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a principle of branch of property and limited liability Participants of corporation

Differentiation of concepts. Under the general rule which as it is represented, already is everywhere recognised, participants of corporation do not answer on its debts, as well as the corporation does not bear burden of responsibility under obligations of its participants.

The property belonging to the company is isolated from property of its shareholders (participants). The person of the company, t.o., it is separated from the person of its members (a so-called principle of property isolation, or a branch principle) [17], and interests of the most legal person can often not coincide with interests of its separate participants (a principle of an autonomy of interests) [18]. A rule

Property isolation (independence) [19], t.o., is

Basic in the right of corporations [20].

The principle of branch (division) of property is necessary for distinguishing from a principle of limited liability [21]. Though now these principles sometimes mix up, nevertheless historically their occurrence was not caused the friend by the friend. These concepts are differentiated and in material aspect. The most known and widespread understanding of the beginning of limited liability consists that members of commercial corporation bear burden of losses within cost of a share belonging to them in the charter capital. At the same time the principle of branch underlies concept of the legal person as that [22] though not in each organisation participants have exceptio (objection) about the limited liability [23].

Question history. In a historical retrospective show the limited liability beginning arises much more after the legal person (i.e. a principle of property isolation). If the principle of autonomy of the legal person has started to be formed in days of Ancient Rome [24], in particular, with development of isolation of property of city communities (municipies) or societies otkupshchikov (societates vectigalium publicanorum) [25] limited liability "privilege" began to be given for the first time only since XVIII century [26] and up to XIX century it was faster not a rule, and an exception [27]. It has been connected by that at the initial stage of the development legal bodies prosecuted mainly noncommercial subjects (religious, municipal, training questions etc.).

Originally protection of the public investor and its capital investments, thus participation in the charter capital of other corporations was the purpose of granting of limited liability it was forbidden, and to receive such privilege for industrial production in the USA or the Great Britain, for example, it was almost impossible [28]. Experience of these countries shows, that the universal recognition of a principle of limited liability was politically motivirovanno and was not a consequence of action of laws of legal logic or display of effect of a legal principle of branch. Rich and well-founded investors were afraid to invest the money resources in the action of the organisations which were not possessing the privilege of limited liability, fairly believing, that:

First, creditors of such companies first of all will address with claims and requirements to more well-founded members, and,

Secondly, investors (investors) did not aspire to answer at all with property belonging to them for miscalculations and errors of management of the companies.

As a result such regions and the countries which were late with limited liability granting, could incur risks of "outflow of investments» as it has occurred, for example, with some states in the USA in XIX century. [29] Eventualnost the account of the risk limited to in advance known sum, does

Corporation in the opinion of the investor the most attractive legal form of enterprise activity [30], «reduction means tranzaktsionnyh

31

Costs »[31].

Limited liability connect with development of joint-stock companies. In 1602 in the Netherlands the East Indian company which has caused imitation both in the Holland, and in other countries, and first of all in England and France has been founded. In Russia, as well as to Germany, the first joint-stock companies arise in XVIII century [32]. In the beginning of XIX century the inconsistency of one Russian joint-stock company and attempt to involve shareholders to additional responsibility became an occasion to acceptance of the Highest decree from September, 6th, 1805 which has explained, that as it «is absolutely opposite to the being of this sort of the companies» admits necessary to confirm at this case corrected, that «the joint-stock company answers with one joint stock and consequently, any of shareholders at failure does not lose over the put capital» [33].

Branch principle, t.o., has been practically absolutised by means of limited liability and began to work in both parties, doubly. At preservation corrected, that the corporation property was out of a zone of access of creditors of the participant (from its family disputes, personal bankruptcy), now and creditors of the corporation have been eliminated from a presentation pravopritjazany to its participants.

Change of balance of interests. The nature of a principle of limited liability [34] has changed at first with cancellation of an interdiction for creation of the companies

One person [35], and then the situation was even more cardinally aggravated with cancellation of an interdiction for corporations on participation in the charter capital of other organisations, occurrence of groups of the companies. Participation of one legal bodies in the charter capital of others has led still bolshemu to restriction of enterprise risk and as a result — to change of balance of interests not in favour of creditors of corporation, having made their position by even less reliable. The limited liability rule has ceased to protect only interests of investors, having extended the action on any corporation participating in a group of persons. At such position by the most suffered there are small creditors (small businessmen, consumers, workers) and «creditors necessarily» (suffered from torts).

Change of balance of interests of creditors and businessmen has demanded reconsideration of base principles of the right of corporations — property isolation and limited liability, and also search of new mechanisms of restriction of possible negative consequences.

Also it is necessary to consider, that action of a principle of branch has always been weakened only on the one hand. If intrusion of creditors of participants into property of corporation under control to them is a legal exotic attraction of participants to the subsidiary liability on debts of their company never was something unusual. As it is represented, it is connected by that "abusing" property independence probably only on the one hand — from from what decision depends property prospect of another. Perhaps, in such relations between corporation and its supervising participant weakness is the corporation (and its creditors) that is why it, and, hence, and its creditors, require special protection.

The stated can be shown by means of a simple example. In business relations often happens so, that one person participates in negotiations (for example, the director), and the decision accepts another (possessing bolshej the power, for example, the majority participant). If becomes obvious, that peregovorshchik actually possesses so narrow powers, that continuation of negotiations turns to time expenditure, or the circle of mentioned questions possesses higher importance the person is involved in making deal process more a high rank (the supervising participant). How much correct will be, with t.zr. Justice not to make accountable such supervising person in case of the subsequent injury by means of corporation use ex dolo malo (for a deceit of counterparts of corporation)? After all the arrangement has been reached with such person, and, means, it and should be responsible for that itself has broken a principle of an autonomy of under control corporation and has interfered with sphere of its valuable interests. Speech here does not go any more about protection of the rights of the passive investor who is putting up money in the action and not participating in management though the rule is genetically intended for protection of such investors about limited liability. The participant always has discretionary possibility to refuse active participation in operative activity of corporation and eo ipso [36] to keep corporate protection. If the corporation is «a board from creditors» it is not necessary to look out from under it, differently protection will cease to operate.

Just as it is necessary to avoid absolutization of a principle of limited liability, it is necessary to abstain and from other extreme measure, believing, that the participant in corporation with limited liability is something abnormal as «it has the property blessing, not bearing its burden» [37]. First, hardly the analogy to the property here is pertinent; secondly, participants bear also certain duties under the corporation relation, let not strongly pronounced [38]; thirdly, that the most important thing, — limited liability is not something abnormal if only the participant to it does not abuse (does not make an offence).

It is necessary to discriminate borders of a principle of the branch strengthened by a rule about limited liability, and cases when the branch principle can be deformed or ignored [39]. As it is represented, «getting responsibility» deforms a rule about a corporation autonomy, instead of is something like a line of demarcation designating that place where the legal personality of the legal person comes to an end and the legal personality of the physical persons, standing up for begins it (i.e. supervising it). In last situation the limited liability company would turn, at the best, to corporation with additional duties of its participants.

Thus, the branch principle is not identical to the beginning of limited liability and differs from it functionally and genetically. At the same time the rule about limited liability of participants of corporation strengthens action of a principle of branch. The existence assumption of "the companies of one person», and also participation of one companies in the charter capital of other corporations has led to deterioration of position of creditors of such corporations that has served as the precondition of occurrence of a problem «penetrations for corporate covers».

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A source: BYKANOV DENIS DMITRIEVICH. «GETTING RESPONSIBILITY» In the FOREIGN And RUSSIAN CORPORATE RIGHT. The dissertation on competition of a scientific degree of the master of laws. Moscow — 2018. 2018

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