A joint-stock company (JSC) is an enterprise whose authorized capital is divided into a certain number of shares. Each of these parts is presented in the form of a security (share). Shareholders (participants of a joint-stock company) should not be liable for the obligations of the enterprise. However, they may incur the risk of losses within the limits of the value of the shares they own.
Essence of AO
A joint stock company is an association that can be either closed or open. Thus, the shares of an open joint-stock company (an open form of a joint-stock company) are transferred to other persons without the consent of the shareholders. And the shares of a CJSC (a closed form of a joint-stock company) can only be distributed among its founders or other persons agreed in advance.
Creation of an enterprise
AO is an entity based on an agreement on its creation. This document is called Represents an agreement on joint activities aimed at creating a society. It becomes invalid only after the registration of the company as a legal entity. Then another memorandum of association is drawn up - the charter.
The supreme management body of the JSC is the general meeting of shareholders. The executive body of such a company can be both collegiate (in the form of a board or directorate) and sole (for example, represented by the general director). If the company has more than 50 shareholders, then a supervisory board must be established.
A company is assigned the status of a subsidiary if it depends on the parent company or partnership.
Definition of AO
A joint-stock company is an enterprise whose authorized capital is divided into a certain number of shares. At the same time, the founders (shareholders) should not be liable for obligations, but they may incur losses in the process of carrying out the activities of the enterprise in the amount of the value of the shares owned by them.
It is also necessary to take into account the fact that in case of incomplete payment by the founders of their shares, they must be jointly and severally liable for all obligations of the JSC in terms of the unpaid value of the shares owned by them.
The company name of a joint-stock company is a name with a mandatory indication of its shareholding.
Types of joint-stock companies
This type of enterprise can be divided into two main types:
- An open joint stock company is a company whose shareholders have the right to alienate the shares they own without the consent of other shareholders. This joint-stock company conducts an open subscription for the shares issued by it. At the same time, this enterprise must publish annual reports for public review every year.
- A closed joint stock company is a company whose shares are subject to distribution among the founders or a certain circle of persons. The authorized capital of JSC is the shares distributed among them.
A package of constituent documents
The enterprise under consideration is created both by several persons and by one citizen. If the founder has acquired all the shares of the enterprise, then according to the documents he passes as one person. The charter of a joint stock company is a document that contains information about the name of the company and its location, about the rights of shareholders and the procedure for managing the activities of the joint stock company.
The founders are jointly and severally liable for those obligations that arose even before its registration. The company is also responsible for the obligations of shareholders that are associated with its creation, subject to the approval of the general meeting of founders.
The Charter is the constituent document that is approved by the shareholders and contains certain information. The property of a joint-stock company is the investment of the founders, which are fixed by the relevant agreement, which does not apply to the package of constituent documents. This agreement contains information regarding the procedure for organizing activities by shareholders to create an enterprise, the size of the authorized capital of the company, and the procedure for their placement.
The essence of the authorized capital
The authorized capital is a kind of food for JSC. Let's take a closer look at what it is.
The authorized capital of a joint-stock company is represented by the total nominal value of the shares of the enterprise, which were acquired by the founders with the determination of the minimum amount of the enterprise's property. At the same time, the interests of all creditors of the company must be guaranteed. The release of the founder from the obligation to pay for shares (even when it comes to offsetting claims) is not allowed. It is necessary to take into account the fact that when creating a JSC, all shares must be distributed among the founders.
In the event that at the end of the year the value of the assets of the joint-stock company is lower than the authorized capital, the company announces and necessarily registers in the prescribed manner the reduction in the amount of the authorized capital. If the size of the authorized capital is estimated below the minimum approved by the current legislation, then in this case the enterprise is liquidated.
An increase in the size of a joint-stock company can be adopted at a general meeting of shareholders. The mechanism of such an increase is an increase in the par value of a share or an additional issue of securities. In this case, one nuance must be taken into account. An increase in the size of the authorized capital may be allowed after its full payment. This increase can in no case be used to cover losses incurred by the enterprise.
Joint stock company management
As mentioned above, the main governing body of a JSC is the general meeting of its founders. Their competence includes resolving issues on the authorized capital of the enterprise, forming a supervisory board and choosing an audit commission, as well as early termination of the powers of these bodies, liquidation or reorganization of the company, as well as approval of annual reports.
In a JSC with more than 50 shareholders, a board of directors, called a supervisory board, may be established. Its competence is to resolve issues that cannot be considered at the general meeting of shareholders.
The executive body is the board, directorate, and sometimes just a director or general director. This body carries out the current management of the enterprise. It is accountable to the general meeting of founders and the supervisory board. By decision of the general meeting, the powers of the executive body are sometimes transferred to another organization or to a separate manager.
Thus, summing up the material presented, one can judge the complex system of functioning of a joint-stock company, the structural elements of which are: the management body, the executive body and ordinary shareholders.
an economic company formed by persons who have combined their property and cash in the authorized capital, divided into a certain number of equal shares secured by securities - shares. JSC is a commercial organization that has a corporate character and the status of a legal entity. JSC participants - shareholders have liability rights in relation to JSC, fixed in shares. A shareholder's liability for the obligations of a JSC is limited to the value of its shares (essentially, the value of a share determines the limits of a shareholder's entrepreneurial risk). The subject of ownership of funds and other property contributed by the founders and shareholders to the JSC is the JSC itself as a legal entity.
JSC as an organizational and legal form arose at the turn of the XVII-XVIII centuries. due to the need to concentrate capital for large business projects. One of the first JSCs was the East India Company, formed in England in 1600, and the East India Company in Holland, formed in 1602. In Holland, the top management of the company was appointed by the government of the States General from among the shareholders who had a certain number of shares. Shareholders owned only property rights, personal participation in the management of JSC affairs was not allowed. In 1628, the West India Company was founded in France, and in 1664, the East India Company. In the XVIII century. appear AO in Germany.
In Russia, the first legislative act that provided for the creation of associations with the features of a JSC was the Decree issued on October 27, 1699 by Peter I on the formation of trading companies by merchants. The named and subsequent Decrees of 1706 and 1711 only expressed the idea of the expediency of uniting merchants in companies to expand their business and replenish the treasury, but did not receive practical implementation. The first real operating joint-stock company was the Russian Trading Company in Constantinople, established on February 24, 1757. The company's capital consisted of 200 shares of 500 rubles each. each. 100 shares were distributed among the founders, 100 were sold to everyone. The company was managed by directors, but there was no detailed regulation of their activities.
By the end of the XVIII century. in Russia, the conditions for the functioning of equity capital have developed. But the management system of JSCs has not yet been established by law - issues related to the structure of management bodies, the procedure for expressing the will of shareholders, etc., were decided by the shareholders themselves. As a rule, management was in the hands of the founders of the company. The general meeting of participants determined the procedure for distributing profits, elected and dismissed officials, enjoyed the right to open new offices of the company, make changes and additions to the memorandum of association.
The main features of the joint-stock company were enshrined in the Named Supreme Decree of September 6, 1805. The provisions enshrined in the Decree, with some changes, were included in Ch. 10 “On Partnership” of the Code of Laws of the Russian Empire of 1830. The Manifesto of Emperor Alexander 1 of January 1, 1807 provided for two main types of partnerships - a full partnership and a limited partnership. Joint-stock companies - "partnerships in areas" - were considered as an exception. However, the need for legal regulation of the joint-stock form of combining capitals caused the emergence of the Law "Regulations on Companies on Shares", approved on December 6, 1836 by the Decree of Nicholas I.
The 1836 Law defines the essence of the joint-stock form of business organization: “Companies based on shares are formed by combining a certain number of private contributions of a certain and uniform size into one common share capital, which limits the scope of actions and responsibilities of the members of the company, and may have as its subject reduction to action of any, not constituting anyone's exclusive property, invention or enterprise in the field of science, art, art, craft, navigation, trade and industry in general. The law imposed certain requirements on the articles of association of companies, requiring that the means and purposes of the enterprise, the name of the company, the amount of capital and the number of issued shares, the procedure for compiling capital and the distribution of shares, the obligations, rights and responsibilities of the company and shareholders, the procedure for reporting, distribution of dividends, the procedure for managing affairs company, the structure and competence of the board and the general meeting of shareholders, the procedure for closing and liquidating the company. The law provided the company with the opportunity to independently regulate in its charter the rights of shareholders to participate in the general meeting and in its decisions in proportion to the number of shares they have, the procedure for participation in the meeting of authorized shareholders. The board could manage the affairs and capital of the company in accordance with the rules of the articles of association, which should indicate the maximum amount by which the board is authorized to "make expenses for the enterprise of the company" without the decision of the general meeting. The law also provided for the procedure for making decisions by the board - by a majority vote of the members present, and if it was impossible to obtain the required majority, the issue was raised before the general meeting. The competence of the general meeting was determined by the charter on the basis of an approximate range of issues attributed by law to the competence of the meeting. This is the appointment of reserve capital, the distribution of dividends, consideration of the report, the election of directors, amendments to the charter, the decision to close the company. Decisions of the general meeting were valid if they were adopted by "at least three-quarters of the shareholders who appeared at the meeting when calculating their votes according to the size of the shares."
The law of 1836 was in effect until 1917. After the October Revolution of 1917 and the broad nationalization of industry, joint-stock companies in Russia practically disappeared by the middle of 1918. However, with the transition to the NEP, interest in various forms of entrepreneurial activity revived again. Prior to the adoption in 1922 of the Civil Code of the RSFSR, the activities of joint-stock companies were practically not regulated. At the same time, separate steps were taken that created the prerequisites for the appearance in the Civil Code of a set of norms on commercial partnerships. These include the decree of the All-Russian Central Executive Committee on foreign trade dated March 1, 1922, which granted the People's Commissariat of Foreign Trade the right to organize, with the approval of the Council of Labor and Defense, joint-stock enterprises: Russian, with foreign capital, mixed. The Decree of the Council of People's Commissars of April 4, 1922 on the establishment of the Main Committee for Concessions and Joint Stock Companies established the procedure for approving the statutes of JSCs. The Law of May 22, 1922 "On the Basic Private Property Rights Recognized by the RSFSR, Protected by Its Laws and Protected by the Courts of the RSFSR" provided all legally capable citizens with the opportunity to organize industrial and commercial enterprises, including joint-stock companies.
On January 1, 1923, the Civil Code came into force on the territory of the RSFSR, which contained the basic rules governing the legal status and activities of the joint-stock company. The Civil Code designated them by the terms "joint-stock partnerships" and "share partnerships". JSC was defined as "a partnership (company), which is established under a special name or firm with a fixed capital divided into a certain number of equal parts (shares) and for whose obligations it is liable only with the property of the company." Here, as an independent feature, the division of fixed capital into a certain number of equal parts represented by shares is indicated. The number of founders could not be less than five. The charter, which was submitted for government approval, had to contain an indication of the purpose of the joint-stock company, its name, the size and procedure for the formation of fixed capital, the face value and procedure for paying for shares, a description of the management bodies of the joint-stock company, their competence and reporting procedure. For the formation of a joint-stock company, two meetings of founders were required: preliminary and constituent. Not later than one month, but not earlier than 7 days after the preliminary meeting, the constituent meeting of shareholders was convened. The resolution on the establishment of a joint-stock company was recognized as valid, provided that it was adopted by a majority vote of the shareholders present, representing at least half of the share capital contributed by the time of the founding meeting. The JSC acquired the rights of a legal entity only after registration. The system of governing bodies of the company included the general meeting of shareholders, the board and the audit commission. However, the AO was given the opportunity to form a council, which occupied an intermediate position between the general meeting and the board and, in the periods between meetings, was called upon to exercise control over the activities of the board. The formation of the council should have been provided for in the charter of the society. The JSC form was also used for organizations whose shares could belong exclusively to the state. The Regulations on joint-stock companies of August 17, 1927 extended general rules to state joint-stock companies regarding all state self-supporting enterprises. In the second half of the 30s. state joint-stock companies were either liquidated or transformed into state associations, trusts, auctions.
In connection with the almost complete nationalization of the national economy, the norms of the Civil Code on commercial partnerships became invalid and were formally excluded from the Civil Code of the RSFSR.
The transition of the Russian Federation to a market economy required the revival of organizational and legal forms capable of ensuring the unimpeded movement of goods and services, the rational organization of production, trade, banking, etc. The use of the JSC form has become one of the most important tools for the privatization of state and municipal enterprises. The restoration of the legislation on joint-stock companies began with the approval by the Council of Ministers of the RSFSR on December 25, 1990 of the Regulations on joint-stock companies. In a number of subsequent acts - the Law of the Russian Federation of July 3, 1991 No. 1531-1 "On the privatization of state and municipal enterprises in Russian Federation”, Decrees of the President of the Russian Federation “On organizational measures for the transformation of state enterprises, voluntary associations of state enterprises into joint-stock companies”, “On the state program for the privatization of state and municipal enterprises in the Russian Federation”, etc., a primary regulatory framework was created for the creation of joint-stock companies. Part one GC
RF. adopted in 1994, and the Federal Law of the Russian Federation of December 26, 1995 No. 208-FZ “On Joint-Stock Companies” regulated relations related to the establishment and activities of JSCs.
The law is applicable to all joint-stock companies operating in the territory of the Russian Federation. Features of the creation and legal status of JSCs in the areas of banking, insurance and investment activities, as well as companies formed on the basis of enterprises of the agro-industrial complex, are determined by the Federal Law.
The creation of a joint-stock company is possible either through the establishment of a new company, or through the reorganization of an existing one. A necessary condition for the acquisition by JSC of the rights of a legal entity is its state registration. The creation of a joint-stock company is an act of will performed by persons with civil legal and legal capacity - the founders. Both citizens and legal entities can act as founders. Owner-funded institutions may become AO members with the permission of the owner. The decision to establish a joint-stock company is taken by the founders jointly and unanimously, but the Law allows the establishment of a joint-stock company by one person, and then the will of this person is sufficient. The Constituent Assembly decides on three main issues: the creation of a joint-stock company, the approval of its charter, and the election of management bodies. Decisions on major issues are taken unanimously. The decision on the formation of management bodies is made by a majority 3/ of the number of votes belonging to the founders in accordance with the total number of voting shares due to them in accordance with their property contributions. The agreement on the establishment of a joint-stock company concluded by the founders is a simple partnership agreement (an agreement on joint activities) and does not apply to constituent documents. Therefore, like any civil law contract, it can be declared invalid if there are sufficient grounds for this. In addition, an obligatory condition for the normal activity of a JSC is the registration of an issue of securities (shares) of a company with the Federal Securities Commission of the Russian Federation, without which it is impossible to conduct any transactions with JSC securities.
The law distinguishes between two types of JSC - open and closed. Open JSCs (JSCs) have the right to conduct an open subscription for the shares they issue, the number of shareholders in them is unlimited, the shareholders have the right to alienate their shares without the consent of other shareholders. In closed JSCs (CJSCs), the number of shareholders should not exceed 50, shares are distributed among the founders or a limited number of persons in advance, CJSC shareholders have the pre-emptive right to purchase shares sold by other shareholders of the company. The possibility of having an unlimited number of founders and shareholders in an open joint-stock company creates the conditions for mobilizing significant capital, which ensures the solution of major economic problems. Limiting the number of shareholders of a CJSC brings this form of business companies and limited liability companies (000) closer together.
The only founding document of a joint-stock company is its charter. This is a local normative act that regulates the internal relations that develop between shareholders and the management bodies of the JSC. The legal force of the charter, its obligation for all shareholders and bodies of the joint-stock company is based not only on the fact of approval of the charter by the founders, but also on the subsequent state registration of the joint-stock company. The law gives an approximate list of information that should be contained in the charter. The founders have the right to include in it any provisions that do not contradict the law. The charter distinguishes between informational and regulatory provisions. The information that an interested person can obtain from the charter should give a complete picture of the JSC as a subject of civil law, i.e. first of all, to individualize the joint-stock company, to characterize the main directions of its activity, to indicate the state of its property. The charter defines the rights of shareholders for various categories of shares. It fixes the organizational structure of the joint-stock company, determines the structure of its bodies and normalizes the procedure for the formation and activities of these bodies. Protecting the interests of shareholders. The law established that only in the charter adopted unanimously, restrictions on the number of shares owned by one shareholder, or their total nominal value for one shareholder, could be provided. The statutory limitation of the maximum number of votes belonging to one shareholder is also allowed, regardless of the number of shares he has. Amendments and additions are made to the charter of a joint-stock company by decision of the general meeting of shareholders and become effective for third parties from the moment of state registration.
The structure of the bodies of the joint-stock company provided for by the Law is designed to ensure the interests of shareholders, the ability to really influence the economic activity of the joint-stock company. A peculiar system of "checks and balances" has been created. The main body is the general meeting of shareholders, which forms the executive and control bodies. The executive body may be the board, the directorate - collegial executive bodies or the director, the general director - the sole executive body. The current activity of these bodies is controlled by the board of directors (supervisory board) and the audit commission (auditor) created by the general meeting of shareholders.
The General Meeting of Shareholders is convened annually on a mandatory basis within the terms determined by the charter on the basis of the Law. An extraordinary general meeting is convened by the board of directors (supervisory board) on its own initiative, as well as at the request of the audit commission (auditor) of the JSC, the company's auditor, shareholder (shareholders) who owns at least 10% of voting shares. The meeting can be held both with the presence of shareholders and by absentee voting (by poll). Many issues can be resolved by absentee voting, with the exception of the election of the board of directors, the audit commission (auditor), approval of the company's auditor, consideration and approval of annual reports, balance sheets, profit and loss account, distribution of profits and losses.
Decisions adopted by the general meeting are binding on the shareholders. However, the Law provides the shareholder with the right to challenge the decision and demand in court that it be declared invalid in case of: untimely notification (lack of notification) of the date of the general meeting; failure to provide an opportunity to get acquainted with the necessary materials (information) on the issues included in the agenda of the meeting; untimely submission of ballots for absentee voting, etc.
The shareholder may apply to the court with a claim to declare the decision invalid if: a) the decision was made in violation of the law, other regulatory legal acts or the charter of the JSC; b) the plaintiff did not take part in the meeting at which the decision was made, or voted against it: c) this decision violated the rights and legitimate interests of the shareholder. In the presence of all three conditions, the claim can be satisfied by the court.
The Law defines the competence of JSC management bodies. The redistribution of competence between bodies is not allowed, except for a limited number of cases provided for by the Law. Thus, the charter may provide that the formation of the executive body and the early termination of its powers fall within the competence of the board of directors (supervisory board). The same applies to resolving the issue of changing the charter in connection with an increase in the authorized capital. For its part, the board of directors is not entitled to transfer its exclusive powers to the executive body. Not all of its powers can be exercised by the general meeting on its own: in some cases, its actions must be initiated by the board of directors (supervisory board). In particular, on the proposal of the council, issues of reorganization of the joint-stock company are resolved - merger, accession, division, separation and transformation, as well as its voluntary liquidation.
The reorganization of a JSC is that its rights and obligations are transferred to other legal entities in the order of succession. Among the forms of reorganization of a legal entity, the Civil Code of the Russian Federation, and after it the Law on JSC, mention the transformation. AO can be transformed into 000 or into a production cooperative. Transformation into a business partnership (full or limited) or into a consumer cooperative is not allowed. When carrying out the transformation, the rules established by law for the specified types of commercial organizations must be taken into account. It does not contradict the law to transform a joint stock company of one type into another: an open joint stock company into a closed joint stock company, and vice versa. The restrictions here are due to the established maximum number of shareholders in a CJSC - no more than 50, therefore, an OJSC with a larger number of shareholders cannot be transformed into a CJSC. On the other hand, a CJSC is not subject to transformation into an OJSC if the amount of its authorized capital is below the minimum level established for an OJSC.
Termination of a joint stock company in the form of liquidation is subject to the norms of the Civil Code of the Russian Federation, common to all legal entities, and the relevant norms of the JSC Law. A joint-stock company may be liquidated voluntarily by the shareholders themselves or forcibly by a court decision. The Civil Code names only two reasons for which the voluntary liquidation of a joint-stock company occurs - the expiration of the period for which the legal entity was created, and the achievement of the purpose for which it was created. The decision on liquidation must be immediately submitted in writing to the appropriate body of state registration.
The forced liquidation of a joint-stock company is carried out by a court decision in accordance with the grounds specified in the Civil Code: carrying out activities without a proper permit (license), or activities prohibited by law, or with other gross violations of the law or other regulatory legal acts. The basis for compulsory liquidation is also the insolvency (bankruptcy) of the JSC. The conditions and procedure for declaring a JSC bankrupt, as well as the specifics of the liquidation procedure, are determined by the Federal Law of the Russian Federation dated January 8, 1998 No. 6-FZ “On Insolvency (Bankruptcy)”.
The foundation commercial activities JSC - the authorized capital, made up of the nominal value of the shares of the company acquired by the shareholders. The authorized capital of a company determines the minimum amount of its property that guarantees the interests of creditors. According to the law, the minimum amount of the authorized capital for an OJSC is at least 1000 times the minimum wage established by the Federal Law, and for a CJSC - at least 100 times. The formation of the authorized capital takes place in the process of establishing a JSC by paying for shares. Shares can be paid for in money, securities (bills, checks, warrants, etc.), other things or property rights or other rights having a monetary value, including property rights - the exclusive rights of a citizen or legal entity to the results of intellectual activity and equivalent to them means of individualization of a legal entity, products, work performed or services (company name, trademark, service mark, etc.). Certain information (trade secret), which is also included in the payment for shares, may also have commercial value. Valuation of property (including property rights) is carried out at the market price. The market price is the price at which the seller, who has complete information about the value of the property and is not obliged to sell it, would agree to sell it, and the buyer, who has complete information about the value of the property and is not obliged to buy it, would agree to purchase it.
A reserve fund must be created in a joint-stock company, intended to cover the company's losses, redeem its bonds and buy back shares in the absence of other funds. Spending of the reserve fund for other purposes is not allowed. The charter may provide for the formation of another special fund - a corporatization fund, spent on the acquisition of shares with their subsequent placement among JSC employees. The law does not name any other funds, but does not prohibit their creation either.
The authorized capital, fixed during the creation of the JSC, may later be subject to change, which is fixed in the charter. The decision to increase the authorized capital is made by the general meeting or the board of directors, if such powers are granted to it by the charter. The decision to reduce can only be taken by the general meeting of shareholders. It is possible to increase the authorized capital by increasing the par value of shares or placing additional shares, and to decrease it by reducing the par value of shares or reducing their total number. A reduction in the total number of shares is allowed, in particular, by purchasing own shares, which are then redeemed. JSC is not entitled to decide on the acquisition of a part of the placed shares if, as a result, shares with a total nominal value of less than the level of authorized capital specified by law remain in circulation.
The redemption of shares is carried out not only by a decision to reduce the size of the authorized capital, but also at the request of shareholders in cases provided for by law. The owner of voting shares has the right to demand the repurchase of his shares if a decision is made to reorganize the company or make a major transaction, and he voted against or did not take part in the voting. The same right belongs to the owner of voting shares in the event of a decision to introduce amendments and additions to the charter of the joint-stock company or approve the charter in a new edition, as a result of which his rights were limited.
An essential feature of the new joint-stock legislation is the desire to protect the rights of shareholders, especially the minority, from abuse by persons who are members of the governing bodies of a joint-stock company. Therefore, the JSC Law includes rules on the possibility of challenging decisions of the general meeting, the board of directors, and the executive body. The protection of the rights and interests of a shareholder is carried out in two directions - the protection of his property rights and the protection of his right to participate in the management of the JSC.
The most important property right of a shareholder is the right to receive dividends from JSC profits. The decision to pay dividends is made by the general meeting of shareholders (annual dividends) or the board of directors (interim dividends - for a quarter, for half a year). The company is obliged to pay only declared dividends. The right to receive dividends arises for a shareholder only after the company makes a decision on their payment, which determines the amount of dividends for various categories of shares. In case of delay in payment, the shareholder has the right to apply to the court with a claim to recover from the JSC the amounts due to him. If dividends for the relevant period are not declared, the right to demand their payment does not arise. The holders of preference shares are not entitled to demand the payment of dividends, the amount of which is provided for in the charter, if the general meeting has decided not to pay dividends on shares of a certain type or to pay them in an incomplete amount. In the absence of such a decision, shareholders - owners of preference shares, the amount of dividends for which is determined in the charter, may file a claim for their payment within the prescribed period, and in case of violation of the period, they may apply to the court.
When making a major transaction, which, like other transactions, is associated with entrepreneurial risk, probable losses can seriously undermine the property stability of the JSC. Therefore, the Law requires, in the interests of the JSC itself and the sustainability of civil circulation, special care and compliance with special rules. One or more interconnected transactions for the acquisition or alienation of property or with the possibility of alienation by the company of property, the value of which is more than 25% of the book value of the assets of the JSC as of the date of the decision to conclude such transactions, are recognized as major ones. This also includes a transaction or several interconnected transactions for the placement of ordinary or preferred shares convertible into ordinary shares, constituting more than 25% of ordinary shares previously placed by the company. The decision to make a major transaction in the amount of 25 to 50% of the book value of assets must be taken by the board of directors (supervisory board) unanimously, and if unanimity is not reached, the issue may be submitted to the general meeting.
For the first time, the category of affiliated persons appeared in the joint-stock legislation of the Russian Federation, which is associated with the problem of interest in the company's transaction. Affiliates are usually referred to as persons who, as a result of the acquisition of a certain block of shares in a JSC, or by virtue of their official position in the company (member of the board of directors, executive body), or due to other circumstances, can control the activities of the company to one degree or another. Affiliated persons of a JSC may be the main economic company, in relation to which the JSC is a subsidiary;
a shareholder having the right to dispose of more than 20% of the voting shares of this company; member of the board of directors of the company; a person holding a position in other management bodies of the company, etc.
The law recognizes as interested in the transaction a member of the board of directors of a JSC, a person holding a position in other management bodies, a shareholder (shareholders) holding with his affiliate (persons) 20% or more of the voting shares of the company, if these persons, their spouses , parents, children, brothers and sisters, as well as all their affiliates: a) are a party to such a transaction or participate in it as a representative or intermediary; b) own 20 or more percent of voting shares (shares, shares) of a legal entity that is a party to the transaction or participates in it as a representative or intermediary; c) hold positions in the management bodies of a legal entity that is a party to the transaction or participates in it as a representative or intermediary. In order to reduce or completely eliminate the negative impact for the JSC of personal or group interest in the transaction and the determination of its conditions. The law has set special rules. If one or more members of the board of directors are interested in the transaction, the decision is made by a majority of votes of non-interested members of the board. If the entire board of directors is interested, the decision must be made at the general meeting by a majority of the shareholders who are not interested in making this transaction.
JSC can carry out economic expansion in various forms, including through the creation of branches and representative offices, as well as the subordination of other companies (partnerships). Branches and representative offices of a joint-stock company are incompetent subdivisions of a joint-stock company acting on behalf of the company that created them. In this regard, a power of attorney to represent the interests of a JSC can only be issued in the name of the head of a branch or representative office.
A subsidiary company is an independent legal entity created by the main economic company (partnership). JSC and 000 can be a subsidiary. Both JSC and 000, as well as business partnerships - full and limited, can act as the main one. Relations between the main and subsidiary companies are formed on the basis of the predominant participation of the first in the authorized capital of the second, or an agreement between them, or the ability to otherwise determine the content of decisions made by the subsidiary. The size of the predominant participation in the authorized capital of a subsidiary is not established by law. Various factors can influence here, and above all, the fragmentation and large number of shareholders of a subsidiary, which makes it possible to exert a decisive influence on its affairs, having 10-15% of the shares. What kind of contracts can serve as the basis for the relationship "main - child", the Law does not establish. Given the fact that the civil legislation of the Russian Federation does not know an exhaustive list of contracts, any contract that does not contradict the Law can become such a base. But at the same time, special attention should be paid to compliance with antimonopoly legislation, since when creating an extensive network of subsidiaries, the main company can take a dominant position in the market, and this is contrary to the task of developing competition. The main company can influence the affairs of the subsidiary in two ways: a) determine the general direction of activity without interfering in specific decisions and transactions; b) give mandatory instructions on specific transactions. In the second case, the main company (partnership) is jointly and severally liable with the subsidiary for the latest transactions concluded. But the right to give mandatory instructions must be provided for in the agreement between them or in the charter of the subsidiary.
A dependent economic company, by its legal nature, is close to a subsidiary. But if the economic partnership may also be the main one in relation to the subsidiary, then the predominant (participating) in relation to the dependent may be
just another business entity. Relations of dependency occur when the dominant company has a 20% stake in the authorized capital of an LLC or it has 20% of voting shares in a dependent joint-stock company. The prevailing company is obliged to immediately publish and inform the antimonopoly body about the emergence of dependence relations.
In legal forms that presuppose the existence of subsidiaries and dependent business companies, holding companies are created that concentrate in their hands controlling stakes in other JSCs in order to manage their activities. The name "holding company" itself does not have a specific legal content, since any other business company or partnership that has sufficient funds and economic interest for this can acquire a controlling stake in a company.
Great Definition
Incomplete definition ↓
Joint Stock Company (JSC)
shareholding organization, joint-stock company (JSC)
Open and closed joint-stock companies.
Closed joint-stock company (JSC)
Closed Joint Stock Company (JSC) (CJSC)
History in the Russian Federation -The first years of Soviet power -Joint-stock companies in modern Russian Federation
Creation of a joint stock company (JSC)
Founders and Constituent.
Types of contributions of the company's participants.
Establishment of a joint stock company
Establishment of a joint stock company (JSC).
Types of institution.
Foundation of a joint stock company.
The emergence of a joint-stock company (JSC).
Board (PR).
Control Council (CC)
General Meeting (OS)
Shareholder Responsibilities:
3the meaning of joint-stock companies.
Shareholder protection.
Protection of employees.
Loan protection.
Public protection.
The existence of two types of AO - closed and open - is a logical embodiment of the ideas legal science and law enforcement practice
A closed joint stock company (JSC) completely excludes the possibility of a hostile takeover
CJSC shares cannot be sold to third parties without the consent of other shareholders.
In the event of the transformation of an OJSC into a CJSC and vice versa, it is necessary to follow the procedures provided for the reorganization
The founding documents of a joint stock company are the founding treaty and charter
At the time of state registration of a joint-stock company (JSC), at least 50% of the authorized capital must be paid
Transneft, transport, Moscow
Creation of a joint-stock company (JSC).
Founders and founding.
To establish a joint-stock company, it is necessary to have founders or a founder (according to the experience of Germany, there are five of them, the Russian Federation - one, Ukraine - two, Belarus - three), who are required to make contributions (pay for shares) in the manner, amount and methods provided for in the constituent documents. The founders develop the memorandum of association and the charter of the company, which is certified by a notary.
Types of contributions of the company's participants.
The charter should stipulate in what form the contribution of the participants of the joint-stock company (JSC) is carried out (in cash or in kind):
With a cash contribution, the shareholder performs this operation in the form of payment;
With an in-kind contribution, shareholders contribute to a joint-stock company (JSC) instead of money means or objects of labor, or rights to use land, natural resources, fixed assets, as well as copyrights, inventions, discoveries, patents.
Establishment of a joint stock company
The founders open a subscription for shares, if it is an open joint stock company (JSC), and publish a notice of the upcoming subscription for shares. After a certain period of time, the subscription is terminated. If by this moment it was not possible to cover the majority of shares by subscription, then the establishment of a joint-stock company (JSC) is recognized as failed. If all shares are distributed among the founders, then the subscription is considered completed. The supreme body of the company is the general meeting of shareholders, whose exclusive competence includes: election of members of the management board and members of the control board. For the first financial and economic year, the founders can appoint the first control board and the controller for summing up the results, and the control board appoints the first board of the company.
The founders notify the public in writing of the progress of the founding of the society. A public publication is reviewed by a supervisory board and an independent controller, usually not a member of the public company.
Registration.
The company acquires the rights of a legal entity from the moment of registration. For registration, registration applications and notarized copies of constituent documents are submitted. Information about the type of company, subject, goals and terms of its activity, composition of founders, company name, location, branches and amount of authorized capital is entered into the register of state registration.
After registration, the company has the opportunity to open bank accounts. Before entering into the state register, the founders temporarily create a civil law society. Transactions made on behalf of the company before the moment of registration are recognized as concluded if they are subsequently approved by the general meeting of shareholders. Responsibility for the transaction is borne by the persons who concluded them.
After the submission of an application for registration and its verification, registration takes place and the data is published in the open press. State registration is a law-creating action for a joint-stock company (JSC).
Establishment of a joint stock company.
Founder and contract of the society.
To establish a joint-stock company (JSC), at least five founders are needed, who must take over all the shares for contributions (German society closed type). They develop the contract and the charter of society. This document must be certified by a notary.
Types of institution.
The charter should fix the type of institution being created - it will be monetary or property. - In a financial institution, the contributions of shareholders are made by way of payments.
In case of a property institution, a shareholder's contribution to a joint-stock company (JSC) instead of money can be: cars, patents (thing payment) or other property (transfer of things).
Foundation of a joint stock company.
The company is considered founded after the founders take over the shares.
Appointment of the control board, board and controllers.
It is carried out to sum up the results of the year. The founders appoint the first control board and the controller to sum up the results of the first financial year. The Board of Control appoints the first board.
Reporting and verification of the institution.
The founders report in writing on the progress of the establishment. This must be controlled by the board, the control board and, as a rule, also by external controllers.
The emergence of a joint-stock company (JSC).
Before entering the commercial register Republic of Germany the founders create a civil law society. Everyone who makes transactions on behalf of the company is liable personally and as a collective debtor. All founders, as well as all board and supervisory board members, must apply. They must prove that all the necessary material contributions and contributions were made to the fixed capital. The application must indicate which representative powers the members of the board have. All documents about the establishment must be attached. After verification of the application by the court, registration and publication follow. As a legal entity with commercial property, a joint-stock company (JSC) arises only after registration. Registration thus has a right-creating effect.
The structure of a joint stock company.
A joint stock company (JSC) consists of three elements: the board, the supervisory board with the functions of an observer, and the general meeting of shareholders.
Board (PR).
Legal position.
The executive body of a joint-stock company (JSC), which manages current activities, is the board work the board leads the president board (chairman).
If the board consists of several persons, then by law they have the authority to collectively manage the enterprise and to have a common representative power. The charter of the company may contain the powers for sole management and sole representative power. The sole management is limited to the opinion of the majority of the board members of the joint-stock company. The charter of the company may grant powers to one of the members of the board with the right to transfer powers to a trustee.
North German joint-stock company (JSC) “Zelstof” Zeller with the transfer of authority to Mr. Gorn.
The powers of a sole representative office and the powers of a trustee are entered in the state (commercial) register.
Appointment and dismissal.
The board is elected by the general meeting, appointed by the supervisory board or, in exceptional cases, appointed by the court for a term not exceeding 5 years, as stated in the company's charter. Re-appointment of members of the board is allowed. Members of the control board cannot be simultaneously members of the management board of a joint-stock company. The Supervisory Board has the right to dismiss appointed members of the Management Board if there are serious grounds, such as violations of official duties.
The composition of the board.
The Board may consist of several members or one president(director), which is determined by the amount of the authorized capital. In joint-stock companies Germany with an authorized capital of more than 3 million marks, the board must consist of at least two people. For industries with more than two thousand employees and in the mining industry of Germany, a director is additionally introduced to the board, who is appointed by the control council to conduct labor, legal, social and personal affairs.
Effective management of a joint-stock company with personal economic responsibility of each of its members.
Regular informing of members of the society. At least once a quarter, a report on the course of financial and economic activities and on the economic situation of the company is drawn up and submitted to the control board.
Preparation of a report for the past budget year and a report for the inspector-controller.
Development of proposals for the rational use of the balance sheet profit of a joint-stock company (JSC) with their subsequent defense at a general meeting.
Careful and conscientious performance of the functions of managing the affairs and finances of the company. Maintaining competitiveness at a sufficient level. In the event of an increase in debt, and in the event of insolvency, the board opens bankruptcy or submits the case to the court for a compromise decision.
Publicity.
The composition of the board of a joint-stock company and all changes in the composition are entered into the state register and published in the open press. Each document or statement of the board is signed by its members. The names of the board members are published in business newspapers and circular letters. Business correspondence is signed by the chairman and members of the board indicating the positions.
Payment labor.
The board receives a fixed salary, specifically stipulated by the charter of the company. In addition, the board participates in the distribution of profits at the end of the year, which certainly stimulates its economic interest. The amount of the annual increase in profits is reduced by the amount of losses, contributions are made to the accumulation funds of the society, and the remainder of the profits, in accordance with the provisions of the articles of association, serves to stimulate the board.
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Control Council (CC)
Purpose and composition:
The Control Council (Audit Commission) of a joint-stock company (JSC) is appointed in Germany for four years (in the Russian Federation for two years) and is formed according to the following rules:
Companies with less than 2,000 employees the supervisory board is elected by two-thirds of the representatives of the shareholders and one-third of the representatives of employees. The minimum number of members of the supervisory board in this case is three. The charter may also regulate a larger number of representatives of shareholders in the control board - depending on the amount of the authorized capital:
up to 3’000’000 marks 9 people,
over 3’000’000 marks 15 people,
over 20’000’000 marks 20 people,
In companies with more than 2,000 employees The supervisory board is elected on an equal basis from representatives of shareholders and employees according to the following rules:
With the number of employees from 2,000 to 10,000 people. - 12 members, of which four are employees and two are trade unions;
With more than 10,000 employees - 16 members, of which six are employees and two are trade unions;
With more than 20,000 employees -20, of which seven are employees and three are trade unions.
In fact, the laws of a developed market encourage honest ways of capital accumulation. This creates an atmosphere of confidence and trust in the relations of partners among themselves and with the state.
Payment of dividends (share capital). The General Meeting decides on the amount to be paid to shareholders from the Balance Profit.
Increasing the balance of Profit. The rest of the Profit is transferred to a new account.
Use of savings. The capital accumulation of a joint-stock company serves as protection for the shareholder, since the shareholders are not personally liable. These savings are the financial base of the joint-stock company (JSC), and it is not recommended to use them to cover losses. In case of bankruptcy on capital savings, an appropriate decision is made. If the savings exceed the norm established by law and allowed by the charter, then the excess part of the savings can be used to cover losses, if other types of savings were not used to pay dividends.
The excess amount of savings can be converted into fixed capital. Other types of savings (Profits) can be spent for the intended purpose or without it. Savings serve to ensure and expand production, to stabilize fixed capital by covering losses, increasing capital, and for dividend policy. Target savings can be created for promising investments, for tourist trips, etc. The transformation of savings into authorized capital is called capital growth from the company's funds. The capital and legal savings of German joint-stock companies may be converted into authorized capital insofar as they together exceed 10% or a higher part of the previous authorized capital determined by the charter. Other types of savings can be fully converted into authorized capital. Target savings may only be used for their intended purpose.
The general meeting of the joint-stock company decides to raise the company's funds in the ratio of two to one. The authorized capital is increased from 4 to 6 million rubles. through the redistribution of savings in the amount of 2 million rubles.
Publicity. The annual report and other final documents are immediately transmitted to all shareholders by including statistical data in the commercial register and publication of the notice in the federal press. The volume and type of publication depend on the amount of the authorized capital of the company.
3the meaning of joint-stock companies.
Joint-stock companies arose in the middle of the 19th century, during the period of general industrialization of the economy, to meet the enormous needs of large ship, railway and industrial enterprises. Many large modern enterprises use the services of joint-stock companies to finance their own technical projects. In Germany in 1992 there were about 2,500 joint-stock companies. The number of transformations into this social form is increasing and is due to the need to concentrate capital for the purposes of technical progress. Low par values of the shares encourage a large number of shareholders, even if they are limited by their own funds.
Swedish shareholding is both distributed and concentrated. Every fourth Swede owns a share. Ownership of key controlling stakes in large enterprises is concentrated in the hands of a small number of families and large institutions. The concentration of influence is enhanced by the fact that in many cases voting rights are unequal. This means that some shares carry more weight in the general meeting. In Sweden, large shareholders are various institutions, the share of which has increased significantly in recent years. Shareholding is concentrated in large enterprises that own blocks of shares in other enterprises, which in turn own the following, and so on. There is a well-known example of a large share capital of the “matryoshka” type - the possession of the Wallenberg family.
It is known that a large number of shareholders in the state contributes to the emergence of a wide range of owners of the means of production. For this practice issuance of collective shares. After the issuance of shares, the company receives capital for its own management. On the other hand, shareholders can sell their own share capital at any time Significant volumes of production and concentration of capital in large joint-stock companies contribute to the creation of numerous and widely branched ties and interweaving with other enterprises and economic partners. The economic interests of economic partners are protected by legal acts, which stipulate possible guarantees against economic damage in the event of bankruptcy of a joint-stock company (JSC).
Shareholder protection.
The owners of a small number of shares have no influence on the board of the joint-stock company. Large shareholders, joint-stock trusts and banks, which enjoy depositary voting rights, have great influence. The intended purpose and own activities of the control board and the unconditional right of the shareholder to information make the board conduct business most efficiently, publicly, with regular reports and messages.
Protection of employees.
Employees have their elected representatives on the control board and board of the joint-stock company (JSC). For a company with more than 2000 employees. one of the directors of the company must be chosen from among the employees.
Protection loans.
Borrowers, by virtue of the capital anonymity rule, are usually unknown in the joint-stock company and are not liable for the obligations of the joint-stock company. Borrowers the provisions of the law and the charter on the delimitation of rights and obligations, the publication of the annual report in the open press, the mandatory accumulation and targeted use of share capital are protected.
Public protection.
Managers - heads of joint-stock companies under the obligation to dispose of a substantial part of the national economic capital. The merging of enterprises of joint-stock companies by merging capital strengthens this tendency and leads to the concentration of power in the hands of a small number of people. The influence of these structures of capital societies on the economy and politics of the state is growing. Therefore, in the interests of the public, strict and complete publicity in the media is necessary.
When considering and analyzing problems and proposals for their solution, without which the existence and fruitful life of our society is problematic, the only possible conclusion in this difficult situation is that for normal functioning market Ukraine and the successful introduction into the mainstream of relations between its subjects, specific steps are needed:
Immediate adoption and strict implementation of normative and legislative acts regulating economic activity businessmen and public sector enterprises under the national market;
Creating a level playing field for successful work enterprises of all forms of ownership and the implementation of a competent antimonopoly policy that will prevent the emergence of monopoly in our young, not yet strong economy;
Providing state assistance in the creation and support of such new forms of ownership inherent in a market economy as private, based on individual ownership and labor activity owner, private property with the right to hire labor, joint-stock (joint stock companies of closed and open types), property of public organizations, property with foreign capital on early stage its development
Joint-stock firms are the most appropriate means of implementing large projects that require significant involvement of financial and human resources. The scale of this legal form has meant that the typical mistakes and misconceptions associated with this way of doing business can lead to irreparable consequences, affecting major shareholders, top managers and even ordinary employees.
Along with other forms of entrepreneurial activity, the joint-stock company (JSC) was forgotten in the era of socialist management. Fundamental changes in the political and economic life of our country led to the revival of joint-stock companies. However, the haste in the adoption of legislative acts regulating this organizational and legal form, which followed them misapplication and the lack of a legal business culture have led to the emergence of a huge number of myths and misconceptions associated with joint-stock companies.
The existence of two types of joint-stock companies - closed and open - is a logical embodiment of the ideas of legal science and law enforcement practice.
Nothing like this. Division of joint-stock companies into two types represents an unfortunate legislative oversight, which over time has taken root in both regulations and legal consciousness businessmen. The fact is that at the stage of the initial formation of the regulatory framework carried out in the Russian Federation reforms, the development of the law of the RSFSR of December 25, 1990 "On enterprises and entrepreneurial activity" and the Regulations on joint-stock companies, approved by the Decree of the Council of Ministers of the RSFSR of December 25, 1990 were mainly domestic economists. Their lack of theoretical knowledge led to the borrowing from the Anglo-American system of law of the design of a closed joint stock company (JSC), which received its legal development already in the Federal Law "On Joint Stock Companies".
It should be emphasized that in European countries companies that use this way of doing business as a limited liability company, there is no closed joint stock company (JSC). However, in the US and England the legal mechanism of ZAO is widely used, and limited liability companies simply do not exist there. Thus, closed joint-stock companies are an "inefficient" understudy of LLCs, confusing the system of domestic law and misleading businessmen who rely on their closeness (for more details, see below).
A closed joint stock company (JSC) completely excludes the possibility of a hostile takeover.
It would seem that in this case, shareholders are reliably protected from unwanted partners entering their business, because the law says that a shareholder, before selling his shares to a third party, must offer other shareholders to buy the securities alienated by him. Unfortunately, the requirement of the law is quite easily neutralized. The fact is that such a rule is obligatory only in case of alienation of shares for compensation, but if there is a donation or transfer of shares in the order of inheritance, then the specified norm of the law does not apply.
This is confirmed by real events that took place at a Ural machine-building plant. The actual owners of the specified open joint stock company were its five leading managers headed by the CEO: total they owned about 85% of the shares. The remaining shares were owned by a small number individuals.
Due to the uniqueness of the products produced, it brought a stable and firmly on its feet, despite the negative economic situation in the country. In 1999, the main owners of the enterprise, fearing hostile actions from large Moscow holding structures, decide to transform the company into a closed joint stock company (JSC). In this regard, an extraordinary general meeting of shareholders is convened, at which the necessary decision on the transformation into a CJSC is easily adopted.
The calm course of events at the enterprise is disturbed by the sudden death of the general director, who owned 43% of the voting shares of the company. The head of the organization did not leave a will, so all the property that belonged to him passed to his son, who was the only heir. The new shareholder was not interested in the affairs of the enterprise, which made his father's associates think about acquiring shares. However, the price offered for the block of shares belonging to the heir did not suit its owner. Despite the refusal managers they were in no hurry to raise the price, as they believed that the heir would not be able to sell shares to a hostile holding without offering them to be acquired by other shareholders. What was the surprise of the managers when they learned that the company had new shareholders - the heir gave shares to three physical persons who represented the interests of the aforementioned holding structure (of course, the heir received a significant amount of money for these transactions, but this remained outside the framework of the concluded gratuitous donation agreements).
Subsequently, the holding organization managed to acquire (again through a donation transaction) about 10% of the shares from disinterested shareholders and placed under control joint-stock company (JSC).
CJSC shares cannot be sold to third parties without the consent of other shareholders.
Indeed, this rule has been in effect for several years. contracts of the aforementioned AO Regulations. Thus, paragraph 7 of this document provided that the shares of a closed company can be transferred from one person to another only with the consent of the majority of shareholders, unless otherwise stipulated in the charter. The current regulations have abandoned such a legal structure. Now, if a shareholder of a closed joint-stock company (JSC) decides to sell his shares to a third party, he must first offer them for purchase to other shareholders and sometimes to the company itself.
It should be emphasized that the rule that secures the pre-emptive right for shareholders is imperative, and therefore it cannot be limited by the agreement on the establishment of the company, its charter or other internal document of the company. At the same time, the company itself can claim to acquire shares only if the shareholders of this company do not use their pre-emptive right to acquire shares.
Shareholders, and in appropriate cases, the company itself, may exercise the pre-emptive right to purchase shares if they agree to purchase the proposed treaty at the price and on the terms specified in the notice (offer price to a third party). If the price at which potential buyers express their willingness to purchase shares is lower than that offered by a third party, or if they agree to buy only a part of the alienated shares, the shareholder has the right to sell them to a third party at the original declared price.
Assignment of the pre-emptive right to acquire shares is not allowed.
In order to ensure the implementation of this shareholder right, the current legislation provides for serious guarantees. Suppose that a shareholder sold his shares to a third party, despite the fact that other shareholders or the company itself expressed their desire to purchase these securities at the specified price in time.
In this case, persons whose pre-emptive right to acquire shares has been violated have the right, within three months from the moment they learned or should have learned about such a violation, to demand in court the transfer of the rights and obligations of the buyer of these shares to themselves.
In an open joint-stock company, it is not allowed to establish the pre-emptive right of the company or its shareholders to acquire shares alienated by the shareholders of this company.
In the event of the transformation of an OJSC into a CJSC and vice versa, it is necessary to follow the procedures provided for the reorganization.
With such a change in the form of doing business, it must be taken into account that there will not be a reorganization of the company, because the organizational and legal form of legal entities. entity remains the same - joint-stock company (JSC). In this case, there is a change in the type of joint-stock company. Consequently, businessmen have the right not to comply with a number of procedural aspects of the reorganization: a deed of transfer is not drawn up, borrowers organizations are not notified about the upcoming change in the type of joint stock company (JSC). In addition, shareholders lose the right to demand the redemption of their shares of the company if they voted against the transformation or did not participate in the voting. Of course, these circumstances play into the hands of the main shareholders.
The transformation of a joint-stock company of one type into a joint-stock company (JSC) of another type is carried out by decision of the general meeting of shareholders with the introduction of appropriate changes to the charter of the company (approval of the charter in a new edition) and their state registration in the prescribed manner.
However, for such transformations, the legislation establishes restrictions, in particular, the following:
The number of shareholders created as a result of the transformation open society closed should not exceed 50;
The creation of certain groups of joint-stock companies is possible only in the form of open (for example, joint-stock investment funds) or closed (joint-stock companies of employees (people's enterprises);
The size of the authorized capital of a CJSC, whose participants intend to transform it into an open joint-stock company, must not be lower than the minimum level established for open joint-stock companies.
Unfortunately, some heads of enterprises, as well as owners of large blocks of shares, believe that the simplified procedure for changing the type of joint-stock company (JSC) allows one to freely deal with other requirements of the law. Such a position leads to very deplorable consequences not only for the transformed organization, but also for its CEO.
This is confirmed by examples from corporate practice. In 2001, one large St. Petersburg organization ZAO X, engaged in wholesale supplies grocery products decided to become an open joint stock company. The main shareholders of the firm, in order to simplify the procedure for this process, decided not to convene an extraordinary meeting of shareholders, which would have to transform the organization. The decision to change the type of joint-stock company in violation of the current legislation is made by the board of directors of the legal entity. Shortly thereafter, using connections in power structures, businessmen registered changes in the charter, and the company continued its activities. However, six months later, one of the small shareholders of the company demanded in court to cancel the registration of these changes, as not complying with the current legislation. The court upheld the claim of the plaintiff, recognizing his correctness. The situation was aggravated by the fact that a criminal case under part 1 was initiated against the general director of the mentioned organization. Art. 171 of the Criminal Code of the Russian Federation "Illegal business".
The founding documents of a joint-stock company (JSC) are the memorandum of association and the charter.
Nothing like this. This statement is true for a limited liability company, but not for a joint-stock company. The agreement on the establishment of a company concluded by the founders of a joint-stock company is an agreement on joint activities for the establishment of a legal entity. persons and does not apply to constituent documents.
At the time of state registration of a joint stock company (JSC), at least 50% of the authorized capital must be paid.
Indeed, before January 1, 2002, when creating a joint-stock company (JSC), its founders had to remember the obligatory payment of at least 50% of the authorized capital before registering a legal entity. However, the amendments to the Federal Law “On Joint-Stock Companies” that came into force radically changed the situation. Now the founders of the company are required to pay for at least 50 percent of the shares distributed during its establishment, no later than three months from the date of state registration of the organization. Until the payment of the specified number of shares, the company is not entitled to make transactions that are not related to its establishment
Transactions related to the establishment of a company, in addition to transactions for payment by distribution agreement among the founders of shares, may include transactions for the acquisition (lease) of premises for accommodating the company, office equipment, conclusion of an agreement on a bank account and others not directly related to commercial (production and economic) activities society. Transactions concluded by the company during the specified period and not related to the establishment of this company may be declared invalid.
A joint-stock company, the authorized capital of which is less than the minimum amount established by law, must increase it without fail.
This statement is not true. After all, it violates the principle: the law has no retroactive effect.
The Federal Law "On Joint Stock Companies" determines the minimum amount of authorized capital for open joint stock companies - not less than a thousand times the amount and for closed joint stock companies - not less than a hundred times the amount of the minimum wage established by federal law on the date of state registration of the company.
It should be borne in mind that if at the time of the state registration of a joint-stock company (when it was created) the size of the company's authorized capital corresponded to the level established by the legal acts in force at that time, then when registering changes to the company's charter or registering a new edition of the charter, carrying out such registration , is not entitled to refuse to carry it out on the grounds that the authorized capital of the company does not correspond to the minimum amount in force on the date of registration of changes (except for cases when amendments are made to the charter in connection with a decrease in the amount of the authorized capital at the initiative of the company). Refusal to register changes on this basis may be appealed (disputed) in court.
A joint stock company (JSC) is obliged to pay dividends annually.
The current legislation does not provide for such a duty.
The decision on the payment (declaration) of dividends, including the amount of the dividend and the form of its payment, is taken by the general meeting of shareholders on shares of each category (type), including preferred ones, in accordance with the recommendations of the board of directors (supervisory board) of the company.
In the absence of a decision to declare dividends, the company is not entitled to pay, and the shareholders cannot demand their payment.
If necessary, in the course of reorganization, a joint-stock company (JSC) may be merged with a limited liability company and other commercial organizations.
Unfortunately, this misconception has affected large sections of the business community. This circumstance forced the Plenum of the Supreme Arbitration Court of the Russian Federation in its decision No. focus on this debatable issue. In particular, it was noted that the provisions of the law on joint-stock companies do not provide for the possibility of reorganization through the merger of JSC enterprises with legal entities of other organizational and legal forms (including limited liability companies) or their division (spin-off) into a joint-stock company (JSC) and legal person of another legal form. A merger or accession of two or more joint-stock companies may be carried out in order to create a larger company, and a division (spin-off) may be carried out in order to form one or more new joint-stock companies.
To create branches and open representative offices of a joint-stock company (JSC), the decision of the general director of the company is sufficient.
This is fundamentally wrong. Due to the fact that each new branch and representative office can have a serious impact on the economic situation of the parent organization, the decision on their existence is within the competence of the board of directors. If the board of directors is not formed, this issue should be decided exclusively by the general meeting of shareholders and not by the executive body of the company.
Consider the following example. A large plant producing crystal products decided to establish a representative office in St. Petersburg: long-term cooperation with a group of Finnish companies was planned. But due to the haste, the decision to establish a separate subdivision was made only by the general director, and not by the Board of Directors of the JSC; the bylaws were not amended.
The situation turned out to be in the hands of the competitors of this plant. Hostile firms carried out a whole range of actions to discredit their rival. First, some physical a person owning 0.5% of the plant's shares filed a claim for the liquidation of the plant's representative office in St. Petersburg, since it was created in violation of the current legislation. Secondly, Russian and Scandinavian print media reported on the "incomprehensible legal status" of the plant's representative office and suggested a planned scam. Concerned Finnish partners asked to urgently present at least the Articles of Association of the joint-stock company, in which its St. Petersburg representative office would appear. Of course, such a request could not be fulfilled, which confirmed the indirect fears of the Finns and forced them to refuse to conclude a deal.
The General Director cannot be quickly removed from his position if he is elected by the general meeting of shareholders.
Speaking about the dismissal of the general director, one should especially dwell on the speed and efficiency of his dismissal. Let's simulate the situation: the director of subsidiary B is elected and dismissed based on the decision of the general meeting of shareholders. Parent organization A, which owns 77% of B's voting shares, becomes aware of the establishment by General Director B of a number of commercial organizations that purchase the products of the "daughter" at low prices for the purpose of subsequent sale, thereby causing significant harm to both the subsidiary and the parent company.
Organization A decides to dismiss the unscrupulous director, for this it needs, firstly, to initiate consideration by the board of directors B of the issue of convening an extraordinary general meeting of shareholders B; secondly, to hold a general meeting of shareholders and make a decision on the early termination of the powers of General Director V. Obviously, at least one month will pass from the moment of the meeting of the board of directors to the holding of the general meeting of shareholders, which in no way can suit the parent company, because all this time the director will continue to perform his duties, realizing that the issue of his dismissal is practically resolved.
In order to avoid this situation, the parent organization had to provide in advance in the charter of the subsidiary company the possibility of the board of directors to suspend the powers of the general director and form a temporary sole executive body of the company, which would be vested with the full power of the general director. Thus, the scheme of actions of company A could look like this: firstly, initiating a meeting of the board of directors on the suspension of the powers of the old general director and on the formation of a temporary sole executive body of the company (the candidacy, of course, is agreed with the parent company); secondly, the holding of a general meeting of shareholders at which the powers of the old general director are terminated and a new general director is elected. I would like to emphasize that this procedure for suspending the powers of a director is possible only if it is directly provided for by the charter.
Shares owned by shareholders cannot be acquired by criminal means.
It would seem that this is true, because the shares are not kept at their owners' homes, but are on accounts under the control of the registrar. However, criminal thought does not stand still, and crude methods of taking property from the population are being replaced by more elegant methods.
This is confirmed by a case that took place a few years ago. So, a certain limited liability company was the owner of 5,000,401 ordinary nominal shares of the oil organization JSC "X".
At the beginning of September 1999, on the basis of a transfer order, 700,000 shares were written off by the registrar from the LLC account and credited to the account of the new owner of CJSC U. Two days later, CJSC U and CJSC Z signed a contract for the sale of these shares in the amount of 15 million rubles, as a result of which they were credited to the account of LLC Z.
Some time later, the general director of a limited liability company was unpleasantly surprised to learn about the write-off of securities. On the fact of fraud, a criminal case was initiated, within the framework of which an examination of signatures and seals on the transfer order was carried out, as if signed by the general director of the LLC. According to the conclusion of the handwriting examination, “the signature of the general director was not made by him personally, but using a graphic representation of his signature “facsimile”, therefore it is not possible to establish a specific signature executor, the imprint of a simple round seal of a limited liability company was applied in a non-printed form with a simple round seal of LLC submitted for research.
In other words, the fraudsters forged the signature of the general director on the transfer order and made a fake seal of the LLC based on the imprint they had.
If the owner of the company owns more than 50% of his voting shares, compliance with the procedure provided for large transactions and related-party transactions is an empty formality.
Far from it. Even in this case, it is necessary to follow the procedure prescribed by law, otherwise it may have the most negative consequences for the organization itself and for its main shareholders.
The fact is that regularly giving unspoken instructions to the head of the company, the owners of the enterprise often forget about the need documentation negotiating with them the conclusion of certain important contracts. Such negligence can have an extremely negative impact on the financial condition of the company. Competitors of an organization, having acquired at least one of its shares and having established that the company does not comply with the procedure for approving major transactions or transactions with interest, may demand in court the invalidity of the agreements concluded.
As an illustration, let us cite a story that took place at the end of last year in Yekaterinburg. One local businessman controlled 80% of the shares of a large industrial complex. Of course, both the general director and members of the board of directors were nominated to their positions by this shareholder, who constantly supervised their actions. Practically not a single more or less significant contract could be concluded without prior agreement with the entrepreneur. Unfortunately, the plant was famous for its poor legal support of transactions, many of which did not pass the necessary approval procedure either from the board of directors or from the general meeting of shareholders. The company's competitors took advantage of this omission - they acquired several shares of the enterprise through dummies, after which the newly minted shareholders filed lawsuits to invalidate a number of contracts concluded by the plant. The judicial authorities agreed with the plaintiffs' claim, as a result of which the plant was forced to dismantle and return to the seller the expensive equipment, also acquired in violation of the joint-stock legislation. In addition, due to the invalidity of other smaller contracts, significant damage was caused to the business reputation of the enterprise. The most ridiculous thing in this story was that these transactions could be approved in time by both the board of directors and the general meeting of shareholders of the company, which would have avoided the sad outcome of events.
Thus, organizations should be clear about what transactions fall into the category of large or interested party transactions and what is the procedure for their completion. After all, there is always a danger that these transactions will be challenged at the suit of the company itself or its shareholder (participant).
If the court seizes the shares, this automatically prohibits their owners from voting at general meetings of shareholders.
Quite often, even judges confuse two separate types of interim measures - a ban on voting and a seizure of shares. Presidium of the Supreme Arbitration Court of Russia addressed this circumstance in its Information Letter dated July 24, 2003 No. 72 (Review of the practice of Arbitration Courts taking measures to secure claims in disputes related to the circulation of securities).
By seizing the shares in order to secure a claim, Arbitration court does not prohibit the owner of shares from using them and exercising the rights certified by them to participate in the management of a joint-stock company, therefore, the arrest of shares imposed Arbitration Court in order to secure a claim, meant only a ban on the owner of shares to dispose of them as an object of civil circulation.
This argument is supported by arbitration practice. The shareholder, in accordance with Part 2, Clause 7, Article 55 of the Federal Law "On Joint Stock Companies" (hereinafter referred to as the Law on Joint Stock Companies), appealed to the Arbitration Court against the decision of the board of directors of a closed joint stock company to refuse to convene an extraordinary general meeting of shareholders at the request of this shareholder. The Board of Directors, rejecting the shareholder's claim, referred to the arrest of the shares belonging to him by the decision of the arbitration court in order to take measures to secure the claim that was brought against this shareholder by one of his counterparties. Consequently, the shareholder could not exercise the rights certified by these shares, including the right to demand the convening of a general meeting of shareholders.
The court upheld the claim on the following grounds.
In accordance with part 1 of Article 96 of the Arbitration Procedure code Russia (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation), a ruling of an arbitration court on securing a claim is enforced in the manner established for the execution of judicial acts of an arbitration court. According to paragraph 2 of Article 51 of the Federal Law "On Enforcement Proceedings" (hereinafter referred to as the Law on Enforcement Proceedings), the arrest of the debtor's property means a prohibition to dispose of it, and, if necessary, restriction of the right to use the property, its withdrawal or transfer to storage.
In accordance with paragraph 2 of Article 51 of the Law on Enforcement Proceedings, when seizing the property of the debtor in order to levy execution on him, the types, volumes and terms of restriction of the right to use the arrested property are determined by the bailiff-executor in each specific case, taking into account the properties of the property, its significance for the owner or owner, economic, domestic or other use and other factors.
Since the arrest of the shares was imposed by the Arbitration Court in order to take measures to secure the claim on the basis of Articles 90 and 91 of the Arbitration Procedure Code of the Russian Federation, the restriction of the right of the defendant-owner of the arrested shares to use the rights certified by them (types, volumes and terms of restriction) could be necessary, established only by the Tribunal itself. The arbitral tribunal had the right to establish restrictions either directly within the framework of the arrest imposed on shares or as a separate independent interim measure. Such restrictions were not introduced by the court, therefore the arrest imposed by it on the shares was only a ban on their owner from disposing of them. In addition, when the court imposed restrictions on the exercise by a shareholder of any of the rights certified by the arrested shares, a ban on convening a general meeting of shareholders could not be established, since such a measure would interfere with the activities of the supreme management body of a joint-stock company (JSC).
Thus, two separate interim measures should be distinguished. I would like to emphasize that at present, the courts are increasingly applying these measures in combination. This is done in order to limit the possibility of maneuver for the attacked side. Suppose, on the eve of the general meeting of shareholders, one of the shareholders was forbidden to participate in voting. However, due to the fact that no one forbade him to dispose of these shares, he can easily sell them to third parties, who will express his interests at the general meeting of shareholders.
Only the most common misconceptions about joint-stock companies have been considered above. It must be emphasized that such corporate ignorance not only leads to significant financial losses, but even to the complete loss of the entire business.
Guarantee function of the authorized capital of a joint-stock company
In the theory of civil law, the idea that a joint-stock company (JSC) performs a guarantee function is substantiated, which is clearly stated in Art. 25 of the Federal Law "On Joint Stock Companies". “Owing to the limited liability of the shareholders, this capital is the only object of satisfaction for its creditors, the only basis for its loan... A joint-stock company is a union not of individuals, but of capitals; its loan does not depend on the personal loan of this or that participant, but on the cumulative capital.
We can agree with the allocation of two main measures aimed at fulfilling the guarantee function by the authorized capital of a joint-stock company, enshrined in the legislation of almost all states. This is, firstly, the actual creation of share capital, and secondly, the retention of property at the level of the amount of capital provided for in the charter. E.A. Sukhanov, in addition, emphasizes the importance of establishing in the law the minimum size of the company's authorized capital.
It seems necessary to identify five main areas of influence of the norms of the Civil Code of the Russian Federation and the law on joint-stock companies in the field of the authorized capital fulfillment of the guarantee function: establishing the minimum amount of the authorized capital of a joint-stock company (JSC) at the legislative level; ensuring the actual formation of the authorized capital, declared in the constituent document of the company; ensuring that the real value of contributions to the authorized capital corresponds to their nominal value; maintaining the value of the company's property at a level not lower than the size of the authorized capital; granting additional rights to borrowers in the event of a change in the amount of the authorized capital.
Establishment of the minimum size of the authorized capital of a joint-stock company at the legislative level. on joint-stock companies establishes the minimum size of the authorized capital of joint-stock companies. For an open joint stock company (JSC), a minimum of at least a thousand times the minimum wage is established, for a closed joint stock company - at least a hundred times the amount. The law does not establish the obligation of the company to increase the authorized capital, despite the constantly changing size of the minimum wage. The legislator for joint-stock companies wishing to carry out activities in credit, insurance, investment and other areas, in order to obtain the appropriate license, established a higher minimum amount of authorized capital.
Such an exception to the general rule is due to the peculiarities inherent in these types of activities and increased social responsibility to society and the state. Establishment at the legislative level of the minimum amount of the authorized capital of a joint-stock company, as a legal entity. a person who is the "ceiling of liability", bearing "independent and exclusive property liability", is also characteristic of foreign legislation.
Ensuring the actual formation of the authorized capital, declared in the constituent document of the company. In order to ensure the actual creation of the authorized capital of a joint-stock company (JSC), clause 3 of Art. 99 of the Civil Code of the Russian Federation prohibits an open subscription for shares of a company until the authorized capital is paid in full. The Civil Code of the Russian Federation and the law on joint-stock companies establish a rule according to which, when a joint-stock company is established, all shares must be distributed among the founders (clause 2, article 25 of the law on joint-stock companies and clause 3, article 99 of the Civil Code of the Russian Federation).
At the first stages of the development of joint-stock companies in the domestic legal literature, legislation requiring or allowing the distribution of all shares of the future company between the founders was criticized - I.T. Tarasov called such a foundation “inflated” and advocated a ban on this method of distributing shares, singling out as reasons the possibility of promoting the game on the stock exchange, the possibility of abusing when the founders make in-kind contributions, the harmful nature of monopolizing the benefits from a successful enterprise, etc. Public and equal for he considered all the subscription to shares of a joint-stock company to be the only true way to form the capital of a joint-stock company.
Thus, the prohibition of public subscription when establishing a joint-stock company (JSC) is not a characteristic trend of joint-stock law. There are other mechanisms of control over the legitimacy of the establishment of a joint-stock company, provided for in the norms of not only civil, but also public branches of law. In addition, the problem of the so-called "failed" due to the non-distribution of all declared shares of companies is eliminated. Nevertheless, there are proposals in the literature to make a public subscription when establishing a society. So, M. Antokolskaya proposes, while retaining a fairly large stake (up to 50 percent) for the founders, to allow the distribution of the remaining shares among an indefinite circle of people for a certain number of years.
The formation of the authorized capital is possible if the value of the authorized capital corresponds to the value of the shares representing it, in this regard, Art. 36 of the Law on Joint Stock Companies establishes that the payment for the company's shares placed at its establishment, as well as additional shares, is made at a price not lower than the nominal value of these shares. At least 50% of the shares of the company must be paid within three months from the date of registration of the company, the rest - within the period established by the charter, but not more than a year. Additional shares must be paid in full (Article 34 of the Law on Joint Stock Companies). Shareholders who have not fully paid for the shares shall be jointly and severally liable for the obligations of the company to the extent of the unpaid portion of the value of their shares.
Ensuring that the real value of contributions to the authorized capital corresponds to their nominal value. It is equally important that the authorized capital of a joint-stock company (JSC) is not only formally fixed, but the shares are placed, it is necessary that the capital receive a real filling with liquid assets. To this end, the legislator establishes rules for assessing non-monetary (in-kind) contributions made by participants to the authorized capital. It is also prohibited to release a shareholder from the obligation to pay for the company's shares, including by offsetting claims against the company (Clause 2, Article 99 of the Civil Code of the Russian Federation).
When a company is founded, the assessment of property contributed as payment for shares is made by the unanimous decision of the founders. When paying for additional shares, the value of the property is determined by the board of directors (supervisory board) of the company in accordance with Art. 77 of the law on joint-stock companies. But in any case, the monetary valuation of such property cannot be higher than the value of the valuation made by an independent appraiser, who is necessarily involved in determining the market value of non-monetary contributions, unless otherwise provided by federal law (Article 34 of the law on joint-stock companies).
The procedure for evaluating contributions has always been a matter of considerable controversy. The very possibility and expediency of making, for example, objects of intellectual property as a contribution to the authorized capital is often called into question. So, for example, V.V. Dolinskaya suggests using experience developed countries where exemplary procedures for valuation of property and intellectual property exist and are successfully applied: it is proposed to limit for a certain period the right to alienate shares received in exchange for tangible assets. Moreover, the original owners of shares issued in exchange for a contribution in the form of an intellectual property obligation to alienate their shares only after they prove to the general meeting of shareholders the real economic efficiency of their intellectual contribution. At the same time, of course, a reservation is made that such a restriction of rights should be based on the law, and, above all, on the fundamental Law of the state of the Russian Federation. Currently, appraisers offer rules for determining the value of intellectual property objects, for example, the Standards of the Russian Society of Appraisers, the Standards of the Association of Appraisers of Intellectual Property IPEA, etc.
Maintaining the value of the company's property at a level not less than the size of the authorized capital. Maintaining the value of the company's property at a level not lower than the size of the authorized capital is ensured by the rules that establish requirements for the ratio of the value of net assets company with the size of its authorized capital. The norms regulating the procedure for paying dividends, the norms prohibiting the acquisition by the company of its own shares, or the return to the shareholder of the contribution made for other reasons, are also aimed at achieving this goal.
Under the cost of clean assets A joint-stock company means a value determined by subtracting from the amount of assets of a joint-stock company (JSC) accepted for calculation, the amount of its liabilities accepted for calculation. If the value of the company's net assets at the end of the second and each subsequent fiscal year turns out to be less than its authorized capital, the company is obliged to announce the reduction of its authorized capital to an amount not exceeding the value of its net assets. If the value of net assets turns out to be less than the value of the minimum authorized capital, the company is obliged to make a decision on its liquidation. If the company fails to make an appropriate decision within a reasonable time, then the borrowers have the right to demand from the company early termination or performance of obligations and compensation for losses.
In addition, if these decisions have not been made, the body that carries out the state registration of legal entities, or other state bodies or local governments, to which the right to present such a claim has been granted by federal law, has the right to file a claim with the court for the liquidation of the company (Article 35 of the law on joint-stock companies).
As S.K. Elkin, the net assets of a joint-stock company in the first two years of its existence may be less than the authorized capital, which is not a violation of any regulatory requirements, since the authorized capital should not be paid immediately, but within a year, moreover, no sanctions are provided if in the second year of its existence the company has not yet managed to generate net assets exceeding the size of the authorized capital. It should be noted that in practice the authorized capital is often not paid in full for many years. It should also agree with the opinion of I.A. Belov that if, after the approval of the “passive balance sheet” (that is, the balance sheet with a negative net asset value), the company functioned for at least another year and approved the annual balance sheet, but whose net assets exceed the size of the authorized capital, filing a lawsuit for forced liquidation society is no longer possible.
But not all researchers consider it justified to establish in the law the requirement for the ratio of the authorized capital and the size of the company's net assets. So, V. Rutgaiser, opposing such strict legislative regulation, cites, in particular, the following as arguments: the incomparability of the valuation of property acquired in equal periods, the specifics of industry activities, exchange rate differences, etc.
M.G. Iontsev also believes that provided for in paragraph 6 of Art. 35 of the law on joint-stock companies, the obligation to liquidate a joint-stock company (JSC) in connection with the excess of the authorized capital over the amount of net assets is unjustified. In fact, the liquidation of a legal entity due to a decrease in the value of net assets is an accelerated bankruptcy procedure. Secondly, according to the author, the possibility of such liquidation can be used by the shareholders to "show things off", and, consequently, a tool of shareholder blackmail.
It is also prohibited to make a decision on the payment of dividends before the full payment of the entire authorized capital of the company. The source of payment of dividends can only be companies. Only when paying dividends on preferred shares of certain types, the law allows the use of funds specially intended for this purpose of the company's funds (Article 42 of the Law on Joint Stock Companies).
According to the legislation of Russia, a joint-stock company (JSC) is not entitled to make a decision to pay dividends on shares, as well as to pay already declared dividends, if as a result of this the value of the company's property decreases so much that it will not be able to fulfill its obligations to shareholders and borrowers (repurchase shares in accordance with article 76 of the law on joint-stock companies, pay the liquidation value of preferred shares, redeem bonds), in particular, if the company shows signs of insolvency. Note that in practice there is an overestimation of asset items in order to distort the actual property status of the company in order to formally comply with the requirement for the ratio of the value of net assets and authorized capital.
Granting additional rights to borrowers in the event of a change in the amount of the authorized capital. The guarantee function of the authorized capital is also manifested in the fact that the company's borrowers are granted additional rights in the event of a decrease in the amount of the authorized capital.
The stability of the authorized capital is a feature of a joint-stock company, which is due to the method of transferring the share of participation in the company of the shareholder. Exit from a joint-stock company (JSC) is carried out by buying and selling shares, and not by allocating a share from the property of the company, as in limited liability companies. In other words, the authorized capital remains intact.
So, the value of the authorized capital, fixed in the founding documents, is intended to express the value of the minimum size of the property of a joint-stock company. However, the authorized capital is largely an obligation to guarantee the property rights of creditors. It is often quite difficult for counterparties to judge the financial condition of a joint-stock company (JSC) by the size of the authorized capital fixed in the charter. The real value of the property of a joint-stock company may turn out to be lower than the value of the authorized capital, not only as a result of losses incurred by the company or incomplete payment of shares, but also with a biased assessment of the participants' contributions in kind.
What are secret joint-stock companies hiding?
In the Russian Federation, there is a whole army of enterprises that involuntarily became joint-stock companies as a result of privatization in the 1990s. Their controlling shareholders and management are not interested in transparency and successfully circumvent many legal disclosure requirements.
Secret of the country.
In early October, on the website of Tulamashzavod JSC, which produces weapons for the ground forces and the Navy, as well as laser equipment, diesel engines and other civilian products, one could find the issuer's quarterly report for January-March 2009. There is no more recent document, although the FSFM's disclosure policy requires it to be published within 45 days of the end of each quarter.
But even in the outdated report, many fields are left blank. Referring to the law on state secrets, the company does not disclose, for example, revenue, profitability, labor efficiency, capital adequacy. It is unlikely that this financial information is of interest to spies. Meanwhile, this JSC has over 15,000 shareholders, which is a fairly strong argument in favor of greater transparency.
Anton Startsev, a leading analyst at IF Olma, who regularly reads the reports of many issuers, is calm: “There are enterprises in the defense sector that publish very scarce data, but this is not a trick, but a specificity. industries". In reality, the problem with companies of the second or third echelon, according to him, is not in the delay in publishing and hiding data, but in the fact that many do not prepare more objective financial statements in accordance with IFRS, limiting themselves to Russian standards.
“The situation can be simply absurd,” a participant in an Internet discussion on the topic of data disclosure emotionally expresses himself, introducing himself as Sergey. - One company keeps secret the number of employees, but discloses accounts receivable. Another OJSC (located next to the first), on the contrary, discloses the number, but secrets receivables. And all this with reference to the same law on state secrets!
"F." compared the reports of "Tulamashzavod" and the Tula Arms Plant (the latter with the number of shareholders in the register - over 9 thousand). For example, for Tulamashzavod, the state secret is the average number of employees, the ratio of funds raised to capital and reserves. The Tula Arms Plant publishes all this, but unlike its “colleague”, it puts dashes instead of data on accounts payable to suppliers, contractors, personnel and the budget.
I won't tell anyone.
The aforementioned law contains the most general formulations, which make it possible to classify almost any financial and production indicators of defense industry enterprises as state secrets.
How are things in others? industries?
For obvious reasons, small joint-stock companies are considered the most closed - firms of the third or fourth echelons. Their lack of direct motivation for transparency is exacerbated by their fear of raiders. Sometimes, insufficient training of personnel responsible for documents is added to this. issuer. “It is the third-tier enterprises that most often violate the procedure for publishing reports and other information required for disclosure. The problem has existed for a long time and is associated with the influence of a number of factors - ranging from a lesser degree of control over such companies by the regulator and ending with the low qualification of management, including financial management"
Analysts of one of the brokerage houses cited as an example the agricultural structures of the St. Petersburg holding Phaeton. One of them, Koporye, is registered in the form of a CJSC, but the number of its shareholders exceeds 500, which means that it is obliged to publish quarterly reports. It is very difficult to find the Koporye disclosure page on the Phaeton website. But even if the search is successful, it will be of little use: there are no quarterly reports at all. And the last annual document refers to 2007. By law, it must be published on the Internet within two days after approval by the meeting of shareholders and signing of the relevant protocol.
“I have seen that in the quarterly report issuer indicates that the accounting is located in the application. However, this application cannot be found. In the balance sheet itself, the grouping of Income and expenses is specially changed, while the organization does not provide comparable data for the same period last year. As a result, it is impossible to understand what is really happening with the business,” one of F.’s interlocutors describes the tricks used by JSCs.
Try to find.
OJSC Kubanskaya Step (over 700 shareholders, shares admitted to the MICEX) does not have a full-fledged corporate website. Previously, messages about material facts were published on the resource of the registrar of the CRC. But the latest information there refers to 2008. "F." I barely found a new disclosure page: Russian search engines hardly notice it, since the domain is registered in the com zone.
Meanwhile, the regulation FFMS prescribes to ensure free and unhindered access to information published on the Internet. The obligation to publish quarterly reports arises for all issuers who registered a prospectus of securities (including bonds), placed shares through an open subscription or distributed through a closed one, in which the number of purchasers exceeded 500. Since June, the requirements apply to issuers of exchange-traded bonds.
Small corporations may periodically change the addresses of the disclosure pages, making the path to reporting more rocky. And in order to get free access to the archives of five authorized news agencies, where all messages of issuers should be duplicated, you will have to subscribe to a paid subscription. In other cases, organizations resort to, for example, the trick with several domains: documents are published not on the corporate official website, but on some other one.
On the website of the Tuymazinsky Concrete Truck Plant (the shares are traded on the MICEX and the RTS), the "information to shareholders" section is completely empty, and there is no link to a page located on a third-party resource where the reports are actually published.
And yet, perhaps the simplest and most common violation is the delay in publication. Reports appear with long delays and lose their relevance by the time they are published. Thus, the last document of the Volga textile company (1.8 thousand shareholders in the register) refers to the fourth quarter of 2008.
There were no CHIFs.
Separately, mention should be made of the former voucher investment funds transformed into OJSC. Many of them do not indulge even the minimum information of their shareholders.
For example, Hermes-Planet OJSC (over 50,000 shareholders) has scheduled its annual general meeting for June 4, but has not yet announced the voting results. "F." already described the tricks of this JSC with quarterly reports. To gain access to the Hermes-Planet documents, those who wished were offered to register on the site. The visitor filled out the form and waited for confirmation to his email address to no avail. Now, you simply click on a link supposedly leading to the latest "Quarterly 2008 Report," but an empty text file is downloaded.
The former Narodny CHIF (over 600,000 shareholders) was merged with Energotransbank in 2006. It has not published issuer reports since 2003.
Sources
Log John “Collective ownership of workers (a review of the American experience)” // “USA: economics, politics, ideology” 1991 No. 10
Campbell McConnell, Stanley L. Brew "Economics" // Moscow 1992 v. 1 p. 51
Samuelson P. “Economics” // Moscow 1985 p. 293
Studentsov V. “Experience of Germany” // “ME and MO” 1993 No. 11
Shepelev L.E. Joint Stock Organizations in the Russian Federation. L., 1973; Buranov Yu.A. The corporatization of the mining industry Ural. 1861-1917. M., 1982;
Sapogovskaya L.V. Gornozavodskaya Ural at the turn of the XIX-XX centuries. (to the characteristics of monopolization processes). Yekaterinburg, 1993. Alan Greenspan Dictionary of Economics and Mathematics - a business company, the authorized capital of which is divided into a certain number of shares. Shareholders are liable for the obligations of the company and bear the risk of losses associated with the activities of the company, within the value of their shares; organ ... ... Economic dictionary
Joint-stock company- this is a business association (commercial structure), which is registered and operates according to certain rules, and its authorized capital is distributed over a certain number of shares. The main task is the formation of capital for conducting certain business activities.
Joint-stock company(JSC), or rather, its activities are regulated by the Civil Code of the Russian Federation, the Arbitration Code of Russia, the Law of the Russian Federation "On Joint Stock Companies" and other acts and laws.
The history of the emergence of a joint-stock company as a structure
It is believed that the origin of joint-stock companies, as a form, began in the 15th century, from the moment the Genoa Bank of St. George was formed. It was with him that the era of such formations began. The task of the newly created institution was to service state loans. At the same time, its founders were maons - formations of creditors who lent money to the state, and the latter paid them off with the right to receive part of the profits from the treasury.
Many principles of operation of the Bank of Genoa coincided with the current features of the JSC:
- capital of a financial institution divided into several main parts, which were distinguished by free circulation and alienability;
- bank management- a meeting of participants who met annually to make important decisions. Each proposal was then put to a vote. main feature that the officials of the financial institution were not entitled to participate in the meeting. The role of the executive body was performed by the council of protectors, which consisted of 32 members;
- bank members received interest payments on their shares. At the same time, the amount of dividends directly depended on the level of profitability of the bank.
Since the beginning of the 16th century, new markets have been actively opening up in Europe, the growth of trade volumes is accelerating, and industry is developing. The old forms of communities (guilds, maritime partnerships) could no longer protect the rights of the participants in the transaction and new economic needs. Thus, colonial companies appeared in Holland, England and France. In fact, the colonial states began to attract funds from outside for the further development of the land.
1602- Formation of the East India Company. Its essence is the unification of already existing organizations in Holland. Each company had its own shares, so the number of representatives in the governing bodies also varied. Over time, the shares of each of the participants were called "shares" - documents confirming the right to own part of the share. But massive stock speculation has forced the government to enact some tough restrictions on the misuse of company capital.
Almost simultaneously with the structure described above, the English version of the East India Company arose. Its feature is the annual meeting of participants to resolve key issues by voting. Only those participants who owned capital more than the percentage specified by the charter had a vote. The leadership was entrusted to the council, which consisted of 15 members elected by the meeting.
In the 18th century after several unsuccessful attempts to create his own bank, John Law succeeded. Subsequently, it was he who became one of the active participants in the creation of the West India Company. A few years later, other French organizations joined it. In fact, a powerful monopoly was formed on the market, which ensured a stable inflow of revenues to the treasury and economic growth. But this couldn't go on forever. Low dividends became the impetus for the mass sale of shares of the newly formed structure. The price of securities fell, and then completely collapsed. This caused serious damage to the country's economy.
In 1843 The first JSC law appeared in Germany. From the beginning of the 1860s, the number of such societies amounted to several dozen. Subsequently (in 1870, 1884) new laws were developed regarding the joint-stock company.
In 1856-1857 in England, the first legislative acts appeared that obligated newly registered communities to go through the registration procedure, have their own charter, indicate the goals of their activities, and so on. At the same time, established companies were allowed to issue only registered shares.
In 1862 all the acts and norms of England relating to joint-stock companies were collected in one law. In the future, it has not changed, but only supplemented with new items.
The rest of the countries (including the United States) used the experience already gained when creating joint-stock companies.
The essence of the joint-stock company
A joint stock company is a legal entity, an organization of several market participants. The feature of the structure is as follows:
- JSC participants have limited liability, which does not exceed the amount of their "infusions" into the company's authorized capital;
A joint stock company bears full responsibility to its shareholders in terms of fulfilling obligations (including the timely payment of dividends);
The entire amount of the authorized capital is equally divided by the number of issued shares of the JSC. At the same time, the participants of the joint-stock company, and not its founders, act as holders;
The formation of the authorized capital occurs at the expense of the participants' investments. At the same time, the contributions made go to the full disposal of the newly created structure;
JSC works without time limits, unless the opposite conditions are spelled out in the charter of the newly created structure;
The joint-stock company has the right to carry out any activities that are not prohibited at the legislative level. At the same time, in some areas, a joint-stock company can operate only on the basis of a license;
A newly created organization is obliged to publish an annual report, loss and income accounts, balance sheet and other data that are provided for by law (all these issues are discussed in Article 92 of the Federal Law “On Joint Stock Companies”);
JSC gets the right to organize representative offices, branches, subsidiaries and so on. At the same time, you can open your branches even outside the state.
Types of Joint Stock Companies
Today, there are two main types of such organizations:
1. Open Joint Stock Companies (JSC)- these are formations in which shareholders have the right to alienate (sell) shares without agreement with other shareholders. At the same time, the JSC itself can distribute the issued shares freely, without any restrictions. The total number of shareholders and founders of a JSC is not limited. If the state (municipal formation, subject of the Russian Federation) acts as the founder of the company, then such a company can only be open - OJSC. The only exceptions are small structures that are formed on the basis of privatized companies.
The salient features of the JSC include:
The number of participants is unlimited;
- the amount of the authorized capital - from 1000 minimum salaries and above;
- shares are distributed by open subscription;
- securities can be freely sold and bought (without prior approvals);
- Education undertakes to issue and publish every year a report, accounts of losses, profitability, balance sheet.
2. Closed Joint Stock Companies (CJSC)- these are formations where issued shares can be distributed only within the formation (among the founders or a strictly defined circle of people). At the same time, an open subscription for CJSC is prohibited. In closed joint stock companies, shareholders have the right to be the first to buy securities.
The distinctive features of the JSC include:
The number of participants should not exceed fifty people;
- the value of the authorized capital should not be more than 100 minimum salaries determined at the legislative level;
- issued shares are distributed only among the founders (placement options are also possible among other persons, but only after agreement);
- current shareholders have the right to be the first to buy CJSC shares;
- a closed society may not publish any reports at the end of each year.
Differences of a joint-stock company
Modern joint-stock companies differ significantly from the following formations:
1. From business partnerships. JSC is an association of the capitals of several participants, and HT is an association of the capitals of participants and a group of persons who implement joint projects within the framework of one association. In addition, in HT, participants assume full responsibility for education obligations. AO does not provide for such liability.
2. From limited liability companies (LLC). The common features of LLC and JSC are the common capital of the participants, which is formed due to their investments in a common cause. But the joint-stock company has several characteristic features:
- the minimum value of the authorized capital for a joint-stock company is established at the legislative level (as well as the number of participants). For an LLC, this value is the "ceiling";
- all JSC participants receive shares in their hands, which can be disposed of at their own discretion (sell or buy on the stock market). In a simple community, the authorized capital is divided into simple contributions;
- the procedure for inclusion and exclusion from an LLC (JSC) is different;
- each shareholder of a joint-stock company has equal rights and obligations regarding the work of the structure. In a simple society, each participant can have his own obligations.
- The management structure of a joint-stock company is much more complicated than that of an LLC.
3. From production cooperatives. Here it is worth highlighting the following features:
- participants of the cooperative are liable for the obligations of the cooperative (that is, joint responsibility). In AO, each participant is responsible within the limits of his contribution;
- members of the cooperative may be expelled for non-fulfillment of obligations or violation of norms. No one in JSC has the right to deprive a participant of shares under any circumstances;
- a cooperative involves the formation of a community of people and their investments, and a joint-stock company is simply an association of investments.
Creation of a joint stock company
To organize your joint-stock company, you need to go through several stages:
1. Economically justify the future structure. That is, first you need to form the idea of the future formation. All members of society must clearly understand the tasks assigned to them, development prospects, potential profitability, and so on. Particular attention should be paid to the following issues:
Is the AO the best form for the chosen line of business. Here it should be taken into account that joint-stock companies are better suited for large businesses;
- is it possible to obtain the necessary funds in other ways (for example, to get a loan from a bank). Here it is necessary to take into account financial feasibility, potential benefits;
- determine the required amount of capital.
2. Organization of JSC. At this stage, the following work is carried out:
A founders' agreement is concluded, which specifies the main activities and characteristics of the business. At the same time, the responsibility of each of the participants directly depends on the amount of investments made. The founders cannot oblige the joint-stock company with any transactions with third parties, they are forbidden to act on behalf of the company;
A meeting of founders is held, where the charter of the joint-stock company is adopted by voting, the appraisal of property is approved, issues of issuing shares are discussed. The governing bodies are also formed by the AO and are elected at the meeting. The applicant passes if more than ¾ of all participants voted “for”;
The authorized capital is formed - the minimum amount of funds of the JSC, which, in which case, will guarantee the protection of the interests of creditors. For a joint-stock company, the size of the authorized capital must be at least 1000 minimum salaries established by laws at the time of registration of the joint-stock company. From the moment of registration, more than half of the shares must be purchased. The rest is during the year.
3. Registration of an institution at the level of state structures.
Any joint-stock company can be liquidated, that is, it ceases to exist as a legal entity. There are several elimination options:
1. Voluntary liquidation. In this case, the relevant decision is made at the meeting of shareholders. At the same time, the desire to liquidate the joint-stock company is accepted directly by the participants. The process takes place in the following order:
The meeting decides on liquidation;
- the decision is transferred to the state registration authority, which makes an appropriate note. From this moment, making any changes to the documents of the JSC is prohibited;
- a liquidation commission is appointed. If one of the participants was a state representative, then there must be a representative;
- the commission does its best to identify all creditors and receive the current debt;
- requests of JSC creditors are satisfied;
- the remaining property is distributed among the shareholders.
2. The forced liquidation of a company and the liquidation of a company are similar in nature. In our case, the joint-stock company ceases to exist after the decision of the court. In fact, the termination of the activity of the structure in a general economic format is the will of the market. Reasons for the liquidation of a joint-stock company may be as follows:
Conducting JSC activities that are not prescribed in the license or for which there is no appropriate permit;
- violation of laws in the performance of work;
- performance of activities that are prohibited by law;
- Violations during registration and their detection by the court. In this case, the latter must recognize the invalidity of all registration documents;
- bankruptcy of JSC, which is also recognized in court.
Advantages and disadvantages of a joint stock company
From positive traits AO can be distinguished:
The fact of capital pooling is not limited by any limits. A JSC can have any number of investors (even small ones). This feature allows you to quickly raise funds for the implementation of plans;
When buying a certain number of shares, the future shareholder himself decides on the level of risk that he assumes. At the same time, his risk will be limited solely by the amount of investment. In case of bankruptcy of a joint-stock company, the holder of securities can lose only that part of the funds that he has invested no more than;
Sustainability. As a rule, joint-stock companies are stable formations. If one of the shareholders leaves the JSC, the organization continues its activities;
Professional management. Capital management is a function of professional managers, and not of each shareholder individually. Thus, you can be sure of a competent investment of capital;
The possibility of a refund. Shares can be sold in whole or in part at any time;
different types of profits. Income can be obtained in different ways - from receiving dividends, selling shares, lending securities, and so on;
Kudos. Today, joint-stock companies are respected structures, and their members have a high social and economic significance;
Availability of capital. JSCs always have the opportunity to raise additional funds by obtaining loans at favorable interest rates or by issuing shares.
Cons of a joint stock company:
AO is open structure, which requires the annual publication of reports, the disclosure of their profits, and so on. All this is additional information for competitors;
The likelihood of reduced control over the flow of shares. Often, the free sale of securities can lead to drastic changes in the composition of participants. As a consequence, control over the AO may be lost;
Conflict of interest. When managing a society, there may be different views on further development structures of managers and shareholders. The task of the first is to correctly redistribute income to preserve society, and the task of shareholders is to get the greatest profit.
The organizational and legal form in which the authorized capital is divided into a certain number of shares is called a joint-stock company (JSC). Shares are securities issued by a company and placed on the stock exchange. Shareholders of the association have the right to manage the company, receive a share of its profits (dividends), claim property in the event of liquidation of the company. The property liability of securities holders is limited by the size of the deposit. A capable citizen or legal entity, except for civil servants and military personnel, can become the owner of shares.
The history of the emergence of AO
It is generally accepted that the emergence of such a form of a business company as a joint-stock company began with the opening of the Genoa Bank of St. George. The purpose for which this institution was formed was to serve the loans of the state. The bank was founded by a group of creditors who lent money to the state in exchange for the right to receive a share of the profits from the treasury. The presence of the following features indicates that the Bank of Genoa became the prototype of a joint-stock company:
- The capital with which the bank was opened was divided into parts and freely rotated.
- The bank was run by its members, who made the main decisions.
- Participants with shares received interest on them - dividends.
The former types of commonwealths (guilds and maritime partnerships) no longer meet the needs of the participants and protect them. So, at the beginning of the 17th century, the East India Company was formed. It looks even more like a modern AO. The company united existing Dutch organizations that needed new economic opportunities and protection. These firms had certain stakes in the East India Company. Subsequently, they began to be called shares, that is, documents proving the participant's right to own shares. Almost simultaneously, the English version of such a company appears.
Modern joint-stock companies in Russia
The considered form of activity of the organization is suitable for medium and large businesses. Among companies of this size of business, this type of economic association is popular. For large businesses, an open joint-stock company (OJSC) is being created, which, after amendments to the Civil Code of the Russian Federation in 2014, became known as a public joint-stock company or PJSC. Among medium-sized companies, one can more often meet closed joint-stock enterprises (CJSC or non-public JSC, which began to be called that way after the same changes in the code).
Examples of non-public joint stock firms (originally called CJSCs) are:
- Thunder, which includes the retail chain of stores "Magnit";
- Katai Pumping Plant;
- Comstar-region;
- Publishing House Kommersant.
Notable companies that are public entities would be:
- Gazprom;
- Lukoil;
- Norilsk Nickel;
- Surgutneftegaz;
- Rosneft;
- Sberbank.
Regulatory and legal framework
The activities of joint-stock companies are regulated by the Civil Code of the Russian Federation. It contains a definition of the fundamental features of a joint-stock company, the activities of this organizational and legal form. The Code also refers to the Federal Law “On Joint Stock Companies” dated December 26, 1995 No. 208-FZ. This regulation includes all aspects that are important to know about a joint-stock company:
- conditions of creation, operation and liquidation;
- legal status of an economic entity;
- basic rights and obligations of shareholders;
- conditions for protecting the interests of holders of securities.
Types
There are two main types in the classification of joint-stock companies: it is an open and closed company. After the state introduced amendments to the Civil Code (to the articles regulating the activities of this organizational and legal form), open-type associations began to be called public ones. Meanwhile, closed organizations became non-public. The activities of associations have become more regulated, which is manifested, for example, in an increase in the number of audits.
In addition, dependent and subsidiary joint-stock companies are separated. If there is an organization (legal entity) that has more than 20% of the company's shares, then a dependent name is applied to it. A subsidiary company is recognized as such if the main company has a predominant participation in the authorized capital of the company and determines the decisions approved by it. These types of shareholding structures are used when opening corporations.
Features of OJSC and CJSC
There are the following differences between open and closed societies (now public and non-public):
| Criteria | ||
| Number of participants | One to unlimited | From one to 50 people (after changes in the Civil Code of the Russian Federation, the number is unlimited) |
| Authorized capital | 1,000 minimum wage or 100,000 rubles | 100 minimum wage or 10,000 rubles |
| Share distribution | Between those who wish through a purchase on the exchange | Only between founders |
| Alienation of shares | Can be freely alienated without the consent of other shareholders (donation, purchase and sale) | Shareholders have a pre-emptive right to purchase when alienating shares |
| Publication of statements | Must be produced | Not provided |
How is it different from other organizational and legal forms
In addition to joint-stock business associations, there are other forms of activity commercial organization. Therefore, we can consider the main differences between joint-stock companies and business partnerships, limited liability companies and production cooperatives:
- The difference with business partnerships. The main difference between these organizational and legal units will be the nature of the associations. Capitals are combined in joint-stock companies, and individuals are combined in a partnership (individual firm). In addition, the comrades assume full responsibility for the activities of the partnership, they are responsible with all their property. Owners of equity securities bear joint and several liability in proportion to their contribution to the charter capital of the joint-stock company.
- The difference with a limited liability company (LLC). A similar feature is that members of societies are liable within the limits of their contributions. The sale of shares in an LLC is complicated by the fact that the company has to change the charter due to the appearance of a new founder or an increase in the share in the management company of the old one. In addition to this, the exit from the company occurs through the sale of its shares, the exit with the payment of the cost of the contribution, as in an LLC, is not carried out.
- Differences from the production cooperative. Everything is extremely simple here. The peculiarity that the participants in a cooperative bear joint responsibility for its obligations brings this form closer to a partnership. In joint-stock companies, the responsibility does not go beyond the investment funds of investors. Persons who are members of the cooperative and violate existing norms will result in exclusion from the firm. The exit of a shareholder from a joint-stock company is exclusively voluntary, carried out through the sale of shares.
Joint stock company as a legal entity
The concept of "joint stock company", considered from two different points of view: the community of the organization, its participants and the organization and its shares. Therefore, this type of organizational and legal form can be called unique. On the one hand, it is an independent organization, a market participant, which conducts commercial activities in accordance with certain rules. On the other hand, this is the totality of all issued equity securities (shares) that were bought by shareholders and began to belong to them.
Distinctive features of the considered organizational and legal form:
- JSC participants are liable, which is limited by the size of their "infusions" into the authorized capital of the company.
- The organization has full independent responsibility to its shareholders for the fulfillment of obligations. This also includes the payment of dividends made on time.
- The entire amount constituting the authorized capital is equally divided by the number of issued shares of the organization. The owners of the shares will be the participants of the joint-stock company, but not the founders.
- The authorized capital of a joint-stock company is collected with the help of contributions from participants. The investments made are immediately at the disposal of the economic enterprise.
- The activity of this form of economic association occurs indefinitely in time. If necessary, conditions regarding time and timing can be specified in the articles of association.
- Since, according to the law, the reporting of such an economic structure as a joint-stock company must be public, it is mandatory to publish an annual report, accounting and financial statements.
- It has the right to form its own representative offices of JSC, branches and affiliated companies. So, it is allowed to create branches even outside of Russia.
Structure and governing bodies
The economic organization under consideration has a three-stage management structure, which implies the presence of all the main governing bodies: the general meeting of shareholders, the board of directors, and the executive body (general director and board). Each such body has its own competences and makes independent decisions within their framework. Thus, the governing structures have the authority to:
- General Meeting of Shareholders. It is the highest governing body of society. With its help, shareholders carry out administration. At the same time, management can be performed only by those shareholders who have securities with the right to vote.
- Board of Directors. It has another name - the supervisory board. The competence of the body includes the administration of the company's activities. The Council organizes the fruitful work of the executive bodies of the organization, determines the development strategy, controls the activities of the bodies of lower levels.
- Executive agency. The Management Board and the General Director (President), who make up the executive body, are responsible for the losses incurred due to the actions they performed. It is possible to have only one form of executive body (director or sole body and board or collegiate body), which should be spelled out in the charter. The CEO may receive remuneration for his work.
Members of the joint-stock company
JSC shareholders are its participants. They are individuals and legal entities, state bodies and local governments do not have such a right. Among the main rights are the receipt of dividends, participation in management and obtaining information about the work of the joint-stock company. The duties are to follow the rules and regulations from internal documents, the implementation of decisions of the governing bodies, the fulfillment of obligations to the economic unit. The shareholder is not responsible for the obligations and debts of the company.
Charter of the enterprise
To register a company, you need to collect a whole package of documents, and only one will be constituent - the charter of the organization. This type of document defines the specifics of the activities of a legal entity, for example, how communication will take place with other market participants, competitors. The charter must comply with a strict structure (you need to draw up the document correctly) and contain:
- company name of the organization (abbreviated is also worth registering);
- legal address;
- rights and obligations of participants;
- information about the authorized capital;
- information relating to the governing bodies.
Authorized capital
The amount of the value of the organization's shares that were acquired by investors is the authorized capital. This is the minimum amount of property, which acts as a guarantee of the interests of the participants in the organization. According to the Federal Law "On Joint Stock Companies", the creation of the organizational and legal form under consideration is possible if there is a minimum amount of the authorized capital. This is a one-time form of creating authorized capital for a legal entity. During the period of direct activity of the company, capital can increase and decrease.
The final amount in the fund, agreed by the founders, is written in the Charter of the organization. It is important that the minimum amount of money constituting the authorized capital is approved by the founders of the legal entity before registration, but the amount cannot be less than the amount established by law(100,000 rubles for PJSC (OJSC) and 10,000 rubles for JSC (CJSC)). Before registration, you do not need to deposit money into the Criminal Code, it is better to put it in a savings account.
In all countries, three methods of creating such a company are known:
- the founders of a legal entity buy all the shares that the company issues, which can be called personification;
- the founders of a joint-stock company carry out the acquisition of equity securities of the company on an equal basis with other persons appearing on the market;
- the founders acquire only a certain share of the shares, while the rest of the securities are sold on the market on the basis of an open subscription.
Economic justification
It all starts with the birth of an idea, for which an organization is created. Those people who are planning to open their own business should be clearly aware of the goal pursued. It is necessary to determine the goals and objectives of the opening company. The founders must understand why the legal entity will be opened as a joint stock company. If, nevertheless, the choice is made in favor of this form of commercial activity of the organization, it is important to dwell on some type of this economic association.
The basic actions that reflect the economic feasibility of establishing a JSC and are carried out before registration include the preparation of a business plan. It is necessary to carry out the necessary calculations financial costs and the future budget, which will help determine the size of the authorized capital. In addition, the business plan should reflect the attractiveness of the purchase of shares by the founders or investors, depending on the type of organization.
Conclusion of the memorandum of association
When the decision to establish your own business unit is made, you should proceed to the next steps. So the registration of the memorandum of association is a necessary step in creating a business. This document contains the obligations of the founders on the activities of the JSC, determines the procedure for opening a company, determines the nature of the joint work of the founders. The agreement does not apply to constituent documents, it is signed by the general director.
Holding a general meeting of founders
To approve the desire of the founders, their general meeting is organized. This event discusses issues related to the creation of a legal entity, the approval of the charter, the assessment of property that the founders contribute to pay for shares. Owners of preferred shares have the right to vote at the meeting. Decisions on issues are made when everyone can vote. In addition, at the meeting bodies are created that will manage the company.
Formation of the Criminal Code
The property of the joint-stock company, which provides investors with their interests, will be the authorized capital of the joint-stock company. It is important that the minimum amount of capital is not lower than the level determined by law. Three months after the date of registration of a joint-stock company with state bodies, the number of unredeemed shares after the issue, divided among the founders, should not exceed 50% of their total number. Three years are then given for the final redemption of these securities.
State registration of the organization
Any emerging legal entity, no matter what legal form it has, must go through a long process of state registration. After this procedure, information about the new company enters the Unified State Register of Legal Entities. The company receives its own identification (TIN) and registration (OGRN) numbers. So, after registration, the organization is considered officially created.
The termination of the existence of the described economic association in the form of a legal entity is liquidation (it can be voluntary and forced). Another way that can be considered liquidation is the closing of a company without transferring rights to it to another. legal entity. If the existence of the company ceases due to transformation into another business entity, then this is not considered liquidation. Company reorganization may follow.
Voluntary
Such liquidation is applied after the adoption of the relevant decision by the general meeting of shareholders:
- A proposal to close a joint-stock company is submitted by the board of directors.
- Approval of the decision on liquidation by the general meeting of shareholders by voting.
- Bringing information about the upcoming completion of the company's activities to the state registration authorities. This information must be transferred within three days after the decision on liquidation is made. After these actions, it is forbidden to make any changes regarding the activities of the JSC.
- The company and the state registration authority appoint a liquidation commission that will manage the company.
- Finding creditors and taking actions to collect receivables. All this is carried out by the liquidation commission.
- Settlement with creditors (possible through the organization of bankruptcy proceedings or the onset of subsidiary liability), drawing up a liquidation balance sheet and redistributing the balance of shares between their owners.
- Making an entry on liquidation in the relevant register of legal entities.
Forced
In contrast to the voluntary form of liquidation of a joint-stock company, forced liquidation is applicable by a court decision. Actions after a positive decision to close a joint-stock company is similar to the steps taken under a voluntary form. This includes the creation of a liquidation commission, the repayment of borrowed funds and the return of debts of debtors, the appearance of an entry in the register of legal entities.
The basis for a compulsory form may be:
- carrying out activities that are prohibited by law;
- conducting activities without a license or in violation of applicable laws and regulations;
- identification of invalid registration of a legal entity, which is proved in court;
- recognition by the court of bankruptcy (insolvency) of a business association.
Advantages and disadvantages
The described organizational and legal form has its advantages and disadvantages. So the benefits of society are:
- The unlimited nature of the merger of capitals. This advantage helps to quickly raise funds for the necessary activities.
- Limited liability. The owner of the shares does not bear full property responsibility for the affairs of the company. The risk is equal to the amount of the deposit.
- Sustainable nature of the activity. For example, when one of the shareholders leaves, the work of the organization continues further.
- Possibility to get your money back. This means that shares can be quickly sold and paid for.
- Freedom of capital. The category is determined by the fact that, if necessary, it is possible to change capital up or down.
For all its advantages, AO has some disadvantages:
- Public reporting. The considered form of management is obliged to publish its statements in information sources, not to hide profit data.
- Frequent audits. The control is annual, which is regulated by the amendments made to the Civil Code of the Russian Federation.
- The likelihood of losing control due to the free sale of shares. Securities that are sold on the market almost unregulated can significantly change the composition of the company's participants. After that, loss of control over the firm is possible.
- Discrepancy and conflict of interests of owners of securities and JSC managers. The conflict may arise due to different desires of the participants: shareholders want to receive as many dividends as possible, increase profitability (the ratio of dividends to the nominal price of the security) and the share price. In a word, they pursue their own enrichment. Officials want to properly manage and distribute the income of the organization in order to preserve it, increase the capitalization of the company.
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