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§ 3.2. Social and economic measures of counteraction to illegal corporate captures.

Characterising social and economic measures of counteraction to illegal corporate captures, it is necessary to consider, first of all, features of a social and economic climate in which these measures are realised.

The modern economy both on international, and at national level continues to feel consequences of the world financial and economic crisis bearing in considerable criminal potential. Threat of world financial and economic crisis is recognised in Russia by threat of national safety. In Strategy of national safety of the Russian Federation till 2020 directly it is underlined, that possible sources of threats of national safety are such factors as crises world and regional financially - bank systems, and consequences of world financial and economic crises on the general damage can be compared to scale application

Military силы171.

The problem of maintenance of economic safety becomes especially sharp during similar crises, at economy easing, delay of economic growth or even recession of economic development, increase of social intensity and social instability as a result of falling of level of incomes and unemployment increase.

The similar point of view has been stated by the chairman of Committee of the State Duma under the constitutional legislation and V.Pliginym's state building, head SK at A.Anichinym172's Ministry of Internal Affairs. According to their position, in the conditions of the proceeding world

Financial crisis the quantity of illegal captures of the property will be

171 See: the Decree of the President of the Russian Federation from May, 12th, 2009 № 537 «About Strategy of national safety of the Russian Federation till 2020»//Meeting of the legislation of the Russian Federation. – 2009. – № 20. – item 2444.

172 See: Veletminsky I.Operatsija "antirejder"//the Russian business newspaper. – 2011.

№ 682. On December, 9th.

To increase, and as result, it is necessary to expect considerable growth of number of criminal cases on such crimes as money-laundering and rejdersky capture.

In our opinion, the reason of it that world financial crisis represents for rejderov favourable circumstances as in the conditions of enterprise crisis those will weaken, especially, demand for which production will fall. Such enterprises thereof will depreciate, and against they are will be exposed rejderskim to captures.

The basic external preconditions of the next wave of illegal redistribution of the property rights is the come economic crisis which has extended "grey" sector of economy, inefficient counteraction of corruption. Deterioration of financial and economic indicators of activity of the enterprises, growth of the delayed creditor debts, predisposition of management to corporate swindle as internal negative factors of approach of risk rejderstva growth of intensity of transactions on absorption and merges, and also activization rejderskih actions is supposed.

In a situation of world financial crisis new kinds rejderstva have started to arise, two of which concern banks. If rejderstvo in one case it is directed against banks (at use of information attack as the influence mechanism) in other case banks, using the credit mechanism, appear aggressors of another's property.

It is obvious, that counteraction rejderstvu in this case should have complex character and include both purely economic measures, and measures of legal character. In this connection antirejderskie changes in the legislation should be accepted as soon as possible.

As the basic measures of counteraction "bank" rejderstvu it is possible to name the following.

1. A regulator active position. The central bank of the Russian Federation should state abusings of banks an official legal estimation the Position. Publicity of results of consideration of complaints, the publication of answers on an official Internet site of the Central Bank. A response at licence banks for the proved cases of illegal capture of the property.

2. The establishment of the additional control over actions of the leasing companies as unlike banks they under supervision of the Central bank do not fall also their activity is not licensed, whereas possibility of abusings at the leasing companies in the relation lizingopoluchatelej on purpose otema has more than liquid actives, and it is less than risks. The leasing company is thus usually under control to any bank and for bank is in the financial market simply additional tool.

3. The additional control from party OVD, Office of Public Prosecutor and other authorised bodies of the power behind all above-stated potential corruption elements.

4. Carrying out of checks for fact-finding of participation in realisation of similar schemes of representatives of law enforcement bodies. Excitation of criminal cases on the basic structures provided gl. 21 UK the Russian Federation.

5. Active protection of legitimate interests and the rights of participants of economic relations, including representatives of business community. Urgent consideration of their statements and complaints, especially on the facts made concerning property of criminal trespasses belonging to them. The organisation of complex checks under such statements with participation of experts of various state structures.

6. The careful control from party FAS of the Russian Federation behind activity of banks in a situation of world financial crisis.

7. Strengthening of the internal bank control over validity and legality of accepted decisions (especially in banks having regional representation).

At threat rejderskogo the capture, interfaced to an unstable financial condition of the enterprise, it is expedient to enterprise to initiate one of stages of procedure of bankruptcy – financial improvement, whose purpose – to restore solvency of the enterprise; to extinguish the delayed creditor debts; to create new workplaces; to organise effective activity of the enterprise.

Procedure of financial improvement gives both to the administrative managing director, and management of the enterprise protection possibility at revealing of the conflict of interests of officials. Such practice will allow to lower an administrative arbitrariness and will promote minimisation of corruption resources rejderskih the organisations.

Now there are various strategy of counteraction and the prevention rejderskogo enterprise capture.

The choice of strategy of counteraction in many respects depends on the one who attacks. It does important classification rejderov, including calculation of own forces: organizational (who is the ally and what degree of its reliability), personnel (whether there is a rallied command), financial (whether means for conducting long fight will suffice), legal (in what measure of a vulnerable position of defence which "are processed" by experts of an aggressor). The Same is necessary and for counterattack. The analysis during the corporate conflict of psychological profiles of participants – opponents or colleagues is very important.

Motives are sewn up from hostile absorption as foreign practice shows, can be absolutely different, but they, on the one hand, are guided by the insurance from illegitimate actions, and with another

– Are directed on mobilisation of board of directors, management and shareholders of corporation from positions of consolidation of its position in the market.

To create the most part of methods of protection, approval of general meeting of shareholders of corporation is necessary. If thus hostile absorption is carried out under the influence of motive disciplinary, how a protection method, disposal of inefficient management of the company is admissible, trying to keep the workplace. The civilised market not only accepts such practice, but even approves.

If the reasons of carrying out of hostile absorption are proved by motive ekspropriatsionnym creation of protection against hostile absorption is unequivocal is carried out in interests of shareholders of the company, and this protection by the state should be in every possible way supported. In the civilised market practically eliminiruetsja, but in its Russian transitive economy it is difficult to eliminate such motive.

Use of methods of protection as a whole positively influences long-term investment projects of the company. However overestimate at cost of protection against hostile absorption leads to payment by the company of smaller dividends, than the similar companies in its branch. The second reason, after material inputs, consists that the manager after arms of the company methods of protection against hostile absorption can relax. For it now not so important as earlier, there is a current market price of actions: its falling will not entail hostile absorption of corporation.

N.B.Rudyk 173 in this connection writes, that as a whole devoted to influence

Protection methods on well-being of shareholders of the company empirical data of the unequivocal answer to a question on the one who from application are sewn up in a prize and who in loss, do not give. Only one it is possible to tell precisely:

For operating management protection against hostile absorption

173 Rudyk N.B.Metody of protection against hostile absorption / Business, 2008 384 with.

The companies it is always favourable or, at least, some essential harm to it does not put. Concerning shareholders the situation is not so unequivocal. They can both to win, and to lose. Defining the sizes of a prize and loss by factors thus become specificity of a kind of business in which the company is engaged, and quality of its corporate governance. Highly remunerative business more requires protection against hostile absorption. In process of increase in risk of business of the company the probability starts to grow not only to receive superprofits, but also to fix superlosses. And in the latter case company quotations fall at once, and it turns to the purpose for absorption.

Benefits and costs of protection against hostile absorption can be defined degree of knowledge of proprietors about professional level of the hired manager. Protection here as though costs on protection of unique administrative talents of the manager from an attack of less informed participants of the market.

Growth of probability of positive influence on well-being of shareholders of corporation of protection against hostile absorption, according to N.B.Rudyka, occurs at increase of a risk level of investment projects started by the company; at increase in duration of the average period of their recoupment; at growth of indicators of current activity of the company; at improvement of quality of a corporate governance; at availability of the information. Growth of probability of negative influence on well-being of shareholders of corporation of protection against hostile absorption is observed in process of falling of indicators of current activity of the company and increase in dispersal of structure of its property.

For the purpose of bar of claim by lapse of time of an attack of aggressors on the enterprise it is necessary to make comparable to cost of actives of the enterprise the price of an attack and risks of the possible aggressor. Captures of the enterprises, as a rule, occur there where rejder sees «the weak proprietor» with such

The basic errors, as disagreements of proprietors of the enterprise and internal economic conflicts; absence of care of share holding consolidation; ignoring of economic interests and the rights minoritarnyh shareholders; minimisation of taxes and their non-payment; a conclusion from the profit enterprise; ignoring of nature protection and other technical norms (last three points have a criminally-legal qualification).

About preventive system of safety of business often forget, contrary to obvious advantages of its creation. Daily economic activities of the enterprise require constant attention and demand the work, many proprietors of the enterprises hardly go on carrying out of corresponding actions. As a rule, this protection they see in finishing to 75 % of a share holding belonging to them, and then at the enterprise there is a command of hired managers, and about it easy forget prior to the beginning of problems.

By preventive measures serious changes in structure of the business are meant: when still there is no real threat of an attack, for the purpose of the planned organisation of defence of the enterprise ways of protection are applied. It is possible to carry to them:

· creation of the protected corporate structure;

· monitoring system formation behind creditor debts of the company-purpose, creation of under control creditor debts;

· maintenance by means of monitoring of a current situation of effective economic safety of the enterprise;

· restriction of powers and effective motivation of directors;

· creation of conditions, which interfere with mass buying up of actions (i.e. Imposing on the action of encumbrances, share holding masking, liquidation minoritarnyh share holdings, change internal and constituent

Documents, an establishment of informal relations with representatives of the registrar and FNS).

Introduction of holding structure of business at competent distribution of actives on holding represents the recognised and economically comprehensible protective mechanism.

The essence of this way consists that the most valuable actives of the enterprise disperse on several different legal under control persons: the first company – the proprietor of the means of production, the second – the real estate, and is led by the third primary activity under the rent contract (leasing) with the first and the second. Several proprietors in affilirovannyh structures can posess the most valuable active, and these actives should be isolated from legal bodies having problem history.

There is, thus, a division of the enterprise into the company leading economic activities and having with others, not under control managing subjects, external relations, and on the companies owning the most valuable actives.

Will grasp last companies it is problematic, if they belong to one person, since. They do not lead any industrial activity; the creditor debts which can be bought or fabricated, at them are not present.

This structure except the companies-proprietors can include the specialised service companies, not only serving necessary business processes, but also taking up certain share of risks, and also the operating companies which provide management centralisation at necessary level.

As a way of creation of the protected corporate structures reorganisation of the potential company-purpose at which of it the small companies which are not representing interest from a position of illegal absorption are allocated some was extended: at not

Participating in voting or shareholders voting against reorganisation there will be an incorporeal right of the repayment a society of actions, it belonging. By means of this way it is possible not only to deduce actives in the newly founded companies, but also to reduce total minoritarnyh shareholders absolutely lawfully.

One more way is the conclusion of actives which, from the point of view rejderov, are most attractive, in affiliated companies – the closed joint-stock companies (Joint-Stock Company). Further the share of the parent company in the charter capital affiliated gradually decreases at the expense of release of additional actions to size less than 25 %.

To the list of the bases which give the chance to approve, that concerning the company capture attempt will be undertaken, following points belong:

· Direct offers which arrive from the investment companies, about sale of actions or shares. Many of them use following tactics: in the beginning suggest to sell actions or a share, and then it to make force by means of various ways. In case of receipt of such offers it is useful to take a pause for reflexion and to start realisation of protective actions immediately. Carrying out of economic examination of cost of actives of the company is important also.

· the Facts of capture of the enterprises which are located in adjacent territories, or the similar enterprises in branch. Rejder, as a rule, carries out the whole series of captures of the companies being in the neighbourhood or working in one branch. The ultimate goal in the first case consists in reception of the rights to the interesting ground area, and in the second – in creation of branch holding. In such situation to wait for direct offers on sale of actions or a share it is not necessary, and it is necessary to begin protection of the enterprise at once.

· the Enterprise represents a link in a technological chain and then it is possible to say with confidence also, that attempt of its capture if to branches there is a process of creation of holding which supervises all industrial stages in the near future will be undertaken. Rejder in such situation it is especially active, as its problem – company-purpose absorption at any cost. Naturally, by means of proofs bolshej acceptabilities on the economic bases of friendly absorption or merge the alternative substantiation to hostile absorption with ekspropriatsionnymi the purposes is possible.

· Sudden changes concerning local authorities to the company-purpose.

For example, earlier tax inspection reconciled with the big shortages unexpectedly shows, threatening with bankruptcy, the requirement about payment of all debts. Here revealing of level of economic competence of all probable participants of game is important.

· Planned privatisation of the state share holding. An error will not pay attention to auction on share holding sale – if this package is great enough, in auction it is necessary to accept active participation.

· the Significant amount made on vnebirzhevom the market of transactions with small share holdings. It is an obvious signal for economically competent expert about heightened interest from the party rejderskih structures to the company-purpose.

All these problems should be carried out by service of economic safety of the enterprise. She constantly is engaged in monitoring of a situation round the enterprise and the miscalculation of scenarios of events that long before the beginning of direct aggressive actions to warn about attack possibility.

Realisation of some successful projects on capture of the enterprises was carried out only because rejder has found with heads of the company - of the purpose favourable mutual understanding. It is impossible to each manager

To put the observer, therefore when it is dissatisfied with conditions of the work and it hides, dangerous preconditions to receive the Grecian horse in his face are created.

Necessary it is represented and it is reasonable to limit powers of hired managers. The current legislation allows the general director fulfilment of transactions with society property, whose cost not 25 % of the book value of its actives. Big enough cost of actives of the company-purpose creates possibilities for the conclusion the general director of transactions on alienation of the most part of property of the enterprise. It makes sense to limit the competence of the general director, a part of questions having transferred in conducting a joint executive office – boards (management). We will tell, the individual competence of the general director can include transactions with property in cost no more than 10 % from a total cost of actives, and other transactions can consist on the basis of the decision of board which accepts the majority in 3/4 from the general number of its members.

According to Federal act item 71 «On joint-stock companies» 174 and

Federal act item 44 «About societies with limited liability» 175 on members of a joint executive office for a damage which is caused a society by their actions, is imposed property responsibility. The probability of therefore raises that someone from members of the board will oppose the conclusions of the unprofitable transaction during acceptance of joint decisions.

As the basic and auxiliary tool during realisation of the project rejder can use creditor debts of the potential company-purpose. Its buying up involves drawing on

To the enterprise of dot blows for its deprivation necessary at

174 Federal act from December, 26th, 1995 № 208-FZ «On joint-stock companies»//Meeting of the legislation of the Russian Federation. – 1996. – № 1. – item 1.

175 Federal act from February, 8th, 1998 № 14-FZ «About societies with limited liability» (red. From December, 28th, 2010)//Meeting of the legislation of the Russian Federation. – 1998. – № 7. – item 785.

The organisations of defence of free money resources. Any debts can be useful for quite legal attachment of property of the enterprise.

Use in final process of institute of representation gives to numerous employees rejdera unlimited possibilities free to get on territory of the company-purpose under the pretext of representatives vzyskatelja. Execution of the usual award about collecting of the insignificant sum from the company-purpose can smoothly become operation on management interception at the enterprise.

Owing to it the creditor debts of the enterprise are necessary for supervising constantly, otherwise its acquisition rejderom can lead to consequences, extremely negative for the purpose company-. It cannot be reached without economic examination and measures of the financial control.

It is necessary to pay special attention of the delayed debts, actively to work with creditors, but not to enter contractual relations with the unknown company which can disappear further. Creation for accumulation of creditor debts of the company completely under control to the basic proprietors and managers of the company-purpose is useful. Such scheme allows to concentrate all suspicious or undesirable creditor debts in other legal body. At attempts of buying up of debts in the market there will be debts only other company. This company, for example, can take up a duty to carry out purchases for needs of the enterprise, thus carrying out simultaneously function of the protective filter.

It makes sense also besides the company – the filter of creditor debts – to realise all finished goods through created specially trading house which can be supervised by the company-purpose completely.

Despite the fact that what share capital consolidation in domestic business is practically finished and at the impressive majority of subjects of managing number of proprietors rather small, small owners of actions nevertheless cannot be dismissed.

The business was made by mass buying up of actions, and in Russia now the companies with the dim control stake practically are absent. In volume of the placed actions the general share minoritarnyh shareholders has decreased, however their quantity among the general number of shareholders still considerably.

All minoritarnye shareholders can be divided into three groups, each of which requires the special approach:

· physical persons (as a rule, former and-or present employees of the enterprise who have received actions during privatisation);

· investors (meaningly become as a result of acquisition of actions in the secondary market shareholders of the enterprise physical and/or legal bodies);

· the Russian Federation, subjects of federation and municipal unions.

Discriminating the sign first group – that persons enter into it, whose course of life is connected to some extent with the absorbed enterprise. Therefore not always the motivation of acts of these shareholders is defined by reception of a part of profits of a society (dividends). Many owners of actions is fulfilled on the enterprise not the one ten years the pensioners feeling participation in processes, occurring in the company. During mass buying up of actions these people for this reason do not leave the securities. Often enough former or present workers of the enterprise, selling a great bulk of actions, leave to themselves pair of actions of native factory, factory etc.

This group of shareholders regularly votes on elections of all levels, has the raised political activity and possesses possibility to create in the opinion of the population of a city, area both positive, and a negative image of directors and its basic shareholders. The effect «sarafannogo radio» when the opinion of separate group of people concerning a state of affairs at the enterprise the known becomes far behind its limits Here works.

The organisation of the massed company on negative perception rejdera, actions spent by it and its representatives is necessary in order to avoid buying up of actions at this category minoritariev. The explanation of is necessary that changes which, possibly, will occur, are directed not for the blessing; reductions and even enterprise closing are possible reduction of salaries.

The basic behavioural motive of minoritariev-investors is a reception of incomes of enterprise activity. Building with them relations to consider their sophistication as in management questions, and the joint-stock legislation follows: having enclosed in the company action the available assets, they think, first of all, of the personal benefit. Besides it, these shareholders in a choice of the decisions are emotional to a lesser degree. Proceeding from it, it is necessary to lead more pragmatic policy concerning the given group. And if to redeem their package it is not possible, it is necessary to secure, at least, with their loyalty and support on the basis of is material-monetary relations, using direct contacts and a number of concessions, the volume and which character are defined in each concrete case individually.

Last group is rather specific – at all at all joint-stock companies there are municipal unions, subjects of federation and the Russian Federation. In overwhelming majority of cases they make of the decision, proceeding not only from political and economic feasibility, but also under the guidance of mercenary interests of the civil servant.

The width of powers of its representatives causes value of the given group. The state can have in some cases the so-called gold action, i.e. The special right to participation in management of joint-stock company of the Russian Federation, subjects of the Russian Federation or municipal unions. If necessary these shareholders can include not only political, economic and legal, but also power resources. Therefore abundantly clear importance of an establishment with them confidential relations (certainly if at rejdera there is a support on the top of the Russian Olympus, they lose the urgency). For this purpose revealing and an establishment of contacts to the concrete official (group of officials) which "supervises" the enterprise and finding-out of interests of the civil servant concerning the grasped enterprise in advance, before the absorption beginning is necessary; The loyal relation of the concrete official should provide prevention of possible occurrence of problems from the state bodies.

It is necessary to notice, that it is impossible to consider constant and definitive the arrangements reached with the official. It can bribe or dismiss from its post. Probably, that the enterprise will appear in sphere of interests of other political groups.

Usually interested persons for formation of large share holdings had to buy up them at minoritarnyh shareholders. However it is far not in all cases at administration there are free money resources which could be used for buying up. The given circumstance pushes to search of schemes which will help to provide an effective control over the enterprise.

The most widespread allowing to reach decisions of this problem the scheme is the design of cross possession actions. The potential company-purpose creates the affiliated structure having the prevailing share of participation in the charter capital (51 % and more). Minoritarnye the shareholders bringing the actions of the enterprise as the contribution in

The charter capital, represent itself as its other founders. Thus, the control stake of the parent company is consolidated at affiliated structure. The general director of the company-purpose selects itself on a post of the general director of the associated company. The design by which are guaranteed not only the control over the parent company, but also a full irremovability of the general director, on general meetings of shareholders with a surprising constancy voting for an own nominee is formed.

If the board of directors in a parent society is selected direct vote in this case the general director is capable to create body, to it completely under control though board of directors according to logic of the law represents controls of higher order, than the individual executive. Actually there is a situation when in hands of the general director of the potential company-purpose the unlimited authority as it is concerning the enterprise simultaneously both board of directors, and general meeting of shareholders with the right to vote generally agenda questions concentrates, and actually individual executive office.

Such design lawful means to destroy extremely difficult. Rejdery, usually recede, having faced the described structure of cross possession of actions. And only if it is necessary to grasp the company-purpose by all means, technologies of plunder of actions are used, and can be stolen as the share holding of affiliated company belonging parent, and a share holding of the parent company, belonging to the affiliated. Abduction of actions of the parent company at affiliated is more preferable from a position of sequence of the reference of the claim to property of the legal person. As a rule, affiliated companies of other actives, except a share holding interesting rejdera, have no. But if to finish the offered scheme with

Use of the mechanism of transfer to confidential management of share holdings, rejder cannot make anything, even using criminal technologies. It is necessary to search for other ways to press on a company-purpose management, following a rule: the better protection of business against capture, the more attention it is necessary to give to personal security supervising it

Persons.

Not always the affiliated company in a real life manages to collect the control stake of the parent. However its share of participation in the charter capital of the parent company can be finished to control if will participate in the further closed subscriptions. Even if to affiliated company belongs only 30 % of voting actions of a society, and management supervises 25 more %, all the same the design turns out steady enough, t to. The necessary share holding of the company-purpose is supervised by interested persons.

The widespread way of practically free "privatisation" of the enterprise its management is rather effectively mediated by the considered scheme that is why it is directly forbidden by laws of the majority of economically developed states. While it does not concern Russia, therefore cross possession of actions has the deserved popularity.

The widespread way of masking consists in fastening of actions and shares in the property of the offshore companies real owners of the enterprise become whose benefitsiarami. Closeness of the information on the proprietor is doubtless plus of the given technology. At nominal derzhanii and confidential management of actions the information on real owners in the shareholder register is not underlined, and rather titanic efforts should be put for that finding-out who costs actually behind the name of the nominee holder or the confidential managing director.

It is impossible to forget and about internal and constituent instruments. In

Corporate disputes their role is very great. Charters of the companies

Often enough help rejderu to establish over the purpose the control. Certainly, adequate change of the charter even prior to the beginning of attack to the enterprise will help to avoid it, since. The changed charter, and also local normative acts and internal documents during capture receive special value and can to affect in the solving image destiny of object of aggression.

The power of attorney which has been given out on representation of interests of the shareholder on general meetings of shareholders, serves as an obstacle for mass buying up of actions. The shareholder in this case trusts physical or to the legal body representation of the interests. In this case it is necessary to remember, that the power of attorney operates a maximum 3 years. It is necessary to use various means for belief of shareholders to give out powers of attorney. It both monetary encouragements, and propaganda by means of the people respected at the enterprise, and articles in local mass-media and t. д.176.

Practice of carrying out of general meetings of shareholders knows incidents, when

Some persons, with properly certified powers of attorney which are given out by the same owner of actions, on hands, applied for participating in meeting. Defining the person who has the right to representation of interests of the shareholder to operate by a principle «who has come» it is impossible earlier. In this case to pay attention it is necessary for date of delivery of the power of attorney – the validity will be had by later of them.

It is much more reasonable to think in advance of threat of capture of the enterprise, however it is frequent before hands do not reach.

First, it is forced to make constantly services or to let out production, and self-evident it is considered, that such

Activity protects a society as though automatically. The given opinion

176 Veldhoven G. Van. Dynamic aspects of economic behaviour: some determinants//Handbook of economic psychology. – L. Dodrecht, 1988. – P. 62-63; Zadorozhnjuk I.E.phenomen of risk and its modern economic-psychological interpretations//Psychological magazine.

– 2008. – № 2. – WITH. 35.

Is quite lawful as the healthy enterprise, being a cell of economic system, is pledge of health of all system aspiring in this aspect to a condition gomeostazisa, that is a dynamic constancy of structure and properties of a certain internal environment.

Secondly, the mentality does not allow the majority of proprietors of the potential companies-purposes to invite for the careful analysis of a situation and creation of preventive protective systems of advisers: there is no desire to start up in the affairs of extraneous people, and services of advisers have also certain cost. However cost of these services is less in tens and hundreds times, than those expenses, which the company will incur to reflect attack rejderov.

Thirdly, actions rejderov distinguish ultrahigh mobility and orientirovannost on achievement of result by means of the most various and, at first sight, even not clear ways. In this plan protective measures should be accepted as though automatically, and proprietors should in case of threat react non-standard.

Thus, counteraction to illegal corporate captures at enterprise level represents systems of the economic measures directed on suppression and the prevention rejderskih of attacks on means of maintenance of security of the basic actives.

Besides, there is a number of problems which are connected with measurement and an adequate estimation of risk rejderskogo capture of the enterprises that does not give possibility for timely revealing of factors which should be considered by managers and a firm management at formation of system of counteraction rejderam.

Coming back to consideration of social and economic measures of counteraction rejderstvu at state level, it is necessary to note, what exactly the Russia now involved in world financial crisis has possibility not simply to lower on its crest high level raw

Orientations and monopolisations of the economy but also to begin it diversifikatsiju, carrying out following steps:

· using effective toolkit of methods economic - mathematical modelling to generate the independent financial system;

· to focus by results of constant monitoring of activity of the enterprises of real sector of economy "long" credits in industrial (innovative) sphere;

· for development of innovative directions of activity to promote creation of a real market competitive business environment, and through assistance to development of small and average business first of all.

Characterising a social component of measures of counteraction rejderstvu in modern conditions it is necessary to underline, that financial crisis, most likely, will strengthen sociopolitical activity of middle class and businessmen. It is important, that businessmen clearly represented, on what principles the state economic policy as there will be a development of mutual relations between the power and business further will be under construction. The policy of active, aggressive support of separate sectors of business by the state is world practice, however not only financial, but also the thought over administrative support today is necessary.

Besides, it is necessary to notice, that the concentrated system of the corporate property is typical for Russia. For this system that the most part of joint-stock companies possesses a number of large shareholders which define destiny of a society, will minoritarnyh shareholders is peculiar is thus considered so, how much it does not go to a cut with interests of the majority. Here there is the conflict of interests demanding not tactical, but the strategic decision. Strategic character of such decision, in our opinion, is caused by aspiration not to protection of interests of large proprietors, and to

To attraction to participation in the capital of the national companies probably bolshego numbers of citizens.

According to experts, with participation of citizens in the capital of the national companies are provided strengthening on the basis of realisation of standards of a corporate governance of public democratic institutes, and also possibility to receive additional incomes and growth of incomes of citizens; the base for their savings is created, stability in a society is provided with that; ways of participation in a national economy of means of citizens extend and, hence, it represents the important public interest from a position of maintenance of general welfare.

The state, however, selects other way – the compulsory repayment of actions at minoritarnyh shareholders. The federal act from January, 5th, 2006 № 7-FZ «About modification of the Federal act« On joint-stock companies »and some other acts of the Russian Federation» rules of the repayment of actions of joint-stock company the person, intended to get 30 % of actions of a society or already made it, are stated in a new fashion. The order of the repayment on request of the person who have got more of 95 % of actions of a society, securities ОАО177 is entered.

New edition of the Federal act «On joint-stock companies», with

The points of view of many experts, is for "black" rejderov the present gift.

As believes V.Klejner, the director of the Center for the corporate researches Hermitage Capital Management, the approved amendments will lead to that will lose the property of thousand people. Minoritariev,

Many of which have received the package in exchange for vouchers, from structure

177 Federal act from January, 5th, 2006 №7-ФЗ «About modification of the Federal act« On joint-stock companies »and some other acts of the Russian Federation»//Meeting of the legislation of the Russian Federation. – 2006. –

№ 2. – Item 172.

Shareholders will simply supersede. Not only that "washed away" their share and did not pay in it of dividends so of them now also deprive собственности178.

To develop business and to reduce a shadow economy share, it is necessary not only declaration, but also creation of the effective legal and social state is real. Public service reform, continuation of administrative reform, resolute struggle against corruption therefore are required.

Vital necessity of the large-scale program on struggle against corruption is obvious, but at the same time in this question all of us should be realists. Still any kind of criminality and completely has not been liquidated at once by toughening of punishments.

At an initial stage of process by strict measures, as a rule, it is banal «the question price» raises, and only in the long-term period the first positive results become appreciable. The shadow economy cannot be eliminated completely and for ever is as it is impossible how completely to win all criminality. But more than minimisation of its share and liquidation of its such odious displays, as revelry rejderstva are real. For this purpose presence of an accurate government program and system of measures on protection from rejderskoj is necessary for aggression of private businessmen and business.

The state, besides, should stimulate association of businessmen, first of all small and average business, in the unions and structures which could protect them. The probability of is not too great that having serious protection and support the thought over corporate structure will give failure. Capture of actives which have not been protected properly, occurs much more often.

It is extremely necessary to provide formation for enterprise activity of a favorable environment, developing

The competitive economic market, financial market institutes,

178 Gift for "black" rejderov. The State Duma deprives minoritariev of the property

[An electronic resource]. – an access Mode: www.rbsys.ru/print.php? page=561&option

Forming the business focused on creative work, intolerance to violators of law, moral public values. Only the system of purposeful measures which efforts provide political will local and the federal authorities, community business - can neutralise criminal threats in sphere of corporate relations, including is considerable reduce quantity rejderskih absorption and provide in Russia functioning of the civilised market of absorption and the merges, similar functioning in the West.

The important direction of strategy of counteraction to modern criminal threats in sphere of corporate relations is economy modernisation. In this process the important role the science of the corporate right is capable to play.

The told forms before legal science necessity of development of the modern Concept of development of the corporate legislation (on the basis of Strategy of national safety of the Russian Federation approved by the Decree of the President of the Russian Federation from May, 12th 2009 года179), including national focused organisation-legal forms of managing in the industry and based on modern methods of state regulation of economy.

Now in the face of a number of serious calls there was all huge file of the corporate legislation of the Russian Federation.

First of all, there was a problem of fuller and qualitative legislative maintenance of the state economic policy. Here a task in view of system perfection of the corporate legislation.

Long-term activity of a group of persons which are close to

To lawmaking also profess ideas of market fundamentalism or

179 Decree of the President of the Russian Federation from May, 12th, 2009 № 537 «About Strategy of national safety of the Russian Federation till 2020»//Meeting of the legislation of the Russian Federation. – 2009. – № 20. – item 2444.

Extreme liberalism, adversely affects the decision of problems of perfection of the corporate legislation of Russia. This group of persons leans against support of foreign sponsors, whose self-interested interests do not coincide with interests of Russian socially - economic development, constantly lobbying recommendations about eradication of state regulation of economy of Russia.

In the set all these circumstances show, that problems of perfection of the corporate legislation now hardly can be solved «small steps» – separated and stretched in time vnesenijami separate additions and changes in those or other certificates. The situation is that, that actual there is a question on scale updating of all file of this legislation, on its system streamlining.

The concept of modernisation of the corporate legislation covers to the full all variety of problems which are necessary for solving at a present stage. It allows an occasion to consider, that as the adequate answer to the calls which have risen in modern conditions before the corporate legislation, its modernisation is.

Increase of efficiency of legal regulation of relations in industrial production sphere represents the primary goal of modernisation of the corporate legislation, that, in particular, assumes:

· business development, maintenance of growth of business activity of national commodity producers, strengthening of the public economic law and order. Strengthening of effectiveness of protection of legitimate interests and the rights of national commodity producers;

· achievement of stability of action and consistency of certificates of the corporate legislation;

· elimination of plurality of certificates of the corporate legislation, giving to it enough a foreseeable and compact kind;

· adaptation of the corporate legislation national to the economic legislation international, including to corresponding legislation of EU. Process of such adaptation should consider specificity of a modern condition of domestic economy and an orientation of its development.

Strategic value has maintenance of an appropriate right protection of a securities market. Under A.V.Gabova180's fair remark, an integral part of any modern economy is the developed securities market as a part of the financial market, thus the author marks the lowest efficiency of operating legal regulation on a securities market, characterised by set of contradictions, incompleteness and presence of extensive "grey" zones.

The decision of a problem of maintenance of a right protection of financial sector strategically important also because the problem of transformation of Russia in one of the international financial centres is put by the state to the most serious образом181.

The state, besides, puts problems of modernisation of economy, that in the absence of the developed financial sector also it is impossible. But safety of corresponding relations should be thus provided, i.e. Their criminalisation is not admissible. Financial crisis had been revealed all lacks of working models of regulation, first of all concerning presence of "grey" zones – on borders of activity regulated and noncontrollable so, it is necessary to expand control possibilities for

The market.

180 Gabov A.V.problem of civil-law regulation of relations on a securities market: avtoref. dis.... dokt. jurid. Sciences. – M, 2010. C. 123

181 See: Strategy of development of the financial market of the Russian Federation for the period till 2020, utv. The order of the Government of the Russian Federation from December, 29th, 2008 № 2043-r which specifies, that «the purpose of perfection of regulation and development of the financial market on intermediate term and long-term prospect is its transformation into the major factor of increase of competitiveness of the Russian economy».

Except working out of legislative base active use of an administrative resource is necessary. Created in subjects of Federation (at legislative and executive powers) working groups, committees, the commissions on counteraction rejderstvu and corruption monitorings rejderskih captures should be carried out and lasting corporate conflicts to go to supervising and checking instances inquiries, to be developed structures and mechanisms of collective protection of subjects of corporate relations, to be put the directed administrative pressure upon "companies-rejdery" and government officials supporting them.

At Office of Public Prosecutor of each federal district in turn it is necessary for special groups to investigate operatively the facts rejderskih absorption.

As concrete measures of preventive maintenance rejderstva such organizational measures, as can be applied: at change of the proprietor of the legal person and modification of constituent instruments conducting the constant control over the current and delayed creditor debts, weekly reports to a management about the sizes of debts and its repayment; to consolidate a share holding in hands of a small circle of authorised representatives; at conducting correspondence originals of documents to direct to the addressee or the certified mail with the assurance of receipt, or under a list; strictly to consider incoming documents with assignment entering and to outgoing documents of numbers and their registration in magazine; a choice of a reliable registry holder; creation in parallel with the basic legal body of some the additional companies, in which property it is carried out (or can be carried operatively out) transfer of valuable actives of the enterprise; In contracts the interdiction of a concession of the rights of the creditor to other person without the consent of the debtor is desirable; to store originals of constituent and basic internal documents in remote places, it is better out of the enterprise; expedient will be

To put in pawn actions or shares in Open Company or to achieve their judicial arrest under the claim reliable партнера182.

The considerable place in judiciary practice of all arbitration courts of the Russian Federation belongs to the disputes connected with cases of contest by participants of a society of decisions of general meetings, and also contest of the transactions made by a society. Usually in such disputes the following situation is shown: occurrence between participants of a society of the conflict for the reason that some unfair participants intend individually, disregarding interests of other participants of a society, to use property actives of a society or to carry out conveyance of property on actives to the "" person on conditions which are unprofitable to a society. In practice difficulty of protection of interests of diligent participants of a society comes to light, and imperfection of mechanisms of legal regulation provides impunity of provident malefactors.

The current legislation does not provide any way, allowing to witness authenticity of the signature of the participant of a society on the general meeting report. Also it does not oblige the bodies leading the state registers, to claiming at applicants and to preservation of their originals, that on occasion involves falsification of signatures of participants on the report and realisation by aggressors on its basis of necessary actions. For property capture rejderami, possessing powers of an executive office, make transactions on property alienation for an undercharge or other economically inexpedient transactions, whose valid purpose – alienation of property at a society in which there was a conflict, thus sometimes appear forged the decision of general meeting of participants of a society,

Ostensibly approved such transaction, or bulletins for voting.

182 See: Gabov A.V.problem of civil-law regulation of relations on a securities market: avtoref. dis.... dokt. jurid. Sciences. – M, 2010. – With. 3.

For participants of a society, whose signatures in the report have undergone to falsification, happens inconveniently to prove the fake fact as signature examination on authenticity do not spend on a document copy, and its forged original already is absent. Deprivation of powers of an individual executive office of the person registered on the basis of such report, is possible only in the event that the signature fake will be authentically confirmed. Owing to the specified circumstances practically each participant of any society is absolutely defenceless in the face of threat of abusings from those who aspires to assignment of property actives belonging to it.

In the circumstances from the legislator it is required to take measures on purpose to establish a presumption of invalidity of the decision of general meeting of a society challenged by the participant which a society or other interested persons should be confuted through representation of proofs of that the meeting has been spent and on it the corresponding decision was accepted; the duty notarially to witness the signature of participants of a society on the major questions, in particular – on the questions mentioning election of an individual executive office of a society, reorganisation (liquidation) of a society, fulfilment of considerable transactions and transactions with interest legislatively should be provided; obligatory granting of the original of the report of general meeting in the body leading the Uniform state register of legal bodies, on purpose to make changes to data on a society; the duty of registering bodies to keep in registration business originals of reports should be provided.

Realisation rejderskogo capture is impossible, if arbitration legal proceedings concerning the subject of managing, its management and large shareholders are not spent. To prevent rejderskie captures, it is necessary to study attentively preconditions and the reasons of captures and

Unfriendly absorption, and also ways which are used rejderami.

Rejderstvo, being inseparably linked with behaviour of criminals, finds the display and in how the victim reacts to made criminal acts. Relations between these figures, having legal character, are regulated by the criminal legislation. After the criminal trespass certificate there is a transformation of communication of these persons who had personal character existing to it, to communication criminal. The behaviour of the victim substantially defines legal classification of the committed crime and a measure of responsibility of the guilty. The victim possesses the right of restoration of broken freedom, the right of compensation of the put damage etc. The rights generate duties, in particular and for the victim.

In spite of the fact that the victim represents a victim rejderstva, it has specific duties: to demand, that the rights and freedom in volume of the put damage have been restored; to bear responsibility within the limits of the criminal law if such responsibility is provided. In this connection it is necessary to note occurrence of features of behaviour of the victim in conditions rejderskogo capture of business, its personal security, application of measures of administrative influence, criminal prosecution methods. From our point of view, in the current legislation contains much and other blanks actively used rejderami at illegal occupancy by property actives in arbitral procedure.

As a whole, to improve the legislation and legal system in the field of counteraction rejderstvu it is possible only at comprehensive planning of legislative works, entering of additions and changes in criminal, criminal procedure, arbitrazhno-remedial, civil codes of the Russian Federation, and also perfection of system of the government and measures on struggle against corruption.

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A source: Nefedov Igor Vladimirovich. Corporate seizures: the phenomenon, causes, prevention. Thesis for the degree of candidate of legal sciences. St. Petersburg - 2014. 2014

More on topic § 3.2. Social and economic measures of counteraction to illegal corporate captures.:

  1. § 3.1. Teoretiko-legal bases of counteraction to corporate captures.
  2. Chapter 1. Concept and a general characteristic of illegal corporate captures (rejderstva) as illegal phenomenon.
  3. Chapter 3. Activity OVD on preventive maintenance and counteraction to corporate captures.
  4. § 1. Criminally-legal measures of counteraction of corruption in sphere of the crimes interfaced with rejderskimi by captures
  5. §2.3. Counteraction of illegal immigration: the priority of preventive measures and their refraction through a prism of national specificity (on an example of Spain)
  6. § 3.3. Role OVD in counteraction to crimes connected with illegal corporate capture (rejderstvom).
  7. Abdulmuslimov Mahach Abdulmuslimovich. corruption Counteraction in sphere of unfriendly corporate merges and absorption (rejderskih captures) the Dissertation on competition of a scientific degree of the master of laws. Moscow,
  8. § 1.3. The Social danger and criminalisation of illegal corporate capture (rejderstva).
  9. §1.1. Dynamics and structure of illegal corporate capture (rejderstva) as illegal phenomenon
  10. § 2.3. Personal factors of corporate captures.
  11. § 2.2. Sociopolitical factors of corporate captures.
  12. Chapter 2. The Social and economic nature of the corporate right of the Russian Federation.
  13. § 2.1. Business factors of corporate captures.
  14. § 2. An estimation of a criminal situation in sphere of counteraction to the crimes interfaced with rejderskimi by captures, made by means of corruption mechanisms
  15. Chapter 2. A causal complex of corporate captures.
  16. Chapter 1. Legal bases of counteraction to the crimes interfaced with rejderskimi by captures
  17. § 2. Counteraction measures to female violence in a family
  18. Chapter 2. The characteristic of criminally-legal signs and a basis of qualification of the crimes interfaced to illegal merge and absorption (rejderskimi captures) managing subjects