<<
>>

breach of law of the legal person on management of internal affairs from the third parties.

Concerning joint-stock company application of the special right («the gold action») without established zakonsm the bases is possible. Protection of the rights of joint-stock companies in that case can be carried out in the form of contest nenormativnogo, established the granted special right, in a recognition illegal actions of the state formation in the name of the corresponding body realising the special right, and in the form of compensation of the losses caused to a society as a result of illegal decisions (actions).

The federal arbitration court of the Ural district in February, 2007 recognised as ceased action of the special right.

Applied concerning Open Society «the Ufa factory elastomernyh.materialov, products and designs» Government Bashkirii1.

In this connection, on May, 4th 200? Year the Government of Bashkiria has published the decision about cancellation of "the gold action», however on June, 6th the same year the prime minister of republic the new decision has actually renewed action of the special right in the relation общества2.

The decree about cancellation of "the gold action» means, that are absent actual and legal grounds for restriction of the rights of joint-stock company. The repeated establishment of the granted special right once cancelled by court, is gross violation of the rights of joint-stock company on an administrative office.

Upon unreasonable application of "the gold action» in Republic Bashkortostan Arbitration court Open Society «Ishimbajsky machine-building factory» has addressed. The claimant asked prizna '.ъ illegal actions of the respondent, State committee of Republic Bashkortostan on management of a state ownership, on use of the special right «gold action» concerning joint-stock company and about cancellation of the right the "veto" applied to the decision obshego of extraordinary shareholder meeting from 20.04.2001

In satisfaction of claims it has been given up. Cancelling the award, Presidium YOU the Russian Federation has specified in necessity of research of a question on cancellation of the granted special right entered from the moment of registration of a society of 01.02.1994 for a period of three years.

Also the arbitration court argument about nepodvedomstven has been dismissed to bear to requirement arbitration court about a recognition void actions on use by the respondent of the right "veto",

1 postaiomlenie FAS the Ural district from 06.02.2007 on business № Л07-6695/06//Union of Right Forces the Adviser Arbitration: FLS all districts.

7 Businessmen 23.06.2007. № IOS. http://www.kommcrsant.ru.

Connected with the requirement about a recognition wrongful actions but to use of "the gold action» [331].

Estimating the demands made by the claimant, it is necessary to note a number of the remedial infringements admitted at definition of the subject of action. The claimant asked to recognise as illegal actions of the state formation and, simultaneously, to cancel the right "veto". Such way of protection of the civil rights as "right" cancellation to the civil legislation is not known.

Though the granted special right represents publicly - legal restriction of activity of joint-stock company, it is realised nanosecond in a direct administrative order, but taking into account features of decision-making in joint-stock companies.

Therefore depending on a situation it can be applied pekovoj an order of protection of the right or the procedure io to affairs from public legal relations.

In the considered business actions on application of the right "veto" on general meeting of shareholders were challenged, the general has been therefore correctly chosen claim an order of protection of the rights of joint-stock company. In kachestzs the subject of action it was necessary to specify a recognition illegal actions of the respondent on application of the right "veto" on general meeting of shareholders.

It is impossible to demand cancellation of the right the "veto" applied by a pas general meeting. Application of the right "veto" is one of possible actions of representatives of the state formation at realisation of "the gold action». Instead, follows-demand recognitions illegal actions, including application of the rights; t "veto".

Also the joint-stock company, whose rights are broken, can demand annulment not standard or the normative act by which the special right «the gold action» is established.

As an example it is possible to result Open Society statement «Cheboksary factory of building materials» for a recognition invalid separate positions of standard legal acts of the Cabinet of the Chuvash Republic by which concerning a society the special right of "the gold action» has been provided, accepted to consideration by the Supreme Court Chuvash Республики*.

In an another matter the Presidium YOU the Russian Federation has upheld the decision of appeal instance of Arbitration court of Omsk area by which the order of the Head of administration of Omsk area and the order of Committee on management of property of Omsk area from 23.02.2000 have been nullified, established special right («the gold action») on participation of Omsk area in management of joint-stock company «Omsk factory metallokonstruktsy».

The presidium the Russian Federation has noticed YOU, that period of validity of "the gold action» in a society has expired 09.03.1997, and in these conditions an establishment of a special order of management of joint-stock company, including by introduction of the special right («the gold action») on participation in management, nanosecond is based on законе2.

The award of of Moscow from March, 14th, 2003 recognises void positions of some the governmental orders of the Moscow which has unreasonably renewed «the gold action» after provided by the legislation grehlegnego term in Open Society «House-building combine № 2» \

According to paragraph 2 of item 13 GK the Russian Federation in case of a recognition certificate court void the broken right comes under to restoration or protection by the different ways provided by item 12 GK the Russian Federation.

In particular, the requirement can be declared the indemnification. The losses caused legal linden as a result of illegal acts (inactivity) of the state bodies or officials of these bodies, including editions mismatching the law or other legal act of the certificate of the state body, come under to compensation by the Russian Federation or corresponding subject of the Russian Federation (item 16 GK the Russian Federation).

The facts illegal also it is unreasonable nogo applications of "the gold action» in which result the rights have been broken, legitimate interests of joint-stock company or its shareholders and were losses are caused it is possible to consider from common positions of the _razhdansko-legal tort liability, caused by the state bodies and their officials (item 1069 GK the Russian Federation).

The presentation of requirements on the basis of item 16 and item 1069 GK should be distinguished the Russian Federation from requirements which it is possible to show on the basis of item 6 of item 71 FZ about the joint-stock company, fixed responsibility of representatives of the state go municipal union in board of directors (supervisory board) along with other members of board of directors (supervisory board) of open joint-stock company.

The representatives of the state who are carrying out the special right («the gold action»), do not answer positions of item 1 of item 71 FZ about joint-stock company. Requirements of conscientiousness and a rationality of actions of members of bodies of joint-stock company concern, first of all, enterprise activity of a society. To operate honesty and reasonably means to operate in statutory frameworks with a view of reception by a society of the maximum profit, avoiding unreasonable risk.

Unlike other members of board of directors, representatives of the state formation by the special right (to "the gold action») protect, first of all, public interests, and can often pursue others, rather than achievement of profit, the purpose.

In some cases actions and decisions of such representatives can contradict interests aktsionernoju societies, whereas about »: also urged to protect not private, but public (state) interest.

The analysis of the affairs resulted above shows, that at an estimation of legality of use in joint-stock companies «gold action» courts are guided by such formal criteria, as period of validity, an order of fastening of the special right, the competence of the state bodies on decision-making on use of "the gold action».

At the same time, nanosecond courts try to state an estimation to the nature of the given institute. Realisation of "the gold action» with observance of requirements to the form of joint-stock relations does not change the public nature of the granted special right. The estimation of "the gold action» as the mechanism of restriction of corporate franchises, forces us to consider such features of its application which are not characteristic for usual joint-stock relations.

So, on one business the decision of board of directors of joint-stock company on increase in the charter capital by placing of the additional actions, accepted for lack of the representative of the state in board of directors has been recognised by void. Thus courts of three instances have dismissed an argument of the respondent - joint-stock company that from coming into force of the Law on privatisation «the gold action», entered on the basis of become invalid Law on privatisation of 1997, cannot be used, since from a state ownership is aloof less than 75 % of actions of joint-stock company (item 5 of item 38 of the Law on privatisation) '.

1 Decision FLS of district Moskovskoju from 29.06.2004 № КГ-А40/54О4-С4//Union of Right Forces the Adviser Arbitration: FAS all districts.

As it has been specified above, at an estimation the relation of the parties the court was guided by formal criteria (period of validity of "the gold action» and the method of adoption of the decision on its termination).

Estimating «the gold action» as the tool of restriction of the rights legal.піца an administrative office, it is necessary to consider a pas, that the legislator has the right both to toughen such restrictions in the presence of good causes, and to improve a legal status of persons, whose rights are limited.

At the permission of the given case the court has not taken into consideration that circumstance, that law in force positions about privatisation are more preferential for joint-stock companies in which «the gold action» is used, in comparison with earlier operating Law on privatisation of 1907.

Specifying, that action of "the gold action» is connected with alienation from the property of the Russian Federation or the subject of the Russian Federation more than 75 % of actions, the legislator has actually equated the given institute to a blocking share holding at a rate of 25 % of the charter capital of joint-stock company. From coming into force of the novel about privatisation «the gold action» the nanosecond should be used, have sat down the state is aloof less than 75 % of actions of joint-stock company.

<< | >>
A source: Kosjakin Cyril Sergeevich. the RIGHT of the LEGAL PERSON FOR MANAGEMENT of INTERNAL AFFAIRS. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2008

More on topic breach of law of the legal person on management of internal affairs from the third parties.:

  1. 2.2 is obligatory. Civil-law restrictions of the right of the legal person on management of internal affairs
  2. §2. A substantiation of customs of the legal person on management of internal affairs as independent right
  3. infringement of requirements of the legislation from the party samoju the legal person — the owner of the right to management of internal affairs
  4. Chapter 3. Civil penalties for infringement of customs of the legal person on management of internal affairs. A consequence realisation of the given customs with infringement of requirements of the legislation legal lipom
  5. Kosjakin Cyril Sergeevich. the RIGHT of the LEGAL PERSON FOR MANAGEMENT of INTERNAL AFFAIRS. The dissertation on competition of a scientific degree of the master of laws. Moscow -, 2008 2008
  6. 2.1. Public restriction of subjective customs legal lina on management of internal affairs
  7. THE APPENDIX № 3 EXPLANATORY NOTE TO THE PROJECT OF THE ORDER OF THE MINISTRY OF INTERNAL AFFAIRS OF RUSSIA «ABOUT MODIFICATION OF THE STANDARD LEGAL ACT OF THE MINISTRY OF INTERNAL AFFAIRS OF RUSSIA»
  8. Ways of perfection of legal bases of the organisation of law-enforcement activity to territorial bodies of the Ministry of Internal Affairs of Russia at regional level
  9. the Chapter I. The right to management of internal affairs as the organisation right
  10. §3 Interaction of forces and means of law enforcement bodies, power structures, bodies and divisions of the Ministry of Internal Affairs of the Kirghiz Republic with public associations under the prevention and suppression of internal excitements and disorders
  11. COMMISSIONERS Alexey Valerevich. LEGAL PRINCIPLES of ACTIVITY of INTERNAL ARMIES of the Ministry of Internal Affairs of Russia (TEORETIKO-LEGAL ASPECT). The DISSERTATION on competition of a scientific degree of the master of laws. St.-Petersburg - 2015, 2015
  12. Chapter 2. Restriction of the corporate franchise on management of internal affairs
  13. §2. Kinds of restrictions of customs of management of internal affairs on the purpose of their establishment
  14. CHAPTER 1. TEORETIKO-LEGAL BASES of ACTIVITY of the Ministry of Internal Affairs of the KIRGHIZ REPUBLIC UNDER the PREVENTION And SUPPRESSION of INTERNAL EXCITEMENTS And DISORDERS