<<
>>

§ 1.4. Development of the modern Russian legislation and zaruyobezhnyj experience of legal regulation of relations of an economic subordination of legal bodies

By consideration of the basic problems of legal regulation of affiliated and dependent economic societies it is necessary to track development rossijyoskogo the legislations, the concerning outlined circle of questions.

Allocation of certain stages of development of legal regulation ekoyonomicheskoj conditionally enough also carries subordinations of legal bodies, first of all, pravoprikladnoj, but completely not historical character.

The first stage of development of the Russian legislation directly is connected with objective necessity of reforming is command-management system managements of an economic complex of the country and gradual pereyohodom to market relations in economy. The legislator had been at that time passed laws on separate rather important spheres of civil-law regulation: the Law on cooperation in the USSR 1988, Fundamentals of legislation about rent of 1989, the Law on the property, in the USSR and the Law on the enterprises in the USSR 1990

According to the Decision of the Supreme body of the USSR from 01.04.1991 № 2074-1 «About introduction in operation of law of the USSR« About the list miniyosterstv the USSR »’ to Ministerial council of the USSR was entrusted to spend within 1991 92 of work on the organisation of the state corporations, concerns, holyodingov, economic associations, joint-stock associations (societies), druyogih structures of market type on the basis of operating state bodies and the organisations. The given Decision has served, in our opinion, as a harbinger of the beginning of realisation of legal regulation of an economic subordination of managing subjects.

For the first time the Law of the USSR from 04.06.1990"About the enterprises in the USSR» (item 7) preyodostavil to the enterprises the right «to create branches with the corporate franchise». In the law concept definition «affiliated predyoprijatie», the meaning subordinated, under control enterprise is not made. In otnosheyonii the supervising enterprise is absent not only definition, but also a mention. It is only possible to draw a conclusion that along with creation of dependent structural divisions - branches and representations - the right to create the structures using corporate franchises [135 [136] was given to legal bodies.

The law of RSFSR from 25.12.1990 «About the enterprises and enterprise activity in RSFSR» (further - the Law on the enterprises) [137] does not use ponjayoty "branch" or "associated company". But according to Law item 13 the unions, associations, concerns and similar to them of "association of the enterprises» «on a contractual basis with a view of expansion vozyomozhnostej the enterprises in industrial, scientific and technical and sotsialyonom development» could be created, thus bodies of associations of the enterprises did not possess raspoyorjaditelnoj the power concerning the enterprises entering into these associations.

It is considered, that specified article became a starting point for occurrence strukyotur holding type, financial and industrial groups and other similar associations [138].

In connection with the outlined tendency of application of named article (item 13) at which bodies of associations actually acquired the right on rasporjayozheniju the state-owned property, founded and liquidated predpriyojatija, the Supreme body of RSFSR has accepted the Decision from 11.10.1991 № 1737 1 «About streamlining of creation and activity of associations, concerns, korporayotsy and other associations of the enterprises in territory of RSFSR» [139].

In postanovyolenii, in particular, it has been noticed, that the legislation of RSFSR defines a management order the state and municipal property, and also an order of creation of associations, concerns, corporations and other associations of the enterprises.

For this stage essential value had the Decision of Ministerial council of the USSR from 19.06.1990 № 590, the approved Position about aktsioyonernyh societies and societies with limited liability and Position about securities [140]. It was established, that joint-stock companies and obshchestyovami with limited liability the organisations created under the agreement by legal bodies and citizens by their association vklayodov with a view of realisation of economic activities admit. Societies are legal bodies, the enterprises, establishments, the organisations, the state bodies, and also citizens can be their participants. It was established also, that the society can be the participant of other society.

In appeared simultaneously with the Law on the enterprises Position on the joint-stock companies, approved the decision of Ministerial council of RSFSR from 25.12.1990 № 601 [141], had been made definition of the associated company,
What the joint-stock company in which 50 % akyotsy plus one are got admitted. The affiliated joint-stock company operated as samostojayotelnaja the commercial organisation, and its relations with the main shareholder were under construction on the basis of Position if other is not defined by the charter. Such obrayozom, in Position on joint-stock companies the conceptual device is a little expanded. Except concept "associated company" the concept «the main thing aktsioyonera» is given, and Position points 149-151 are devoted their mutual relations.

In the literature separate norms of Position have caused some question: in what difference of affiliated joint-stock company from ordinary joint-stock company, what status of its shareholders in comparison with shareholders materinyoskogo societies? As E.A.Sukhanov truly underlined: «Unfortunately, even from such the operating Russian legislation is far faultless definition of the associated company does any conclusions, recognising the associated company absolutely independent commercial organisation. Thereby the concept of the associated company loses any legal sense. HuYOzhe that, for a parent society all remain for a long time known predyoprinimatelskoj to practice of possibility of abusing by the gospodstvujuyoshchim position» [142].

A little later in the Law of RSFSR from 04.07.1991 «About foreign investments into RSFSR» [143] there is a mention of branches of the enterprises with foreign investments. Thus conditions of creation of such enterprises are specified is rather inconsistent. In one case as them uchyoreditelja the Russia created and operating in territory predpriyojatija, (items 12) completely belonging to foreign investors, in other - the enterprises with foreign investments (items 21) which are among themselves in rodovidovom a parity are named. Practical applicability of these norms as some authors mark, remained zero, for a creation order docheryo
Them the enterprises has been focused on the general provisions of the Russian legislation concerning branches [144] absent at that moment.

The situation has not cleared up and after in Russia from 03.08.1992 Bases of the civil legislation of USSR and resyopublik (further - Bases of the civil legislation) [145] though the problem doyochernego the enterprises in a general view has received the certain permission have been installed. SoYOglasno item 2 of item 22 of Bases of the civil legislation the branch is created as the legal person by other enterprise based on the right of full economic conducting, by transfer to it a part of the imuyoshchestva in full economic conducting. Differently, in this case one unitary enterprise-nesobstvennik creates other unitary enterprise - nesobstvennika, transferring to it a part of the property in the "secondary" right of economic conducting.

In essence the legislator, showing care about state and muyonitsipalnyh the enterprises which are not participating in process of privatisation, predosyotavil it possibility to allocate «on independent balance» the strukturyonye the divisions which have been not connected directly with the basic manufacture (stroiyotelnye, transport sites, subsidiary agriculture, etc.).

The further stage of development of the Russian legislation mediates process of large-scale privatisation of objects state and muniyotsipalnoj properties in the country which has entailed process active aktsionirovanija the enterprises. By data. Goskomstat of the Russian Federation for 1993-1998, during privatisation in Russia there were almost 4700 joint-stock companies with this or that form of participation of the state in the capital [146].

Features of creation and legal status of joint-stock companies at privatisation of the state and municipal enterprises were defined:

The law of RSFSR «About privatisation state and municipal predyoprijaty in RSFSR» [147], Decrees of the President of the Russian Federation, including from 01.07.1992 № 721 «About organizational measures on transformation state predyoprijaty, voluntary associations of the state enterprises in aktsioyonernye societies» [148], 24.12.1993 № 2284 «About a government program priyovatizatsii the state and municipal enterprises in Russian FeYOderatsii» [149], and also decisions of the Government of the Russian Federation concerning privatisation goyosudarstvennyh both the municipal enterprises and corresponding normativyonye the certificates of other federal bodies published within their competence [150].

In the Decision accepted on June, 11th, 1992 № 2980-1 «About introduction in action of a government program of privatisation state and muniyotsipalnyh the enterprises in the Russian Federation for 1992» [151] Supreme SoYOvet the Russian Federation has established, that creation of joint-stock companies in the form of the holding companies owning controlling interests doyochernih of joint-stock companies, created on the basis of state or muyonitsipalnyh the enterprises (and also the enterprises, more than 50 % authorised kapitayola which are in state and (or) municipal sobstvennoyosti), it is supposed at the positive decision of labour collectives docheryonih joint-stock companies, except for cases of creation of the holding companies on the instructions of the Government of the Russian Federation.

Point 5.1. Programs [152] established, that the concrete way privatizayotsii the enterprises is defined by corresponding committee on management of property by results of work of the commission on privatisation, creation of joint-stock companies of the closed type thus was not supposed at preobrazovayonii the state and municipal enterprises.

Also creation of joint-stock companies (including holyodingovyh the companies) on the basis of concerns, the unions, associations and others obediyoneny the enterprises into which structure enter state (munitsipalyonye) the enterprises, except for cases of their reduction organizatsionnoyopravovoj forms in conformity with the legislation of Russia was not supposed.

In Position about the Russian fund of federal property [153] which was defined as the non-governmental body owning, disposing and operating the property of RSFSR which are in its conducting, and osushchestyovljajushchy its privatisation, among other functions of fund was called such, as the right to exchange the belonging RSFSR actions of joint-stock companies on akyotsii investment funds and the holding companies.

On November, 16th, 1992 the Decree of the President of Russian Federation Ha 1392 «About measures on realisation of an industrial policy has been accepted at privatisation goyosudarstvennyh the enterprises» [154] by which it has been approved «Time polozheyonie about the holding companies created at transformation gosudarstvenyonyh of the enterprises in joint-stock companies» (further - Time position). In particular, item 1.1. Time position has defined the holding company as the enterprise, irrespective of the organisation-legal form, the structure akyotivov which includes controlling interests of other enterprises. In the
Turn, the enterprises which controlling interests are a part akyotivov of the holding company are called as "affiliated".

Thus, under the holding company the legislator meant derzhatelskuju the organisation owning controlling interests druyogih of the organisations which thus became affiliated.

Time position provided creation of holdings at preobyorazovanii the large enterprises with allocation from their structure structural podyorazdeleny as legally independent (affiliated) enterprises, and also at association of share holdings legally independent predpriyojaty or at establishment of new joint-stock companies.

Time position discriminated the holding company and the financial holding company. The financial holding company the holding company admitted, more than 50 which % of the capital constitute securities of other emitters and other financial actives. The structure of actives of the financial holding company could include only securities and others finansoyovye actives, and also the property, necessary is direct for obespecheyonija functioning of management personnel of the holding company.

In item 5.1. Time position for the first time there is a definition «poyogloshchenija one enterprise another» which occurs at acquisition of a controlling interest by the last of the first. Thus absorbing predyoprijatie admits the holding company (if it had no place earlier), and absorbed - its branch.

Time position operates in a part not contradicting GK the Russian Federation as the concept "holding" is left by the Russian legislator without appropriate attention (GK the Russian Federation, laws in force about economic societies do not apply this concept). Though in practice it is widely used. In this or that form the holding organisation of corporate activity now hayorakterna for many Russian enterprises.

One more definition of holding has been given in item 4 of the Law of RSFSR from 02.12.1990 № 395 1 «About banks and bank activity» (further - the Law on banks) [155]. Owing to named article holding was the credit organisation which owing to prevailing participation in the charter capital of one or neyoskolkih the credit organisations or according to the prisoner with one or several credit organisations the contract has an opportunity to define the decisions accepted by the specified credit organisations. Thus, in this case it is possible to tell, that the holding represents the basic and affiliated societies (as the credit organisation can sozdayovatsja only in the form of an economic society) in which the basic society has possibility to define the associated company decision precisely on the basis of prevailing participation in it or on the basis of the contract.

The following stage of development of legal regulation of relations ekonoyomicheskoj subordinations of legal bodies should be connected with acceptance of such federal acts as the Civil code of the Russian Federation 1994 [156], the Federal act from 25.05.1995 № 83-FZ «About modification and additions in the Law of RSFSR« About a competition and restriction of monopolistically activity in the commodity markets »[157] and the Federal act from 30.11.1995 № 190-FZ« About finansovoyopromyshlennyh groups »(further - the Law about FPG) [158].

The federal act from 25.05.1995 № 83-FZ Law item 4 about konkurenyotsii has been added by concept a group of persons and item 18 «the State control over antimonopoly law observance at acquisition of actions (shares) in the charter capital of the commercial organisations and other cases» priyovedena in current edition.

The specific variant of association industrial and financial kayopitala is offered in the Law about FPG. At legislative level are defined from -

Carrying «the core - the associated company» as a basis for integration of the organisations.

And the Law on Open Company which in development of articles 105 and 106 GK the Russian Federations contain occurrence of the Law on joint-stock company of position about affiliated and dependent societies (stayoti 6 laws) as it was already marked, have brought the small contribution to development konyotseptsii legal regulation of an economic subordination of legal bodies.

To the positions important for the considered theme, it is possible to carry item 91 «Granting by a society of the information to shareholders», item 92 «Obligatory publication by an information society», item 93 «the Information on affiliated persons of a society», item 78-84 regulating rules soveryoshenija the large transaction and the transaction in which fulfilment is available zainteresovanyonost the Law on joint-stock company, item 45 «Interest in fulfilment by a transaction society» and item 46 «Large transactions» of the Law on Open Company. The specified positions sluyozhat to protection of interests of shareholders (participants) of an economic society, including, being at decision-making in minority.

On May, 6th, 1998 and additions changes have been made to the Law about konkuyorentsii in which result there was a standard definition of concept "affiliated persons" and the concept "group of persons" of sphere antimonoyopolnogo legislations is specified.

And, at last, the part the first the Tax code of the Russian Federation has taken effect. The problem sopodchinenija and coordination of certificates various priyorody also has newly arisen: public and private-law. For example, NK the Russian Federation allocates sreyodi tax bearers «interdependent persons» (item 20). Physical persons concern such persons for the taxation and (or) the organisations, otnoyoshenija between which can make direct impact on conditions or economic results of their activity or activity predstavljaeyomyh them of persons, namely:

When one organisation directly and (or) indirectly participates in other organisation and the total share of such participation constitutes more than 20 %, the share of indirect participation of one organisation in another through posledovatelyonost other organisations is defined in the form of product of shares neposredstyovennogo participations of the organisations of this sequence one in another.

One physical person submits to other physical person on dolzhyonostnomu to position; persons consist according to family zakonodatelyostvom the Russian Federation in marital relationships, relations of relationship or property, the adoptive father and adopted, and also the trustee and sponsored.

The part of second same article provides, that the court can priyoznat persons interconnected for the taxation even in the absence of the bases provided by a part of first this article NK the Russian Federation if otnosheyonija between these persons can affect results of transactions on realisation of the goods (works, services).

In spite of the fact that resulted article is used with a view of nalogoobyolozhenija, it is devoted, including, and to the legal relations arising in svjayozi with an establishment of relations of dependence and the control of legal bodies. OdYOnako it is not absolutely clear, why the legislator enters new legal concept "interdependent" persons. For practical application demands specification that is participation of one organisation in another and that the total share of such participation as these concepts are not defined by the current legislation means.

The analysis of the Russian legislation allows to say that the norms devoted to legal relations of the basic (prevailing) society (association) and an affiliated (dependent) society, and also to the legal relations arising in connection with finding of fact of dependence between them, soderyozhatsja in a number of normative acts, and in each of them the terminology is used. GK the Russian Federation and laws on economic societies contain legal definitions of affiliated, dependent societies in which are fixed most
Essential lines of their legal status, are established bases vzaimodejstyovija and responsibility of affiliated and basic economic societies (tovariyoshchestv), but the specified normative acts do not contain the term defining set of economically interconnected legal bodies. The law about konyokurentsii operates with concepts "group of persons" and "affiliated persons", NK the Russian Federation as it was already marked, uses concept «interdependent persons», the Law on banks [159] - «bank group and bank holding».

Rules about affiliated and dependent economic societies, soderzhayoshchiesja in the operating civil legislation, give most the general predyopisanija which demand the further development and clearness of formulations. As a whole for the concept of effective legal regulation of relations of an economic subordination of legal bodies it is necessary detailed prorayobotka all its components and a coordination of normative acts of a various branch accessory. As in practice, along with blanks in zayokonodatelstve, frequently there is a problem of a combination of private-law and public methods of legal regulation considered otnoyosheny.

For that understanding as the system legal reguliroyovanija relations of economic dependence of legal bodies should be under construction, it makes sense to consider the legislation of industrially developed countries. They have stayobilnoe the detailed legislation which fixs developed, suyoshchestvujushchie already long time organisation-legal forms predpriyonimatelstva. The experience saved up here - result not only achievements zayokonodatelja, but also a considerable series of tests and errors [160].

Let's address to the legislation of Germany and France which legal doctrines are close Russian, and also in respect of comparison we will consider zakonodayotelstvo England and the USA as this legislation is as though twisted in a fabric of Anglo-American legal system with its special logic, ponjatijyonym fund, a precedent role, etc.

As a part of legal bodies of private law of foreign countries the most numerous commercial partnerships subdivided sometimes on authorised and contractual, personal and collective, sometimes with a known share uslovnoyosti commercial partnerships divide into «associations of persons» and «associations kapiyotalov». In the first include full and kommanditnoe associations, in the second - joint-stock company, a society with limited liability and aktsioyonernuju kommanditu [161].

For the clear reasons us the right of societies osnovanyonyh at association of capitals as as the basic legal form funktsioyonirovanija modern large business the joint-stock company serves will interest. OgYOranichennost risk of the shareholder in the sizes of its contribution and alienation freedom akyotsy allow to maneuver the capital, to put it in various aktsioyonernye societies. More often affiliated and dependent corporations exist in the form of joint-stock companies. The legislation on joint-stock companies is no casual in the leading countries kapitalisticheyoskogo the world is the most developed and detailed.

Has historically developed so, that in two classical certificates of codification of a commercial law - the Trading code of France and Trading ulozhenii Germany - the sections devoted to joint-stock companies and societies with ogranichenyonoj responsibility are not present.

Ill

In Germany along with Trading ulozheniem which regulates only three kinds of subjects of economic circulation: the general partnership, komyomanditnoe (§ 105-237 GTU), and the Law on associations with оіраниченной the responsibility, accepted in 1892, operates the Law on joint-stock companies from 06.09.1965 AktsionerYOnyj the law of Germany it would be quite possible to name association, silent (private) association the code, as it soyoderzhit 410 paragraphs broken into five books [162].

Now in France the Law № 66-537 from 24.07.1966 about commercial partnerships which represents the certificate konsolidirovanyonogo legislations operates. It totals 502 articles from which 85 % are devoted joint-stock company [163].

It is important to note presence in German and the French legislation on societies of system of concrete criminal and administrative sanctions. poyodavljajushchee the majority of them concerns the joint-stock right. In these strayonah for a legal regulation of joint-stock company and a society with ograniyochennoj responsibility also keep value many general provisions toryogovogo the rights, and also a number of norms of the Civil codes connected with business, the status of the legal person, etc. [164]

For the first time legalised in 1892 in Germany societies with limited liability have got a wide circulation in the countries the main thing obyorazom continental Europe. The legal system of Anglo-American type starts with presence of a uniform legal figure — the companies in VelikobritaYOnii and corporations in the USA. However there was a requirement to discriminate public societies with the big circle of participants (it corresponds aktsioyonernomu to a society in our understanding) and societies with the closed circle uchast -

nikov and other circle of problems (a society with limited liability). [165] Society with limited liability in England can be sopostavleyono with such version of the companies as the private company. With private kompayoniej the English right in the USA the so-called close corporation legalised by judiciary practice [166] is similar.

To England and the USA the basic source of the joint-stock right is zayokonodatelstvo, the precedent role in legal regulation is insignificant in comparison with a role and value of the law [167].

The operating English Law on the companies has been accepted in 1985 and konyosolidiroval the previous legislation in this area. It is the greatest on volume the law on the companies for all five-century history of the joint-stock right of England. The law consists of 747 articles meted by 27 parts and 25 appendices [168].

The English Law on the companies contains the norms concerning uchrezhdeyonija, company registrations, transformations of the companies of one kind to the companies of other kind, issue of securities, distributions of profit, the reporting. It in details regulates questions of merge, division and liquidation of the companies, and also relations between parent and affiliated компаниями1.

In conditions all amplifying process of internationalisation proizyovodstva and the capital the legal form of joint-stock company is applied not only in national, but also in international frameworks, first of all within the limits of the European economic community. Joint-stock zakonodatelyo
stvo, accepted in EUROPEAN ECONOMIC COMMUNITY member countries, reflects results of work spent within the limits of Community on legal regulation unification aktsioyonernyh societies.

In the USA the corporate legislation form mainly zayokony separate states about enterprise corporations. Federal zayokonodatelstvo regulates activity of corporations indirectly, through a regulation of activity of monopolies and a competition, by regulation of a turn of securities. Especially it is necessary to note the Law on enterprise corporations of the State of New York from September, 1st, 1963 and the General law about korporayotsijah the State of Delaware 1967 most full reflecting the tendencies korporayotivnogo of the right of the USA [169 [170].

The legislation on enterprise corporations in states rather extensively. Besides general laws about enterprise corporations imejutyosja, as a rule, separate laws on incorporation of banks, insurance, transyoportnyh the companies, etc. the Legislature of states has the laws on regulation of release and sale of share papers and antitrestovskoe zakonoyodatelstvo. The big attention to enterprise corporations is given also by constitutions of states [171].

As well as to England, great value among sources of the joint-stock right of the USA judiciary practice occupies. It is necessary to notice, that many polozheyonija acts of these countries were, as a matter of fact, fastening predsheyostvujushchej judiciary practice.

First, now it is exclusive decisions of vessels reglayomentiruetsja a number of the essential conditions defining a legal status koryoporatsy. To them, in particular concern a recognition of corporations actual legal bodies, possibility of ignoring of the juridical personality
Corporations, an establishment of legal features in position closed koryoporatsy, area of confidential relations of directors and managing directors with koryoporatsijami in which they occupy corresponding posts.

Secondly, in decisions of vessels interpretation operating zakoyonodatelstva about corporations is given. The American courts have the right to check constitutionality of laws applied by them [172].

The review of sources of the joint-stock right of foreign countries, according to M.I.Kulagin, allows to say that the joint-stock legislation javyoljaetsja the basic source of the joint-stock right in all countries. AktsionerYOnye laws began to carry in much bolshej degrees imperative harakyoter, it frequently complex certificates where though norms of private law prevail, but is frequent in them norms various branch prinadlezhyonosti [173] contain.

Development in foreign countries of the legislation on legal bodies results, according to M.I.Kulagin, to falling of a role constituent dokuyomentov (charters, memorandums). The matter is that the increasing number of the parties oryoganizatsii and activity of legal bodies is regulated imperative poyolozhenijami laws and the subordinate legislation, instead of the rules formulated in these documents [174] that testifies to intervention strengthening gosudaryostva in process of formation of economic societies by strengthening imperayotivnyh the beginnings in this area, and also through expansion of control functions of a various sort of the state bodies behind a course of formation of societies, through judicial review expansion behind creation and activity of economic societies.

The legal instructions interesting us first of all, concerning economically dependent legal bodies, contain, as a rule, in aktsioyonernom the legislation of the specified countries.

The legal instructions regulating the relations with participation of dependent and dominating societies, address legislations of one countries materinyoskim, to the affiliated, supervising companies. In other countries, for example in Germany, there is a generalising legal regulation internal otnosheyony in group of societies economically connected among themselves or «the connected enterprises». It is the book of III Law on joint-stock companies of Germany 1965

In any case it is a question of relations of economic societies, poyostroennyh on the basis of a subordination, except for legislation GermaYOnii considering associations of corporations as vertical, and goyorizontalnogo of type, based on the coordination beginnings.

Key concept for the characteristic of relations of vertical type is the concept the control. The economic precondition of existence konyotrolja over activity of legally independent societies is the system of participations (we already spoke about it above when defined signs of affiliated and dependent societies). It does not exclude also other forms economic zaviyosimosti the companies, but all of them have auxiliary character. Therefore the legislator, making definition "supervising", "parent", "gosyopodstvujushchego" or a "dependent", "affiliated" society always uses criterion of possession the capital, specifying it with quantitative and from the qualitative party [175].

The country example which legislation does not result the general opreyodelenija group, and contains the positions addressed "parent" and "doyochernim" to the companies, England is.

In England the concept "affiliated firm" has been used for the first time in the Law on the companies of 1929, it was deduced from participation in the company capital. Then in edition of the Law of 1948 the accent has been made already on management (control) as a determinative of mutual relations «the parent company - affiliated
Firm ». In this law the treatment of the control as imperious means to appoint or displace all or the majority of directors of firm without them soglayosija or coordination with somebody has been given.

According to the Law on the companies of 1948 the company is considered affiliated if one of following conditions is carried out:

- More than half of face-value of the share capital nahoyoditsja in possession of other company;

- The company is affiliated concerning that company which in turn is affiliated company of the third company;

- The meeting of board of directors is supervised by the company, which javljayoetsja a member of this council.

The law on the companies of the Great Britain was repeatedly corrected with tseyolju rapprochements of the English legislation on the companies and the legislation operating in the countries of the European community [176].

Last known definition of affiliated company contains in reyodaktsii the law 1989 [177] According to item 144 of the Law on the companies of the Great Britain: «One company (is affiliated company of other company (), javyoljajushchejsja in relation to it holding if one of following four conditions is executed at least:

1. () possesses the majority vote in ();

2. () is the participant () and has the right to appoint and dismiss the majority of members of board of directors of the company ();

3. () is the participant () and carries out according to soglasheyoniem with shareholders or participants of the company () the control over the majority vote in ();

4. () is affiliated company of any company, which in turn is company affiliated company () ».

In comparison with the previous edition the article resulted above has been changed on two substantive provisions.

First, earlier definition leant against quantity of shares which the parent company in the affiliated owned; in a new wording - on presence of the majority vote at the parent company in affiliated.

Secondly, change has concerned concepts of the control over council direktoyorov. Earlier parent company should supervise formation of board of directors of affiliated company. In a new wording parent kompayonija has the right to appoint or dismiss the majority of members of council direktoyorov affiliated company [178].

Besides, in 1989 in the Law on the companies the concept mateyorinskoj the companies which completely owns affiliated (wholly owned subsidi­ary) has been entered. It is considered, that the parent company completely owns affiliated if all members of affiliated company consist as well members parent kompayonii [179].

According to item 23 of the Law on the companies the legal body cannot be a member of the company which is its holding company; and any otyochuzhdenie or a concession of shares of the company of the affiliated company are neyodejstvitelnymi. It does not stir affiliated company which for July, 1st, 1948 was a member of the holding company, to continue to remain its member; but the affiliated company has no vote at meetings holdingoyovoj the company or any class of its members [180].

In English judiciary practice the affairs connected with vzaiyomootnoshenijami, the arising between parent and affiliated companies is extremely difficult. [181]

Courts always «raised a veil» from the companies in those affairs in which the separate juridical personality of the company was used moshennicheski. Thus the group of the companies was often considered as one legal body and usually «the veil rose» from affiliated company.

In such cases to the questions which have been not settled by the statute law, the principles formulated still in 1939 in business Smith, Stone and Knight Birmingham Corp were applied.

That «to raise a veil» from affiliated company, in opinion suyoda, followed establish:

Whether there was a profit received by affiliated company, actually priyobylju the parent company?

Whether the persons who are carrying out business in affiliated company, were appointed the parent company?

Whether was the parent company «a head and brains» affiliated komyopanii?

Whether the parent company over business affiliated supervised, whether decided, what last should do and what capital to use?

Whether the affiliated company received profit by means of knowledge and experience of the parent company?

Whether the parent company had the effective and constant control over affiliated company?

At reception of positive answers to the put questions both companies, most likely, would be considered by court as one legal body. However it is necessary to notice, that judiciary practice on such affairs is extremely inconsistent.

The company admits supervising the right of the USA other company or bank, if it: expressly or by implication owns, supervises or possesses more than 25 % of voices; or carries out the control over majority elections diyorektorov or appointment of trustees; or it is recognised motiyo
virovannym definition of board of governors Federal reserve sisyotemy (FRS), rendering expressly or by implication «supervising influence» on management or decision-making (subitem 2 of the item "and", item 1841 of section 12 of the Arch zakoyonov the USA, i.e. The law about bankovyh the holding companies of 1956) [182].

The law on commercial partnerships of France from 24.07.1966 in item 354 rasyosmatrivaet association as branch {affiliated company) of another tovarishcheyostva if the last possesses more than half of capital of the first. And soyoglasno item 355 if one association owns from 10 to 50 % of the capital of other association the first association is considered as having participation in the second [183].

Later edition of the Law on commercial partnerships (from July, 12th, 1985) operates with concept "control" and defines it more widely: [184]

According to item 355-1 the association is considered as supervising another in three cases:

1) if it expressly or by implication owns the part of the capital giving to it the majority vote on general meetings of this association (the vote control);

2) if it possesses the majority vote in this association owing to the agreement which is concluded with other participants or shareholders and does not contradict interests of association (the joint control);

3) if it actually predetermines by means of voices, which nayohodjatsja in his hands, decisions of general meetings of this association (fakticheyosky the control).

This form of the control means, that the first association has in the second expressly or by implication a vote exceeding 40 %, and any
Other participant or the shareholder does not own expressly or by implication more znachitelyonoj a share of voices.

And presence of the controllable capital less than 40 % should be doyokazano, from above - it is meant ’.

Item 355-2 contains concept specification «the indirect control»: Any participation, even is less than 10 % which the controllable association possesses, it is considered participation which the supervising association indirectly owns.

Thus, under the French legislation the control of one toyovarishchestva over other association is established as a result of possession expressly or by implication, and also according to the concluded contract, bolyoshinstvom voices on general meeting of the last or as a result vozmozhnoyosti actually to define the decisions accepted on general meeting kontroyoliruemogo of association.

The richest legal experience in regulation of relations ekonomicheyoskoj dependence and the control of legal bodies, perhaps, was saved up by Germany.

The joint-stock law of Germany contains definition of the connected enterprises 1965. The connected enterprises represent the legal form of association of legally independent enterprises and are «sobirayotelnym concept» which includes five versions of the connected enterprises.

It is necessary to be reserved, that the enterprise in the German right is «prayovovym the addressee», but not the subject of law. Differently its value can be defined only from a context of norm of the law in each concrete case. [185 [186]

According to § 15 Joint-stock laws are considered as [187] connected such juriyodicheski the independent enterprises, when

First, one of them is in prevailing possession, and another has prevailing participation in it. That according to § 16 means sleyodujushchee: if one enterprise posesses the majority of share shares of other legally independent enterprise, this last rassmatyorivaetsja as being in possession of the first. If one enterprise posesses the majority vote, granting the right to management of another juriyodicheski the independent enterprise the last is considered as operated under the majority vote.

Secondly, when one enterprise is dependent, and another golovyonym or dominating. Dependent it agree § 17 is legally samoyostojatelnoe the enterprise which is under direct or indirect opredeyoljajushchim with influence other enterprise (headquarters plant). predpolagayoetsja, that the enterprise in which other enterprise has the majority of shares, is dependent on this second enterprise.

Thirdly, when the enterprises are a part of concern (§ 18); fourthly, when the enterprises are connected by mutual participation, agree §

19 mutually participating the enterprises having the form of the commercial partnership with a site in the country which are connected between soyoboj are considered in such a manner that to each of them belongs more the fourth part of share shares of other enterprise.

Fifthly, when the enterprises are the parties of the enterprise contract (§ 291, § 292).

Version of the connected enterprises is the concern.

§ 18 Joint-stock laws are treated by concern as follows: 1. EsYOli the head and one or several dependent enterprises are consolidated under a uniform management of headquarters plant they form concern; predyoprijatija become the concern enterprises. The enterprises which are under a uniform management, the enterprises which have concluded the contract podyochinenija (§ 291), or the enterprises from which one is included in another (§ 319) are considered.

It is supposed, that the dependent enterprise forms with head predprijatiyoem concern.

2. If independent in legal relations, and also the enterprises independent from each other the uniform management, they also obrazuyojut consolidates concern; the enterprises become the concern enterprises.

Thus, each of four forms of the connected enterprises can form the basis for an establishment of presence of concern.

Paragraph 1 § 18 Joint-stock laws makes definition subordinatsionnogo or vertical concern, and paragraph 2 — concept equal in rights or gorizonyotalnogo concern.

The basic defining sign of concern is uniform rukovoyodstvo. In vertical concern the dominating enterprise carries out ediyonoe a management concerning the dependent enterprises, and in horizontal concern the enterprises equal in rights carry out a uniform management in otyonoshenii themselves.

The uniform management can be defined as the relation between concern and the concern enterprises where the concern defines decisions of the enterprises (plans their actions) in the field of acquisition, manufacture and sale, and the concern enterprise execute these decisions on the basis of will of concern or indirectly established will refracted through interests konyotserna. The essence of concern - economic unity, and a uniform management is display of economic unity. Concern - the legal form, which essence economic unity [188].

Certain interest causes a contractual way of occurrence svjayozannyh the enterprises, including concern. The German legislator gives the whole list of similar contracts, which have obligations character (§ 291 and § 292 Joint-stock laws) [189]. Obligations dogovory, the party in
Which the joint-stock company or joint-stock kommandita javljayojutsja acts as the enterprise.

The first kind of the enterprise contract the Joint-stock law nayozyvaet the submission contract according to which the joint-stock company or joint-stock kommandita subordinates a management of the society to other enterprise. Is not the contract of submission the contract, means kotoyorogo the horizontal concern can be created.

The second and third kinds of enterprise contracts the law nazyyovaet the contract of deduction of profit and the contract of deduction of a part of profit. Under these contracts the joint-stock company or limited partnership on akyotsijah undertakes to deduct all profit (or its part) to another predpriyojatiju. The contract on profit deduction considers also the contract, posredstyovom which the joint-stock company or joint-stock kommandita undertakes to supervise over the enterprise at the expense of other enterprise.

The fourth and fifth kinds are dogovory about the general profit and about deduction of a part of profit. According to conditions of these contracts aktsioyonernoe the society or joint-stock kommandita undertakes to consolidate the profit, the separate enterprises or separate factories of others predyoprijaty for the purpose of distribution of the general profit; or undertakes to deduct a part of the profit or profit of the enterprise to another.

The sixth kind of the enterprise contract - the contract of tenancy of the enterprise or transfer (on any other conditions) the enterprise to another.

Only submission making contract, undoubtedly, leads obrazoyovaniju concern. Other enterprise dogovory and others grazhdanyosko-legal dogovory long-term and extensive character, such as poyostavka, licence and credit dogovory, can contain conditions, spoyosobstvujushchie to concern formation, that is having for the enterprise such great value, that it leads to dependence on the counterpart.

The concern can be formed by means of entering into the position charter according to which the dominating enterprise has the right to give objazayotelnye for instructions execution to the dependent enterprise.

One more way of creation of concern is joint-stock-legal inclusion (§ 319-327 Joint-stock laws) [190] in which result remain legal independence of the included (absorbed) society.

Some authors draw a parallel between West German konyotsernom and domestic financial and industrial groups [191]. Difference soyostoit in the approach to formation of financial groups in Germany and others evyoropejskih the states. If in Russia the licensing of creation of financial and industrial groups is provided, and their activity is regulated by the special law in Germany the legislator at all does not allocate finanyosovye group, their regulation is carried out within the limits of joint-stock zakoyonodatelstva.

6 present time the legislation of the majority of the developed countries priyonimaet in attention existence of group of economically connected companies to assign certain legal obligations on mateyorinskuju the company, for example, a duty to inform shareholders, rayobotnikov, the public on a state of affairs in group.

Besides, any company is obliged in case of acquisition by it opredeyolennogo financial participation in the capital of other companies to inform these last on size of such participation.

In reports of bodies of the parent company should be reflected and dejayotelnost controllable societies (groups of the companies can represent the consolidated reports where the group is considered as uniform financial unit).

Let's consider on an example of the joint-stock legislation of France.

First, the legislator obliges all who gets actions over the tenth part, thirds or half of capital of a society to inform it obyoshchestvo on achievement of the named sizes of participation, and the public (item 356-1 of the Law on commercial partnerships) [192].

Secondly, for the purpose of self-checking and simplification bar of claim by lapse of time primeneyonija corresponding positions of the law the legislator obliges the companies supervised by other companies, to inform on the sizes of their participation in konyotrolirujushchih their companies [193].

Possession of any company of a part of the capital of other company in limits from 10 to 50 % is considered participation of the first in the second and involves:

- Obligatory mention of this fact in the annual report sootvetstyovujushchih the companies;

- Various registration of balances on titles of the rights of participation and the securities representing capital investments;

- The account with joint-stock companies of an interlacing of interests of the various companies of one group on purpose to provide independence control orgayonov [194].

The law on joint-stock companies of Germany in § 20-22 obliges predpriyojatie immediately to notify joint-stock companies and others trading toyovarishchestva with a site in the country if at it it will appear more the one fourth part of their actions either share shares or the majority vote (thus also should be considered the actions which are at dependent strukyotur). And, until the enterprise has not executed the duty under the notification, neither it, nor the enterprise dependent on it or the enterprise operating at his expense, and the enterprise dependent on last, cannot
To take advantage of the rights which give actions or share shares [195]. The joint-stock company notified in appropriate way or another trading tovayorishchestvo should publish the message on such participation immediately in turn.

Relations of economic dependence and the control all are wider prinimayojutsja in attention the legislation of the western countries in questions nalogoobloyozhenija, inconsistencies, regulations of labour relations, protection inteyoresov than shareholders of minority within the limits of group and interests of creditors.

For example, if the French company which should pay the tax to company incomes, owns at least 10 % of the capital of other company, also objayozannoj to pay the same tax, it is released from payment of the tax for that part of the profits which is caused by dividends of other company, for isyokljucheniem the tax to in advance established share in 5 %.

Parent and affiliated companies - when the participation share exceeds 50 % - can apply for application of a mode of the consolidated profit developing of profits, received in France both foreign pribyyolej, and a share in profits of the affiliated companies located in France and abroad [196].

The French head firm can represent itself as the unique payer of the tax to the companies, charged on all profit of group, in koyotoruju it enters together with the French affiliated firms, only in the event that to it belongs not less than 95 % of the capital (tax integrayotsija) [197].

In some countries the duty of a group of persons on consolidation of profit of the basic society and those associated companies where the basic society owns more than 50 % of the charter capital is entered. In the USA consolidated nalogoobyo
lozhenie it is provided in 22 states. A share of the income of the company in group opredeljayoetsja not on the basis of participation in the capital, and on the basis of an estimation of goods turnover, a wage fund or the group property. Thus all operations between members of a group of persons are deduced from under the taxation and considered as an internal turn. The company has the right to repay the losses for the account pribyyoli other participant of group that gives essential possibilities for profit minimisation.

The method of the consolidated taxation is often applied as alyoternativnyj - if the sum of the tax which the company should pay as the participant of a group of persons, less, than calculated on own balance the given company has the right to choose a principle of consolidation with a view of optimiyozatsii the taxation [198].

As to protection of interests of participants of minority within the limits of group well developed legal mechanism exists besides in the legislation of Germany.

Protection of interests of minority is provided in the Law on societies with limited liability. The law excludes acceptance possibility reyosheny on increase of obligatory payments without the consent of interested participants. It, for example, concerns decisions on entering of new contributions or other payments. Similarly, the rights of priority given by articles of incorporation to the participant of minority, can stop only in the presence of the consent of the given participant by charter change. To them otnoyositsja the right of participants of a society to appointment as managing directors. Besides, minority protection also is provided with granting to participants of the right to unlimited reception of data on activity of a society and on oznakomyolenie with its documentation [199].

The joint-stock law of Germany to the small shareholder also predostavljayoetsja an influential legal status. This status, on the one hand, is considered essential achievement in the field of protection of interests of minority, with druyogoj the parties causes criticism as a source of abusings and vymogatelyoskih claims [200].

The mechanism of protection of interests of the most economically dependent structure is not uniform for all connected enterprises for legislation GerYOmanii.

The establishment of presence of concern is, according to O.V.Belousova, the basic juridical fact at realisation of a legal mechanism of protection of the rights of the associated company, its shareholders (participants) and creditors. Thus in case of making contract of submission and joint-stock-legal joining there is so-called «an incontestable vertical concern», and in other cases at an establishment of presence of concern - «ospoyorimyj vertical concern».

In incontestable vertical concern affiliated joint-stock obshcheyostvo, its shareholders and creditors have the right to protect the rights, being based not only on numerous mandatory provisions of the law, but also on positions of the contract of submission, the order of the conclusion, change and the termination kotoroyogo, is in turn "rigidly settled by the law.

For lack of the contract of submission and joint-stock-legal prisoedineyonija the associated company, its shareholders (participants) and creditors can rasschiyotyvat only on the law. A legal mechanism of protection of their rights in this case osyonovyvaetsja on system of presumptions (so-called «refutable predpoyolozheny»), containing in §§ 15-19 Joint-stock laws {which we rasyosmatrivali above).

In paragraph 2 § 17 the presumption of dependence of the enterprise, nahoyodjashchegosja in prevailing possession, from the enterprise having is established preobla -

Giving participation in it. In turn, in paragraph 1 § 18 the presumption of concern in the presence of the dependent and dominating enterprises is established. Thereby the system of the connected enterprises establishes a uniform legal field and pozvoyoljaet to achieve that the enterprise which is in prevailing possession, and the enterprise having prevailing participation in it, and also others zavisiyomye and the dominating enterprises presumably form concern. UstaYOnoviv a presumption of existence of concern in case of presence of relations konyotrolja between the enterprises, the German legislator thereby edinoobrazyono, in essence, within the limits of control relations solves problems of protection of the rights doyochernego societies, its shareholders (participants) and creditors ’.

According to M.I.Kulagin, the law recognises for as dominating predpriyojatiem the right to a summer residence to board of the dependent enterprise obligatory ukazayony, but only at presence between them submission contracts. These instructions concerning a management of society affairs come under to execution even if they are not favourable to dependent joint-stock company, but serve interests gosyopodstvujushchego the enterprises or the enterprises with which this last is included into concern. However, the contract can reserve neobjazatelnost for the dependent enterprise of all or a part of such instructions. The representative of the dominating enterprise or its owner are obliged to give dependent joint-stock obshcheyostvu instructions with «care decent and diligent rukovoditeyolja». Otherwise they can be made accountable for priyochinennyj thus harm. As the victim having the right to suing, the dependent joint-stock company, its participants, and also creditors can act. To responsibility also there can be priyovlecheny members of the board and the supervisory board of dependent joint-stock company if they operated with infringement of the duties.

Creation of concern by joint-stock-legal joining preduyosmatrivaet for the included joint-stock company preservation of the right
subektnosti. However under obligations of the included society the joint liability together with it is born by the basic joint-stock company. posledyonee have the right to give to board of the included society of instructions in the relation veyodenija joint-stock company affairs from which the board cannot evade.

In the absence of the submission contract the dominating enterprise should not use the influence for declination of dependent joint-stock company or joint-stock kommandity to fulfilment of unprofitable transactions for them or to not to fulfilment of operations which can be favourable to them. If all the same it occurs, all unprofitable consequences should be compensated the dominating enterprise.

The board of dependent joint-stock company in the absence of the submission contract is obliged in first three months of each business year sostayovit the report on relations of the given economic society with the connected enterprises. In the report all transactions which has concluded aktsioyonernoe a society in the expired year with the dominating enterprise or with zaviyosimymi from the last the enterprises, and also transactions and other operations soyovershennye or not made under the offer or in interests of the specified enterprises are reflected. Thus it is underlined: the execution of transactions received on them reciprocative performance, and on operations - their bases both positive and unprofitable consequences for joint-stock company. In the board report obshcheyostva the conclusion about should contain, whether the damage and if it is caused in what size is caused a society.

The named report on relations with the connected enterprises proverjayoetsja auditors, then the supervisory board which reports rezulyotaty on general meeting of shareholders. Besides, for check of business ties of dependent joint-stock company with the connected enterprises court under the petition of any shareholder special auditors can be appointed.

If as a result of the influence which have been carried out dominating predpriyojatiem on dependent, to last the damage and this damage is caused was not vozmeyoshchen till the end of a business year or in this connection a damage the dominating enterprise did not guarantee to a dependent society the right on any ekviyovalentnye advantage the dominating enterprise is obliged to indemnify the loss which has resulted it to dependent joint-stock company and akyotsioneram. Members of the board or members of the supervisory board of a dependent society if they have broken the duties assigned to them [201] also can be involved In responsibility.

The joint-stock law of 1965 provides the special mechanism konyotrolja behind the conclusion of enterprise contracts, including submission contracts. In particular, it is underlined, that any enterprise contract should be approved the majority in ¾ general meeting of shareholders of a society. This contract comes under to obligatory registration in trading reestyore.

In the law it is specified, that the size translated joint-stock predprijatiyoem to other enterprise should not exceed profits maximum veliyochiny, specified in § 301. If there is a contract of submission or deduction from profit other party is obliged to compensate any arisen during contract action year deficiency if it does not be covered at the expense of the sums translated during action of the contract in free reserves.

Despite a recognition of a phenomenon of an economic subordination juridiyocheskih persons, and also comprehension by the legislator of the importance of a problem vzaimootyonosheny groups of the interconnected societies, for today far not each of foreign countries has the legislation, sufficient for vsestoyoronnego their settlements. The most worked is, perhaps, prayovo Germany (the Law on joint-stock companies of 1965) and the right of England (ZaYOkon about the companies of 1989). The majority of the countries have legal polozheyo
nija, concerning economically dependent companies which, as a rule, are sprayed under numerous certificates of a various branch accessory. Projects of specialised certificates are at various stages razrabotyoki and statements.

In a number of the states the certificates regulating original instiyotuty which are used for legal registration of groups (for example are published, in the general law countries laws on holdings) are passed.

The resulted examples of legal regulation economic suboryodinatsii legal bodies in the countries with the developed market economy svideyotelstvujut, in our opinion, about the general orientation of rules of law. In chastyonosti, in legislations of the various countries, including Russia, obnaruzhiyovajutsja close, containing in similar normative acts, concepts of affiliated and dependent structures; their orgayonizatsionno-legal forms (it, as a rule, joint-stock companies and obshcheyostva with limited liability) are monotonously defined.

Specific character of economy of Russia does not allow to use mechanically model, characteristic for West economy, and the place is equal and in normoyotvorcheskom process not to mechanical copying of the legislation and practice industrially developed стран*. However it makes sense to take into consideration legal experience of the foreign states at development of own approaches to perfection of legal regulation of relations of economic dependence of legal bodies.

This problem cannot be solved independently from a formation problem in the Russian legal field of system adjusted among themselves chastnoprayovovyh and the public normative acts regulating sphere hozjajyostvennoj of activity, including the relation of economically interconnected subjects of enterprise activity.

In our opinion the system of regulation of activity of the legal bodies connected among themselves by relations of economic dependence and the control, should be under construction as follows.

The basic kodifitsirovannyj the certificate - the Civil code of the Russian Federation should zayokrepit position that in set of two or more ekonomicheyoski the interconnected legal bodies there can be organizational relations or subordination relations, that is relations on management of one legal body (the head legal body) activity odyonogo or more affiliated legal bodies on the basis of existing at golovyonogo the legal person of possibility to define the decisions accepted doyochernim by the legal body.

The name «the head legal body», is more true its defining part — a word "head", it is offered to designate on purpose us the organisation which is in the head of set of legal bodies and activity co-ordinating them on the basis of possibility existing at it to define resheyonija, accepted by dependent legal bodies. The use with ukazanyonoj the definition purpose «head (th, th)» will allow to reduce, in our opinion, to a common denominator managing subjects various organizatsionnoyopravovyh forms of the legal person, it is etymologically clear the legal public since times of command economy.

It is supposed, that the head legal body has possibility opyoredeljat the decisions accepted by the affiliated legal body, in cases:

First, the property dependence of the affiliated legal person resulting prevailing participation of the head legal person in authorised (skladochnom) the capital of the affiliated legal person.

Prevailing participation in authorised (skladochnom) the capital docheryonego the legal person is understood as the right of the head legal person prjayomo or indirectly to dispose of the voices falling to the actions (contributions, shares), constituting ustavnyj (skladochnyj) the capital of the affiliated legal
Persons, in the quantity allowing actually to carry out acceptance or otyoklonenie of certain decisions, accepted by controls docherneyogo the legal person. Thus the indirect order voices doyochernego the legal person is understood as possibility actual rasporjazheyonija by them through the third parties in relation to which the head legal body possesses the right set forth above.

Secondly, contractual dependence of the affiliated legal person, vozyonikajushchej as a result of making contract between the head legal body and the affiliated legal body or between the head legal body and participants (founders, shareholders, companions) the affiliated legal person. The specified contract should fix the right of the head legal person to define the decision of controls affiliated juridiyocheskogo persons, or to fix the right to instruct, obligatory for ispolyonenija controls of the affiliated legal person or to fix the right to operate the affiliated legal body.

Thirdly, the organizational dependence resulting toyogo, that the affiliated legal body is created by allocation from structure golovyonogo and in its constituent instruments position about affiliated zayovisimosti or the right of the head legal person to define structure and (or) decisions of controls of the affiliated legal person is fixed.

Fourthly, the actual dependence of the affiliated legal person resulting ability of controls head juridiyocheskogo of the person to define structure and (or) the decision of controls of the affiliated legal person.

Taking into account the positions set forth above, affiliated legal bodies it is possible to subject to specific classification by following bases.

First, depending on quantitative and qualitative structure of participants or proprietors of such legal person it can be koryoporatsiej, that is by definition T. V.Kashaninoj, collective obrazova -
ni¾m, the organisation based on incorporated capitals of [202 two and more persons, or an economic society of one person. In this list for the present vozyomozhno to include state and municipal unitary affiliated predyoprijatie, based on the secondary right of economic conducting.

Secondly, the affiliated legal body can be classified under oryoganizatsionno-legal forms: affiliated joint-stock company, the associated company with limited liability, the affiliated limited partnership, branch etc.

Thirdly, it is possible to spend classification of affiliated legal bodies by the form of economic dependence (property, contractual, organizayotsionnaja, actual): the legal body economically dependent in rezultayote prevailing participation of this or that legal person in its capital; the legal body economically dependent as a result of the prisoner dogovoyora; the legal body economically dependent as a result actually sloyozhivshejsja possibilities at this or that legal person to define structure or decisions of its controls.

The concept of legal regulation of relations economic zavisiyomosti legal bodies naturally should cover laws about hoyozjajstvennyh societies. Laws should settle in more details pravoyovoj the status of the affiliated legal person created in the form of an economic society.

Thereupon the legal status of an affiliated economic society could look in general as follows.

1. The economic society admits the associated company of other legal or physical person called in this case head, esyoli last has possibility to define the decision of the first in result toyogo, that

Directly and-or indirectly disposes of the voices falling akyotsii (shares), constituting ustavnyj the capital of an economic society, in koliyochestve, allowing actually to carry out acceptance or a deviation reyosheny, accepted by controls affiliated economic obshchestyova;

Being the participant of the first, under the agreement with other participants can carry out the control over the voices falling to the actions (share), constituting ustavnyj the capital of an economic society, in quantity, poyozvoljajushchem actually to carry out acceptance or a deviation of decisions, priyonimaemyh controls of an affiliated economic society;

Being the participant of the first, can appoint individual ispolniyotelnyj body and-or more than 50 % of structure joint executive orgayona and-or under the offer of the last it is selected more than 50 % of structure of council direkyotorov (supervisory board) of an affiliated economic society;

The right of the head person to define the decision and (or) structure of controls of an economic society is fixed in the charter affiliated hozjajstyovennogo societies;

According to the concluded contract has the right to define reyoshenija controls of an economic society, or has the right to instruct, obligatory for execution by controls of an economic society.

The making contract, putting a society in a state of dependence (poyodobno to the contract of submission or the contract of deduction of profit in the German right), in our opinion, should be approved general meeting aktsioneyorov (participants) of an economic society special majority of voices of the shareholders (participants) who are taking part in general meeting. Besides, dogovory a similar sort, in our opinion, should registrirovatyosja the state.

The legal status of an affiliated economic society should be doyopolnen following standard positions.

1) the Parent organisation (person) has the right to give obligatory instructions to an affiliated economic society if other is not defined ustayovom an affiliated economic society or the contract between affiliated hoyozjajstvennym a society and parent organisation (person) or between uchastyonikami (shareholders) of the associated company and parent organisation (person).

2) the Parent organisation (person) is obliged () up to the end hozjajstvenyonogo to compensate year the losses which have arisen at affiliated economic obyoshchestva as a result of performance of obligatory instructions of parent organisation (person), or to give the written obligation to compensate in certain term to an affiliated economic society the specified losses, or to guarantee doyochernemu to an economic society the right on any equivalent preyoimushchestva if other order of the indemnification is not defined in the contract between an affiliated economic society and parent organisation (person).

3) Legal or the physical person is obliged to notify immediately in writing an economic society and to publish in ustayonovlennom an order the information on occurrence at it the status head oryoganizatsii (persons) this economic society (.

If legal or the physical person, provided to itself that or a different way the status of parent organisation (person), has not fulfilled the requirement provided in the item () it cannot realise the rights until will fulfil this requirement ().

If the circumstances attracting a duty under the notification and opublikoyovaniju of the information, disappear, on it also immediately should be in writing informed an economic society and the information on the termination at the given legal or physical person of the status of parent organisation (person) of an economic society () is when due hereunder published.

The affiliated economic society notified provided in item () way, has not the right to get the action (a participation share) head orgayonizatsii and loses those rights, which are provided with participation in voting concerning already got actions (a participation share) ().

To motivate such vision of affiliated dependence it is possible for that in soyovremennyh economic conditions to "survive" in the world of the big business it is necessary to be integrated and at the same time improve a control system of economically dependent structures.

The real control over an economic society, as is known, gives the order the voices falling to the actions (a participation share), sostavljajuyoshchie ustavnyj the society capital, in number of 50 % plus one from the general number. It is thus considered as direct participation of the person (legal or fizicheskoyogo), and the indirect control of voices (actual), and also the control of voices under the arrangement with other participants of a society. Besides it actually developed possibility at any person who do not have preyoobladajushchego participations in the charter capital of a society is considered, to generate at own discretion associated company controls, and also is specified dogoyovornaja dependence.

Except the affiliated economic society listed made definition will allow to pull together criteria of economic dependence and the control in the corporate legislation with the criteria fixed in antimonoyopolnom the legislation.

So, we have defined concept of an affiliated economic society in ramyokah relations of the control and presence of such sign, as possibility existing at this or that person to define the associated company decision, and svjazayoli with it a legal protection of interests of the associated company, its participants (akyotsionerov) and creditors.

Besides affiliated dependence of an economic society for gosudarstyovennogo the control over corporate communications allocation otyo is important
Carrying of participation in the charter capital of an economic society in opredelenyonom the size as it is made by legislations of many countries (in France when any company owns a part of the capital another in limits from 10 to 50 %, it is considered, that the first has participation in the second; in Germany the cores treyobovanija the law are dated for participation in the size more than 25 % of the capital), and to connect with such size of participation, for example, a duty under the notification hoyozjajstvennogo societies in which the specified quantity of shares of participation or actions is got, and to publication of the information on participation in the official publication. For these purposes as it was already spoken, it is not obligatory to enter concepts dependent and prevailing (participating) economic societies. As to definition of the size of such participation as Russian chastyonopravovym and the public legislation the size of participation «20 % and more» is already apprehended, it makes sense to leave it without change.

Besides, it is necessary to establish legislatively a limit of mutual participation of economic societies in charter capitals each other and number goloyosov which one of such societies can use on general meeting of participants (shareholders) of other society. As mutual or cross participation of corporations in charter capitals each other creates relations soliyodarnosti and leads to certain coordination of a policy. That demands priyomenenija measures of protection of interests of a society, its creditors and minority uchayostnikov (shareholders).

According to some authors [203], cross participations can give artificial enough character to the company capital (for example, in case of capital increase when each company increases only own capital), and also open possibility of carrying out doubtful finansoyovyh operations. Accordingly, the law should regulate these relations.

Existence in laws on economic societies of positions, adreyosovannyh to affiliated economic societies, participation in the capital hozjajstyo
vennyh societies and to mutual participation does not settle requirement in more deyotalnom legal regulation of relations of economic dependence and the control of legal bodies that should be made in special laws.

In the legal literature often there is an opinion on necessity of an adoption of law on holding ’. Undoubtedly one, that economic realities treyobujut appropriate reflexion of the given matter in the legislation as already today have ripened rather uneasy and completely not theoretical sense voyoprosy, demanding specifications of the status of economically dependent economic societies and legal consequences of their recognition by those [204 [205].

There are various economic forms of integration of the organisations: holdings, financial and industrial groups, concerns, consortia, kongyolomeraty, etc., of them it will be a question of some in the following chapter. ZakonodaYOtelju it is necessary to develop the uniform approach and generalising legal reguliyorovanie the relations developing in set of economically interconnected legal bodies. It can be made on the basis of the uniform federal act as it is more rational variant, than working out and acceptance of special laws on legal registration of this or that razyonovidnosti groups. Acceptance of special laws demands their mutual coordination among themselves on purpose to exclude crossing or duplication of a circle of the relations regulated by these laws.

<< | >>
A source: ZVEZDINA Tatyana Mihajlovna. the LEGAL STATUS of AFFILIATED And DEPENDENT ECONOMIC SOCIETIES. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg -. 2003

More on topic § 1.4. Development of the modern Russian legislation and zaruyobezhnyj experience of legal regulation of relations of an economic subordination of legal bodies:

  1. § 1.1. To history of a question on occurrence and development of an economic subordination of legal bodies
  2. 2.3. Loan of foreign experience in questions of legal regulation of actual marriage and family relations of the man and the woman in the Russian Federation
  3. affiliated and dependent societies in the modern Russian legislation. Features of legal regulation.
  4. § 3. Development of the legislation of the Russian Federation about protection of business reputation of legal bodies
  5. § 3. Directions of perfection of legal regulation of activity of customs bodies of the Russian Federation on maintenance of economic safety
  6. CHAPTER 2. LEGAL REGULATION OF THE RELATIONS CONNECTED WITH PROTECTION OF DESIGN OF CLOTHES IN THE RUSSIAN THE LEGISLATION
  7. 2.3. Legal regulation of application of measures of administrative compulsion to legal bodies in connection with infringements of licence requirements under the legislation of the states of the near abroad
  8. 2.4. Features of development of family relations in the national environment of second half of 19 centuries and influence of the saved up positive experience on legal culture of family relations of the subsequent generations.
  9. CHAPTER 2. Features and problems of legal regulation of activity on the organisation and carrying out of gamblings and a bet in the modern Russian and foreign legislation.
  10. a role of subordinate legislation standard legal acts in development of legal regulation of the organisation and activity of investigation of the USA
  11. § 4. Modern foreign experience of legal regulation at level of subjects of federative states
  12. legal regulation of relations in sphere of the reference of the confidential information in the foreign legislation
  13. 3.2. Features of legal regulation of the organisation and police activity on maintenance of constitutional laws and freedom of the person and the citizen in the Russian Federation: a modern condition and dynamics of development
  14. the CHAPTER II. ISTORIKO-LEGAL DEVELOPMENT of LEGAL BODIES AS SUBJECTS of ENTERPRISE ACTIVITY In PRE-REVOLUTIONARY Russia (the REVIEW of the LEGISLATION, the THEORY And PRAVOPRIMENITELNOJ EXPERTS)
  15. Chapter 1 the Legislation on affiliated and dependent societies: development history, modern experience.
  16. Alekseeva Tatyana Sergeevna. is administrative-LEGAL REGULATION of ACTIVITY of CUSTOMS BODIES ON MAINTENANCE of ECONOMIC SAFETY of the RUSSIAN FEDERATION. The dissertation on competition of a scientific degree of the master of laws. Saratov -,