<<
>>

§ 1 Legal nature of the decision of general meeting of shareholders

The theoretical question on the nature of decisions of controls in the scientific legal literature is rather actual and not resolved. For practising lawyers the permission of the specified problem makes sense, as ' from the answer to the specified question there are obvious answers to questions on applicability in such cases of corresponding positions of civil law, and, at last, about their legal consequences.
In civil law there is a number of theories about the legal nature of decisions of body of the legal person. So, according to the standard theory, the decision of body of the legal person represents not the juridical fact or, on smaller a Mercedes, not simply juridical fact, but a source of the objective right. In the modern Russian legal doctrine the standard theory of the decision of body of the legal person, certainly, is dominating. It is widely presented in works under the theory права*6, to the law of master and servant ' 7, and also supporters of "the enterprise (economic) right» 5*. 13 last time can be met her and on pages of some tsi twisted its trues kih работ21. Meanwhile a number of researchers doubt the standard nature of corporate certificates. So, according to II.B. Kozlovoj, «the decision accepted by general meeting of shareholders is thought, that, the certificate of realisation of the competence of the authorised state body (local government) whereas the decision of the collegiate body of the legal person is the certificate of realisation of the civil legal personality of the legal person» 22 cannot be considered as the local normative act which is the source of law as standard or other legal act is the public authority certificate. GK the Russian Federation, the containing exhaustive list of sources of civil law (item 3, 5, 7 GK the Russian Federation), does not provide among them any local normative acts. The author agrees with S.S.Vilkina's approving position, that «remaining in the tideway of positivism dominating today in the Russian doctrine to prove normotvorcheskuju the power of subjects of private law it is impossible. Private normotvorchestvo can be explained, but from a position of other legal traditions... In the Russian doctrine supporters sdelochnoj theories of the decision of body legal liia are first of all P.P.Arhipovbg, N.V.Kozlova63, B.L.Suhanovg> \ According to N. V.Kozlovoj, «the analysis of the modern Russian legislation allows to draw a conclusion, that the decision of general meeting of founders (participants, shareholders, members), board of directors, board or other collegiate body of the legal person, accepted according to the law and constituent instruments of the legal person and directed on an establishment, change or the termination of corporate legal relation, is the multilateral transaction made by subjects, forming the collegiate body of the legal person» 63. D.I.Stepan notices, that at corporate certificates along with transactions is much in common. But one of the essential moments, distinguishing them absence of the independent subject of law (shareholder meeting or participants that is not) 06 from each other is. In a position substantiation about that. That the decision of general meeting of shareholders is one of kinds of transactions with some features, some researchers refer to void decisions which are estimated by such lawyers, proceeding from terminology of invalidity of transactions - operating with concepts of "negligibility" or "voidability".
According to item 7 of item 49 of the Law on joint-stock companies the shareholder has the right to appeal against the decision accepted by general meeting of shareholders with infringement of requirements of the present Federal act, other standard legal acts of the Russian Federation, the society charter in case it did not take part in general meeting of shareholders in court or voted against acceptance of such decision and such decision breaks its rights and (or) legitimate interests. According to item 10 sg. 49 specified laws of the decision of general meeting of the shareholders, accepted on the questions which have been not included in the agenda of general meeting of shareholders (except for a case if all shareholders of a society have taken part in it), or with infringement of the competence of general meeting of shareholders, in the absence of quorum for carrying out of general meeting of shareholders or without the majority vote of shareholders necessary for decision-making, are not valid irrespective of their appeal p the legal process. Thus, use for the characteristic of decisions of controls of joint-stock company a category «are not valid irrespective of their appeal judicially» has generated weight of disputes among lawyers. The basic direction in discussion about invalidity of the decision of the supreme body of management of joint-stock company is the parity of such decisions with the concept of void transactions: insignificant or osporimyh. To 13 legal literature the question that all void decisions of general meetings of shareholders should be subdivided on is actively discussed: not having the Validity initially (insignificant) and on losing a validity from coming into force of the decree about a recognition of such decisions void (osporimymi) 6 '. The beginning of the specified discussion has generated the Decision of Plenum YOU the Russian Federation from November, 18th, 2003 № 19 which has considered necessary to spend distinction between two kinds of "illegal" decisions of general meetings of shareholders. As the Russian Federation, a situation when the court has the right follows from an explanation of Plenum YOU and should establish absence of a validity at the decision of general meeting of the shareholders accepted with specified in item 26 of the decision by infringements, arises by dispute consideration in cases when the parties participating in dispute considered by court, refer in a substantiation of the requirements or counter-cases to the decision of general meeting of shareholders. In spite of the fact that the similar explanation on sense contained and in item 7 before operating Decisions of Plenum VS the Russian Federation and Plenum YOU the Russian Federation from 02.04.97 № 4У8 «About some questions of application FZ« On joint-stock companies », division of void decisions of general meetings of shareholders has appeared on press pages rather recently, «To explain it it is possible following circumstances. - First, earlier operating joint decision of the higher degrees of jurisdiction did not contain the exhaustive list of cases at which the court should not take into consideration the decision of shareholder meetings. Nowadays operating decision directly names three cases at which the court should operate in a similar way. - Secondly, during the period between earlier and nowadays operating decisions practice had been saved up a wide experience of the permission of the corporate: the conflicts which integral line, as is known, are decisions of the general meeting contradicting each other, one of which is necessarily void. In these conditions in practice also there was a question what to do with the numerous legally significant actions which validity depends on the validity of the decision of general meeting of shareholders. For example, general meeting of shareholders makes the decision on appointment of the certain person on a post of an individual executive office of a society. This person makes a number of transactions on behalf of a society. Then the decree about a recognition of the decision on election of the given person of a pas a post of the director the illegal enters validity. There is a question: whether attracts this circumstance invalidity of transactions of joint-stock company, prisoners during the period between election of the specified person on a post of the director and decree becoming res judicata about a recognition of such election void? »23. D.I.Stepanov поясняет69, that listed in the Decision YOU the Russian Federation from November, 18th, 2003 № 19 cases, concern such defects in formation of will of the legal person which allow to consider, that the similar will of a society has not been generated at all by legitimate image (insignificant decisions) - In other cases, it is a question of less significant defects in formation of will which depending on degree of gravity of the infringement admitted by preparation and carrying out of meeting, or society zeroes (insignificant infringements) and such decision lead to formation will not be nullified, or result besides to result as the infringements listed in and. 26 Decisions YOU - that is will remain nesformironannoj properly and isligitimnoe the decision is cancelled by court (osporimye decisions). M.V.Teljukipa also believes, that «Plenum YOU the Russian Federation has applied to decisions of general meeting of shareholders the concept of invalidity of transactions, and to any decisions — model of voidable contracts, to any — model of void contracts» 24. Follows otmstit, that gradation of decisions of meetings on insignificant (obviously not having a validity) and osporimye is not something revolutionary in legal doctrines of foreign countries. So, the Law on joint-stock companies of Germany 1965 g, (§ 241, 243) directly provides the bases of negligibility of the decision of general meeting and the basis for contest of the decision of meeting. According to item L225-121 of the Trading code of France (Code de Commers) the decisions of shareholder meeting accepted with infringement of requirements of the law (for lack of quorum, on the questions which have been not included in the agenda, etc.), appear insignificant. Other admitted infringements can testify that the decision comes under to cancellation, however till the moment of cancellation it is valid. According to the legislation of Switzerland of the decision also share on insignificant and osporimye (art. 706b. 706 Code des obligations). The question on the legal nature of decisions (certificates) is not resolved also by judiciary practice. The hook, FAS the Moscow district p the decision from 2) on business № КГ-А40/458-01 has drawn February, 2001 a conclusion, that «the decision obshego sobraiija shareholders of a society is not the transaction as it is defined in item 153 GK the Russian Federation». FAS the Western-Siberian district in the decision from October, 23rd, 2003 on business № Ф04/5420-945/А75-2003, stating an estimation to the first instance decree, has specified, that «the decision of general meeting of shareholders is not the transaction, hence, the trial court has incorrectly applied to legal relations of the parties article 168 of the Civil code of the Russian Federation». In the decision of the Ninth arbitration appeal court from 21.12.2007 № A40-I9248/07-131-184 it is directly declared inapplicability to decisions of positions GK the Russian Federation about invalidity of transactions. The constitutional Court of the Russian Federation in the decision from February, 24th, 2004 L 3 P «On business about check of constitutionality of separate positions of articles 74 and 77 Federal acts« On joint-stock companies », regulating an order of consolidation of the placed actions of joint-stock company and the repayment of fractional actions, in connection with complaints of citizens, the companies« the Cadet Establishment »and inquiry of October regional court of a city of Penza defines decisions of certificates of controls of joint-stock companies as the local certificate. It is represented, that the analogy between void decisions of general meetings of shareholders and void transactions is not spent by the current legislation and does not do it Plenum. As approves A.A.Makovskaja, «First. Plenum YOU the Russian Federation specially and absolutely meaningly used concerning decisions of general meetings of shareholders which in the literature today it is offered to name"insignificant", the term« not having a validity ». Secondly. Decisions of general meeting of shareholders are considered what having a validity at strictly limited infringements admitted at their acceptance. Whereas be challenged judicially decisions of general meeting of shareholders can at any other law-breakings about joint-stock company, other legal acts and positions of the charter of a society. Thus, under the general rule of the decision of general meetings of the shareholders, accepted with law-breaking about joint-stock company, other legal acts and positions of the charter of a society, are "osporimymi". On the contrary, according to item 168 GK the Russian Federation the transaction mismatching requirements of the law or other legal acts, is insignificant, if the law is not established, that by such transaction osporima, or does not provide other consequences of infringement. That is unlike decisions of general meetings of shareholders the transactions mismatching requirements of the law or other legal acts, under the general rule javljakugsja the insignificant. V-trstih. Transactions are void, if they mismatch requirements of the law or other legal acts. In the decision from August, 2nd, 2005 № 2601/05 Presidium the Russian Federation has specified YOU, that the shareholder of a society had been made the transaction on acquisition bolshego a share holding of this society, than is defined by the society charter. Possibility of restriction by the charter of joint-stock company of quantity of the actions belonging to one shareholder, is provided item 3 of item 11 of the Law about TO. « However, — has noted Presidium, — the society charter is not the law or the legal act, hence, the transactions made with infringement of positions of the charter, Fie can be recognised by void on the basis of article 168 of the Civil code of the Russian Federation ». But such transaction cannot be considered as insignificant in view of discrepancy of item 2 of the item] 1 Law on joint-stock company.« As specified article establishes the requirements shown to the charter of a society, instead of to transactions made by shareholders ». According to item 7 of item 49 of the Law on joint-stock company the decision of general meeting of shareholders can be appealed in court if it is accepted with infringement of requirements of the Law on joint-stock company, other legal acts of the Russian Federation, society charter. And though in item 49 item 7 it is spoken only about decisions which can be recognised by void by court if thus they have been accepted with infringement of positions of the charter of a society, at infringement of positions of the charter it can appear, that the decision of general meeting of shareholders has no validity initially ». A.A.Makovskaja also pays attention that with reference to void transactions PS the Russian Federation establishes: - The void transaction does not attract legal consequences, except for what are connected with its invalidity, and is void from the moment of its fulfilment (item 167 item 1); - At invalidity of the transaction each of the parties is obliged to return another all received under the transaction, and in case of impossibility to return received in nature (including when the learnt is expressed in using the property, the executed work or the given service) to compensate its cost in money — if other consequences of invalidity of the transaction are not statutory »(item 167 item 2), - If from the voidable contract maintenance follows, that it can be only ceased for future time, court, recognising the transaction void, ceases its action for future time (item 167 item 3). With reference to void decisions obshcheju the law of similar rules does not establish shareholder meeting. And moreover, directly supposes leaving possibility in force osporimyh decisions of general meeting of shareholders. The told allows to approve confidently enough, that invalidity of decisions of general meetings of shareholders irrespective of the legal nature of these akgov is not considered neither the legislation, nor judiciary practice as the legal institution identical to institute 71 Invalidity of transactions ». The decision of general meeting of shareholders, according to the author of the dissertation, does not answer the signs stated in article 153 of the Civil code. In the specified norm it is said, that transactions are actions of citizens and legal bodies. Directed on an establishment, change or the termination of the civil rights and duties. First of all, it is necessary otmstit, that in spite of the fact that on claim about annulment of the decision of the general sobraiija shareholders of a society respondent to be a society, nevertheless, it will be impossible to consider such decision as society action (the legal person). On the other hand, the decision of general meeting of shareholders is not also the transaction concluded by shareholders, as the decision gets the legal importance (and in general existence in the objective form) as the decision of body of the legal person instead of as actions of the physical and legal persons-shareholders who have gathered. The law on joint-stock companies, and it is equal also other regulatory legal acts of the Russian Federation do not provide for shareholders of the right on the conclusion of transactions on behalf of a society bech the power of attorney. That is, it is represented, that the general meeting decision is not society action (though it can quite be the precondition to realisation by a society of actions - for example the conclusion of transactions the selected works at meeting the general director, or fulfilment of the large transaction, the decision on which fulfilment was accepted at meeting), action of citizens (more likely it is possible to consider it as a consequence of actions of citizens, a fruit to fulfilment by these citizens of certificates of voting of a pas meeting), instead of being neither that nor the decision cannot be considered as another as the transaction, in force not conformity to definition to data in article 153 GK the Russian Federation. Also it is thought, that actions of citizens and the legal bodies which result is decision-making by the supreme body of management of joint-stock company, the establishment, change or the termination of the civil rights and duties »and on realisation already available for these citizens and legal bodies of the rights belonging to them as shareholders are directed not on«. As additional argument in favour of that the decision of general meeting of shareholders is not the transaction it is possible to result and that fact, that the decision reflects the generalised will of shareholders, and at all will of each of them separately. Thus, it is necessary to agree with D.V.Lomakina's opinion that for a recognition behind the decision of body of the legal person of quality of the transaction «is necessary to reverse at least existing till now in the scientific literature and standard legal acts representation about civil-law transactions» 25. As a result, according to the scientist, the decision should be characterised in quality «the certificate of controls of the joint-stock company closest to the juridical fact, provided is mean. 8 silt of item 8 GK» 26 where it is spoken about «other actions of citizens and legal bodies». M. V ' Geijukina also specifies, that «the shareholder meeting decision does not possess lines of transactions, however doktrinalno the system of juridical facts accepted nowadays (events and actions, actions lawful and wrongful; lawful acts - legal acts and juridical acts; - transactions, administrative acts, judgements) the shareholder meeting decision» "1 does not allow to build in juridical acts itself. A.A.Makovskaja specifies, that decisions of general meeting of shareholders are so diverse under the maintenance what to consider all of them having the identical civil-law nature it would be incorrect. We believe, what exactly because of necessity of the permission of the extremely diverse questions of activity of the legal person and variety of decisions of bodies of the legal person corresponding to it is represented proved a position авторов27, offering to consider the decision of general meeting of shareholders as the special juridical fact according to pi. 8 items 1 of item 8 GK the Russian Federation. So, B.C. I eat notices, that besides transactions to civil-law juridical acts other legally significant actions of subjects which are not possessing signs of transactions concern. The special place among civil-law certificates is occupied with corporate certificates. Decisions of general meeting of shareholders of participants of economic societies and associations first of all concern them and others korporativny the formations possessing the status of the legal person. Decisions of general meetings of the corporate formations, accepted in proper order, are obligatory for all participants of corporation and its executive powers. But, despite it, they cannot be carried to public is administrative-legal certificates as they grow out of will of private persons - participants of corporation, which, entering it, voluntary incurred burden of submission to an ox of the majority expressed in the decision of meeting. Corporate certificates are necessary juridical facts in the mechanism of occurrence, change or the termination of many civil matters. So. Reorganisation of any joint-stock company is possible only in the presence of the decision of the general shareholder meeting about reorganisation. The will of the shareholders which have received fastening in reshe^shi of general meeting about reorganisation, becomes obligatory for a joint-stock company executive office, that is creates a rule of behaviour of an executive office at carrying out of reorganisation of a society. Besides it creditors reorganizuemogo joint-stock company get the right to demand the termination or preschedule execution of the obligation, the creditor on which is it Society »76. D.V.Lo-makin considers, that the decision of general meeting of shareholders is more expedient to consider simply as the certificate of controls of the joint-stock company closest to the juridical fact, provided in subitem 8 of item 1 of item 8 GK the Russian Federation ' 28. P.O. evzsnko specifies, that decisions of controls of economic societies form independent group of civil-law certificates ' 29. A.B.abaev notices, that the controls decision, being derivative of action of the persons entering into controls, is not the transaction, and represents the juridical fact, the order and which form of fulfilment is defined by special provisions законодательства7*. So, the position essence consists that the decision of general meeting of shareholders is offered to be considered as the special juridical fact which being lawful act, is not entered r the classification of juridical facts accepted in the legal doctrine in what the basic problem consists. If to carry the decision of body of the legal person to legal acts it turns out that is actions of the persons making of the decision with which the law connects occurrence, change or the termination of legal relations irrespective of, whether the will of subjects on achievement of legal result has been directed. However it not so. As correctly marks A.Babayev, item 61 of the Law on joint-stock companies contains instructions on possibility of a recognition of the bulletin for voting on general meeting of shareholders by the void; possibility of a recognition of will of the shareholder the void means, that the law connects legal effects of the decision of general meeting with a will orientation акционера80. Led the decision of general meeting of shareholders not a legal act according to classification it should concern juridical acts which jodrazdsljatotsja on transactions, admmnistrjtjjnyb certificates, judgements. However tgo too not so. Above arguments against a recognition of the decision were already put by the transaction. First, the subject of the transaction can be physical or legal bodies whereas the decision is accepted by body of the legal person which the subject of law is not. That is, by criterion of subject structure the decision cannot be carried to transactions, however this circumstance does not influence qualification of the decision as juridical fact. Secondly, the transaction is characterised by the meeting of minds of its persons making. For decision-making of general meeting of shareholders, the will coordination all participants of meeting is not required. The decision can be accepted not unanimously, and the competent majority of voices. Absence of the full meeting of minds of persons participating in decision-making does not influence in any way its status as taken place decision. Decision-making occurs by a principle of submission of minority to the decision of the majority of participants that does not correspond to postulates of the doctrine on transactions. Does not cause doubts that the decision of general meeting of joint-stock company cannot concern administrative acts in any way or to judgements. Such o-brazom, the decision of general meeting of shareholders cannot be carried neither to legal acts, nor to juridical acts, and does not find the place in classification of juridical facts among lawful acts. Thus does not raise the doubts that the decision of general meeting of shareholders has strong-willed character, that is is action. Undoubtedly, that action this permitted by the law, that is lawful act. Proceeding from unity of the legal nature of decisions of general meeting of shareholders (after all on all decisions obshego shareholder meetings extend one and the hardware of norm of the law) it is necessary to recognise, that wider understanding of the juridical fact, though and not ideal a variant of the decision of a problem, but, similar, most comprehensible way out. Thus, despite "sdelkopodobnost" decisions of general meetings of shareholders, it is necessary to agree with position B.C. Ema which in classification of juridical facts to corporate certificates takes away a special place as a part of civil-law certificates, along with transactions. The letter of the law and dogmas of jurisprudence about subject structure, an autonomy of will and the principle of unanimity as konstituirujushchih transaction signs, do not allow to consider the decision of general meeting of shareholders as the transaction, including multilateral.
<< | >>
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

More on topic § 1 Legal nature of the decision of general meeting of shareholders:

  1. § 3. The bases of a recognition of the decision of general meeting of shareholders not having a validity
  2. § 4. Consequences of a recognition of the decision of general meeting of shareholders void
  3. a Circle of persons, having the right to challenge the decision of general meeting of shareholders.
  4. Decision-making on the questions which have been not included in the agenda of general meeting of shareholders.
  5. Carrying out of general meeting of shareholders or acceptance the decision for lack of quorum.
  6. § 5. Ilpaвo vessels to leave obzhaluemoe the decision of general meeting of shareholders in force
  7. Chapter 2: the APPEAL of the DECISION of GENERAL MEETING of SHAREHOLDERS
  8. § 4. The Legal mechanism of convocation of general meeting of shareholders
  9. § 3. Actual legal questions of preparation of general meeting of shareholders
  10. § 5. An order of carrying out of general meeting of shareholders: legal questions
  11. General meeting of shareholders EK
  12. misuse of right on participation in general meeting of shareholders.
  13. falsification of results of general meeting of shareholders.
  14. § 1. General meeting of shareholders