Reorganization - the termination of the organization in which the transition of rights and obligations to other persons is carried out, that is, the succession.
The authority decided on reorganization is obliged to send creditors a written notice of this. Lenders have the right to demand the termination or early fulfillment of the obligation, the debtor according to which the reorganized commercial organization is, as well as compensation for damages caused by the early execution of the ODI with the termination of the obligation. In addition, if the dividing balance does not make it possible to determine the successor of a reorganized legal entity, newly emerged legal entities bear joint responsibility for the obligations of a reorganized legal entity in front of its creditors (Art. 60 of the Civil Code of the Russian Federation).
State registration of legal entities created by reorganization is carried out in accordance with the Civil Code of the Russian Federation and the Federal Law "On state registration legal entities and individual entrepreneurs. " To the registering authority (tax authorities) seems:
- application for the registration of each newly emerged legal entity rewarding through reorganization, which confirms the constituent documents created by reorganizing legal entities comply with the requirements established by the legislation of the Russian Federation, the requirements for the constituent documents of the legal entity of this organizational and legal form that the information contained in these constituent documents and a statement of state registration, reliable that the transmission act or the separation balance contains provisions on the succession on all obligations of the newly emerged legal entity in relation to all its creditors, that all the creditors of the reorganized person are notified in writing on the reorganization and issues established by law issues of the reorganization of legal Persons are agreed with relevant government agencies and (or) local governments;
- constituent documents of each newly emerging legal entity (original or notarized copies);
- decision on the reorganization of a legal entity;
- a merger agreement in cases provided for by federal laws;
- transmission Act or Dividing Balance;
- document on the payment of state duty.
State registration is carried out at the location of the reorganized legal entities. The registering authority decides on state registration of a newly emerged legal entity (persons) or a refusal of state registration for no more than five working days. With a positive solution, this body carries out the relevant entry in the registry, issues a certificate of registration.
The concept, types and procedure for the elimination of legal entities
Elimination is a termination of a legal entity without succession, that is, without the transition of rights and obligations to other persons. Legal basis The implementation of the liquidation of organizations and individual entrepreneurship was enshrined by the Civil Code of the Russian Federation, other acts.
- voluntary liquidation;
- forced liquidation.
Voluntary It is eliminated by the decision of the founders (participants) of a legal entity or body of a legal entity authorized by the constituent documents. The decision to eliminate the state or municipal unitary enterprise can be taken by the owner of the property - the corresponding state body or body of local self-government. Article 61 of the Civil Code of the Russian Federation contains an exemplary list of the foundations of voluntary liquidation, in particular: the expiration of the period on which the organization was created; Achieving the goal for which it is created and others.
Forced Liquidation is produced on the basis of a court decision in the following cases:
- carrying out activities without proper permit (license);
- carrying out activities prohibited by law;
- a repeated or single, but gross violation of the law or other legal acts, etc. (Art. 61 of the Civil Code of the Russian Federation).
The above list is not exhaustive. The foundations of forced liquidation can be provided for by other Articles of the Civil Code of the Russian Federation (for example, Article 65, 81 of the Civil Code of the Russian Federation). Regarding the liquidation, the state body or local government authority may apply to the court if such a law is provided to him by law. In particular, the FAS RF, the FTS RF, the Ministry of Finance of Russia, the Central Bank of the Russian Federation possess.
The liquidation process passes several stages below.
1. Adoption by authorized authorities to eliminate a legal entity.
2. The founders (participants) of a legal entity or body that made the decision on the liquidation of a legal entity are required within a three-day period in writing to notify the registering authority at the location of the liquidated legal entity with the application for the liquidation of a legal entity.
The registering authority contributes to a single state Register Legal entities record that the legal entity is in the liquidation process. From this point on, state registration of changes made to the constituent documents of the liquidated legal entity, as well as the state registration of legal entities, the founder of which the specified legal entity, or state registration of legal entities, which arise as a result of its reorganization (Article 20 of the Federal Law " On state registration of legal entities and individual entrepreneurs ").
3. Appointment of the liquidation commission (liquidator) by the founders (participants) of a person or body that has decided to liquidate, in coordination with the registering authority. Since the appointment of the liquidation commission (liquidator), it is transferred to the authority to manage the affairs of a legal entity, including the right to speak on behalf of the liquidated legal entity in court.
4. Publication on liquidation in the press bodies, in which data on state registration of legal entities are usually published. The publication should be reflected: the name of the liquidated legal entity; date of decision on liquidation; the authority that has decided to liquidation; The identification number of the taxpayer and the number of the liquidated person in the registry; The procedure and term of claims with creditors, which cannot be less than two months from the date of publication; Communication method with liquidation commission (address, telephone, fax).
4. Renewal of a bank card with sample signatures of persons who have the right to dispose of cash in cash,
on the head and members of the liquidation commission.
5. Formation of assets and liabilities of the organization. For this purpose, lenders are identified by the liquidation commission (the latter are notified in writing about the liquidation of the debtor), measures are taken to receive receivables, property is carried out.
6. Exit from the members of the participants of other legal entities.
7. Dismissal of workers in accordance with the requirements provided for by labor legislation.
8. Drawing up an intermediate liquidation balance at the end of the period allotted by creditors to make requirements. Balance is approved by the founders (participants) of a legal entity or body that has decided to liquidation; Coordinates with the authority exercising state registration (where the original or certified copy of the balance is sent). The balance must contain information about the composition of the property of the liquidated legal entity, the list of claims presented by creditors and the result of their consideration. If the assets of the organization are not enough to meet the requirements of creditors, the liquidation commission (liquidator) is obliged to contact the arbitration court with a statement on the recognition of the debtor bankrupt (Art. 224 of the Federal Law "On Insolvency (Bankruptcy)"). In this case, the legal entity is eliminated in the manner prescribed by paragraph 1 of Chapter 9 of the Federal Law "On Insolvency (Bankruptcy)".
9. Calculations with creditors in order of priority established by Art. 64 of the Civil Code of the Russian Federation. The satisfaction of the claims of creditors begins from the date of the approval of the intermediate liquidation balance, for the elimination of creditors of the fifth queue, the payments of which are produced upon the expiration of the month from the date of the balance of the balance.
10. Drafting the liquidation balance, which is approved by the founders (participants) of a legal entity or body that has decided to liquidation. Balance must be agreed with the registering authority.
11. Submission to a body that implements state registration (tax authorities), the following documents:
a) statements confirming compliance with the procedure for liquidation, completion of calculations and coordination of issues of liquidation with the relevant government agencies;
b) liquidation balance;
c) document on the payment of state duty.
State liquidation registration is carried out at the location of the liquidated legal entity in a period not exceeding five working days.
THESIS
ON THE TOPIC "Reorganization of legal entities"
Introduction
Chapter 1. Concept and legal regulation of reorganization
1 The concept of reorganization of legal entities
2 Legal regulation of reorganization
3 History and Comparison with Foreign Law
Chapter 2. Form and procedure for reorganization. Documenting Reorganization
1 merger
2 joining
3 Allocation
4 Conversion
5 division
Chapter 3. Problems of law enforcement during reorganization
1 Refrigeration Property
2 Liquidation of a legal entity as a result of the illegality of its reorganization
3 other aspects of law enforcement. Mergers and Acquisitions - Empiric Research
Conclusion
List of sources and literature
application
Introduction
The relevance and significance (practical or theoretical) theme.
How big is the real significance of the topic chosen for analysis in this work? How important are the available difficulties and practical issues arising from the reorganization of legal entities? In this question, I suppose it is difficult to overestimate the need for adequate perception and deep analysis of such an extensive topic. However, as in all other spheres of economic activity, there may be no little supporters of opinion on the absence of significant gaps in the regulatory and practical (law enforcement) regulation of relations in which the subjects of the process are entering into the implementation of the procedures considered in this work. At the same time, still more researchers tend to initially a pronounced opinion on the acute necessity of a significantly more detailed approach to the regulation of processes, directly affecting financial interests not only of individual business entities. Of course, the movement, the actual and formal flow of property masses in the heterogeneous environment of the legal activity of the legal, a well-known manner affects the overall indicators of the development of entire branches of entrepreneurship, production. Moreover, the multiplicity of factors that are taken into account by private investors in solving issues on entering the business processes acceptable to them, together have a tangible impact on the ability of the economy to assign positively, to digest and distribute financial flows. Without the prior vision of the real situation in the field of economic activity, it is rather increasingly to take any fundamental solutions aimed at achieving positive results, including when used to optimize the subject of such techniques as the reorganization of a legal entity.
Therefore, the position of an agreement minority preferring to solve issues arising in the implementation of regulatoryly unresolved business processes, not based on the existing law enforcement practice, and through other schemes, can be relevant only during the early formation of democratic regimes, when a significantly greater role is played significantly greater compared to the law. human factor of personal relationships of persons guiding both financial and administrative structures. Based on such a position, in the conditions of the desire for the benefits of the legal state, the answer to the above question can only be positive.
Purpose of work.
The purpose of the study is to develop and substantiate the concept of the reorganization of a legal entity, identifying and disclosing signs of reorganization, conducting an analysis of civil law and law enforcement practice in the field of reorganization of legal entities for developing on this basis recommendations on improving legislation.
Object and subject of research.
The paper explores: domestic and foreign regulatory legal acts governing general and special issues of reorganization of legal entities, procedure for its implementation; the existing practice of applying these regulatory acts, both published and collected by the author independently; The main scientific positions of lawyers on the issue of graduation work.
Subject of research - reorganization as a special process occurring with a legal entity; the concept of reorganization; Signs of reorganization: a special subject, creation and (or) termination in the reorganization of legal entities, the presence of succession.
Reorganization is one of the most frequently used procedures in the process of activity of almost all organizations. This is also explained by economic, social, and legal conditions in which legal entities exist. Privatization and update processes russian legislation Also, a large extent contributed to the dissemination of individual forms of reorganization in practice. For a successful reorganization, it is necessary, of course, the optimal legal framework designed to ensure the achievement of the desired result. All this demanded more detailed regulation in the Civil Code of the Russian Federation and others regulatory acts Reorganization process. So, in the now the current Civil Code of the Russian Federation, four articles are devoted to general issues of the reorganization of legal entities and, in addition, in one article - in relation to the reorganization of economic partnerships and societies, a limited liability companies, joint-stock companies and industrial cooperatives. Legislative acts on individual organizational legal Formsah legal entities still regulate the relevant reorganization issues. At the same time, even such a more detailed compared with the legal regulation previously, the legal regulation does not allow to solve all the issues that arise in the reorganization, making the relevant problem of the change and additions of existing regulations. Failure legal regulation It manifests itself, for example, in the absence of a clear indication on the order of execution of succession during the reorganization, the need to include provisions on the succession regarding responsibility, the need for a more comprehensive combination of interests of the reorganized legal entity and its creditors, which should contribute, as it seems, the division of creditors into two groups: Lenders existing in a legal entity on the day of the decision on reorganization, as well as lenders who appeared after such a decision, and, accordingly, various legal regulation of the protection of their interests. Improving the legislation is impossible without the scientific development of problems of reorganization, in particular, determining the concept of reorganization and the allocation of its signs.
Tasks of work.
In the thesis, I would like to determine that the legislator invested the reorganization of legal entities into the concept, consider its legal nature, as well as to consider the reorganization of legal entities in practice, examine documents of reorganized legal entities, judicial practice and form of reorganization of legal entities, try to identify the features of reorganization, by Analysis and synthesis of concepts. Discussion issues and actual problems on this topic will also be considered, representing the opinions of various authors and lawyers, and their own point of view has been proposed.
The degree of study of the topic in the scientific literature.
With regard to the question of the degree of study of both the processes of reorganization and other related procedures themselves, it can be noted that it is practically objectively to evaluate this in the framework of this analytical form seemed extremely difficult. This is explained by the being of the affected legal relationship due to the set important aspectsconsidered, including in law enforcement practice. The widest spectrum of the application of the business optimization options in question is obliged to be sufficient for business objectives for the purpose of business. On the contrary, the fact that in connection with the procedures under consideration there is a significant number of disputes, including judicial, indicates the need to devote significantly more interest in learning theoretical and practical aspects of the issue of the reorganization of legal entities in the implementation of activities aimed at achieving specific goals of individual economic entities Activities.
In this paper, Russian sources were directly used, which indirectly allowed to take into account the opinions of foreign researchers; articles in periodic thematic publications, analytical work of novice specialists; legislative acts; Judicial practice, both nationwide and regional levels - news this range of resources allowed to obtain sufficient material to understand the theme and creating relevant work.
Chapter 1. Concept and legal regulation of reorganization
.1 The concept of reorganization of legal entities
In legal regulation of the termination of legal entities, the proportion of the norms devoted to their reorganization is traditionally higher. In our opinion, this is due to the fact that, firstly, the property mass remains in circulation and its fate needs a clear regulation, secondly, the interests of a wider range of persons affect the reorganization.
We traditionally consider reorganization from the point of view of the consequences of the cessation of legal entities: the relative termination of its property mass and the transition of its rights and obligations in the civil circulation in the case of succession to other persons in the civil turnover. However, there are other definitions in the literature. IN Russian Empire And in the first years of the Soviet state, the term "reorganization" was not used, although this process itself (with the exception of the allocation) was considered as one of the methods of termination of a legal entity.
Reorganization is closely related to universal succession, derivatives of the emergence and relative grounds for termination of ownership and other real rights. Its essential signs: the specificity of the subject line, forms, maintenance and legal consequences.
On Russian law, the subject of reorganization can only be a legal entity.
The essence of reorganization and its legal regulation in the Civil Code of the Russian Federation (hereinafter - the GC) is contrary to the established in Art. 41 of the Federal Law of December 8, 1995 N 193-FZ "On Agricultural Cooperation" The possibility of reorganizing the agricultural cooperative in the form of its separation or allocation from its composition of one or several legal entities and (or) peasant (farmer) farms (!). Incorrect expansion and unreasonable references to clause 3 of Art. 23 GK are subjected to serious criticism in the literature.
For reorganization, a closed list of forms is characterized.
In reorganization, there is a termination of existing and (or) the creation of new legal entities (abroad is usually added: in a simplified manner), and, therefore, state registration is obligatory.
When merging and separation, the previously existing legal entity is not preserved. In the event that the reorganization entails the termination of the activities of one or more legal entities, the registering authority contributes to the state register to terminate the activities of such legal entities upon receipt of the general rule of information from the relevant registering authority on the state registration of newly emerged legal entities. Single form Reorganization, which is considered completed from the moment of state registration of newly emerged legal entities, and from the moment of entering into a unified state register of legal entities recording the termination of the legal entity (affiliated) person, is accession.
As a result of the reorganization, the succession takes place.
It is usually characterized as universal: transmitted as things, property and exceptional rightsand property responsibilities. However, another opinion was expressed in the literature: the universal succession takes place with all the forms of reorganization, except for allocation. In the latter case, a singular succession occurs, since the reorganized legal entity retains part of the rights and obligations, and the allocated an organization can be transferred as a certain set of rights and obligations and a separate right.
Rerefection for reorganization is recognized as civil and tax legislation, partly procedural, but is excluded in administrative law.
Reorganization is a cessation or other change in the legal status of a legal entity, which enhanced the transfer of rights and obligations from one legal entity to another. As a result of the reorganization, the activities of the reorganized legal entity continue to other legal entities, and it itself ceases to exist.
The reorganization of the enterprise is a very complex process. It requires a successful knowledge of not only the norms of civil law, but also issues of taxation and accounting.
A violation of the procedure for legal design of reorganization may result in recognition of the reorganization of invalid (failed).
And the incorrect reflection of the process of reorganization in accounting may entail serious mistakes in terms of taxes and, accordingly, financial losses for the organization.
Therefore, before starting reorganization, it is necessary to conduct legal, tax and accounting analysis of ways and mechanisms for its implementation.
The reasons that serve as the basis for the reorganization of a legal entity in each particular case are different.
For example, the association of enterprises is carried out to increase competitiveness.
The division of a legal entity may become an anti-crisis measure, with the help of which the property situation of the economically weak entitle will be corrected.
The decision on reorganization can be dictated by the conflict between the participants of the legal entity.
In some cases, the reorganization of the legal entity is the requirement of the law.
There are many and other reasons for reorganization.
This work discloses the definition of reorganization from various points of view of civilists. It emphasizes the need to develop a unified concept of reorganization. The author leads the main advantages and disadvantages inherent in reorganization as a procedure for termination and creation of legal entities, indicating the main forms of its implementation. The author reflects that the legislator did not consolidate the definition in regulatory acts, identified a single line inherent in all forms of reorganization, is the succession, indicated the universal and singular order of succession. Currently there is really no clear definition regarding the concept under study.
In the process of carrying out activities, the legal entity may arise the need to combine capital with other organizations in order to enlarge the business, to improve production in the market of goods, works and services. Such structural changes are possible only when applying the reorganization of a legal entity. As D.V. rightly notes. Zhdanov, "In most cases, the main cause of mergers and acquisitions is a competitive environment; the development of the economy is expressed in its globalization, diversification, technological progress, market liberalization. These factors force the company to revise the strategy of their development, often the decision is the reorganization of the enterprise." M.I. Kulagin determines reorganization through its economic essence. It comes from the fact that the reorganization of legal entities is one of the legal forms in which the process of centralizing production and capital in the economy of bourgeois countries is checked.
The Institute for Reorganization is particularly intensively developing lately, when economic relations with independent subjects have intensified, and the number of organizational and legal forms has increased, within which legal entities can carry out their activities.
The existence of most legal entities is not limited to any temporary framework. Nevertheless, in certain cases, they can be discontinued (according to the terminology adopted in legal literature, they are talking about the termination of the legal entity, and not its activities).
The legal literature expresses the opinion of the need to distinguish between the grounds, methods and forms of termination of legal entities. The foundations of termination are reasons, certain actual circumstances with which the law binds the termination of the legal entity (for example, the achievement of the goal, the expiration of the term, etc.). Methods for termination directly depend on the procedure provided for by the legislation of the work of legal entities and at the same time fundamentally do not differ from the methods of their occurrence. Forms of termination are those provided for by the legislation acceptance of the termination of legal entities related to liquidation and reorganization.
Under the termination of the legal entity, the legal entity is traditionally understood not only to its complete elimination, but also the reorganization of a legal entity, its merger with others, separation into several legal entities, etc. At the same time, the term "termination" is used in the definitions of four of five forms of reorganization; Exception is only the selection.
Attempts to give the definition of reorganization were made by many researchers. So, O.N. Sadikov determines reorganization as a method of termination of legal entities and the emergence of new ones. M. Khaimovich proposes to understand under reorganization "The termination of a commercial organization associated with the change in its property complex or legal form, aimed at achieving the goal for which the organization was created." S.V. Martushkin sees a special process in reorganization, during which the creation of a legal entity takes place, accompanied by the transition of the rights and obligations of a reorganized legal entity (right-ender) in order of succession to another legal entity (legal successor). From the point of view V.S. Maremayanova, "Reorganization is only the cessation of the organization's existence in its former form (by merging, separation, accession, transformation into a different organizational and legal form) without the termination of its affairs and property on the basis of the succession." E.A. Sukhanov calls the reorganization of legal entities to terminate, however, the transition and responsibilities of previously existing legal entities to other legal entities, i.e. Propremit.
Unlike liquidation, which takes absolute termination of the legal entity, without the transition of his rights and obligations in order of succession to other persons, V.V. Dolinsky calls the reorganization with the relative termination of the legal entity, while maintaining its property mass and the transition of its rights and responsibilities in the civil turnover in the order of succession to other persons.
The only overall feature for all forms of reorganization, according to most researchers, is the succession, i.e. The transfer of the rights and obligations of the reorganized legal entity to its successors.
Unfortunately, the above definitions do not reflect the entire fullness of the Institute for the Reorganization of Legal Entities, as the question of the legal characteristic of such a form of reorganization, as a selection, is inevitably arise. In this case, there is no cessation of a legal entity, but the emergence, along with the already existing, on the basis of his property of another or more legal entities (paragraph 4 of Art. 58 of the Civil Code of the Russian Federation).
Reorganization is carried out in strictly established by law, so the succession occurs only if there is stipulated by law The composition of legal facts. In this case, at least one of the elements does not allow to complete the reorganization procedure, and therefore, there will be no changes in the subject matter of legal relations with the participation of reorganized legal entities.
The succession is characterized by both universal, since it is transferred both things, property and exclusive rights and property responsibilities. However, another opinion was expressed in the literature: the universal succession takes place with all the forms of reorganization, except for allocation. In the latter case, a singular succession occurs, since the reorganized legal entity retains part of the rights and obligations, and a certain set of rights can be transferred to the allocated organization.
However, it is the succession that is the only common feature for all forms of reorganization, the volume of rights, responsibilities, etc., moving towards a legal entity in accordance with the transfer act or dividing balance, is always different.
1.2 Legal regulation of reorganization
In Russia, the norms about the reorganization are dispersed on GC, special laws on organizational and legal forms of legal entities, for example, the Federal Law of December 26, 1995 N 208-FZ "On Joint-Stock Companies", the laws on various activities, for example, the Law of the RSFSR from March 22, 1991 N 948-I "On competition and restriction of monopolistic activities in commodity markets" (hereinafter - the Law on Competition), other sources of law, for example, the Codex (Code of Rules) of Corporate Conduct, approved at a meeting of the Government of the Russian Federation of November 28 2001 (Protocol N 49) and recommended for the application of the order of the Federal Tax Service of the Russian Federation of April 4, 2002 N 421 / P (hereinafter referred to as the KCP). As a result, there is no unity of ideas about the concept of reorganization, its forms, procedure and consequences.
In the Civil Code of the Russian Federation, general points are identified relating to the reorganization of any legal entities regardless of their organizational and legal form. Thus, the Civil Code establishes a circle of persons who have the right to decide on reorganization, determines the moment of completion of the reorganization, as well as the procedure for issuing the succession and guarantees of the rights of legal entity creditors in its implementation.
As for the concept of reorganizing legal entities, unfortunately, today not only the concept of the reorganization of legal entities is not developed, but there is even a single direction for its definition. The current legislation does not contain a term "reorganization". For a long time, civilian scientists are trying to give a scientific definition of this term, studying the creation of legal entities in reorganization through various structures, such as a comparison of form and procedures, the presence of succession in the transition of property mass as a result of reorganization, etc.
How true notes by Yu.S. Cookies, "The legislator is certainly obliged to comply with the most important requirement of rule-making on the uniqueness and consistency of the terminology used (the absence of a double or even triple meaning of terms), because from accuracy and strictly legal concepts to a large extent depends on the development theoretical problems Rights, and, most importantly, the application of the law. "Does not be doubted and approval by V.B. Isakov that the rapprochement of the legislation must begin with the standardization and unification of the terminology used," otherwise we will not understand each other. "
1.3 History and Comparison with Foreign Law
The value of the reorganization is emphasized by the fact that it and its individual forms are devoted not only to the norms of the general (and / or general trade legislation - in countries with dualism of private law), but also special legal acts of both national and supranational, international character, for example, the third EU Directive dated October 9, 1978 N 78/855 / EWG about the merger, sixth directive of December 17, 1982 N 82/891 / EWG on division, law FRG on reorganization (Umwandlungsgesetz) dated October 28, 1994, English Code City Code on Takeovers and Mergers).
According to pre-revolutionary legislation G.F. Shershevich called the fusion (fusionation) in his two manifestations: the merger of two companies with their termination and education of the third company (Fusion); Absorption of one company other (Annexion). I.T. Tarasov also highlighted the closure of the company by repaying (depreciation) of its shares, in which the enterprise remains with spiritual and material elements, and the personal element is eliminated - and the enterprise's capital is finally impersonal. In art. 98 The provisions on JSC of August 17, 1927 envisaged four forms of termination of the Company's activities without the liquidation of his affairs and property: a connection, connection, separation and transformation. Legal acts dedicated to other organizational and legal forms of legal entities have also introduced the allocation, which in the literature was characterized as a special type of separation, but being a way to the emergence of a subject of law. And further in legal acts have already provided for five forms of reorganization, which we will speak separately.
Abroad, the reorganization varies with a change in the legal status of the reorganized legal entity (in some cases, with its termination) and the change in economic relations, as well as, respectively, the redistribution of power in society with the preservation of the legal status of JSC.
For example, fusion and accession in the law on the reorganization of the Federal Republic of Germany and German literature are represented as the unity of four stages: 1) Conclusion of a merger or accession agreement (4-7, 36, 37), 2) Drawing up a merger report or merger report and verification by the Board or accession (9-12, 36 of the Law), 3) approval by the General Assembly of each Trading Company (analogues of Russian AO and LLC) of a merger or accession agreement (13, 36 of the Law), 4) Merge Registration or Accession (16-20, 36 , 38 of the law). Naturally, all classifications pursue certain goals and therefore differ from each other. So, in relation to trade (economic) societies in Germany, they do not allocate as independent stages, the adoption by the Combined General Meeting of Shareholders of the Charter of the Charter of the New Society and the election of the Supervisory Board, and with the accession - approval of the Company's Charter in new edition.
Reorganization is traditionally considered primarily from the point of view of property relations. For example, M.I. Kulagin wrote that "this is one of the forms in which the process of centralizing production and capital in the economy is checked ...". The property relations and property rights do not coincide. From the sphere of pure property relations, the decision of the shareholder is sometimes postponed in the sphere of power relations, management. The owner of the test package of shares is able to dispose of all the property of the AO, expands its assignment capabilities. That is, in our opinion, reflected the norms of P.P. 143, 145, 148 Regulations on JSC, approved by Decree of the Summin RSFSR of December 25, 1990 N 601.
Currently, in German law, the so-called economic merger is recognized (Die Wirtschaftliche Verschmelzung): a) Several societies may establish a new society, giving it their own property in full or in part, including their enterprises with rights and obligations and receiving shares of the new society; or b) shareholders of several societies can exchange their shares for the shares of the new society. In the first case, the shares of the new society receive society that submitted their property, and not their shareholders - and the termination of the legal entity does not occur. In the second case, shareholders may eliminate previous societies if they exchange all their shares. It is believed that this creates additional difficulties, since there is no universal succession and the simplified procedure for the cessation and creation of a legal entity, peculiar only to reorganization, is not allowed. But in principle, the economic merger is allowed. The so-called cash mergers are allowed in the US: in terms of merging, it can be indicated that the property, bonds or other securities of the host or any other corporation or other property or other property will be satisfied. ... ". In art. 429 of the English law of companies provides for the right of a company purchasing 90% of the shares (shares) of another company, "Install control", or Take-Over Bid.
Back in 1997, we have characterized such actions as a form of financial merger and considered the practice of absorption, activation and methods to combat them in the Romanesque right, EU and the US countries. Compare with English. The wording: the absorption of one company another company is a form of economic concentration and is achieved by acquiring shares belonging to shareholders of the company's absorbed. When buying shares can follow the reorganization of JSC in any form and even elimination. At the same time, with the proclaimed principle of freedom of replacing shareholders in JSC, the acquisition of shares, even if the control packet is not directly reflected in society itself. Collision arises between the economic and legal characteristics of the process. At the end of the XIX century. P. Zitovich noted that if the shareholders of an attached company, instead of shares of the hosting company, bonds are issued, then the mergers are not in this, since it is a simple acquisition of one property of the other (liquidated), with the payment of the purchase price of this property by bonds and with the adoption of the purchased price of everything Asset and liability of purchased property. At the same time, as a result of the purchase of shares, "enterprises retain only legal (formal), but not economic independence, for, possessing a majority vote in general meetings, the regulatory enterprise fully subordinates their will."
It seems that the qualifications of this complex of relations can and should be sought in the concept of "absorption". According to the Code of the City, the absorption is, firstly, the transaction (in contrast to the reorganization), secondly, the transaction for the acquisition of 30 and more percent of the company's voting shares. In the English law "On Financial Services and Markets" 2000 (Financial Services and Markets Act), the application of this recommendation act was approved, which means the possibility of adopting forced measures to its violators. The FRG law "On the acquisition of securities and acquisitions", which came into force on January 1, 2002, determines the absorption through the "offer of absorption" - an offer aimed at obtaining control over the company - the addressee of the offer, and "control" means the acquisition of As 30% of the votes from the total number of votes provided by all the company's shares (taking into account those voting shares that the Proper has at the time of the offer). In the CCP, the acquisition is understood as the acquisition of 30 and more percent placed ordinary shares of society. Despite the advisory nature of this act, information about the absorption (but already understood as the acquisition of any major package of any shares) includes obligatory In the annual report of the JSC.
None of the signs of reorganization is not inherent to the absorption. Shares can acquire any subjects of law. Legislation and practice offer pluralism of contractual forms of acquisition that do not intersect with the forms of reorganizations as phenomena of another legal nature. The status of AO may not change. State registration of transactions is not required. The succession is singular. Thus, the absorptions are transactions, but by virtue of their volume, subject line and consequences (possibly the formation of pairs: the main one is a subsidiary, the predominant / participating - dependent society - Art. 105, 106 GK, Art. 6 of the Federal Law of December 26, 1995 G. N 208-FZ "On Joint-Stock Companies") Extraordinary transactions with all the consequences arising from here.
From July 1, 2006, the influence of Art. 80 FZ dated December 26, 1995 N 208-FZ "On Joint-Stock Companies" "Purchase of 30 or more percent of ordinary shares of society" (Art. 8 of the Federal Law of January 5, 2006 N 7-FZ) and an independent ch . Xi? "Acquisition of more than 30 percent of the shares of an open society."
Her name testifies: a) about bringing in accordance with the former editors of P.P. 1 and 2 tbsp. 80 ФЗ standards of paragraph 3 of Art. 7 and paragraph 2 of Art. 10 FZ dated December 26, 1995 N 208-FZ "On Joint-Stock Companies"; b) on the recognition of uniform legal nature for ordinary and preferred shares; c) on the abolition of the previously important mixing of objects of large transactions and about bringing in line with another FZ dated December 26, 1995 N 208-FZ "On Joint-Stock Companies" and KKP.
With the value that has the reorganization of legal entities for civil turnover, and with the problems that generate modern legislation And law enforcement practice seems to be necessary to unify its legal regulation and pay more attention to the GC or in a special law.
Chapter 2. Form and procedure for reorganization. Documentary design of reorganization
Reorganization can be made in five forms: merging, attachment, separation, selection, conversion. When merging two (or more) legal entities stop existence - and one new one arises. In the case of accession, one legal entity (attached) ceases to exist and strengthens with its asset and a passive to the composition of another (to which attachment occurs). When merging and accession, the asset and the passive stopped the existence of legal entities pass on the transmission act to the organization, within which they found themselves after joining or merger.
On various reasons, these five forms are broken into different groups .. on the subject - the initiator of the reorganization and its foundation:
) Separation, selection - paragraph 2 of Art. 57 GK;
) Merge, accession, transformation - p. 3 Art. 57 GK .. on the fate of the property mass:
) merger, attachment (increases);
) separation, selection (decreases);
3) transformation (remains unchanged);. In fact, the preservation of the previously existing legal entity:
) attachment, selection, transformation (saved);
) Merge, separation (not preserved);. According to the reorganization of the act:
) merger, attachment, transformation (transmitter act);
) Separation, selection (separation balance) .. at the time of reorganization:
) merger, separation, allocation, transformation (since the state registration of new legal entities);
) Accession (from the moment of submission to the Unified State Register of Legal Entities Recording to terminate the activities of the affiliate legal entity).
Most trends and problems of legal regulation are equally similar to all forms.
First a common problemIn my opinion, the absence of legal entities unified for organizational and legal forms and forms of reorganization of the procedure. It seems that reorganization, as well as liquidation, should be clearly divided into the stage.
2.1 Merge
The merger is a form of reorganization, when one new legal entity arises from two or more legal entities, to which all the rights and obligations of previous legal entities who stop existence.
The merger can only be voluntary. That is, it always happens by the will of the Legal entity (by decision of the founders (participants) of a legal entity or its body authorized for these constituent documents).
Within the framework of the merger procedure, only such organizations that have the same organizational and legal form may be united. For example, two joint-stock companies (JSC) can merge, but the joint-stock company and a limited liability company cannot.
This directly follows from paragraph 20 of the Resolution of the Plenum of the Russian Federation of the Russian Federation of 18.11.2003 No. 19 "On some issues of applying the Federal Law" On Joint-Stock Companies "(hereinafter referred to as the RF Plenum Statement.
It says that the provisions of the Federal Law of December 26, 1995 N 208-FZ "On Joint-Stock Companies", which determine the procedure for their reorganization by merging, accession, separation or allocation (Article 16-19), do not provide for the possibility of conducting the reorganization of these societies through Association with legal entities of other organizational and legal forms (including with limited liability companies).
Despite this decree, some specialists still express the possibility of a "mixed" reorganization, motivating their point of view by the fact that the specified resolution concerns only joint-stock companies. Accordingly, if you decide to unite, say, cooperative and oh, then there will be no obstacles to this.
This problem is currently not a single solution.
Therefore, in a situation where they decide to unite the organization of various organizational and legal forms, we advise you to carry out such reorganization in the form of a merger in two stages: first, united companies should become the same in organizational and legal form (for example, all LLC) and only then unite.
2.2 Attachment
Attachment is a form of reorganization, when one or more legal entities join the other.
When joining the existence of an associated legal entity (or several persons), and the person to which joins, in addition to its rights and duties, acquires the rights and obligations of the affinable person (persons) (Articles 57, 58 of the Civil Code of the Russian Federation).
Attachment differs from the confluence as follows. As a result of merger, all united organizations cease the existence. When joining the existence, only the associated organizations are stopped, and the organization to which accession occurs continues its activities.
Attachment, like the merger, can only be voluntary. Forced the organization to join another organization, it is impossible. Accession always occurs at the will of the legal entity itself (by decision of the founders (participants) of a legal entity or its body authorized by the constituent documents).
Only those organizations that have the same organizational and legal form can be carried out. For example, LLC can join LLC, but the JSC cannot join the LLC (see paragraph 20 of the Resolution of the Plenum of the Wheel of the Russian Federation N 19). Therefore, if JSC wants to join LLC, then for the beginning he will have to be transformed into LLC, and only then carry out accession.
2.3 Allocation
The selection is a form of reorganization, when one or more legal entities are created from the reorganized organization with the transfer of them part of the rights and obligations of the reorganized organization without termination of the latter.
In reorganization, one or several new legal entities are published by separation from the structure of the legal entity. At the same time, the legal entity itself, from which the allocation occurred, continues to exist.
The volume of rights and responsibilities of a reorganized legal entity and the distinguished persons are determined in the dividing balance.
As a result of the selection, organizations can be formed only by the organizational and legal form, which has a reorganized company.
This means that only Ltd. from a limited liability company can stand out, and from JSC Company, etc. (paragraph 20 of the Resolution of the Plenum of the Russian Federation N 19).
Depending on the specific causes and purposes, the reorganization in the form of selection can be carried out voluntarily or forced.
Forced reorganization of a legal entity in the form of allocation is carried out in order to limit the monopolistic activities of business entities.
In particular, the Competition Act emphasizes the FAS of Russia to make decisions on forced allocation, if the organization has a systematic implementation of monopolistic activities by the organization. Under the systematic implementation of monopolistic activities is understood as the commission of more than two revealed installed manner Facts of monopolistic activities.
However, only the facts of monopolistic activities for the issuance of the organization of the prescription of the compulsory allocation is not enough.
Forced selection is possible only if the following conditions are performed simultaneously:
it leads to the development of competition;
there is an opportunity for organizational and territorial separation structural units organizations;
there is no close technological relationship between the structural divisions of the organization (in particular, if the amount of product consumed by the legal person (works, services) of its structural unit does not exceed 30% of the total volume by this structural division of products (works, services));
legal entities have the opportunity as a result of the reorganization to work independently in the market of a specific product.
Only in the event that all the above conditions are observed, the antimonopoly authority may issue an order of forced allocation.
The organization is obliged to fulfill the obtained prescription on the period specified in the prescription. By law, this period cannot be more than six months (paragraph 3 of Art. 19 of the Law on Competition).
If the organization is not reorganized in a period defined in the prescription of the antimonopoly authority, the latter may apply to the court and a lawsuit on the forced allocation.
In this situation, the court appoints an external manager to the organization for the reorganization of such a legal entity.
Since the appointment of the external manager, it is transferred to the authority to manage the organization's business. The external manager speaks on behalf of a legal entity in court, constitutes a dividing balance and transfers it to the court along with the constituent documents of legal entities arising from the reorganization.
The specified documents approved by the court serve as the basis for the state registration of newly emerging legal entities (paragraph 2 of Art. 57 of the Civil Code of the Russian Federation, Art. 19 of the Law on Competition).
The voluntary release process occurs in the same way as with other forms of reorganization, i.e. By decision of the founders (participants) of a legal entity or its body authorized for these constituent documents.
2.4 Transformation
The transformation is a form of reorganization when the organizational and legal form of a legal entity changes.
When reorganizing a legal entity in the form of conversion, its status changes significantly.
In accordance with paragraph 5 of Art. 58 of the Civil Code of the Russian Federation in the transformation of the legal entity of one species in the legal entity of another species to the newly arising legal entity transfers the rights and obligations of a reorganized legal entity in accordance with the transfer act.
Distinctive features of the transformation are reduced to the following.
In the reorganization procedure in the form of conversion, one legal entity participates that ceases to exist upon its completion.
At the site of the reorganized legal entity there is a new legal entity - the successor of another organizational and legal form.
The succession of the newly emerging legal entity in relation to the reorganized is issued by a separate document - a gear utility.
The initiator of the transformation can compete itself, the owner of his property or such a duty is provided for in law.
Features of the transformation of certain types of legal entities, as in all preceding cases, are determined by special legislation on the specific form of legal entities.
Conditionally, they can be considered in the context of groups of reorganized organizations:
commercial enterprises;
unitary enterprises
non-commercial organizations.
The peculiarities of the transformation of certain types of commercial organizations can schematically be represented as table number 1 (see Appendix. Tables, p. 82).
Some of the above features of transforming commercial organizations will consider in more detail.
Transformation of Limited Liability Societies
In accordance with paragraph 2 of Art. 104 of the Civil Code of the Russian Federation and paragraph 1 of Art. 56 FZ dated 08.02.1998 N 14-ФЗ "On Limited Liability Societies" Limited Liability Company has the right to transform into a joint-stock company, a company with additional responsibility or in the production cooperative.
But the transformation of the LLC to the economic partnership (full or commanditative) or in the consumer cooperative is not allowed.
When converting society to the production cooperative in addition to special norms Civil Code RF must comply with the rules established by federal laws of 08.05.1996 "On production cooperatives" and from 08.12.1995 "On agricultural cooperation".
For example, according to paragraph 3 of Art. 108 Civil Code of the Russian Federation The number of members of the cooperative should not be less than five. Therefore, it is impossible to transform into a production cooperative society in which less than five participants.
And the law "On agricultural cooperation" places and additional requirement: At least 50% of the work in the manufacturing cooperative should be carried out by its members. Forms of production cooperatives are varied: agricultural or fishing artel (collective farm), cooperative economy (coophoz), etc.
As for such an organizational and legal form, as a company with additional responsibility (ODO), it is believed that in cases of additional responsibility of the Company's participants in the ratio, the multiple size of their fractions, the transformation in the exact sense of the word does not occur.
In this case by the decision general Assembly Participants should only change the current charter, but not to hold the entire procedure, including the state registration of a new legal entity.
The registration authority should only be amended in the charter of an existing society.
Similarly, the Federal Law of December 26, 1995 N 208-FZ "On Joint-Stock Companies" does not consider the change in the status from a closed joint-stock company to open and does not mention it in paragraph 1 of Art. twenty.
In paragraph 6 of the Resolution of the Plenum of the Russian Armed Forces of the Russian Federation and the Plenum of the Supreme Court of the Russian Federation of 02.04.1997 N 4/8, it was explained that the transformation of the joint-stock company of the same type to the joint-stock company of another type is not the reorganization of the legal entity and its organizational and legal form does not change. In this case, there is no need to draw up a transfer act, notification of creditors about the upcoming change in the type of joint-stock company. No other requirements related to the reorganization of society should not be concluded.
The procedure for the transformation of LLC in OJSC includes the following steps:
) preparation for the general meeting of participants;
) Conduct a general meeting of the participants of the Company;
) election of AO bodies;
) notification of the tax authorities on the transformation;
) notification of creditors;
) compilation of final accounting reporting;
) State Registration of JSC;
) drawing up the introductory accounting reporting;
) Renewal of licenses;
) State registration of the issue of securities.
Transformation of joint stock companies
The conversion of a joint stock company requires compliance with all Rules of the Federal Law No. 208-FZ "On Joint-Stock Companies", FZ of 08.02.1998 N 14-FZ "On Limited Liability Societies" and laws on certain types of production cooperation.
The procedure for converting a joint stock company includes the following steps:
) holding a meeting of the Board of Directors for the convening of the General Meeting of Shareholders, which addresses the issue of the reorganization of the Company;
) Compilation of a list of persons entitled to participate in the general meeting of shareholders, and a list of shareholders who have the right to demand ransom by the Company by the shares belonging to them;
) Message to shareholders on holding a general meeting of shareholders to consider the issue of reorganization;
) Deciding on the reorganization by the General Meeting of Shareholders, determining the conditions for its conduct and approval of documents issued by the succession;
) Notification of the Company's creditors on the decision taken on reorganization;
) early execution of responsibilities to creditors and shareholders from shareholders if the relevant requirements were declared them;
) approval of the constituent documents of the legal entity being created and the formation of its management bodies;
) State registration of the legal entity being created in the reorganization.
When transforming an open joint-stock company (OJSC), a number of features are available:
The draft decision on reorganization should be proposed by the Board of Directors (Supervisory Board).
The decision must be made by a majority of three-quarters of votes.
The number of participants in the LLC cannot be more than 50.
It should be noted that many issues arising from the reorganization of commercial organizations are permitted outside the framework of civil legislation with the help of regulatory acts of the Federal Financial Markets Service of Russia. However, the sphere of their action is limited only by reorganization procedures, as a result of which a joint stock company is being created.
Nevertheless, the violation of any of the regulatory acts of the Federal Financial Markets Service of Russia may entail the refusal to register with the conversion of organizations or recognition subsequently such registration illegal in court.
This conclusion is confirmed by judicial practice.
Arbitrage practice
Arbitration
Resolution of the FAS Far Eastern District of January 13, 2003 N F03-A49 / 02-2 / 2826
The regional department of the FCCB of the Russian Federation appealed to LLC to recognize its state registration invalid.
According to the materials of the case, the CJSC was transformed into LLC. At the same time, before the establishment of CJSC, the final issue of shares was not registered. The order of the FCCB of the Russian Federation on the submission of a proper set of documents for registration of the issuance of shares of the CJSC was not fulfilled. Instead, state registration of LLC created by converting CJSC LLC was carried out.
The court of cassation instance Requirements of the FCCB of the Russian Federation satisfied completely, motivating its solution to the following arguments.
State registration of legal entities is carried out in accordance with the procedure established by law. If, when transformation of a legal entity, a violation of legislation was allowed from one organizational and legal form to another, the registering authority is not entitled to record the illegally created society.
In the case under consideration, under the reorganization of CJSC, LLC were violated by paragraph 2 of Art. 5 of the Federal Law "On the Protection of the Rights and Legal Interests of Investors in the Securities Market" and Art. 18 of the Federal Law "On the Securities Market", which provide that before the state registration of the issue of securities, the commission of any transactions with unregistered securities is prohibited.
A similar conclusion is also contained in the resolution of the FAS Far Eastern District of 31.08.2004 N F03-A51 / 04-1 / 2147. It says that the exchange of unregistered shares of CJSC on the share in the authorized capital of LLC, which occurred as a result of the reorganization of CJSC, by virtue of Art. 168 of the Civil Code of the Russian Federation is an invalid (insignificant) transaction.
The adopted meeting of the decision should contain such a condition for transformation as the procedure for exchanging shares of the joint-stock company to the share of participants LLC. If the authorized capital of Ltd. will be equal to the authorized capital of the transformed joint stock company, the nominal value of the shares of each participant of the LLC will be equal to the nominal value of the shares belonging to it.
If the authorized capital of Ltd. is greater than or less than the authorized capital of the transformed joint stock company (but no less than established minimum), then the share of each shareholder in the total nominal value of the shares of the joint stock company will be equal to the size of its share in the authorized capital of LLC.
With reference to the reorganization in the form of a transformation, a document, executing the succession, is the transmission act.
However, in relation to the transformation, in contrast to other forms of reorganization, the Federal Law of December 26, 1995 N 208-FZ "On Joint-Stock Companies" does not define an authority authorized for approval this document. But taking into account that, in accordance with the Federal Law of December 26, 1995, N 208-FZ "On Joint-Stock Companies" documents on the succession during merging, accession, separation and allocation are approved by the General Meeting of Shareholders, it is possible to make an unequivocal conclusion that similar The approval of the transfer act and when converting.
Not later than 30 days from the date of the decision on the transformation, the joint stock company is obliged to notify the Company's creditors in writing and publish a message about the decision in a printed publication intended to publish data on state registration of legal entities.
Lenders have the right to demand from the society of termination or early fulfillment of liabilities and damages.
State registration of LLC, created as a result of the reorganization, and making entries on the termination of the activity of the reorganized AO are carried out only if there is evidence of the notification of creditors.
The necessary stage of reorganization of the joint-stock company is the approval of the constituent documents of its successors and the formation of their management bodies. In relation to the reorganization in the form of a conversion of a decision on these issues, the relevant body of the legal entity created (the general meeting of the participants in a limited liability company, the general meeting of members of the production cooperative or non-commercial partnership).
The procedure for holding the specified meetings is similar to the decision to establish a legal entity, taking into account the requirements of the legislation regulating the procedure for the creation and activities of relevant legal entities.
With reference to the Federal Law of December 26, 1995, N 208-FZ "On Joint-Stock Companies" The term "transformation" is also mentioned in the context of changes in the type of joint-stock company - from open to closed and vice versa. For example, if the limit number of participants is exceeded in the closed society, it is obliged to conduct such a transformation during the year. Otherwise, society is subject to liquidation in court.
But, as mentioned above, when converting the joint-stock company of the same type to the joint-stock company of another type of norm relating to reorganization, do not apply.
This rule is confirmed in paragraph 23 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 18.11.2003 No. 19.
Moreover, the law provides cases where the change in the type of society cannot be carried out or directly prohibited.
Open society cannot be transformed into closed if the number of its shareholders exceeds 50.
It is not allowed to change the type of joint-stock company in cases where in accordance with the law they can be created only in the form of open (OJSC) (for example, investment funds) or only in the form of closed (CJSC) (audit organizations).
CLOSED JOINT-STOCK COMPANY (CJSC) is not transformed into open (OJSC), if the size of the authorized capital of the established joint stock company will be lower than the minimum level established for open societies of Art. 26 FZ dated December 26, 1995 N 208-FZ "On Joint-Stock Companies".
Unitary enterprises. Privatization
According to paragraph 1 of Art. 29 of the Federal Law of November 14, 2002 N 161-FZ "On State and Municipal Unitary Enterprises" (hereinafter - the Law on Unitary Enterprises) Unitary enterprises can be reorganized by decision of the owner of the property.
At the same time on the basis of Art. 34 of the specified law Unitary enterprise for the decision of the owner can be transformed into a state or municipal institution. For this, the owner of the property of the institution will sufficiently decide to make a decision on the transformation and approve the transmission act.
But the transformation of a unitary enterprise in organizing a different organizational and legal form is carried out in accordance with the legislation on privatization.
According to paragraph 2 of Art. 29 of the Law on Unitary Enterprises Transformation of a unitary enterprise in the organization of another organizational and legal form is carried out in accordance with the legislation on privatization.
Based on sub. 1 p. 1 Art. 13 and art. 37 of the Federal Law of 21.12.2001 N 178-FZ "On the privatization of state and municipal property" (hereinafter - the Privatization Act) applies such a method of privatization of state and municipal property, as the transformation of a unitary enterprise in an open joint-stock company (OJSC).
For all types of state unitary enterprises (GUP), based on state ownership of the Russian Federation, the subject of the federation or municipal propertyThe following privatization rules will be fair.
The creation of a joint-stock company through reorganization (Art. 8 of the Federal Law No. 208-FZ "On Joint-Stock Companies") is based on the norm of Art. 57 of the Civil Code of the Russian Federation on reorganization.
One species of such reorganization is the transformation, i.e. Termination of one legal entity (in our case - GUP) and education on its basis of the legal entity of another organizational and legal form (OJSC).
The legal entity is changed by one organizational and legal form (GUP) to another (OJSC) is not a basis for changing the right of ownership (Art. 218 of the Civil Code of the Russian Federation).
This means that the property that arises as a result of the transformation of OJSC belongs to the same owner as the property of the reorganized GUP.
That is, all 100% of the shares of the newly educated OJSC must belong to the owner of the GUP - the Russian Federation, the subject of the Russian Federation or the municipal education. This provision was reflected in the title of the VII of the Privatization Act.
The rights of the only shareholder (including the powers of the General Meeting of Shareholders) in such societies are carried out by authorized bodies state power RF, Federation Subject or municipal Education (Art. 39 of the Privatization Act).
Modern legislation on privatization The right to buy shares of the unitary enterprises transformed by JSC is not provided.
In accordance with paragraph 1 of Art. 11 of the Privatization Act The composition of the toast-privatization of the property complex of a unitary enterprise is determined in the transfer act.
The list of objects not subject to privatization and suggestions for their further use are compiled in an arbitrary form indicating the characteristics of each object and its cost.
As practice shows, it is often in the process of privatization the question of the possibility of forming a joint-stock company of the Special Fund of Society (Faro) in transformed from GUP (MUP).
Prerequisites for this are contained in paragraph 2 of Art. 35 FZ dated December 26, 1995 N 208-FZ "On Joint-Stock Companies". The specified fund is formed from the net profit of the Company and is intended solely to acquire shares of the Company sold by the shareholders of this company for subsequent placement by its employees of the Company.
During the first wave of privatization, the Company's shareholding fund was of great importance primarily for employees of privatized enterprises.
Currently, the formation of this fund is not mandatory. It is created only if the possibility and order of its formation (including: the size and procedure for creating a fund, the direction and procedure for spending funds of the Fund, control over their expenditure, etc.) are directly provided for by the Charter of OJSC. Considering paragraph 2 of Art. 37 Privatization Act, the inclusion in the charter of the regulations created on the establishment of Faro from a formal point of view is not prohibited.
However, in practice, things are different.
According to Art. 34 of the Law on Unitary Enterprises and Articles 6, 14 of the Privatization Act Decision on the transformation of a unitary enterprise (as well as the approval of its charter) adopts the owner of the enterprise property (usually an authorized body management body). The possibility of the participation of the labor collective of a privatized unitary enterprise in the establishment of the Company's shareholding fund with current legislation is not provided.
The above in paragraph 1 fully complies with the standards of chapter VII of the Privatization Act, according to which, when creating OJSC, through the transformation of a state unitary enterprise, all 100% of the shares of OJSC are in state ownership. At the same time, the functions of the highest management body of the Company - the general meeting of shareholders - are carried out by the authorized body of the state authority of the owner of the Russian Federation or the subject of the Russian Federation (paragraph 2 of Art. 39 of the Privatization Act).
Thus, the formation in society, where 100% of the shares are in state ownership, the Company's shareholding fund contradicts the norms of the Privatization law.
Non-commercial organizations
Non-commercial organizations (NPOs) can be transformed both into non-commercial and commercial legal entities.
The procedure for their conversion is shown in Table No. 2 (see Appendix, p.83).
The question is about the possibility of transforming into commercial legal entities of public organizations.
On the one hand, Art. 17 of the Federal Law of 12.01.1996 N 7-FZ "On Non-Profit Organizations" (hereinafter - the NGO Law) does not establish restrictions on the conversion of them to certain organizational and legal forms for public organizations.
On the other hand, this default legislator may be interpreted as a ban on the transformation of public organizations in other forms.
Not everything is simple and with institutions.
According to paragraph 2 of Art. 17 of the NGO Law The Institution may be transformed into a fund, an autonomous non-profit organization, a business society.
A mentioned point was also established that the transformation of state or municipal institutions into non-profit organizations of other forms or to economic society is allowed in cases and in the manner prescribed by law.
This means that, within the meaning of the current legislation, it is allowed to transform municipal institutions into the commercial organization of only one organizational and legal form - economic society and only in cases provided for by law.
Currently, the law on state and municipal institutions is absent. In such a situation, the transformation of institutions to commercial organizations, including economic societies, is actually impossible.
Apparently, for this reason, the transformation of institutions is not reflected in the privatization law. Otherwise, there would be a legal way to bypass the privatization procedure for the repurchase of the state (municipal) property in private hands.
Theoretically, such a chance still exists. Thus, the action of the Privatization Act does not apply to cases of alienation of "state and municipal property to the ownership of non-profit organizations created by transforming state and municipal institutions" (sub. 8 p. 2 of Article 3 of the Privatization Act). The fact that non-profit organizations can be transformed into household societies, we have already spoken.
In any case, when converting non-commercial organizations, a number of features should be taken into account.
The decision to transform a collective non-profit organization is made by all founders (participants, partners) unanimously.
The decision to transform the institution accepts the owner of his property.
If a non-profit organization is working, which cannot be carried out by a commercial organization, then at the time of the NGO transformation into a commercial organization, this activity should be discontinued.
When moving from NPO to one of the forms of the economic company, the organization loses tax benefits that it had due to its non-commercial activities.
In the distribution of shares in the authorized capital of the new (transformed) society, the principle of equality should be observed: the share of new participants should be initially equal, since these persons participated in the NGO activities also on an equal basis, had the same rights and obligations against the organization.
The structure of the transformed NGO (membership based) may be preserved. At the same time, the general meeting of NGOs is transformed into a meeting of the participants of the Company, and all special standards that were possible in NPO should be aligned with the Civil Code of the Russian Federation, FZ dated 08.02.1998 N 14-FZ "On Limited Liability Societies", FZ dated December 26, 1995 N 208-FZ "On Joint-Stock Companies".
In institutions, structural changes are practically not required: the owner or the owners of the institution continue to fulfill their functions as a founder (the general meeting of participants or shareholders).
For the obligations adopted by NGOs before transformation, questions may arise.
Continue whether the work on grants, donations, etc. After converting?
What to do with the obligations of the NGO, which initially cannot be carried out by a commercial organization?
The law does not give a response to these issues.
2.5 Separation
Under the division of the organization means its termination with the transfer of all rights and obligations of newly created organizations.
Economic societies can be subjected to separation without limitation. The basis for this is art. 57 of the Civil Code of the Russian Federation and the norms of the Federal Law of December 26, 1995 N 208-FZ "On Joint-Stock Companies" and FZ dated 08.02.1998 N 14-FZ "On Limited Liability Societies".
For partnerships, the division is possible if there is more than one participant in it (full comrade). If one participant remains in the partnership, it is subject to liquidation or transformation to the economic company (Article 81 of the Civil Code of the Russian Federation).
By decision of the owner, unitary enterprises can be divided only to the same unitary enterprises (art. 32 of the Law on Unitary Enterprises). Otherwise, the division must be made in accordance with the legislation on privatization.
As for non-commercial organizations, the potential for their separation is fixed in Art. 16 of the Law on Non-Profit Organizations.
However, paragraph 1 of this article is formulated in such a way that NGOs can be reorganized in the manner prescribed by the Civil Code of the Russian Federation, the Law on non-profit organizations and other federal laws.
In essence, this means that if the law does not specify the procedure for separating a specific type of NPO, the separation of this non-commercial organization cannot be implemented.
None of now existing laws There are no special references to the procedure for separating non-commercial organizations. Therefore, it should be recognized that the right to division (as well as the right to reorganization in the order of discharge, merger and accession) remains only a declaration of such an opportunity.
The separation should be distinguished from the form of reorganization similar to it - highlighting. During the selection, unlike separation, the reorganized enterprise does not stop, and transfers part of its rights and responsibilities to allocated organizations.
The separation is one of the most popular business restructuring methods.
IN foreign system Corporate law is divided into capital concentration procedure.
In the domestic reality, the separation is most often aimed at the conclusion of the most liquid assets for various purposes. But it must be borne in mind that these actions may well be challenged in court, and the transaction for the transfer of property of the newly created as a result of separation (discharge) to a legal entity can be recognized as insignificant in accordance with Art. 167 of the Civil Code of the Russian Federation.
The example above is judicial practice Based on the case of the allocation of the organization, however, the conclusions made by the court are fair and in relation to the division of legal entities.
Arbitrage practice
Arbitration
The resolution of the FAS of the North Caucasian District of February 18, 2003 N F08-277 / 2003, the payer, which was a creditor LLC-1, appealed to the court with a claim to LLC-1 and LLC-2 on the recognition of an invalid transaction on the transfer of property from LLC-1 to LLC-2 committed in connection with the reorganization of LLC-1 and on the application of the consequences of the invalidity of an insignificant transaction by returning the LLC-2 of the property transferred to it.
The claims were satisfied with the court with reference to the following circumstances.
As follows from the case materials, during 2000-2002. The cost of net assets LLC-1 was less than the minimum amount of the authorized capital established by law at the date of state registration of the Company. The property of society did not allow to meet the requirements of all his creditors, and therefore be subject to liquidation. However, the decision of the General Meeting of the participants of LLC-1 was decided to reorganize the Company by allocating LLC-2 and a deal was made on the transfer of property to it.
After reorganization, the size of net assets LLC-1 decreased. The newly educated LLC-2 was actually transferred only to rights without any obligations.
By making a decision, the court proceeded from the fact that the Actions on the transfer of property of LLC-1 newly created LLC-2 were actions aimed at establishing, changing and terminating civil rights and obligations, i.e. - Transaction.
Since the cost of net assets LLC-1 has been in 2000-2002. There was a negative value, LLC-1 was subject to liquidation in accordance with paragraph 3 of Art. 20 FZ dated 08.02.1998 N 14-FZ "On Limited Liability Societies". Instead of the liquidation of LLC-1, it was reorganized with the allocation of LLC-2 from it in such a way that LLC-1, the cost of net assets decreased even more. As a result of the reorganization, all property necessary to implement the main activity of LLC-1 was transferred to the reorganization. The debt before the plaintiff remained at OOO-1.
Under such conditions, the transaction for the transfer of property from LLC-1 to LLC-2 was invalid on the basis of Art. 168 of the Civil Code of the Russian Federation, paragraph 3 of Art. 20 and art. 55 ФЗ dated 08.02.1998 N 14-FZ "On Limited Liability Societies". The court also applied the consequences of the invalidity of an insignificant transaction in accordance with Art. 167 of the Civil Code of the Russian Federation.
Consider the separation process by the example of economic societies.
In accordance with Art. 54 ФЗ dated 08.02.1998 N 14-ФЗ "On Limited Liability Societies" The division of the Company recognizes the termination of society with the transfer of all its rights and responsibilities of newly created societies. At the same time, the transfer of all rights and obligations from the previous organization to the newly educated one.
The proposal for the division of society is made by its executive body, the Board of Directors (the Supervisory Board), the initiative group of participants for consideration by the General Assembly, which should decide on the division unanimously.
In the preparation of the meeting, proposals must be formulated: on the procedure and conditions of the separation of society, the creation of new societies, on the preparation of the separation balance.
In solving the general meeting of participants of the reorganized ("old") society should be reflected:
) decision to carry out division;
) Order and conditions of separation;
) decision to create new enterprises (societies or production cooperative);
) decision to approve the separation balance;
) The procedure for converting shares of a reorganized society in stocks and (or) other securities of the established companies (clause 3 of Article 18 of the Federal Law of December 26, 1995 N 208-FZ "On Joint-Stock Companies");
) The procedure for repurchase with shareholders - owners of voting shares of all or part of the shares belonging to them if, in the reorganization of society, they voted against the decision on the reorganization or did not participate in the voting on these issues (paragraph 1 of Article 75 of the Federal Law of December 26, 1995 . N 208-FZ "On joint-stock societies").
During the division, the set of rolling from one society to another rights and obligations is reflected in the separation balance. It should clearly determine the amount of rights and obligations passing to each of the newly emerging societies.
It is impossible to bypass the problem of the so-called mixed reorganization, when, as a result of the transformation of a legal entity of one institutional and legal form, enterprises of another organizational and legal form arise either in the reorganization, firms of various organizational and legal forms are involved (for example, the merger of JSC with LLC or the allocation of JSC from the production cooperative ).
Enforcement and judicial practice in some cases, mixed reorganization recognized legitimate.
At the same time, in paragraph 20 of the Decisions of the Plenum of the Russian Federation, N 19 states that the Federal Law of December 26, 1995 N 208-FZ "On Joint-Stock Companies" does not provide for the possibility of conducting the reorganization of joint-stock companies through the association with legal entities of other organizational and legal forms or separation (discharge) on JSC and legal entity of another organizational and legal form.
Thus, the merger and accession of joint-stock companies can be carried out in order to create a larger society, and separation and allocation - in order to educate new joint-stock companies.
However, his position of the Russian Federation expressed its position only with respect to joint-stock companies.
Can this practice automatically distribute on the organization of other organizational and legal forms - the law does not give the answer.
Do not confirm such a "total" conclusion and courts, although indirectly his justice follows from the content of section 8 of the emission standards of securities and registration of securities prospectuses, in which the possibility of sharing the share of Ltd. to the AO shares is maintained only for conversion cases.
Thus, whether the potential separation is preserved, for example, LLC on JSC and other LLC, the question is still controversial.
The division of the Company by decision of the meeting of its participants occurs on a voluntary basis. But the forced separation is possible (paragraph 2 of Art. 57 of the Civil Code of the Russian Federation).
As a result of the separation, new societies are created, each of which should have their own constituent documents.
All participants of each society signed their constituent contract.
After that, the general meeting of participants is held to approve the charter, which must be adopted unanimously.
Note! It should be unanimously adopted not only the decision on reorganization in the form of separation, as well as the separation balance of society should unanimously be approved.
If the separation balance is not approved unanimously, the possibility of obtaining in the division of a particular property of newly created organizations can be questioned, since the courts refuse to recognize the belonging of the disputed property to one or another of the newly educated organizations.
Arbitrage practice
Arbitration
Resolution of the FAS of the North Caucasian District of 18.02.2003 No. F08-277 / 2003
LLC-1 appealed to the court with a claim to LLC-2 on the section of the store's premises due to the division of LLC-2, which the store belonged to separation.
By decision appeals instance The lawsuit denied a reference to the fact that the decision on the reorganization of the Company was not taken by all ten founders unanimously, and the separation balance of the participants of the reorganized society LLC-2 was not alleged.
In the case file, there were two protocols of the extraordinary general meeting of the founders of LLC-2.
According to one protocol at the meeting, all participants were attended. They voted unanimously on the following issues of the agenda:
reorganization of LLC-2 in the form of separation;
exit from the founders with the property fear;
conduct audit and internal audit.
Following the assessment decided:
conduct audit;
commissions to prepare a package of documents to exit founders;
director of the Company to convene an extraordinary meeting of founders.
The protocol was signed by the Chairman of the Assembly.
According to another protocol at the meeting, all participants were attended. Voted unanimously. The following questions were on the agenda:
reorganization of the enterprise;
the exit of the founders with property;
audit and internal audit;
early re-election of the director.
Following the assessment, they decided:
reorganize LLC-2 in the form of division into two legal entities;
leave LLC-2 with the same name and balance currency in the amount of 49, 09 shares belonging to the four founders;
the rest of the five founders to register a new legal entity;
approve the separation balance;
prepare the constituent documents of the new legal entity.
The protocol was signed with only six participants.
Leaving the decision of the Court of Appeal in force, the cassation instance drew attention to the following.
According to Art. 37 FZ dated 08.02.1998 N 14-FZ "On Limited Liability Societies" The decision on the reorganization of society is taken by all participants unanimously.
The limits of the succession of newly emerging legal entities in division are determined by the separation balance.
The decision taken by unanimously participants of the reorganizable society should be based on the analysis of prepared proposals on the procedure and conditions of such reorganization, the creation of new societies and approval of the separation balance.
According to paragraph 25 of the decision of the joint plenum of the Russian Armed Forces of the Russian Federation and the Russian Federation of 09.12.1999 N 90/14 "On some issues of applying the Federal Law" On Limited Liability Society "" under the division of society, along with the decision to conduct such reorganization, the General Meeting of the Company's participants is accepted The decision to approve the dividing balance.
The next stage is the election of the Company's bodies, i.e. executive organ, if necessary, also the Board of Directors (Supervisory Board) and (or) of the Audit Commission (Auditor).
The process of dividing the exception of a divided society from a single state register of legal entities and a recording of new emerging societies has been completed.
In the absence of a unanimous decision of the participants on the conduct of reorganization, forced reorganization by the court decision is not allowed. Such categorical conclusion makes judicial practice.
The problem most common in the division is the distribution of receivables and payables of the reorganized joint-stock company between newly emerging enterprises.
The theoretically most reasonable is the distribution of receivables and payables of the reorganized society in proportion to the value of net assets.
The cost of net assets of a divisible society is determined in accordance with the procedure for assessing the cost of net assets of joint-stock companies, approved by the Order of the Ministry of Finance of Russia and the FCSB of the Russian Federation of January 29, 2003 N 10N, 03-6 / PZ.
And the cost of the net assets of each enterprise formed as a result of the separation should be understood as the result of the balance of the balance.
civil reorganization Legal law enforcement
Chapter 3. Problems of law enforcement during reorganization
.1 right excaffirmation in reorganization
Today, the order of reorganization of a legal entity is regulated by the provisions of Art. 57-60 Civil Code of the Russian Federation and the norms of other laws (in particular, federal laws "on joint-stock societies", "On Limited Liability Societies", etc.).
At the same time, many unsolved issues arise in law enforcement:
there are no integrated rules regulating such a form of reorganization as transformation;
the mechanism and specific cases of the reorganization of non-profit organizations in commercial, and vice versa, are incomprehensible;
there are no norms regulating the procedure for the interaction of tax authorities and registration service bodies during reorganization in the form of transformation;
it is not clearly indicated by the legal status of such documents as a transmission act and separation balance, etc.
Indicated gaps make it necessary, according to the developers of the concept, fill the Civil Code of the Russian Federation with regulatory content in terms of detailing the procedure for the reorganization of legal entities. Attempts to preparing individual bills on the reorganization of legal entities should be considered unsuccessful due to a violation of a number of general principles of civil regulation and the complication of the already most complicated system of Russian civil legislation.
At the same time, the author disagrees with the principal position of developers of the concept about the ban on non-commercial organizations are transformed into commercial, and vice versa. In my opinion, this proposal is to limit the legal capacity of legal entities in the implementation and implementation of their rights with participation in civil-related turnover. After all, any non-profit organization (as well as commercial) may arise the need to change the goals of its activities. And what to do in such a situation? Eliminate? The exit here is different - to streamline and systematize the procedure for converting non-profit organizations into commercial, and vice versa, to designate clearly at the level of the Civil Code of the Russian Federation, specific cases of such a transformation.
A positive moment in the concept should be recognized as a proposal for the introduction of the Inverse Reorganization Institute in order to prevent violations of the legislation by the founders during the reorganization procedure. The task of civilists in this situation is to develop a clear mechanism of the institute "reorganization", a circle of subjects that can submit relevant claims to the court.
Forced reorganization
Legal entities terminate their activities, in order of the principles of which are similar to those in force when creating them. There are a managed and voluntary grounds for termination of the legal entity.
A voluntary basis is the decision of a legal entity authorized by the constituent documents (clause 1 of Art. 57, paragraph 2 of article 61, paragraph 1 of Art. 68 of the Civil Code). The leading grounds include: the decision of the founders (participants) (paragraph 1 of Art. 57, paragraph 2 of Art. 61 of the Civil Code), the decision of the authorized state bodies (paragraph 2 of Art. 57 of the Civil Code), the court decision (paragraph 2 of Art. 57 , paragraph 2 of Art. 61, Art. 65 GK). They are adjacent to reorganization with the consent of the authorized state bodies.
From the analysis of Art. 113-115, 120, 294-300 GK It follows that state and municipalities (both state-based, based on the right of operational management and on the right of economic management) of the enterprise and the institution funded by the owner are terminated only in administrative (forced). Both types of foundations are applicable to the rest of the organizational and legal forms.
The achievement is that the termination by decision of the authorized state bodies is allowed only in cases and only in the forms established by law, according to the closed list of acts, provided for only by the GC (P.P. 2, 3, Article 57, paragraph 2 of Art. 61, P.P. 1, 3 tbsp. 65 GK).
Forced reorganization is applied in russian practice It is very rare, although the relevant rights are provided to the competent authorities. So, antitrust authorities in accordance with paragraph 1 of Art. 22 of the Law on Competition may address business entities. Prescription to reorganize a legal entity in the form of separation or allocation, that is, only in forms that imply an increase in the number of subjects and a decrease in the property base, market share, etc. In accordance with Art. 19 of the Law on Competition in the case when commercial and non-commercial organizations engaged in business activities occupy a dominant position and made two or more violations of antitrust laws, the federal antimonopoly authority has the right to decide on their forced separation or allocation of one or more organizations on the basis of their composition structural divisions, if it leads to the development of competition.
The decision on the forced division (allocation) of the commercial organization is adopted in the combination of the following conditions: 1) the possibility of organizational and territorial separation of its structural divisions; 2) the absence between its structural divisions of the close technological relationship; 3) the possibility of a legal entity as a result of the reorganization to work independently in the market of a certain product.
The decision of the federal antimonopoly authority on the compulsory division (allocation) of commercial organizations and non-profit organizations engaged in entrepreneurial activities is subject to the execution by the owner or body authorized by him, taking into account the requirements provided for in the specified decision, and in the term defined in it, which cannot be less six months.
More we will not meet such a clear scheme. In the absence of a single legal act on the termination of the legal entity, at least specify the base of the base and the procedure for forced reorganization, to give a closed list of persons who may require it, as well as include a sending rate in the FZ.
Forced reorganization of legal entities on antimonopoly legislation
The antimonopoly legislation of the Russian Federation contains a norm providing for certain conditions The possibility of forced separation of economic entities. This provision stands out from a number of norms of antitrust laws regulating the consequences of offenses: first, establishes such serious consequences outside trialAnd secondly, despite the rather long history of its existence (since 1991), it is practically no applied. In this regard, consider the features of this norm.
According to Art. 12 of the Law of the RSFSR of March 22, 1991 "On Competition and Restriction of Monopolistic Activities in Commodity Markets" (hereinafter - the Law on Competition) Antimonopoly Authority - Federal antimonopoly service - And its territorial bodies - have the right to issue any mandatory entities for the fulfillment of a compulsory division of a commercial or non-commercial organization or on the allocation of one or several organizations from their composition. If you consider the powers of antitrust authorities in the financial services market, then the absence of similar powers in the Law of the Russian Federation of June 23, 1999 N 117-FZ "On the protection of competition in the financial services market" should be noted. At the same time, the Central Bank of the Russian Federation in accordance with Art. 75 FZ dated July 10, 2002 N 86-FZ "On the Central Bank of the Russian Federation (Bank of Russia)" has the right to demand the reorganization of the credit institution. It is obvious that such extreme measures, as the division of legal entities, can be applied on the initiative of a limited number of authorized bodies. The legislator decided to leave the opportunity to demand separation against credit institutions under the jurisdiction of only the Central Bank of the Russian Federation. However, it turns out that such a measure, as a forced reorganization, cannot be used at all in relation to other financial organizations - insurance companies, non-state pension fundsLeasing companies, etc. It seems that this issue should apply a uniform approach and the authority to require reorganization should belong only to the antimonopoly authority.
The idea of \u200b\u200bthe forced separation of the subject holding a monopoly position is not new. Back in 1911 on the basis of the decision Supreme Court The United States was divided by the Trest Standart Oil, as a result of which Jersey Standart was formed (since 1970 Exxon) and Socony (currently Mobil), as well as 32 other companies.
The reason for which the norm on the forced separation was included in russian law about competition.
When developing Russian anti-monopoly legislation, the peculiarities of the Soviet monopoly was taken into account, which, although transformed in the course of economic reforms, was still able to influence economic relations. As one of the objectives of the Competition Act, adopted in 1991, the provision of conditions for the creation and effective functioning of commodity markets were proclaimed. It should not be argued that in Russia until 1991 there were no commercial markets at all. However, their underdeveloped, closure, monopoliznancy did not cause doubt that the establishment of such a goal in the law was not characteristic of the antimonopoly legislation of most countries. Note that Art. 1 of the Law on Competition in last edition No longer refers to such a goal.
In 1994 was adopted Government program demonopolization of the economy and development of competition in the markets of the Russian Federation (main directions and priority measures). Under demonopolization in the document understood the decline in the concentration of the production of goods and creating the necessary conditions for the development of competition in commodity markets. As methods for increasing the number of suppliers in the commodity market, the allocation of independent economic entities was considered from the associations of enterprises producing interchangeable products; allotment of independent subjects from associations producing non-violent products; Allocation of individual sites, workshops on the initiative of the labor collective in the process of privatization or by the forced separation of economic entities. Similar methods assumed an increase in the number of business entities - consumers in the commodity market.
Thus, the extraordinary monopolization of commodity markets in the late 80s - early 90s. Provided such a specific goal of antitrust laws, as providing conditions for creating commodity markets. To implement this goal, served and the norm of Art. 19 of the Law on Competition, which provided for the possibility of forced separation of economic entities in the interests of the development of competition.
Separation and selection are forms of reorganization of legal entities. The peculiarity of this norm is that the reorganization is not carried out voluntarily and not by the decision of the court, but by the solution of an authorized antimonopoly authority.
The reorganization of a legal entity can be determined as a relative termination of a legal entity while maintaining its property for functioning in civil circulation and the transition of its rights and duties in order of succession to other persons. The separation takes place if one legal person ceases to exist, and its rights and obligations go to two or more newly emerged legal entities. When separating one legal entity, one or more new legal entities arises from one legal entity, and the first does not cease its existence.
According to paragraph 2 of Art. 57 of the Civil Code of the Russian Federation in cases established by law, the reorganization of a legal entity in the form of its separation or allocation from its composition of one or several legal entities is carried out by solving authorized state bodies. Just such a case and provided by Art. 19 of the Law on Competition. Based on the specified norm, you can formulate the following definition.
Forced reorganization is an action for the purpose of developing competition in accordance with the prescription of the antimonopoly authority, on the division of the economic entity - a legal entity involving the dominant position, in the case of a systematic implementation of monopolistic activities.
The monopolistic activities of the Competition Act (Art. 4) treats as an unlawful act of a subject of antimonopoly regulation, aimed at preventing, restriction or elimination of competition. The object of this offense is the relationship of competition.
In the objective side, such elements are included as an anti-acting, harm and causal relationship between them.
The act (action or inaction) of the subject of antitrust regulation is illegal if violates the norms of antimonopoly legislation.
Such an element, as harm, may be absent in the composition of the considered offense, since monopolistic activities are declared an illegal regardless of the presence or absence of such consequences. However, this act in any case makes it harm to competitive law enforcement.
The subjective side of this offense is the wines of the intruder. It is about the fault only in the form of intent, since the legislator directly indicates that monopolistic activities are sent (has a certain goal) to prevent, restriction or elimination of competition. The implementation of such a goal is obviously impossible by negligence.
The peculiarity of the subject of the offense lies in the fact that a significant group of subjects accounts for legal entities. The guilt of the legal entity is expressed in the fault of his employees. Most of all, this concerns managers of those organizations - business entities, which determine the legal entity strategy in the market, and including behavior in competition.
Monopolistic activity is considered systematic if more than two such facts have been identified in the prescribed manner.
Forced reorganization is possible in relation to those legal entities that take the dominant position. It is important to note that in itself the presence of a dominant position is not illegal.
Article 4 of the Law on Competition determines the dominant position as "the exclusive position of the economic entity or several business entities in the market of goods that does not have a substitute, or interchangeable goods: gives it (im) the opportunity to have a decisive effect on general terms and Conditions Cracing the goods on the relevant commodity market or make it difficult to access the market to other business entities. "
It is assumed that the economic entity occupies a dominant position in the market of a certain product if its share is 65 and more percent. At the same time, the economic entity is given the right to prove the opposite. It is believed that an economic entity that has a share in the market of a certain product from 35% to 65%, has no dominant position. The burden of refutation of the last presumption lies on the antimonopoly authority.
The position of the subject with a share in the market of a certain product is less than 35%, cannot be recognized by the dominant.
To accurately find out the position of the subject on the market, it is important to correctly define the corresponding trade market. Such a law on competition recognizes the sphere of product treatment, which does not have substitutes or interchangeable goods in the territory of the Russian Federation or its part. At the same time, the product is understood by the "product of activity (including works, services), intended for sale or exchange" (Art. 4 of the Law on Competition). The goods presented on the market may be unique, the only one of its kind. But most often on the market there are substitutes (substitutors). Interchangeable goods are quite close both in their quality properties and price. The territory is determined on the basis of the economic opportunity of the buyer to purchase goods in the relevant territory and the inability to do this outside. According to the explanation of the Supreme Arbitration Court of the Russian Federation under the relevant territories are not only national-state, national and administrative-territorial education, but also groups settlements or other territories within the boundaries of these formations. Therefore, the borders of the local commodity market should be determined for each specific case, taking into account the need to protect the rights of consumer. At the same time, the presence or absence of the consumer has the opportunity to acquire relevant goods without additional significant costs.
When studying the relevant market, both real competitors producing similar products, as well as goods that can replace it, and potential competitors who have the opportunity without significant costs to proceed to the production of the products under consideration or its substitutes. At the same time, the market borders, correctly defined at the moment, may change in the future.
The question of the quantitative determination of the concentration of market strength (the dominant position of a business entity) is quite complicated. For example, in accordance with the decisions of the EU Commission, the dominant position may occupy business entities, the market share is from 20% to 40%.
Russian anti-monopoly legislation applies a quantitative indicator of the domination of the market, equal to 35%: "cannot be recognized as the dominant position of the economic entity, whose share in the market of a certain product does not exceed 35 percent (Art. 4 of the Law on Competition).
It seems that the norm allowing forced reorganization, regulates the use of an extreme measure when state bodies intervene directly into the economic activities of commercial and non-commercial organizations. In connection with emergency character This measure provides a number of conditions for its application. Thus, the organization (commercial or non-commercial, but engaged in entrepreneurial activity) should not only occupy the dominant position, but also to make two or more violations of antitrust laws for three years. The presence of such well-defined conditions allows commercial and non-commercial organizations to determine the strategy of their behavior in order to avoid possible adverse effects. Antimonopoly authorities, applying the law of the law, should solve a very difficult task - to determine, on the one hand, the advantage of the benefits and negative consequences The monopoly position of a single business entity and on the other - to estimate the advantages and disadvantages of the existence of several actors in the same market.
According to paragraph 2 of Art. The 19 Competition Act for Forced Reorganization of the Dominant Subject requires a combination of the following conditions.
Development of competition as a consequence of forced separation. Competition in a literal translation from Latin means rivalry, a collision. Encyclopedic Dictionary F.A. Brockhaus and I.A. Efon contains the following definition. "Competition - in the field of national economy Active rivalry of several persons in achieving the same goal. Competitors seek to displace each other, to seize in their exclusive possession of this or that economic benefit, and therefore competition always has the nature of the struggle." In the Russian legislation (Art. 4 of the Law on Competition) Competition is treated as "adversarity of economic entities, when their independent actions effectively limit the possibility of each one of them to influence the overall conditions for the treatment of goods on the relevant commodity market."
When solving the question of whether the reorganization for the development of competition will lead to the interests of consumers, namely, to find out if the price will decrease as a result of structural transformations, whether the product range will expand whether the quality of service will improve.
At the same time, it should be noted that the subjects created as a result of the reorganization are formally independent of each other, can enter into one group of persons or be affiliated persons on the other basis. Thus, the possibility of the influence of these subjects to the economic strategy of each other will continue. Therefore, the goal is to develop competition - may not be achieved in reality, although all formal criteria will be observed.
The possibility of organizational and territorial separation of the structural units of the economic entity. With the smallest loss, the reorganization of economic entities operating at one level of the market, geographically crushed. The separation of subjects operating at different levels of the market is possible if separation is amenable to one or more horizontal levels. During the division of such subjects, the relationship between property facilities is also taken into account. With the dependence of one object from the other, their separation is inappropriate.
The possibility of separating one or another business entity depends on the peculiarities of its activities. So, the Federal Law of March 26, 2003 N 35-FZ "On Electrical Industry" shares such areas as electrical energy transmission, operational dispatch management, services of the wholesale market administrator.
The airport services include a fuel supply service, aircraft maintenance, on-board nutrition services, ticketing services, etc.
For example, when considering a violation of the US antitrust legislation by Microsoft in the initial decision of the judge of the district court District of Columbia Tomas Penfield Jackson, adopted in 2000, it was indicated that the business of operating system operating systems and business business should be divided in such a way that these were two economically Independent independent units.
Obviously, an economic opportunity for separation in these areas exists.
The absence between the structural divisions of the organization of a close technological relationship (in particular, if the amount of products consumed by the legal person (works, services) of its structural unit does not exceed 30% of the total volume by this structural division of products (works, services). Technological separation depends, for example, from The following circumstances: the nature of the production process (continuous or periodic); such as the organization of production (large or small-sized); the nature of the produced product (unique or mass production); level of technical equipment of production. It is more suitable for the division of an economic entity with weak technological connections.
The possibility of legal entities created as a result of reorganization, to work independently in the market of a specific product. It is necessary to find out whether their products will be competitive, how will the emergence of new subjects affect the state of competition in this commodity market. In addition, the potential of new economic entities is revealed, in particular, the ability to proceed to the production of new goods (both fundamentally new and related to the production of previous). The same circumstance is also taken into account as the ability of the new economic entity to maintain the established links with the counterparties of the former dominant entity.
The question should also be explored, whether competition is possible in this sector of the economy and what are the prospects for the existence of newly formed independent organizations.
The antimonopoly authority, solving the question of forced reorganization, issues the legal entity prescription. This is a specific form of response to violations of antimonopoly legislation. The right to endure the prescription only the indicated authorities. By its essence, this is the type of administrative regulation.
The prescriptions of the antimonopoly authority are made by the latter only within its competence, contain an assessment of acts aimed against competitive order, and can be appealed in court. The prescription must contain an indication of the reorganization form - separation or selection. The prescription may contain the obligation of the economic entity to submit a plan for reorganization. The final period of its implementation should also be specified.
In accordance with Art. 28 of the law on competition, as well as the rules for consideration of cases of violations of antimonopoly legislation, stakeholders have the right to apply to court or to the Arbitration Court with a statement of recognition by invalid or partially decisions and prescriptions of the antimonopoly authority. The decision or prescription of the antimonopoly authority may be appealed within three months from the date of adoption or issuing a solution or a prescription. The application of the application suspends the execution of the decision and the prescription of the antimonopoly authority on the forced division of a commercial or non-commercial organization or on the allocation of one or several organizations from their composition at the time of its consideration in court or arbitration court before entry judicial act in legal force.
If the division of separation is performed by the business entity voluntarily, the order of reorganization is not different from the usual one. Inventory of property and obligations is carried out, a dividing balance is drawn up. The creditors of the reorganized business entity inform about the upcoming reorganization so that they can implement the provided Art. 60 of the Civil Code of the Russian Federation the opportunity to demand termination or early fulfillment of liabilities and damages.
If the order for forced reorganization does not fulfill voluntarily, the antimonopoly authority appeals to the court with a statement on the appointment of the external manager. Designed by the court, he carries out all the actions necessary during reorganization. At the same time, the dividing balance and constituent documents of the newly created organizations are presented to the court. Approval by the court of these documents is the basis for state registration of legal entities that appeared as a result of reorganization.
Having considered the order and conditions of forced reorganization, summarize some of the results.
As already mentioned, in the Russian Federation of examples of application of Art. The 19 Competition Act is extremely small. Even if you turn to the practice of other countries, it is also impossible to talk about the widespread use of such norms. In the already mentioned matter of Microsoft, the decision on the division is canceled by the Appeal Court, although it was recognized that the company applied dishonest competition methods. That is, forced reorganization is always an extraordinary measure used in exceptional cases. It should be noted that in the legislation of other countries it applies only by the court. It seems that this is quite reasonable. Here is the position of the head of the FAS Russia I.Yu. Artemyeva: "Suppose tomorrow we will start a matter of some company. All other companies will say: in Russia it is impossible to work, without trial, the decision of the antimonopoly authority is announced for a compulsory separation of the company. Today you are, tomorrow I - so what? Flight capital, worsening investment climate? ".
In this regard, it is proposed to make changes to the text Art. 19 of the Law on Competition and set out paragraph 1 as follows: "The Antimonopoly Authority has the right to apply to the court with a request for a compulsory division of a commercial organization or the non-commercial organization engaged in the dominant position, or on the allocation of one or more organizations from their composition in the case of systematic implementation of their monopolistic activity. " Next - in the text of the article.
We also consider reasonable to give an antimonopoly authority with respect to the authority in relation to financial organizations and supplement paragraph 2 of Art. 22 of the Law on the Protection of Competition in the Financial Services Market with the following paragraph: Sends to the court of an application for forced reorganization of financial organizations. "The reasons and conditions for reorganization should be established in this law. Reorganization of credit institutions.
Thus, an exceptional measure is forced reorganization - will be applied only by the court decision (arbitration court). The right to initiate this process in case of violation of legislation on competition should only belong to the antimonopoly authority.
It seems that in the event of a change in antitrust laws, it is possible effective application Regulations on the forced division of economic entities.
3.2 Liquidation of a legal entity as a result of the illegality of its reorganization
In accordance with paragraph 2 of Art. 61 of the Civil Code of the Russian Federation, a legal entity may be eliminated by the court decision in the case of the laws admitted to its creation, if these violations are irreparable. In practice, according to the results of consideration of disputes in connection with the legal entities conducted by the reorganization, the courts often either revoke the legal consequences of reorganization, or significant and, as a rule, unreasonable violations of the law, admitted to the creation of legal entities, as a result of which a legal entity is subject to forced liquidation in accordance with paragraph 2 Art. 61 of the Civil Code * (4).
Forced liquidation is a form of responsibility, since in its legal nature represents "punishment" for violation of the law. This conclusion is confirmed by the position of the Constitutional Court of the Russian Federation, which, checking the constitutionality of the provisions of paragraph 2 of Art. 61 of the Civil Code of the Russian Federation, indicated that the liquidation of a legal entity provided for in the specified norm was a sanction for violation of mandatory regulations for legal entities (paragraph 3 of the Resolution of the Constitutional Court of the Russian Federation of July 18, 2003 N 14-P).
However, such responsibility in some cases causes more harm than the consequences of permanent violations. It is necessary to recognize that the forced liquidation of the legal entity due to the violations of the law must be an emergency measure, the use of which for the objectives of challenging the effects of reorganization should be limited judicial practice. Otherwise, lenders of legal entities arising during the reorganization will suffer even more, especially after a significant time since the creation of these legal entities.
In our opinion, the conceptual moment here is the opportunity to cancel the legal entity created in reorganization, since at present there is a high risk of challenging in any reorganization, as evidenced by extensive judicial practice. Such a threat to civil turnover is definitely significant. A situation of which there is no logical output is created: the newly created legal entity (person) cannot continue its activities, as it risks being canceled, and initial legal entities as a result of the reorganization have already ceased to exist and are excluded from the state registry.
As indicated Constitutional Court The Russian Federation, provided for by the legislation, the sanction in the form of the liquidation of a legal entity "in its constitutional and legal principle cannot be appointed one by one only the formal foundation of the repeatedness of violations of legislation, but should be applied in accordance with the overall principles legal responsibility and be a proportionate to the impact made by the legal entity and caused by the consequences. "Such an approach to the interpretation of paragraph 2 of Article 61 of the Civil Code must be taken into account and when considering the arbitration cases of cases of challenging reorganization, and with great care and care in making decisions regarding certain or other cases. legal facts, since in the future this can serve as a basis for the forced liquidation of the newly created legal entity (legal entities), entail the uncertainty of its legal status and other associated negative consequences for turnover.
A striking example proving the need to apply the specified approach is the decision of the Presidium of the Russian Federation of September 5, 2006 N 4375/06 in the case of ZAO SANE. This case, although not related to reorganization directly, but at the same time is characteristic of the illustration of the negative consequences of recognition of invalid decisions of general meetings of shareholders. So, in connection with the recognition of invalid decisions of general meetings of shareholders conducted after a specific date, the courts were also invalidated: decisions of the Board of Directors chosen on these general meetings; Additional issues of securities ZAO SANE; Society documents for these issues of securities; state registration of these issues; Charter of Sanwe CJSC, adopted by the General Meeting of Shareholders after the specified date; State registration of this charter. Courts also recognized invalid transactions According to the placement of the shares of the indicated issues committed during a certain period, since illegally issued shares could not be the subject of transactions, to be withdrawn from circulation and return the issuer. Adverse effects for turnover are obvious in this case.
The use of an illustrated approach and, as a result, the possible forced liquidation of the newly created legal entity (legal entities) will not be able to correct the violations already allowed and restore Status Quo, but will be able to even more exacerbate the situation with the protection of creditors' rights, which entered into such newly created companies in legal relationship. Often to return that the year is transmitted and more than a year ago, it is simply impossible, and it generates a new wave of requirements related to the recognition of invalid transactions. The use of such a form of responsibility in the turnover, as the forced elimination of legal entities created in the reorganization process, may generally deprive creditors to get the property in the future, which, in particular, applies to the payment of the day off, and to the author's remuneration.
So, it is obvious that judicial decision about recognizing invalid any legal factwhich is able to entail the forced liquidation of a legal entity, should also be directed not only to the protection of the rights of participants of such a company, but also to ensure the balance of the rights and interests of third parties and the stability of the turnover as a whole.
In terms of negativity, the following hypothetical situation may be indicative in terms of negativity. If you bring the position from the Resolution of the Presidium of the Whale of the Russian Federation of September 5, 2006, N 4375/06 in the case of SANE CJSC to a logical end and suggest that, as a result of the challenged decisions of general meetings, significant and non-resistant violations of the law were discovered in the creation of legal Persons, it turns out that such newly created legal entities must be forcibly liquidated. Consequently, the transactions committed by these persons should also be considered invalid, since the subjects of the rights that were concluded were actually such and did not possess themselves and legal capacity. However, in this case, there is a problem that questioned the feasibility of use in the law enforcement practice of the studied approach. The consequence of the invalidity of these transactions should be bilateral restitution, within which the property should be returned forced by the liquidated societies. In the future, it will distribute as it was before the state that existed at the time of the approval of the separation balance, i.e. There will be a need to return property to the liquidated legal entity, already excluded from the state registry. This situation would significantly work out a civil turnover, because in the period before recovery in the register of the liquidated legal entity there is uncertainty in legal position Property transferred by dividing balance. In addition, it is unclear to belong objects of property rights, previously transmitted forced to liquidated companies, in case the property, for example, has increased or new objects have increased during this time. The circumstances do not help strengthen civil turnover, which ultimately should be sent to justice.
Thus, the application of responsibility in the form of forced liquidation of legal entities created in the process of reorganization can cause more harm to participants than the "cure" of the disorders through other compensatory mechanisms. Therefore, in resolving issues, directly or indirectly related to the fate of a legal entity, it is necessary to take into account that such violations should be so significant so that the elimination of as a measure of responsibility needs to protect the interests of the turnover participants.
The application of any shape of responsibility has its main goal of protecting the rights and interests disturbed by the unlawful behavior of a certain person, therefore, speaking of responsibility arising from the reorganization of societies, it is worth noting the need to be guided first of all the protection of creditors' rights and other participants in civil turnover. Thus, the norm of paragraph 3 of Art. The 60 Civil Code of the Russian Federation regulating the relations under consideration should be interpreted by expansion when solving the issue of the emergence of joint responsibility of the allocated society and the Company from which it was allocated, if it is impossible to determine the successor based on the separation balance. The elimination of a legal entity due to violations during its creation should be considered as an exceptional measure of responsibility, which applies when violations of the legislation are so significant and so affect the rights of third parties that liquidation is the only proportionate violation of the measurement of responsibility.
3.3 Other aspects of law enforcement. Mergers and Acquisitions - Empiric Research
After a short merger of mergers and absorption resumed their height. How true notes by Yu.S. Sidorenko: "Mergers and acquisitions, as well as their type - the absorption of public companies are essential processes of any market economy. Companies around the world are facing the choice of development model - limited growth due to the expansion of its own production capacity or active growth due to mergers and acquisitions of other companies ". As practice is evidenced, merger processes allowed many companies to take the status of a leading market in one or another segment of the market.
In addition, the processes occurring recently in the Russian market indicate that many Russian companies actively use foreign experience, as well as the latest technology development technologies. Competition in world markets is exacerbated, and although in Russia the market saturation has not yet reached the critical point, many companies have aware of the need to find ways to increase competitiveness and efficiency, especially since the possibility of developing companies only due to the growth of the Russian consumer market is currently practically exhausted, and the level Competition on it is approaching global.
The long-term competitiveness of the majority of Russian companies, despite the positive changes in recent years, are still low. An even more problematic looks a constant shortage of financial resources. In this regard, the main approaches to strategic management in many companies are revised. If a few years ago, the growth of the business took place mainly due to the random buying of assets, today it comes to understand that diversification may be destructive for many companies, since it only aggravates the deficit of investment resources: instead of creating one truly competitive and efficient product or type of business. Several, and not effective enough.
For Russian business, the concentration and specialization strategy can be priority, so integration operations become a tool without which it is difficult to submit a dynamically developing business. They allow you to increase the cost of the company, create effective business processes, receive unique competitive advantages when consolidating precisely with that company that is best suited for these purposes.
Thus, the evolution of the business itself pushes domestic enterprises to consolidation. The main tool for the growth strategy of companies at the same time becomes merger and acquisitions.
In this regard, empiricism of research of these processes is of particular interest in the further effective development of merger processes.
The greatest development of the study of the history of integration processes was obtained in the United States of America, therefore it seems appropriate to consider this process directly on the example of the United States.
In the history of the United States, there are five periods of high mergers activity (the so-called merger waves). The characteristic feature of these periods was their cyclicity - over a period with a large number of mergers, the decline was followed with a relatively smaller number of mergers. At the same time, the first four "waves" refer to the following periods: 1897 - 1904; 1916 - 1929; 1965 - 1969; 1984 - 1989.
The activity in the field of mergers increased by the end of the 1980s increased in the early 1990s and continues at present.
Consider in more detail each stage.
1904 (The first fusion wave). This wave began after depressed 1883, reached its peak by 1898 and 1902. and ended in 1904
The mergers of this period touched upon all the main industries. At the same time, the greatest number of mergers occurred in the following industries:
metallurgy;
petroleum products;
food production;
chemical industry;
transport equipment;
production of metal rolling;
mechanical engineering;
coal mining.
The mergers of the period under consideration were often horizontal. In this case, such mergers led to an almost monopoly market structure. It is the period of the first wave is characterized by the creation of large monopolies: USX Corporation (merge of companies Carnegie Steel, U.S. Steel and some other companies, as a result of which 785 companies merged in the resulting steel giant); DuPont Inc., Standard Oil, General Electric, Eastman Kodak, American Tobacco Inc., Navistar International.
The first wave of mergers spawned 300 large companies, absorbing more than 3,000 organizations.
Analysis of the study of the number of mergers of companies at this stage, conducted by Patrick A. Gohanom, makes it possible to distinguish the following factors that caused the named process:
The lack of a proper legal framework governing the relationship, as well as the inefficiency of the application of existing laws.
The development of the transport system (changes in the transport system made deliveries to remote markets easier and cheap and many companies that are not limited to the framework of regional markets, expanded).
Thus, the factors of the development of mergers processes at this stage can be divided into two groups: legal and socio-economic (related infrastructure development).
The reasons are the end of the first wave of mergers served financial factors:
collapse of the stock market (1904);
the danger of financial fraud (the destruction of a shipbuilding trust at the beginning of the XX century).
1929 (Second Wave Mergers). According to some specialists, the first and second fusion waves are opposed to "mergers in monopoly" and "merging in oligopoly".
During the second wave of mergers, some sectors of the economy were consolidated. The development of the economy at this stage was facilitated by a significant amount of investment capital.
In contrast to the ineffective legal regulation of the first wave of mergers, the second wave of mergers took place in the process of strict state control in the presence of a strong tough antitrust legislative baseWhat led to the creation of smaller, compared with the previous wave, the number of monopolies, but to a larger number of oligopoly and vertical mergers. This circumstance served as the first large-scale formation of conglomerates.
A vivid example of such a merger is the company Allied Chemical Corporation, which combined General Chemical, Barrett, Solvay Process, Sement-Solvay, National Allied and Chemical. Despite the fact that these companies were producers of various product range, they operated in related economic areas: General Chemical combined 12 sulfuric acid producers, Barrett sold Ammonia's side products and tar products, Solvay Process was a major ash manufacturer, Sement sold products from Degty, National Allied and Chemical - the largest manufacturer of dyes. United in Allied Chemical Corporation, these companies were under one control structure, as a result of which the various types of economies were able to use during the combination of these manufacturing processes and their associated marketing actions.
The result of mergers of the second wave was the creation of companies such as: General Motors, IBM, John Deere, Union Carbide Corporation. Total in 1926 - 1930. 4600 mergers occurred, and for the period from 1919 to 1930, 12,000 production, mining, utilities and banking companies ceased to exist. In 1921 - 1933 Through the merger were absorbed by assets at $ 13 billion, which represented 17.5% of all US industrial assets.
Most mergers at this stage touched the following sectors of the economy: metallurgy; Oil refining; food production; chemical industry; Transport engineering.
A characteristic feature of this fusion wave is the frequent attraction of borrowed capital. At the same time, the most popular type of capital structure was a pyramidal holding company, in which a few group of investors using a relatively small amount of invested capital could be monitored by large enterprises. In addition, this wave is distinguished and predominantly vertical mergers.
The end of the second wave of mergers, as well as the first, served as the collapse of the stock market on October 29, 1929. After the "Black Thursday", the number of mergers declined - the company in the situation of rapid and universal reduction in demand was just to preserve solvency, without thinking more about expansion.
1969 (Third Wave Mergers). The third wave is characterized by a high level of activity and a period of conglomerate mergers. Natural for this stage was the absorption of large organizations of large organizations. Thus, the absorption of companies with an asset over $ 100 million, which, on average, was 1.3 cases per year in 1948 - 1960, 5 cases per year in 1961-1966, increased to 24 in 1967, 31 - in 1968, 20 - in 1969, 12 - in 1970, and in 1971 - 1972 up to 5 cases fell per year.
Conglomerates formed during the third wave of mergers had a diversified product range, such companies carried out a significant part of their activities in various industries. The result of this stage was the formation of companies such as Ling-Temco-voght (LTV), Litton Industries, ITT.
The creation of conglomerates contributed to the tightening of legal regulation of horizontal and vertical mergers.
Changes in antitrust legislation began with the election of Richard President M. Nixon.
During the period of the third wave, about 6,000 mergers were produced, which led to the disappearance of 25,000 companies, at the same time, the sectoral concentration did not increase that did not lead to a significant change in the degree of competition in various sectors of the economy.
At the same time, most of the mergers were provided by no funding by credit institutions, but at the expense of share capital. This circumstance was caused by fairly high interest rates on loans, as well as the lack of taxation of mergers funded through transactions with shares, as opposed to transactions for money. One of the reasons for the decline of the third wave of mergers was just the tax reform of 1969, as well as the collapse of the stock market. At the same time, according to some analysts, it was conglomerate mergers that helped the market's collapse, since when securities Cost is attributed, a significantly superior amount due to fundamental economic factors will inevitably come collapse.
1989 (fourth fusion wave). A distinctive feature of this stage is the essential role of hostile acquisitions. As a rule, an assessment of the proposal for a merger as hostile or friendly is given by the Board of Directors of the Task Force. When approving the merger, it is considered friendly; If the Board of Directors opposes - absorption is considered hostile.
In addition, the essential distinction of the fourth wave is the size and value of companies selected for merge or absorption. It is the fourth wave called the "wave of megasy". Thus, from 1970 to 1986 the number of transactions in size over $ 100 million has increased more than 23 times. At this stage, the mergers were also touched upon not all sectors of the economy - the most common transactions in the field of pharmaceutics and medical equipment, 21.6% of the total monetary value of mergers and acquisitions accounted for the oil and gas industry, also significant lists of absorption seized the banking services market and air carriers.
A distinctive feature of the phase under consideration was also the use of large amounts of borrowed capital. In addition, the number of international acquisitions is also increasing. The bright example of this is the absorption of Standard Oil by British Petroleum.
The end of the fourth wave is associated with the end of a long period of economic growth of the 1980s and the transition in the 1990 economy in the stage of a short and relatively soft recession, as well as the collapse of the bond market market.
Fifth wave mergers. Since 1992, the growth of the absorption and mergers resumed. This period is characterized by smaller, compared with the previous, number of hostile acquisitions and an increase in the number of strategic mergers. At the same time, most of the fifth wave merger transactions were funded by its own capital, which contributed to the emergence of associations with a smaller debt burden.
The considered stage is distinguished by the Consolidation Transactions ("coverage") - fragmented industries were consolidated through large-scale absorption of companies (consolidators). Such mergers were covered by the funeral business, the production and sale of office products and flower products, but the expected reduction in costs and large synergies, these transactions were not brought.
Also, the fifth wave of mergers is characterized by an increase in international scale.
Thus, the analysis of the stated material allowed us to come to the following conclusions:
The main causes of the merger of companies are: savings on the scale of production, strengthening market positions, diversification and improving creditworthiness, legal, social and tax aspects.
Most of the mergers of the first wave were carried out on the principle of horizontal integration, and in almost all sectors dominated monopolies.
The second fusion wave is characterized by the predominance of oligopoly, i.e. Dominance of a small number of the largest firms. For this wave more than for the previous, characteristic vertical mergers and diversification are characteristic.
The third wave of mergers marks the creation of conglomerates.
A distinctive feature of the fourth fusion wave is to reduce the mergers of conglomerate type. At the same time, the trend of hostile acquisitions becomes noticeable. Given the mitigation of the antimonopoly policy, in this period horizontal mergers are most common.
On the modern stage The most popular type of merger companies is horizontal integration. Characterized by the combination of transnational corporations. In this case, mergers and acquisitions in the financial sector were significant.
The main reasons for the cessation of one or another fusion wave always preferential factor was the financial situation in the country.
Conclusion
The main approach to determining the reorganization should take into account the peculiarities of a legal entity as an artificially created subject of civil law. Since the reorganization conducted is also an artificial process, reception legal technique, It is this characteristic of the reorganization as a process, i.e. The combination of consistent legally significant actions completed by the achievement of a certain result should be kept in the definable concept. It is no coincidence that the legislation regulates issues relating to: reorganization grounds; persons deciding on reorganization; the order of it; The moment of termination of the reorganization and the result of the reorganization.
All of the above allows you to determine the reorganization as follows. Under reorganization is a special process, during which the establishment of a legal entity, accompanied by the transition of the rights and obligations of a reorganized legal entity in order of succession to another legal entity-legal entrepreneur.
The signs of reorganization must include the following: 1) only a legal entity can be the subject of reorganization; 2) during reorganization there is a termination of existing and (or) the creation of new legal entities; 3) As a result of the reorganization, the succession takes place.
Russian legislation develops according to the model of legal regulation of reorganization, which involves the presence of a basic law governing general signs of reorganization (Civil Code of the Russian Federation), as well as special laws, developing and adapting basic provisions for individual forms of legal entities (federal laws on joint-stock companies, "about societies Limited Liability "," On State Municipal and Unitary Enterprises "). Therefore, it seems necessary not only to consolidate in the Civil Code of the Russian Federation proposed definition of the concept of "reorganization", common to all types of legal entities, as well as the basic rules relating to the procedure for its implementation.
Special attention is required to pay for reorganization treaties. The current civil legislation (federal laws "on joint-stock companies", "On Limited Liability Societies") provides for the conclusion of contracts in the implementation of reorganization in the form of mergers and accessions. Civil Code of the Russian Federation not only does not regulate the conditions specified contractsThe procedure for their conclusion, changes, termination, but does not even mention them. In Art. 58 of the Civil Code of the Russian Federation, it is indicated only that when merging and accession of legal entities, the transition of rights and obligations is carried out on the basis of a gear ratio. It is necessary to talk about reorganization agreements as a self-independent legal Institutewhich is the basis for reorganization.
In the Civil Code of the Russian Federation, not only the definition of the concept of "reorganization treaty", but also its essential conditions, fixing rights and duties of counterparties that make up the main content of the relevant legal relationship. At the same time, the reorganization agreement can be considered as a contract mediated the transition of the entire complex of rights and obligations from one legal entity to another.
There is an objective need to improve special regulatory acts concerning the procedure for reorganization. So, as a general rule, the preparation of a decision on reorganization is to provide for familiarization of the participants in the general meeting of relevant information (materials). At the same time, federal laws "On Joint-Stock Companies", "On Limited Liability Societies", among the requirements established to prepare a decision on the reorganization among the list of information (materials), do not contain information on the reorganization (reorganization contract, transmission act, separation balance). It is required to make changes in paragraph 1 of Article 52 of the Federal Law "On Joint-Stock Companies" and in paragraph 3 of Article 36 of the Federal Law "On Limited Liability Societies", consolidating among the list of information (materials) provided to familiarize participants in the General Assembly, Reorganization agreement, transmission act, separation balance.
It is necessary to determine the legal nature of the transfer act and the dividing balance. Transmission Act (dividing balance), despite the functions performed, are not exclusively accounting documents. At the same time, it is necessary to legally consolidate the requirements for the act, executing the succession. In particular, it should be noted that in the transmission act (separation balance) should contain information about all debt liabilities, as well as all rights of the requirements transferred to the reorganized legal entity to their successor, with a mandatory indication (detailed balance sheet decoding) on \u200b\u200beach lender and debtor Monetary sums.
In order to strengthen the protection of the rights of creditors in the reorganization of a legal entity, namely, during the decision to decide on the reorganization before approving the act, executing the succession. It is proposed to suppose Article 57 of the Civil Code of the Russian Federation, paragraph 4 of the following content: "The founders (participants) of a legal entity or the legal entity body authorized on the constituent documents are obliged to promptly report this to the organization registering legal entities, which contributes to the Unified State Register of Legal Entities Information that a legal entity is in the process of reorganization ".
For its part, I can fully agree with A.V. Serebryakova, which sufficiently covered the prospects for the development of legal issues in the reorganization of legal entities. The project of the concept of development of legislation on legal entities (hereinafter - the concept) is an integral part of the overall project of the concept of the development of civil law of the Russian Federation, which is preparing the research center for private law under the President of the Russian Federation on the instructions of the Council under the President of the Russian Federation on codification and improving civil legislation to execute the decree of the President of the Russian Federation of 18.07 .2008 N 1108 "On the improvement of the Civil Code of the Russian Federation". By the decision of the Council under the President of the Russian Federation on the codification and improvement of civil law of 03/16/2009, the Concept is recommended for publication and further discussion. In general, the concept proposes to optimize legislation on legal entities by reducing the total number of laws acting in this area and simplify regulation with some increase in the norms of the Civil Code of the Russian Federation devoted to the status of legal entities. In accordance with the concept, other significant changes must also be made to the legislation.
It is proposed to establish a ban on the transformation of commercial organizations to non-profit and vice versa (as well as a ban on the emergence of non-profit organizations as a result of the reorganization of commercial organizations and, on the contrary, for example, on the division of a limited liability company to another economic company and the Foundation, the allocation of the Fund from the production cooperative, the conversion of consumer Cooperative to Joint Stock Company, etc.). The meaning of such a restriction is to prevent the distortion of the legal nature and legislative division of legal entities on commercial and non-profit organizations, which ultimately also contributes to the maximum protection of the property interests of their creditors and all civil turnover participants. An exception can only be unitary enterprises and institutions that are not owners of their property and therefore acting on the basis of special real rights to it.
However, the community of the legal nature of corporations makes it possible to allow the transformation of any commercial corporation to another commercial corporation (economic society in the economic partnership and (or) cooperative and vice versa), while a combination of one act is possible in one act of reorganization of its various forms (separation or selection simultaneously with merger or attachment). By analogy, non-profit corporations can also be transformed into non-commercial corporations of other organizational and legal forms. This should not concern funds and institutions that, not being corporations, are not subject to transformation at all, and other forms of their reorganization cannot lead to other organizational and legal forms of non-profit (and even more commercial) organizations. In other words, funds and institutions can merge, to join, stand out and divided only to other funds and institutions, respectively. It should be noted that any reorganization of institutions with the emergence of other organizational and legal forms of non-profit and commercial organizations will actually mean the privatization of their property. At the same time, the transformation of institutions to unitary enterprises is excluded, as it will contribute to an unjudal increase in the number of the latter.
The transmitter act in the merge procedures, attachments and transforms must have an account, rather than a guide. In these cases, the lack of references to any right or responsibilities cannot mean their termination in connection with the exception of the state register of a reorganized legal entity. In the selection or division of legal entities, the absence in the separation balance or in the transfer act of mentioning any obligation of the reorganized legal entity should lead the solidarity responsibility for it all of its successors.
The right of creditors of the reorganized legal entity to require early fulfillment of obligations should be legally limited, and by agreement of this person with the lender it may be discontinued.
The right of these lenders to demand additional support should be distributed not only to open joint-stock companies, but also to other types of legal entities, but it should be carried out under the control of the court, and only guarantee, bank guarantee and pledge can be used as such collateral.
It is advisable to be introduced for cases of reorganization with a violation of the law. The possibility of restoring the participant in the legal entity of the lost corporate control (primarily for cases of complete or partial deprivation or loss of participation in a reorganized legal person). Persons who have benefited from this situation may be obliged to return to the return (additional) share of the victim.
In order to maintain the stability of civil turnover, it is necessary to provide that the transactions committed by legal entities that arose as a result of the reorganization, subsequently recognized illegal, as a general rule, are valid, and legal entities - those who existed before the recognition of the reorganization of invalid or failed. Only transactions that caused damage to a reorganized legal entity can be considered invalid, subject to the establishment of the unscrupiance of counterparties on such transactions.
List of sources and literature
Regulatory literature
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Reorganization of legal entities: accounting and legislative regulation
T. A. Chekalova,
graduate student Department of Accounting E-Mail: Chekalova. [Email Protected] RU Russian State Trade and Economic University
The article covers current issues of reorganization of legal entities, the structure of Russian legislation on reorganizatsi is considered as an important element of understanding the reorganization process as a whole. The author considers the types and forms of reorganization, the issues of the formation of the authorized capital of the legal adviser.
Keywords: reorganization, form of reorganization, reorganization process.
Legislative regulation. The reasons for the reorganization in modern conditions may be different, however, regardless of the procedure of its chosen by the Organization, the procedure for its conduct requires the knowledge of the legislation standards.
The regulatory framework that regulates the issues of reorganization of enterprises is rather diverse and submitted by the norms of both special legislation and numerous subtitle acts - decisions, regulations, instructions, etc.
The structure of legislation and other regulatory legal acts on the reorganization of legal entities is presented in Fig. one.
It is important to note that in the legislation does not disclose the concept of "reorganization of a legal entity", despite the fact that it is contained in Part 1 of the Civil Code of the Russian Federation (GK
RF) 1994 and other acts. The study of this problem is devoted to work and others.
However, the exact legislative definition this concept does not exist. According to a number of authors, reorganization is a deal, and, like any transaction, the form of reorganization requires the conclusion of the relevant treaty. Currently, the point of view was established in the forensic arbitration practice, in accordance with which the reorganization of the legal entity is not qualified as a civil transaction, but is considered as a complex legal composition, including many legal facts.
Analysis of the specified scientific work And the positions of arbitration vessels makes the following conclusions:
The current civil legislation does not contain the concept of "reorganization of a legal entity", allocating only forms of reorganization. In the scientific literature, the reorganization is understood as the procedure for the transition of the rights and obligations of one legal entities to others in the order of succession;
The only participants in the reorganization of the legal entity are legal entities;
The reorganization of the legal entity is the termination of its activities characterized by
Decrees of the President of the Russian Federation: from 18.07.2008 No. 1108 "On the improvement of the Civil Code of the Russian Federation", etc.
Decisions of the Government of the Russian Federation: dated February 26, 2004 No. 110 "On the improvement of state registration procedures and registration of legal entities and individual entrepreneurs", etc.
Orders of the Ministry of Finance of Russia: from 20.05.2003 No. 44N "On approval of methodological instructions for the formation of accounting reporting in the implementation of the reorganization of organizations"; from 10/25/2010 No. 132n "On Amendments to Regulatory Legal Affairs for Accounting"; from 06/06/1999 No. 43N "On approval of the Regulation on Accounting" Accounting Reporting of the Organization "(PBU 4/99)";
from 02.07.2010 No. 66n "On the forms of accounting reporting of organizations" and others.
Regulatory regulation of the reorganization of legal entities
Federal laws: dated December 26, 1995 No. 208-FZ "On Joint-Stock Companies";
from 08.02.1998 No. 14-FZ "On Limited Liability Societies"; dated December 30, 2008. No. 315-F3 "On Amendments to the Federal Law" On Banks and Banking Activities "and some other legislative acts of the Russian Federation";
08.08.2001 No. 129-FZ "On state registration of legal entities and individual entrepreneurs", etc.
Orders and methodical instructions of the registering bodies
Fig. 1. Structure of legislation on reorganization
universal succession, since the sole succession in reorganization is impossible. Despite this, some authors believe that when conducting separate forms of reorganization, in particular in the form of discharge,
singular (private) succession comes, as a reorganized legal entity retains part of the rights and obligations, and a certain set of both rights and duties can be transferred to the Organization;
As a result of the reorganization process, one or several new legal entities arise, to which the rights and obligations in legal relations are transmitted, in which the terminal existence participated;
Reorganization cannot be regarded as a transaction and is an established law by the method of termination and the emergence of legal entities.
The current legislation provides for several reorganization mechanisms. In this case, some of them are implemented by solutions of owners, and part is forcibly.
Legal regulation of the reorganization of legal entities of various organizational and legal forms is carried out by various regulatory legal acts, but the provisions of the Civil Code of the Russian Federation, establishing grounds, forms (merging, accession, separation, discharge, transformation) and the procedure for reorganization (art. 57-60) have fundamental importance. At the same time, legal regulation of the reorganization of legal entities is under constant improvement.
The procedure for state registration of legal entities regulates the Federal Law of 08.08.2001 N ° 129-FZ "On State Registration of Legal Entities and Individual Entrepreneurs". In accordance with Art. 2 of this federal law, the state registration of legal entities is implementing the Commissioner federal organ Executive Power - Federal Tax Service. In order to implement the provisions Tax Code RF and improvement of the procedure for reliating and registering in the tax authorities of Russian organizations in connection with the reorganization by order of the Federal Tax Service of Russia of November 30, 2004 No. SAE-3-09 / [Email Protected] Methodical instructions were approved for the tax authorities on the uniformity of the procedure for removing and registering in the tax authorities of Russian organizations in connection with the reorganization.
The rules for maintaining a single state register of taxpayers, as well as the rules for the interaction of registering bodies under state registration of legal entities, in case of their reorganization, are regulated by
government of the Russian Federation of 26.02.2004 No. 110 "On the improvement of state registration procedures and registration of legal entities and individual entrepreneurs".
Territorial bodies The Federal Tax Service of Russia in the implementation of state registration of legal entities and conducting a single state register of legal entities use temporary guidelines: a letter from the Federal Tax Service of 27.05.2005 No. CHD-6-09 / 440 "On the reorganization of legal entities".
To form information on the implementation of reorganization in accounting and reporting by organizations (except credit, budgetary institutions) Order of the Ministry of Finance of Russia dated 20.05.2003 No. 44N was approved guidelines for the formation of accounting reporting in the implementation of the reorganization of organizations (hereinafter referred to as guidelines), which are mandatory for use for all organizations.
In order of the Ministry of Finance of Russia dated July 28, 1995 No. 81 "On the procedure for reflecting in accounting of individual operations related to the introduction of the first part of the Civil Code of the Russian Federation", which currently has lost its strength, contained provisions regarding succession in the reorganization of legal entities, Reorganization dates (recommended timing reorganization by the end of a certain tax period), the composition of the transfer act and the separation balance, an inventory act.
Methodical guidelines also establish the need to prepare a gear loan or separation balance. In addition, the procedure for deciding on reorganization is now regulatory. In particular, it should be provided:
Deadlines for the inventory of property and obligations;
Method of assessing the transferred property;
Responsible obligations arising from the preparation of the transfer act (separation balance) and to the state registration of newly created firms;
The procedure for the formation and size of the authorized capital of new firms;
The procedure for the distribution of net profit of the reorganized company.
The determination of the method of assessing property and obligations of the reorganized person is important. Various methods of evaluation can be used, for example, by residual or at the current market value. Other evaluation methods are possible. Thus, the materials can be assessed at actual cost, and financial investments at the initial cost. In any way of assessing the value of the property, which is reflected in the transfer act (separation balance), must coincide with the data contained in the attached opi and decoding. If the fixed assets are estimated at a residual value, and materials are actual cost, then these data can be taken from the final accounting reporting. Obligations in the transfer act (separation balance) are shown in the amount according to which they were reflected in the company's accounting.
The methodological instructions explains the procedure for compiling the final accounting reporting. They also establish that property and obligations are transmitted on the basis of a transfer act (separation balance) and the final reporting, and the accountant of the newly established company on the basis of these documents fills the introductory accounting reporting. This statement should be drawn up at the date of state registration of a new company.
Methodical instructions determine the procedure for compiling not only the introductory and concluding reporting, but also intermediate, contain recommendations, how to achieve the matching reporting data and the transfer act.
Also pays attention to accrual depreciation on the transferred funds. In 2008, a number of changes were made to the guidelines. It can be assumed that the basis for their development and administration was the introduction of changes from 27.07.2006 No. 146-ФЗ in the Federal Law of December 26, 1995 No. 208-FZ "On Joint-Stock Companies", a significant part of which touched upon issues of reorganization of joint-stock companies. All changes in the formation of accounting reporting in the reorganization of organizations can be divided into three groups.
The first group includes changes that are editorial editing (refined formulations, a reference to a regulatory act) was changed).
The second group includes changes arising from the norms of Art. 19.1 of the Federal Law "On Joint-Stock Companies". The provisions of the article allowed the possibility of simultaneous reorganization of joint-stock companies in various forms - separation or selection simultaneously with merger or joining.
The third group include changes arising from other norms of the Federal Law "On Joint-Stock Companies": reorganized joint-stock companies are not required to cancel the shares (and, accordingly, to reduce share capital), and should reflect their cost (in the amount of actual costs Acquisition) In the final financial statements under the article "Own shares, redeemed from shareholders" of the balance sheet.
Order of the Ministry of Finance of Russia of 10/25/2010 No. 132n "On Amendments to Regulatory Legal Activities for Accounting" clarifies the wording, which had previously had in the previous edition of guidelines.
With the adoption of the Federal Law of December 30, 2008 No. 315-F3 "On Amendments to the Federal Law" On Banks and Banking Activities "and some other legislative acts of the Russian Federation" The procedure for the reorganization of legal entities has undergone significant changes in terms of the regulation of their actions after making a decision on reorganization.
In addition, a number of changes in the legislation on the reorganization of legal entities provide for the draft of the new Civil Code of the Russian Federation, prepared on the basis of and pursuant to the Decree of the President of the Russian Federation of July 18, 2008 No. 1108 "On the improvement of the Civil Code of the Russian Federation".
Changes relate to several directions:
1) procedures for reorganization of companies (corporations);
2) guarantees of the rights of creditors of the reorganized legal entity and the responsibility of persons deciding on reorganization;
3) increasing the role of registration and registering bodies.
Civil law issues of reorganization of legal entities with a different form of property are also regulated by the Federal Law of 08.02.1998 No. 14-FZ "On Limited Liability Societies" and Federal Law of 08.05.1996 No. 41-FZ "On Production Cooperatives".
Also, in the preparation of financial statements during reorganization, it is necessary to be guided by the accounting statement of the "Accounting Reporting of the Organization" (PBU 4/99), approved by the order of the Ministry of Finance of Russia from 06.07.1999 No. 43n. The order of the Ministry of Finance of Russia dated July 22, 2003 No. 67n "On the forms of accounting reporting of organizations" was raised from the annual financial statements for 2011 in connection with the publication of the Order of the Ministry of Finance of Russia from 09/22/2010 No. 108n. Order of the Ministry of Finance of Russia dated 07/02/2010 No. 66n "On the forms of accounting reporting of organizations" approved new forms of accounting reporting. They determine the procedure for compiling the final and introductory reporting of the organization.
From the above summary analysis of the current legislation on the reorganization of legal entities, as well as its changes, it can be concluded about the complexity of the reorganization process and its constant improvement. Despite the large amount of regulatory legal acts,
Reorganization of a legal entity |
1 Voluntary 1 Forced
By decision of the founders (in private owners) or the authority of the legal entity authorized
to the Czech Republic
In the dust of gone societies, by decision of the General Assembly of the Ayts Yunery. accepted by
suggestion of the Board of Directors (Supervisory Board)
Assumption
gross violations of the law when creating an organization,
if these violations are irreparable
Fig. 2. Types of reorganization of legal entities
regulating the reorganization of legal entities, there are still many unresolved issues requiring more complete clarification or clarification.
Accounting in reorganization. There are two types of reorganization - voluntary and forced (Fig. 2).
Voluntary reorganization of a legal entity can be carried out by solving its founders (participants) or a legal entity authorized by the constituent documents.
In accordance with the federal law "On Joint-Stock Companies", the Board of Directors (Supervisory Board) of the Company submits to the decision of the General Meeting of Shareholders of each Society participating in the reorganization, the following questions:
On the reorganization of society;
On approval of the reorganization agreement;
On approval of the transfer act;
On the procedure for converting or sharing shares (depending on the type of reorganization).
In limited liability companies, voluntary reorganization issues are resolved by the general meeting of participants in each society participating in reorganization.
Forced reorganization of a legal entity in the form of separation or allocation from its composition of one or several legal entities is carried out by solving authorized state bodies or by a court decision. First of all, there is an antimonopoly legislation. Law of the RSFSR of 03/22/1991 No. 948-1 "On Competition and Limiting Monopolistic Activities in Commodity Markets" (with subsequent changes and additions), the right of the federal anti-
Implementation legal
face activity without
proper permit (license)
Carrying out activities prohibited by law or with
other non-rotated or rude! Violations
law or other legal acts
the monopoly authority to give economic entities (commercial and non-commercial legal entities) mandatory for the execution of the prescription, in particular their forced separation or on the allocation of structural units from their composition (Article 12). Currently this law mostly lost strength. Federal Law of 26.07.2006 No. 135-F3 "On Protection of Competition" regulates in Art. 38 Forced separation or allocation of commercial organizations, as well as non-commercial organizations operating income to them. In the case of a systematic implementation of monopolistic activities, which occupies the dominant position of a commercial organization, as well as a non-commercial organization engaged in income-generating activities, the court on the claim of the antimonopoly authority is entitled to decide on the forced division of such organizations or on the allocation of one or more organizations from their composition.
The crisis situation in the market recently in Russia forces economic entities to unite into larger organizations. In some cases, this is due to changes in the current legislation. In this regard, it is important to be in detail in the charter of the legal entity of the reorganization procedure.
Reorganization procedure. The Company is considered reorganized since the state registration of newly emerged legal entities, except in cases of reorganization in the form of joining. In the latter case, the first of legal entities is considered reorganized from the moment of entering into the state register of legal entities recording on the termination of the affiliate enterprise. Higher organ A legal entity determines the main conditions and procedure for reorganization, decides on approval of relevant documents (Fig. 3).
When changing the organizational and legal form of a legal entity, the founders must submit to the appropriate registration authority The following documents:
Statement of a legal entity on changing the organizational and legal form of ownership;
Payment order with confirmation of payment for registration of a legal entity;
Charter and memorandum of the old and new edition;
Protocol of the general meeting of participants;
Application for the release of participants from the founders;
Solution of the Company's participants on the transformation;
A copy of the premises lease agreement;
Certificate of the absence of debt for rental of municipal areas;
1 Basic documents in the reorganization of legal entity I
Merge Joining Separation Selection Conversion
The merger agreement.
Charter of 1shi Uchich Entriate Agreement of the Organization Created as a result of SCCH. Transmission Act of each eliminated organization of an agreement on accession. Transmission Act of each joined organization decision on the division and creation of new organizations. The separation balance of the decision on the allocation and creation of a new society. The separation balance of the conversion schedule. Transmission Act
Basic documents in the reorganization of a legal entity
Certificate of the lack of arrears of rent for land rental;
Balance sheet;
Calculation of net assets;
Documents confirming the payment of the authorized capital;
Transmission Act.
Documents are submitted to the registering authority at the place of the previous registration of the reorganized enterprise, regardless of whether its location will change after the reorganization or remain the same.
The procedure for the reorganization of a legal entity may provide a change in the authorized capital, as well as the composition of the participants due to the adoption of newly entered society or eliminating the retired.
The sole participant - the founder of the reorganized society represents the entire list of these documents, with the exception of the constituent contract. The main document is the Charter, which indicates the size of the share capital of the Company.
The procedure for the reorganization of legal entities provides for the preparation of a gear utility and separation balance. The accounting statements included in the settlement of the transfer act and separation balance
the basis of the forms of the annual accounting report at the last reporting date (date of registration).
Reorganized legal entities should conduct property and liabilities inventory in order to confirm the reliability of individual articles of the gear ratio or separation balance.
Opening accounting reporting. Legal entities arising from the reorganization at the beginning of the reporting period (date of state registration) data on property and liabilities reflect in the introductory accounting reporting. These data are formed on the basis of the transfer act (separation balance), as well as indicators of the final financial statements of reorganized firms drawn up taking into account changes in the composition and value of the transferred property and the obligations arising for the period of reorganization.
The authorized capital of the organization has arisen. In reorganization, the founders determine the amount of authorized capital of the created legal entities, and, depending on this, the corresponding indicators of the introductory accounting reporting should be adjusted. The procedure for adjustment is the same with all forms of reorganization. It is set in guidelines (Fig. 4).
Fig. 4. Formation of authorized capital of an organization
The authorized capital of the new legal entity
Equal to the authorized capital (\u003d CC) of a reorganized legal entity
If the focalization contributes its own property as a contribution to the Criminal Code of the new legal entity, the transfer of property is reflected:
at the reorganizable legal entity-like financial investments;
the organization's highlighted organization contribution to the Criminal Code (line 410 of the entrance balance)
Less statutory
capital (<УК) реорганизованного юридического лица
More authorized
capital (\u003e Criminal Code) of a reorganized legal entity
The amount of increment should be reduced: additional capital
(line of 420 accounting balance) or unallocated
profit (line of 470 accounting balance) of a new legal entity.
The choice of source depends on what funds are increasing the founders of increasing capital
The magnitude of the authorized capital
regulated by the indicator "Retained earnings (uncovered loss)" (line 470 of the accounting balance)
The magnitude of net assets and authorized capital
If pure assets are more authorized capital (CH\u003e CC) if net assets are less than authorized capital (cha< УК)
The difference of Podl is emitting a settlement on line 420 of the balance sheet - for joint-stock companies and on line 470 - for the other legal entities / \\ Differences to regulating on line 470 accounting balance ^ -A
Fig. 5. Comparison of the authorized capital and net assets of the organization
Non-current assets reflected in section. I balance sheet (intangible assets, fixed assets, incomplete construction, revenue investments in material values, long-term financial investments, other non-current assets).
Current assets reflected in section. II balance sheet (reserves, VAT on acquired values, receivables, short-term financial investments, cash, other current assets), with the exception of value in the amount of actual redemption costs by joint-stock companies from shareholders of own shares for their subsequent resale or annulment and debt of participants (founders) on contributions to share capital
Fig. 6. Formation of the cost of net assets of the joint stock company
The accountant must also compare the magnitude of the authorized capital of a reorganized legal entity with the cost of net assets (Fig. 5).
If the cost of net assets of the new organization will be greater than (less) the value of the authorized capital, the difference is subject to settlement in the opening balance due to retained earnings (uncovered loss), as follows from para. 4, 5 p. 39 methodical instructions.
The procedure for assessing the value of net assets of joint-stock companies approved by the Order of the Ministry of Finance of Russia and the FCSB of Russia dated January 29, 2003 No. 10N, 03-6 /
pZ, it is also applicable to calculate the cost of net assets in limited liability companies.
The procedure for the formation of pure assets, as well as the composition of the assets and liabilities, taken to the calculation, are reflected in Fig. 6.
Accrual depreciation by the reorganistic-bathroom legal entity. Organizations created as a result of reorganization should pay attention to the features of depreciation of depreciation on the facilities of fixed assets obtained from reorganized firms.
In reorganization in the form of mergers, accession, separation and selection, depreciation on fixed assets, revenue investments in material values \u200b\u200band intangible assets are accrued based on the period useful use Object and method of accrual depreciation established by newly emerging organizations. What method of depreciation is applied a reorganized firm, the values \u200b\u200bdo not have (p. 14 of the methodical instructions).
When reorganized in the form of conversion, the depreciation is charged on the basis of the useful uses established by the reorganized firm when making these facilities to accounting accounting (p. 45 of methodical instructions).
Thus, the reorganization of a legal entity is a rather complex process, which requires good knowledge of not only legislation, but also accounting practice. Simplification of the reorganization process seems impossible without any unification of the existing regulatory legal regulation on this issue covering all aspects of reorganization for each of its form.
Bibliography
1. Arkhipov B.P. Legal nature of the actual composition mediated by the reorganization of the joint stock company // Legislation. 2002. number 3.
2. Dolinskaya V.V. Reorganization of legal entities // Russian laws: experience, analysis, practice. 2006. No. 8.
3. Zykova I.V. Legal entities: creating, reorganization, liquidation. M.: Ace-89, 2005.
4. Ilyushina M. N. Problems of succession in the reorganization of legal entities // Law. 2006. No. 9.
5. On improving the Civil Code of the Russian Federation: Decree of the President of the Russian Federation of July 18, 2008 No. 1108.
6. On joint-stock companies: Federal Law of December 26, 1995 No. 208-FZ.
7. On Limited Liability Societies: Federal Law of 08.02.1998 No. 14-FZ.
8. On approval of guidelines for the formation of accounting reporting in the implementation of the reorganization of organizations: the order of the Ministry of Finance of Russia of 20.05.2003 No. 44N.
9. The letter of the Ministry of Finance of Russia dated January 26, 2007 No. 03-03-06 / 1/39.
10. Letter of the Ministry of Finance of Russia of October 29, 2007 No. 03-03-06 / 1/737.
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In the process of its activities, a credit organization may be reorganized and liquidation.
The reorganization of the credit institution is the association or crushing of the credit institution in order to create a new credit institution, or simply a change in the organizational form of a credit institution with the creation of a new legal entity. Reorganization is accompanied by the transition of rights and obligations in order of succession from some credit institutions to others.
Reorganization can be implemented in the form of merging, attachment, separation, isolation and transformation. When merging the right and obligations of each credit institution, they go to the newly emerged credit institution. With the accession of one credit institution to the other to the latter, the rights and obligations of an attached credit institution are transmitted. When dividing the credit organization of its right and duties go to newly emerged credit institutions. When the credit organization is allocated from one or several credit institutions, each of them is transferred to the rights and obligations of a reorganized credit institution. When converting a credit institution (a change in legal form), the reorganized credit institution is transferred to the newly emerged credit institution. Changes in a credit organization in the form of a joint stock company such as a joint-stock company is not a reorganization.
In reorganizing credit institutions, as a result of which a new credit institution is being created, the Bank of Russia is considering issuing new licenses to it banking operationsAt the same time, licenses are taken into account, on the basis of which reorganized credit organizations.
The reorganization of credit institutions can be carried out voluntarily (by decision of the founders) and forced (by court decision). The question of forced reorganization may arise in connection with the implementation of measures to prevent bankruptcy (accession, merger) or in connection with the violation of antitrust laws (separation, allocation).
More significant differences in credit organizations from other legal entities are manifested in the procedures of their liquidation and bankruptcy.
The elimination of a credit organization means the termination of its existence without the transition of rights and obligations to other persons. Liquidation can be carried out in a voluntary or compulsory. These procedures are governed by law on banks (Article 20, 23 - 23.4).
Voluntary elimination of the credit institution is carried out on the basis of the decision of its founders. Based on their petition, the Central Bank decides to cancel the banking license. The founders of the credit institution appoint a liquidation commission (liquidator), approve the interim liquidation balance and liquidation balance in coordination with the Central Bank. The elimination of a credit institution is considered to be completed after the authorized registering authority of the relevant entry into the Unified State Register of Legal Entities.
Forced liquidation of the credit institution is carried out on the initiative of the Central Bank after the review of the banking license. There are situations where the central bank may and when it is obliged to withdraw the license.
The license at the credit institution may be withdrawn in cases:
1) establishing the unreliability of information on the basis of which it is issued;
2) delays to start the implementation of banking operations for more than one year;
3) establishing the facts of significant unreliability of reporting data;
4) delays more than 15 days of presentation of monthly reporting;
5) implementation, including one-time, banking operations not provided for by the license;
6) a repeated non-fulfillment of federal laws regulating banking, as well as regulatory acts of the Bank of Russia;
and in some other cases.
The Bank of Russia is obliged to withdraw a license in cases:
1) if the adequacy of the capital of the credit organization becomes below 2%;
2) if the amount of own capital of the credit organization is below the minimum value established at the date of the state registration of a credit organization (except for the first two years of activity);
3) if the credit organization does not fulfill the requirements of the Bank of Russia on bringing into compliance with the value of the authorized capital and the size of equity capital;
4) If the credit institution is not able to meet the requirements of creditors on monetary obligations and (or) to fulfill the obligation to pay mandatory payments within 14 days from the onset of their satisfaction and (or) execution (with total requirements of at least 1000 minimum wise).
Within 15 days from the date of the review of the license, the Central Bank appeals to the Arbitration Court with the requirement to eliminate the credit institution. The Arbitration Court within a month decides to eliminate the credit institution and the appointment of the liquidator of the credit institution. Liquidator of the credit institution that had a license to attract funds in deposits individualsIs the Deposit Insurance Agency. Liquidator of other credit organizations, the arbitration court approves the arbitration manager accredited under the central bank.
Liquidator of a credit institution in the process of eliminating a credit institution is obliged to act in good faith and reasonable and take into account the rights and legal interests credit management creditors, society and state. The term of compulsory elimination of a credit institution cannot exceed 12 months from the date of entry into force of the decision of the Arbitration Court to eliminate the credit institution. This period may be extended by an arbitration court on the sound target of the liquidator of the credit institution.
If the removal of the license is there are signs of insolvency (bankruptcy) of the credit institution, the Central Bank should apply to the Arbitration Court with a statement on the recognition of a bankruptcy credit organization. If similar features appear in the liquidation process, the liquidator draws with this statement. In this case, further elimination of the credit institution will be associated with the passage of bankruptcy procedures.
Reorganization of a legal entity (merger, accession, separation, allocation, transformation) can be carried out by solving its founders (participants) or a legal entity authorized by the constituent documents.
The legal entity is considered reorganized, with the exception of cases of reorganization in the form of accession, since the state registration of newly emerged legal entities.
Properness in the reorganization of legal entities
When merging legal entities, the rights and obligations of each of them are moving to the newly arising legal person in accordance with the transfer act.
When joining a legal entity to another legal entity, the right and responsibilities of an affiliated legal entity are transferred to the latter in accordance with the transfer act.
When dividing the legal entity, its right and duties go to newly emerged legal entities in accordance with the dividing balance.
When allocating from the structure of a legal entity, one or more legal entities go to each of them the rights and obligations of a reorganized legal entity in accordance with the dividing balance.
When transforming a legal entity of one species in the legal entity of another species (changing the organizational and legal form) to the newly arising legal entity, the rights and obligations of a reorganized legal entity transfers in accordance with the transfer act.
The liquidation of a legal entity entails his termination without the transition of rights and obligations in order of succession to other persons.
The legal entity can be eliminated:
1. by the decision of its founders (participants) or the body of a legal entity authorized by the constituent documents, including due to the expiration of the term on which a legal entity was created, with the achievement of the target for which it was created;
2. By the decision of the court in the case of its structural violations of the law approved when it is created, if these violations are irreparable, or carrying out activities without proper permit (license) or prohibited by law, or with a violation of the Constitution of the Russian Federation, or with other repeated or rich disorders Law or other legal acts or with a systematic implementation of a non-profit organization, including a public or religious organization (association), a charitable or other fund, activities contrary to its statutory goals, as well as in other cases provided for by this Code.
12. Business activities of a citizen. State registration of an individual entrepreneur.
The main signs of this activity:
This is an independent activity.
This activity carried out at their own risk.
This activity aimed at systematic extraction of profits from the use of property, sales of goods, work, the provision of services.
This activity carried out by persons registered as individual entrepreneurs in the manner prescribed by law.
A citizen has the right to engage in entrepreneurship without the formation of a legal entity only since the state registration as an individual entrepreneur. When violating this requirement for prisoners, a citizen's deals are not entitled to refer to the absence of the status of an individual entrepreneur. It should be borne in mind that the citizen's business activities apply to the rules established to regulate the activities of legal entities that are commercial organizations, unless otherwise follows from the law, other regulatory acts and creatures of legal relations.