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Decision-making with competence infringement.

the decision carries out function of the form of a rule of the command constituting will legal лица148 if the body, making the decision, operates p sootpetstvii with the competence available for it, i.e.
обладает4 corresponding powers but to formation of will of the legal person and 111 Mogilyov S.D.bod management economic to societies: Legal aslskt.'Монография.-М.: Has put an island 2001. With. 112. Concept of the decision of body juridicheskoju liia as forms of waves of the last or result («ista, means») волсобрязол&нии, inljasgei dominating and Russian (see, e.g.: Lomakin D.V.decree. soch. С.97; Makoskol A.A.decree. soch. With. 35 3-356: Mogilsiskhj S.D., Samoilov I.L.corporation in Russia. A legal status and bases lsjagelnosgi. M, 2006. S.58-61) the literature. To decision-making. The body which does not have these powers or which falls outside the limits the competence, cannot make the strong-willed certificate. Possibility of an establishment the law of the return is caused only by necessity of observance of a principle of protection of interests of diligent persons. So, positions of item 1 of item 48 of the Law on joint-stock companies define subject borders of activity of general meeting of shareholders and by that its competence. Thus the questions carried to the competence of general meeting of shareholders, cannot be transferred a pas the decision to a society executive office. The questions carried to the competence of general meeting of shareholders, cannot be transferred to the decision to board of directors (supervisory board) of a society, except for the questions provided by the specified law. General meeting of shareholders has not the right to consider and make of the decision on the questions which have been not carried to hundred competence by the Law on joint-stock companies. Thus, the law has resulted the exhaustive list of the questions which are within the competence obshcheju of shareholder meeting. Therefore it is represented, that the exit of body of the legal person for statutory limits of the competence cannot be considered as the form of a rule of the behaviour constituting will of the legal person. Meanwhile, for limits of its competence it is necessary to distinguish those cases when for whatever reasons to the concrete person who is a part of body, it is forbidden to carry out powers belonging to it or such realisation from an exit of body of the legal person does not involve corresponding legal effects. This restriction is connected with the relation of the corresponding person to a subject of the made decision. For example, the voice of the person interested in fulfilment of the transaction, is not considered at decision-making by general meeting of shareholders on its approval (item 2-4 of item NZ of the Law on joint-stock companies); the actions belonging to members of the supervisory board of joint-stock company or persons, occupying posts in joint-stock company controls, fie can participate in voting at election of members of a revision committee (item paragraph 2 item 85 of the Law on joint-stock companies) etc. It is necessary to distinguish an interdiction for realisation of a vote which does not depend on a subject of the made decision from these cases. So, do not give a vote actions belonging to a society in own charter capital (paragraph 5 of item 1 of item 34, paragraph 2 of item Z item 72, the item item 76 of the Law on joint-stock companies), and also actions which have not been completely paid (paragraph Z item 1 of item 34 of the Law on joint-stock companies). As it is represented, here speech should go not simply about restriction in realisation of powers of body, but about absence of such powers - Moreover, at acquisition by a society of actions in own charter capital as it is represented, it does not have also a membership in the whole. Not casually Russian legislation speaks not only about a vote exception under such actions, but also about absence at joint-stock companies of property rights: the rights to a part of profit and the liquidating rest. Thus, voting of joint-stock company by own actions belonging to it or the shareholder under not completely paid actions means activity of the person which in general does not have legal status of body of the legal person, i.e. decision-making by "inadequate body».
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A source: Hsgai Evgenie Mihajlovna. LEGAL STATUS of GENERAL MEETING of SHAREHOLDERS UNDER the RUSSIAN LEGISLATION: the ORDER of the ORGANIZATION of WORK, ACCEPTANCE And the APPEAL of DECISIONS / the Dissertation / the Dissertation. 2009

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