some cases, the joint-stock company either did not independently maintain the register of shareholders at all, or such a register was kept in violation of the requirements of the current legislation, the entry of information into the register was fragmented. As a result, the registers of shareholders did not contain all the necessary and reliable information about the shareholders and their transactions with shares. In this regard, the need naturally arose to involve a special entity that ensures the maintenance of the register of shareholders on a professional basis and bears responsibility for this.

Similar requirements are contained in Articles 7 and 39 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies”. Clause 1 of Article 97 of the Civil Code of the Russian Federation stipulates that a public joint-stock company (clause 1 of Article 66.3 of the Civil Code of the Russian Federation) is obliged to submit, for entry into the Unified State Register of Legal Entities, information about the company name of the company, containing an indication that such a company is public ...

Decision of the Supreme Court: Determination N 77-KG17-18, Judicial Collegium for Civil Cases, cassation

Which is divided into a certain number of shares; the participants of the joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company within the value of the shares they own. In accordance with paragraph 2 of Article 97 of the Civil Code of the Russian Federation (in force until September 1, 2014), a joint-stock company, whose shares are distributed only among its founders or other predetermined circle of persons, is recognized as a closed joint-stock company ...

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The Federal Law of May 5, 2014 No. 99-FZ "" (hereinafter referred to as the Law), which comes into force on September 1, 2014, introduces significant amendments to the procedure for the creation, operation and liquidation of legal entities. How will the articles of the code containing general provisions about the organizations we have considered. This material will be devoted to those amendments that affect specific organizational and legal forms of legal entities.

Closed list of non-profit organizations

The current edition of the Civil Code of the Russian Federation established that legal entities that are non-profit organizations can be created in such forms as a consumer cooperative, public or religious organizations(associations), institutions, charitable and other foundations, as well as in other forms provided by law (). In accordance with the Law, this list becomes closed and includes 11 organizational and legal forms of non-profit organizations ():

Consumer cooperatives. They can be formed, in particular, in the form of housing, housing construction, garage, suburban consumer cooperatives, mutual insurance societies, credit cooperatives, rental funds, etc.

Public organizations. At the same time, it is emphasized that political parties, and trade unions and social movements refer precisely to this form of non-profit organizations.

Associations (unions). These include, in particular, non-profit partnerships, self-regulatory organizations, associations of employers, associations of trade unions, cooperatives and public organizations, chambers of commerce and industry, notary and lawyers' chambers.

Real estate owners' associations, including homeowners associations.

Cossack societies included in the state register of Cossack societies in the Russian Federation.

Communities of the indigenous small-numbered peoples of Russia.

Foundations (public, charitable, etc.).

Institutions. These include state, municipal and private (including public) institutions.

Autonomous non-profit organizations.

Religious organizations.

Public companies.

The Law enshrines the definitions of all these forms of organizations, establishes the procedure for their establishment and management, specifies the rights and obligations of their participants. Note that consumer cooperatives, public organizations, associations, partnerships of real estate owners, Cossack societies and communities of indigenous peoples of the Russian Federation are corporate, and all the rest are unitary non-profit organizations.

To engage in income-generating activities, non-profit organizations will need provide for such a possibility in their statutes... According to the current edition of the Civil Code of the Russian Federation for the implementation entrepreneurial activity it is necessary to fulfill only one condition - this activity must serve the achievement of the goals for which they were created, and correspond to them. This condition remains.

Business partnerships and companies

The law does not change the organizational and legal forms of business partnerships - they can still be created in the form of a full partnership or limited partnership (limited partnership). But the forms of business entities will decrease from September 1 - by the Law such a form as a company with additional liability is excluded(will expire on September 1). Thus, there remains the possibility of creating only societies with limited liability(LLC) and joint stock companies (JSC). Experts in the field civil law note that this is a very correct change, since in practice ODLs have not been widely adopted.

A number of changes concern the authorized capital of business entities. So, the Law stipulates that the founders of the company are obliged pay at least three quarters of the authorized capital before the state registration of the company, and the rest - during the first year of its activity (). However, the laws governing the activities of a particular type of company may establish a different procedure. The same laws, as before, determine the minimum size of the authorized capital of companies. Moreover, in the case when state registration is allowed economic society without such advance payment, the members of the company will bear subsidiary liability for its obligations, which will arise before the moment of full payment of the authorized capital.

Another change concerns the order of making authorized capital in-kind contributions. For their monetary value of the company (regardless of the value of the participants' shares in the authorized capital) will be required to attract independent appraisers... Moreover, if the appraiser makes a mistake in the calculations and overestimates the property, he, together with the participants whose shares he assessed, will bear subsidiary liability for the company's obligations within the amount by which the valuation of the property contributed to the authorized capital is overestimated, within five years from the moment state registration of the company. It should be noted that the provision on such liability will not apply to property appraisers and participants in privatized state unitary enterprises and municipal unitary enterprises. Currently, an independent appraiser is necessarily involved in determining market value property when paying for shares of JSC with non-monetary funds (clause 3 of article 34 of the Federal Law of December 26, 1995 No. 208-FZ ""). Limited liability companies are obliged to do this only if the nominal value of the participant's share in the authorized capital paid in non-monetary funds is more than 20 thousand rubles. (Clause 2, Article 15 of the Federal Law of February 8, 1998 No. 14-FZ "").

Members of business entities, according to the Law, will be able to secure a certain procedure for exercising their membership rights in a special document - corporate agreement(The Civil Code of the Russian Federation is supplemented by the corresponding article 67.2). In it, they will be able to indicate that these rights need to be exercised in a certain way, for example: how to vote at a general meeting of participants, at what price to acquire or alienate shares in the authorized capital (shares), etc. (). At the same time, not all members of the company can conclude such an agreement. In this case, it naturally does not create obligations for persons who are not parties to it.

In addition, the Law establishes the need to confirm the fact of the decision taken by the general meeting of participants in a business company and the composition of the participants in the company who were present. So, in relation to a public joint-stock company, such confirmation will be carried out by the register of its shareholders, a non-public joint-stock company - by notarization or also certification by the registrar of the register of shareholders, a limited liability company - by notarization ().

Joint Stock Companies

Important amendments also affected joint stock companies. Law cancels their division into open and closed- they will be replaced by public and non-public societies (a new article will appear in the Civil Code of the Russian Federation - Article 66.3). Public will be a joint stock company whose shares and securities convertible into them are publicly placed (by open subscription) or publicly traded under the conditions established by the laws on securities. In addition, the rules on public companies will apply to JSCs whose charter and company name indicate that the company is public. JSCs that do not meet these conditions are non-public... LLCs () are also classified as non-public companies.

It should be noted that the Law regulates in more detail the activities of public joint stock companies (specific provisions on them are enshrined in the new edition), since their activities affect property interests a large number shareholders and others.

We emphasize that the Law cancels the possibility of limiting the number of shares owned by one shareholder of a public JSC, their total par value, as well as maximum number votes given to one shareholder. At present, such restrictions may be provided for by the charter of a joint-stock company (clause 3 of article 11 of the Federal Law of December 26, 1995 No. 208-FZ ""; hereinafter referred to as the Law on Joint Stock Companies). At the same time, according to the Law, public JSCs are prohibited from placing preferred shares, the par value of which is lower than the par value of ordinary shares ().

One more significant change concerns the maintenance of the register of shareholders and the performance of the functions of the counting commission - from September 1, this will be done exclusively independent organizations licensed under the law, – (). However, this rule applies only to public JSCs. Recall that in the current practice, joint stock companies either transfer the maintenance of the register to such a registrar, or they themselves are its holders (). As for the counting commission, then current legislation it is created in a company in which the number of shareholders - owners of voting shares of the company is more than 100, and its quantitative and personal composition is approved by the general meeting of shareholders. If the register of JSC is kept by the registrar, he may be entrusted with the performance of the functions of the counting commission. And in companies, the number of shareholders - owners of voting shares of which is more than 500, the functions of the counting commission are performed exclusively by the registrar ().

In addition, the Law establishes the need for verification and confirmation of the accuracy of the annual accounting (financial) statements mandatory external audit for absolutely all JSCs(currently it is carried out only in relation to organizations that are OJSC, and still on) and in some cases - for LLC ().

ATTENTION!

No mass re-registration of legal entities in connection with the adoption of the Law is not expected since it does not establish its obligation. Provide the names of existing organizations and their constituent documents in accordance with the requirements of the Law, it will be necessary at the first change of these documents (). There are no specific deadlines for doing this. In addition, JSCs that meet the characteristics of public JSCs will not even need to indicate in their corporate name that they are public.

Experts also note that these amendments to the Civil Code of the Russian Federation are aimed at harmonizing Russian civil legislation with the legislation of foreign countries, which will help in attracting foreign investors to Russian business.