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3.2.2. Character of the legal capacity by reorganisation and society liquidation.

joint-stock company creation can be carried out not only by establishment, but also by reorganisation of existing legal bodies. From five ways of reorganisation: merge, joining, division, allocation and transformation, only at joining does not arise the new subject of law.
In all other cases appears one or several new legal bodies. It is necessary to notice, that by reorganisation there is a transition of the rights and duties, but not legal capacities from the former legal person to the new. It is considered to be, that occurrence and the termination of subjects of law are «I accompany - 417 Instruction of the Central Bank of Russia from January, 14th, 2004 N 109 «About the method of adoption Bank of Russia of the decision on the state registration of the credit organisations and delivery of licences for realisation of bank operations»//the Bulletin of Bank of Russia from February, 20th, 2004 № 15. shchimi the phenomena »by transfer of large operating property complexes (the enterprises« on the move »).418 With a recognition oborotosposobnosti property complexes achievement of the same (though and with some differences) economic result probably by means of purchase and sale institute. According to B.P.Arhipov,« as the mechanism providing transition of property, belonging to joint-stock companies, reorganisation has not only much in common in the regulation with alienation of property complexes, but even moreover - both these of the legal institution have, as a matter of fact, the general subject of legal regulation and the general economic 419 The purposes ». Activity of a former society stops, stops also its legal capacity. The newly arisen subject of law gets the legal capacity from the moment of record entering about it in the uniform state register of legal bodies. It concerns also to such way of reorganisation as transformation. In this case also there is a new subject of law, and existing before stops the деятельность.420 That is, the legal capacity arises at the created legal person from the moment of registration, instead of is transferred to it from the former legal person. Other opinion expresses also: V.V. Dolinskaja, for example, considers, that at transformation carrying out reorganizuemoe the legal body remains, and continues activity, but already in new organisation-legal форме.421 Certainly, with a view of convenience of the civil circulation, creation of more favorable conditions to its diligent participants, the fact of existence and activity of the former legal person nowadays transformed to another is very often considered. For example, FZ «About banks and bank activity» provides, that the current of two-year-old term of activity of bank (as a condition of granting to bank of the right to attraction in contributions of money resources of physical persons) does not interrupt at bank transformation, and at merge of banks the specified term pays off on 418 See more in detail: Arhipov B.P.Reorganizatsionnye dogovory about merge and absorption of joint-stock companies//the Legislation. 2002. № 10. With. 42 - 54. 4,9 Arhipov B.P.civil-law the mechanism of merges and joinings of joint-stock companies: avtoref. dis.... kand. jurid. Sciences. M, 2004. - With. 4. 420 Such points of view adhere the majority of authors.
See, for example: Karlin A.A.procedure of joint-stock company transformation: the theory and practice//Magazine of the Russian right. 2003. № (October, 10th). With. 16. 21Долинская V.V. Aktsionernoe the right. The textbook / Otv. red. A.J.Kabalkin. - M, 1997. С.266. To the bank having earlier date of the state registration (Law item 36), 422 Also the organisation company name can be transferred at its transformation: the state enterprises which are carrying out obligatory aktsionirovanie (privatisation) have the right to keep firm наименование.423 FZ «About licensing of separate kinds of activity» 424 provides, that in case of transformation of the legal person - the licensee, its assignee is obliged not later than in fifteen days to hand in the statement for renewal of the document confirming presence of the licence, with the appendix of necessary documents. Renewal of the documents confirming presence of the licence, is carried out within ten days from the date of reception by licensing body of the corresponding statement. (Law item 11). However in case of reorganisation by other ways (except transformation), the licence of the legal person who have ceased the activity, loses a validity (Law item 13). Nevertheless, it is various persons, independent juridical personalities. Acknowledgement to it can be found in many rules of law. In particular, for made by the legal body - the predecessor of an offence to responsibility the legal body - the assignee cannot be involved. For example, on tax offences of the reorganised person will not bear responsibility new (if they are revealed after formation of the new person: though the corresponding shortage will be collected, sanctions will not be imposed).425 Same - in the relation responsibly - 426 t - sti for customs offences. That is, in exact conformity with the legislation, to responsibility the person - the infringer, but not other person (not making an offence) can be involved only. 422 The similar situation arises at addition of terms of continuous possession pravopredshestvennika and the assignee for occurrence of the property right owing to the acquisitive prescription (item 234 GK the Russian Federation). 423 Decision VS the Russian Federation from April, 15th, 1993 № 4814-1 «About assignment of company names aktsioniruemyh the state enterprises»//RG from May, 5th, 1993 424 FZ from August, 8th, 2001 N 128-FZ «About licensing of separate kinds of activity» 11 SZ the Russian Federation from August, 13th, 2001, № 33 (the Part I), item 3430. 425 Item 50 NK the Russian Federation and item 2 of the Letter YOU the Russian Federation from August, 28th, 1995 N С1-7ЮП-506 «About the separate recommendations accepted at meetings on judicial-arbitration practice»//the Bulletin YOU, 1995, №11 see. 426 See: the Decision of Presidium YOU the Russian Federation from May, 8th, 2001 N 484/01//the Bulletin YOU the Russian Federation, 2001, № 9. More in detail about it: Larin N.V.ten of stages of transformation of Open Company in Open Society. - Union of Right Forces "Guarantor", 2004 Practice of the resolution of disputes, the legal bodies connected with reorganisation confirms stated position. Courts of justice correctly specify, that by reorganisation transition of the rights and duties takes place, the legal capacity stops at the reorganised person and arises at созданного.427 formulations Applied in some cases, according to which at transformation «the legal capacity... Passes as the universal succession» 428, or about «legal capacity division» 429, are inexact terminologically, that obviously follows from the general context of the given judicial certificates. As it has already been told, by reorganisation in the form of merge, division, allocation and transformation there is at least one new subject of law. Occurrence of its legal capacity is connected with registration in the uniform state register of legal bodies (item 49, 51 GK the Russian Federation, item 4 of item 15 of the Law on joint-stock company). Unlike creation of joint-stock company by establishment, by reorganisation authorised (or lawful) the legal capacity arises from the moment of registration of the newly arisen joint-stock company. In a case when there are some new subjects of law (for example, from joint-stock company it is allocated at once two and newer societies), their state registration can be carried out not simultaneously (item 16 FZ «About the state registration of legal bodies and individual businessmen» 430). In this case one society can arise before reorganisation has been finished and has ceased activity a former society. Sledo - 427 See, for example: the Decision of court of cassation of Federal Arbitration court Volgo-Vjatskogo of district from March, 9th, 2004 Business N А11-3665/2003-К1-14/204; the Decision of court of cassation on check of legality and validity of decisions (decisions) of the arbitration courts which have entered validity of Federal Arbitration court of the Ural district from January, 12th, 2004 Business N Ф09-3933/03-ГК.; the Decision of appeal instance of Arbitration court of the Moscow area from December, 30th, 2002 Business N А41-К2-14810/02; the Decision of Federal Arbitration court of Northwest district from October, 15th, 2002 ДелоNA56-12678/02.//Union of Right Forces "Консультантплюс". 428 The decision of court of cassation of Federal Arbitration court of Far East district from June, 11th, 2003 DeloK ФОЗ-А37/03-2/1269.//Union of Right Forces «the Adviser plus». 429 The decision of court of cassation on check of legality and validity of decisions (decisions) of the arbitration courts which have entered validity of Federal Arbitration court of the North Caucasian district from March, 12th, 2002 Business N Ф08-640/2002.//Union of Right Forces «the Adviser plus». 430 FZ from August, 8th, 2001 N 129-FZ «About the state registration of legal bodies and individual businessmen»//SZ the Russian Federation from August, 13th, 2001, № 33 (the Part I), item 3431. vatelno, legal capacity occurrence occurs earlier, than the rights and duties reorganizuemogo the legal person (item 15, 16 FZ «About the state registration of legal bodies and individual businessmen») are told, that confirms independence of the juridical personality of the assignee. Occurrence of the general (authorised) legal capacity of the joint-stock company created by reorganisation from the moment of its registration does not contradict the general principle of investment with the legal capacity only the subjects who at least have partially generated the capital. Payment of the charter capital of joint-stock companies arising by reorganisation occurs not within three months, and by the moment of its registration as formation of property of the societies created as a result of reorganisation, is carried out only at the expense of property reorganizuemyh societies (item 3 of item 15 of the Law on joint-stock company). Additional payments and other payments for the securities placed by reorganisation of the legal person, and also connected with such placing, are not supposed, behind an exception vozmezdnogo acquisitions of actions at transformation to joint-stock company of workers (the national enterprise).4 431 Thus, the moment of registration of a society and the moment of payment of its actions coincide, that is the legal capacity arises in full from the date of society creation. Character and volume of the legal capacity of joint-stock companies created by reorganisation can coincide or differ from character and volume of their legal capacity pravopredshestvennikov - the reorganised legal bodies. It is possible to reveal some rules which should be observed at carrying out of reorganisation regarding definition of character and volume of the legal capacity of arising subjects. If the legal capacity reorganizuemyh societies was the general (universal), and newly founded (one or the several) the society also does not fix in the charter of the exhaustive list of kinds of activity which it intends to carry out, changes in character of the legal capacity as a result of reorganisation of legal bodies will not occur. Joining is not way of creation of joint-stock company (item 8 of the Law on joint-stock company). But in this case other legal body joins a society existing already. The joint-stock company reorganised thus 431 Point 8.3.6. Decisions of Federal Commission on Securities from June, 18th, 2003 № 03-30/пс «About Standards of issue of securities and registration of prospectuses of securities»//RG from September, II, 2003 N 181 (additional release). Gets the rights and the duties earlier belonging to the person - pravopredshestven - niku, now ceased the existence. In this connection it is necessary, that it possessed the corresponding volume of the legal capacity. Therefore if before reorganisation it has been narrowed by the charter, it is necessary for participants to bring respective alterations in the charter and to "be prepared" for acceptance of accrued obligations. It should not be created situations when the newly arisen legal body - the assignee can pay only the caused damages, but not to give appropriate execution of the obligation. The charter (additions to it) affirms on joint shareholder meeting of societies. At merge of societies all rights and duties of each of them pass to the newly arisen society according to the transfer certificate. It means, that character and volume of the legal capacity of created joint-stock company should allow to execute all obligations which have passed to it as assignment from each of legal bodies which has ceased existence. The charter of a new society in which character and legal capacity volume is fixed, affirms general meetings of each of the societies participating in merge (item 2 of item 16 of the Law on joint-stock company), hence, each society should know volume of the legal capacity of other societies participating in merge. At society division all its rights and duties pass to two or several newly founded societies according to dividing balance (item 4 of item 18 of the Law on joint-stock company). As by reorganisation there is a universal succession, is absolute all rights and duties should "find" the new subject - to pass to one of the newly arisen legal bodies. It means, that the legal capacity of the newly arisen society should correspond to what obligations are transferred it on dividing balance. The volume of the legal capacity of the created societies can be both already, and is wider than volume of the legal capacity of the reorganised legal person which has ceased the existence. The charter of each new society affirms general meeting of each of these societies, but dividing balance which defines the minimum volume of the legal capacity, approves general meeting of a former society. At allocation from structure of a society of one or several societies to each of them passes a part of the rights and duties of the society reorganised in the form of allocation according to dividing balance (item 4 of item 19 of the Law on joint-stock company). In from - lichie from the division, the society existing before reorganisation does not cease the existence. In the rest the situation is similar to that which develops at division: each society should be allocated by such volume of the legal capacity what is necessary for discharge of duties before counterparts according to dividing balance, but can get at will of founders and its wider volume. Certainly, as well as at requirement division about realisation of separate kinds of activity as exclusive, should be observed. Paragraph 3 of item 5 of item 15 of the Law on joint-stock company fixes guarantees of the right of creditors by reorganisation, namely if the dividing balance or the transfer certificate does not give possibility to define the assignee of the reorganised society, the legal bodies created as a result of reorganisation, bear a joint liability under obligations of the reorganised society to its creditors. In case one of the arisen joint-stock companies became the owner of special franchise and has no possibility to execute the obligation in nature, it is represented, that it is obliged to pay damages in money terms if it will be involved responsibility as the joint debtor. At society transformation to the newly arisen legal body pass all rights and duties of the reorganised society according to the transfer certificate (item 4 of item 20 of the Law on joint-stock company). If the joint-stock company is transformed to a society with limited liability or production co-operative, that is the commercial organisations the newly arising legal body should have at least the same volume of the legal capacity that the Russian Federation allows item 49 GK, providing possibility of investment with their general legal capacity. If the joint-stock company is transformed to noncommercial partnership which is the noncommercial organisation and consequently, can possess only special franchise in this case the joint-stock company should approach to such reorganisation already "prepared", that is, not having such duties which it could not execute in new quality. Thus, transformation of joint-stock company to noncommercial partnership, that is transformation of the commercial organisation in noncommercial and consequently, change of the rights of participants in relation to the legal body, and replacement of the legal capacity "commercial" on "noncommercial", is considered by the legislator as the enactment, that demands the unanimous decision of founders. The legal capacity of the legal person who have ceased activity as a result of reorganisation, comes to an end at the moment of record entering about its termination in the uniform state register of legal bodies. Changes in the legal capacity reorganizuemogo persons in connection with the fact of reorganisation do not occur. In the literature assumptions are come out, that economic activities of the legal person who are in a stage of transformation, are not provided, and the society can make only those transactions which are directed or connected with reorganisation. So, N.V.Larina432 considers, that "default" of the law concerning the legal capacity of a society in time after decision-making on transformations, but before the state registration of the new managing subject, is a current legislation lack. In its opinion, having analysed, for example, norms of the Law on Open Company, it is possible to draw a conclusion, that authorised activity preobrazuemogo the legal person in reorganisation is not provided, as at decision-making on transformation the transfer certificate affirms also. As a result realisation of transactions after that moment, the list of transferred obligations can change, but the law does not provide possibility of modification of the transfer certificate. However, N.V. Larin recognises, that as the law directly does not forbid economic activities in transformation, the society can not stop it, besides, some subordinate legislation indirectly testifies to such possibility, 433 In this connection she suggests to provide in the law the obligatory statement on general meeting of all transactions, and also each new edition of the transfer certificate, or the decision of a question on an assignment order at change of structure of property and the obligations, fixed in the approved transfer certificate to take out on the summons of the first general meeting (made the decision on transformation). By the legislation of the Russian Federation the legal body, the made decision on reorganisation, has the right to continue realisation of authorised activity as essence and advantages of reorganisation consist that change of the subject - the legal owner occurs, without stay of economic activities, withdrawal of the capital, means of production of the reference, that is, the least painful for the civil circulation in the image. Acknowledgement to that decision-making about reorga - 432 Larin N.V.ten of stages of transformation of Open Company in Open Society. Union of Right Forces "Guarantor", 2004 433 See, for example: the Order of the Ministry of Finance of the Russian Federation from May, 20th, 2003 N 44н «About the statement of Methodical instructions on accounts formation at realisation of reorganisation of the organisations»//RG from July, 2nd, 2003 № 127. nizatsii does not attract any narrowing of the legal capacity of the legal person it is possible to find in judicial актах.434 In economic activities practice, certainly, frequently economic activities of the legal person who are in process of reorganisation, stop in full or in part, especially if organisation division into some subjects is made. At the same time, opposite examples when reorganisation process is not reflected in activity of the legal person are known also and does not interfere with carrying out of usual economic operations. The legislation does not provide, and should not provide any changes in legal capacity volume reorganizuemogo the legal person. As to the termination of activity of joint-stock company by liquidation, it is represented, that during the period from the moment of decision-making on liquidation till the moment of entering of record about liquidation in the uniform state register of legal bodies, a society can make only the actions directly directed, or connected with its liquidation. GK the Russian Federation regulates an order of liquidation of the legal person from which follows, that actions of the liquidating commission have for an object to satisfy requirements of creditors and to define legal destiny of the remained property of the organisation in case that is available (item 62 - 64 GK the Russian Federation). Possibility to carry out the transaction of other character is not provided. That is, as well as at establishment, the society which is at a stage of liquidation, will possess the special ("liquidating") legal capacity. V.A.Belov holds the opinion that the liquidated legal body can make the limited circle of actions, but in a little bit other aspect that leads to its other conclusions. «Decision-making on liquidation of the legal person attracts restriction of its civil legal personality, (allocation V.A.Belov) - writes it, - for everything, that it can to make after such decision, is subordinated the unique purpose - the termination of own activity. From the moment of decision-making on liquidation the commercial organisation ceases to be commercial, no less than noncommercial loses the noncommercial character. The decision on liquidation equalises all organisation-legal forms, results them if it is possible so to say, in the general denominator, transforms them into the legal bodies who are in a stage 434 the Decision of Federal Arbitration court of Northwest district from October, 2nd, 2002 Business N А05-2083/02-91/17//Union of Right Forces «the Adviser plus» See, for example. Liquidations. And the actions made by them after that will be identical, irrespective of their organisation-legal form calculations with creditors »435. According to V.A.Belova, during this period there is« a legal body of the specific organisation-legal form - the legal body who is in a stage of liquidation »436. From norms GK the Russian Federation obviously follows, that in the course of liquidation this or that organisation does not cease to be commercial or noncommercial, its organisation-legal form remains. However their legal capacity really to become identical - special as its volume is reduced to possibility to make the actions directed on own liquidation. The liquidation bases are provided GK the Russian Federation, and predetermine its concrete procedure and terms. At awarding judgement about a recognition of the legal person insolvent and bankruptcy proceedings opening, it also does not cease the existence till the moment of an exception of the Uniform state register, but can have only those rights and duties which are necessary for the bankruptcy proceedings purposes. That is, the legal body has the right to make only the transactions directed on satisfaction of requirements of creditors. As liquidation is made in connection with bankruptcy of the organisation, frequently it is not enough property for payment of all debts, hence, in the course of bankruptcy proceedings there will be no illegal the transactions directed on reception by the organisation of the additional income. To such conclusion has come, for example, FAS the East-Siberian district in the decision: « Powers of the competitive managing director under the order property of the debtor are limited by the target legal capacity - satisfaction of requirements of creditors. Because under the sublease contract the competitive managing director has transferred in using property of the enterprise less than one month prior to the bankruptcy proceedings termination, the transaction has not been directed on reception of incomes for satisfaction of requirements of creditors »437. Thus, the transaction mismatching the purpose of bankruptcy proceedings (that is special franchise of the legal person in which relation the given procedure of bankruptcy is entered) obosnovanno has been recognised nedejstvi - 435 Belov V. A, Pestereva E.V.economic of a society. - M, 2002. With. 91-92. 436 Belov V. A, Pestereva E.V.decree. soch. With. 92. 437 The decision of court of cassation on check of legality and validity of decisions (decisions) of the arbitration courts which have entered validity of Federal Arbitration court of the East-Siberian district from May, 7th, 2002 Business N АЗЗ-16013/01-С2-Ф02-1056/02-С2.//Union of Right Forces «the Adviser plus». telnoj. The legal capacity from the moment of record entering about joint-stock company liquidation in the uniform state register legal persons stops. The told allows to draw a conclusion, that character and volume of the legal capacity of joint-stock company can be various. It depends, first, on intentions of its participants, and secondly from a stage of its existence. In the resulted table № 6 dependence of the legal capacity on charter capital payment is underlined. Thus rules about the additional possibilities arising at a society after two years of existence, most likely, are connected by what upon termination of the second year of activity the society should approve "positive" balance. That is, ustavnyj the capital, should be completely generated, as unpaid actions within the first year should be sold a society not later than the termination of the second year of activity. Tab. 6. Dependence of volume of the legal capacity of joint-stock company on payment of the charter capital, term of existence of a society or approach of any events. Term (event) of the Transaction and action, which become accessible to realisation Payment of 50 % of the charter capital (no more than 3 months from the moment of registration) Possibility to carry out authorised activity of joint-stock company Full payment of the charter capital (no more than one year from the moment of the state registration of a society) - placing of bonds (item 33 of the Law on joint-stock company). - The announcement of payment of dividends (item 43) - Acquisition by a society of the actions placed by it (ordinary and exclusive) with a view of reduction of the charter capital or reduction of quantity of actions (item 73) - Realisation of the state registration of release (additional release) actions (except for release (releases) of the actions placed by their distribution among founders of joint-stock company at its establishment (2.4.24. Standards) - Realisation of the state registration of release (additional release) options (2.4.26. Standards) Placing of options of the emitter (item 27.1 of the Law on a securities market). Two years of activity (the auditor organisation in the form of Joint-Stock Company) possibility of carrying out of obligatory audit of the credit organisations (the experience of auditor activity not less than two years) possibility of carrying out of obligatory audit of bank groups and bank holdings (the experience of auditor activity on checks of the credit organisations not 438 Less than two years) Two years of activity of bank (two years from the date of the state registration of bank) - occurrence of the right of attraction in contributions of money resources physical 439 PERSONS Two years of activity on realisation of operations on insurance of vehicles or a civil liability of their owners. - Possibility to ask (licence) for realisation of compulsory insurance of a civil liability of owners transport 440 Means. Not earlier than the third year of existence of joint-stock company (under condition of the appropriate statement of two annual balances) - placing of bonds without maintenance (item 33 of the Law on joint-stock company). Thus, from positions of the Russian legislation, which norm are systematised in the resulted table № 6, obviously follows, that possibility Jin The governmental order of the Russian Federation from March, 29th, 2002 N 190 «About licensing of auditor activity» (with changes from October, 3rd, 2002)//SZ the Russian Federation from April, 8th, 2002, № 14, item 1298 439 Item 36 FZ from December, 2nd, 1990 N 395-1 «About banks and bank activity»//Sheets SND RSFSR from December, 6th, 1990 N 27 items 357. 440 Item 21 FZ from April, 25th, 2002 N 40-FZ «About compulsory insurance of a civil liability of owners of vehicles»//SZ the Russian Federation from May, 6th, 2002, N 18, item 1720. To carry out authorised activity in full directly it is connected with charter capital payment.
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A source: Polygalova Natalia Alekseevna. JOINT-STOCK COMPANY LEGAL CAPACITY UNDER the LEGISLATION of the RUSSIAN FEDERATION: CHARACTER, VOLUME And DYNAMICS. The dissertation.. 2005

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