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§ 1. Features of indirect public influence in the organisation of management of joint-stock companies of Russia

The relations connected with management by joint-stock company, traditionally admit private-law, and it concerns also those cases when in kacheyostve the shareholder public formation - the state acts.

OdnaYOko freedom in the specified area is combined with imperious influence gosudarstyova, expressed, as a rule, by means of mandatory provisions. As it was marked earlier, elements of public influence are observed in the internal organisation of management by joint-stock company. Besides, public nachayola are shown in external regulation of activity of controls by joint-stock company from the state. We will notice, that publichyonogo regulations in the specified sphere we find sources in the Russian joint-stock right of XIX century: the legislator aspired to transfer government principles to area aktsionirovanija. To it, in particular, testified existence of the licensing system of creation of joint-stock companies, neyoobhodimost reporting representations, a principle of voting by the majority vote, etc.

For the high-grade characteristic of managerial process joint-stock obshchestyovom - the subject of civil law - it is necessary to pay attention that besides the private-law party of its activity, takes place also publichyonaja sjurona - relations with reguljativnymi bodies. It is possible to establish, what such state regulating influence has mesgo in naiyobolee significant spheres of a public life So, About M.Olejnik notices, what the legal personality of participants хозяйсі vennogo a turn is a sphere of the public law? Management of joint-stock company is that area where, apparently, there is a place to only private discretion, after all it is carried out in own interests. Nevertheless, the state (unlike management, for example, hoyo
zjajstvennymi associations) rigidly enough regulates data otyonoshenija.

It is represented, the explanation of the reason of this distinction is connected with that. That, in otyolichie from economic associations, the organisation of management of joint-stock company javljaegsja is enough difficult. In particular, V.V.Laptev on it povoyodu explains, that rather simple device of economic associations is connected with personal character of these associations and a small number uchastniyokov, in force ' that in them there is no accurate differentiation of the rights and duties in the field of internal management. ’ Besides, public regulirovayonie managerial process by joint-stock company it is connected with that Value, koyotoroe joint-stock companies occupy in economy, ease of the reference akyotsy, possibility of numerous abusings p to the given sphere. SushchestYOvovanie some joint-stock companies (in a number of especially important branches ekonoyomiki) mentions vital interests of the state and all society as a whole, therefore public and private interests (the state and joint-stock company) not always coincide. As has noted S.I.nose, concentration of the capital allows to use joint-stock companies in various fields of activity, napravyolennyh on the general advantage and interfaced to risk /

Protection of the rights of shareholders is the purpose, and sometimes and motive of intervention of the state in managerial process by joint-stock company. So, JU.K.Tolstoy names as the reason state vmeshagelezva «attempt smjagyochit negative consequences thoughtless aktsionirovanija», overcoming of sharply become aggravated social contradictions?

Owing to it there is necessary a creation of special provisions about upravyolenii separate categories of joint-stock companies which it is possible razdeyolit on two groups depending on degree publicly-pravovog about influences concerning managerial process by joint-stock company.

Such influence concerning the managerial process, carried out with a view of protection of interests goyo
sudarstva and societies as a whole, and also separate shareholders, can be prjayomym and indirect.

Direct influence consists in intervention of the state bodies in activity of controls, a regulation of their activity (opredeleyonii their rights and duties) in public interests, the edition of imperative instructions in their address. We carry to directions of such influence: priyonjatie certificates about management of the joint-stock company, containing socially - rules of law; acceptance of certificates about maintenance are sewn up the rights and lawful inteyoresov shareholders; a regulation of features and forms of participation of the state in management of joint-stock companies (for example, the control a cash activity of managing directors, appointment of representatives of the state in controls akyotsionernyh societies); acceptance of certificates about features of privatisation and upravleyonija joint-stock companies in separate branches of a national economy.

As to indirect public influence on process upravyolenija joint-stock company its directions are extremely various. Now realisation of such influence is provided: vozmozhnoyostju existence it is exclusive registered stocks and necessity of conducting the shareholder register; realisation of the state registration of creation and the termination of activity of joint-stock companies (with publication sootvetstyovujushchih data), and also the state registration of the charter of joint-stock company; granting of the information on society activity (acceptance of norms about the account and the reporting); influence by means of antimonopoly measures.

Let's notice, that according to item 1 of item 1 FZ «On joint-stock companies», the given law defines an order of creation, reorganisation, liquidation, pravoyovoe position of joint-stock companies, the rights and duties of their shareholders, and also provides protection of the rights and interests of shareholders. According to subitem Z - 5 items 1 of the same law, specificity of creation, reorganisation, liquidation, pravoyovogo positions of separate categories of joint-stock companies are regulated speyotsialnymi by normative acts. According to item 1 of the Decision of Plenum YOU the Russian Federation from November, 18th, 2003 N⅛19 «About some questions of application FZ« About akyotsionernyh societies », in all the rest on these societies extends action of the specified law, including norms containing in it about guarantees and
Ways of protection of the rights of shareholders, about an order of carrying out of general meeting akyotsionerov, formations of other controls of a society. From this follows, that the maintenance of the term "legal status" does not cover the organisation of management of joint-stock company. [XCVI] thus, the analysis operating zayokonodatelstva does not allow to understand, definition osoyobennostej managements of separate categories of joint-stock companies of others (besides FZ «On joint-stock companies») federal acts and podzayokonnymi regulatory legal acts is how much lawful. In this connection it is represented tselesoyoobraznym to bring respective alterations in FZ «About joint-stock obshchestyovah», having stated to Item 1. ITEM 1 in the following edition.

«1. According to the Civil code of the Russian Federation nastojayoshchy the Federal act defines a creation order, reorga§shzatsii, likvidayotsii, managements, the legal status of joint-stock companies, the rights and objazannoyosti their shareholders, and also provides protection of the rights and interests of shareholders».

«3. Features of creation, reorganisation, liquidation, management, pravoyovogo positions of joint-stock companies in spheres of bank, investment and insurance activity are defined by federal acts».

With a view of our research we will consider further the basic directions kosyovennogo public influence on managerial process by joint-stock company (to directions of direct influence the paragraph of the second nayostojashchej heads is devoted).

First of all, realisation of such influence is provided vozmozhnoyostju existence of exclusively registered stocks and necessity of conducting the shareholder register. The interdiction concerning existence of the bearer shares, present at the modern legislation, is caused by that the action javljayoetsja the unique valuable paper according a right on participation in upravyolenii by the legal body. In spite of the fact that an economic society be association of capitals (it is supposed, that for it the person of the participant is not important), the state aspires to influence managerial process by it (in particular, by means of share registry). It is represented, in such a manner that existence of actions to bearer contradicts management principles
Joint-stock company as complicates public influence on managerial process, characteristic for joint-stock companies.

According to item 44 FZ «On joint-stock companies» the society is obliged to provide conducting the shareholder register from the moment of the state registration of a society. The society or professionalyonyj the participant of a securities market who is carrying out activity on conducting of the register of owners of nominal securities (registrar) with whom the society concludes the contract on register conducting can be the holder of the register. The society numbering more 50 akyotsionerov, is obliged to charge conducting the register to the registrar, having concluded with it sootyovetstvujushchy the contract; the society with smaller number of shareholders has the right to transfer conducting the register to the registrar. The given norm has been accepted in connection with mnogochisyolennymi infringements of the rights of shareholders from a society leading the register independently (in particular, in connection with unreasonable refusal in entering zayopisi in the register). The decision of Federal Commission on Securities from October, 2nd, 1997 defines an order of conducting the register of owners of nominal securities. [XCVII]

The law provides appeal possibility judicially refusal of the holder of the register of entering of record in the shareholder register. The owner of actions, and also other persons demanding entering of record in the shareholder register, have the right obrayotitsja in court with the claim about objazanii joint-stock company (the holder of the register) to bring corresponding record in the register and in the event that when due hereunder record is not brought also the holder of the register has not directed in provided by item 45 of the Law term the notice with instructions of motives of refusal of its entering in reyoestr. The court in a case neobosnovannoju refusal or evasion of the holder of the register from entering into it of corresponding record obliges the holder of the register to bring necessary запись.2

The question on the legal nature of the information containing in the register, is resolved by Definition of the Constitutional Court of the Russian Federation from March, 2nd, 2000 «About refusal in priyonjatii to consideration of the complaint of citizens L.A.Intereritsky, A.A.Aksenovoj, Е.Г1. Gorbunovoj and I.A.Stjagovoj on infringement of their constitutional laws the hollow
zheniem paragraph 6 ch. 11 π from April, 22nd, 1996 «About a securities market».1 Applicants believed.3 items 8 FZ, that data containing in the register on owners of actions concern the information on a private life of the citizen, the right on neprikosnovenyonost which is fixed item 23 (ch. І) Constitutions of the Russian Federation, and as in sootvetstyovii from item 24 (ch. І) Constitutions of the Russian Federation gathering, storage, use and rasprostrayonenie information on a private life of the person without its consent is not supposed, such data cannot be given, if the owner of actions does not give on it the consent; challenged position does not contain a condition about compulsion of the consent of the citizen registered in the shareholder register, for predostavyolenija data from the register about his name, quantity, to a category and a face-value of securities belonging to it and consequently contradicts item 23 (ch. І) and 24 (ч.1) Constitutions of the Russian Federation.

The court recognised that access to the data containing in the register aktsioneyorov, is an integral part of the right of the shareholder (especially having sushcheyostvennoe quantity of actions) on reception of the information on joint-stock company affairs, including data on other shareholders. In its basis lay the right sobyostvennosti on actions, necessity of protection by the shareholder of the legitimate rights and interests. In wider plan disclosing of the information on owners imenyonyh securities expresses a fundamental principle of functioning soyovremennogo the stock market - its information transparency which observance is the major guarantee of protection customs of investors, vkladyvajuyoshchih means in securities, and first of all owners of foamy papers.

The information on names (name) of shareholders, on securities belonging to them allows to judge the right of this or that person to participate in obyoshchem society meeting, about quantity of voices which it has, its possibilities to influence structure of board of directors, an executive office akyotsionernogo societies and, accordingly, on decisions made by a society. Reception of the specified information can be connected, in particular, with neobhoyodimostju establishments of contacts to other shareholders, for the organisation kayokih-or combined action etc. Thus, by means of access to
To register data realisation and protection by shareholders of the zakonyonyh the rights and interests is provided.

Hence, in mutual relations of shareholders with each other and with aktsioyonernym a society, developing within the limits of joint-stock company in connection with possession of its securities, data on a name (name) and about koliyochestve, a category and a face-value of the actions belonging to shareholders, have character of the business information and cannot be otnesene to personal or family secret, to sphere of exclusively private life.

Getting actions which are issued by joint-stock company as nominal securities, and giving thus according to item 1 of item 44 FZ from December, 26th, 1995 «On joint-stock companies» for entering into the register izyovestnuju a part of the information on - a surname, a name, a patronymic, the place address zhiyotelstva and some other data, the citizen thereby in advance osvedomyolen about possibility of access of the persons specified in the legislation, to these data of the register of owners of securities.

As to the second aspect of indirect public influence the modern Russian legislation provides normativnoyojavochnyj an order of creation of joint-stock companies. The joint-stock company can be formed in two ways: pugem establishments again and by reorganizayotsii the existing legal person (merge, division, allocation, preyoobrazovanija). The termination of process of establishment of a society is it gosudaryostvennaja registration. Legally the society admits created with this moment (item 51 GK the Russian Federation).

As V.V.Laptev has fairly noted, principles state registyoratsii are publicity, reliability, konstitutivnoe value registyoratsii. Thus publicity of registration means the message in the press of data about registration, and also granting of possibility to interested persons to familiarise with these data. Reliability of registration assumes, that the given registration are assumed correct until they nanosecond ospoyoreny judicially. Konstitutivnoe value of registration consists that the status of the subject of enterprise activity arises only on -
Hardly registration, 1 registration represents a "starting" kind gosudarstyovennogo the business regulations, providing a combination chastyonyh, collective and public (public) interests?

Data on joint-stock company creation traditionally are publichyonymi, opened for general data. Still the Soviet legislation nayochala provided the publication of data on joint-stock company registration in the newspaper «Economic life», and also in press organ in a place nayohozhdenija society boards XX century? According to Decision PravitelstYOva from 19 njunja 2002 №438 «About the uniform state register juridicheyoskih persons» it is entrusted to 4 Ministry of the Russian Federation of taxes and tax collections to provide the Russian Federation podgoyotovku to the publication and the edition of the data containing in Uniform gosudarstvenyonom the register of legal bodies, io to following indicators: full naimenovayonie the legal person, state registration number of record and entering date se in the Uniform state register of legal bodies, the name and the address of the registering body which has carried out state registrayotsiju legal лица.5

Data from the state register, intended for the publication, moyogut to be published in the form of separate brochures or to be printed in editions or_-anov reyogionalnoj and a local press on the basis of agreements on information interaction, and also should take places at stands in tax organs of Russia. Terms of representation for the publication of data, vneyosennyh in the state register for the certain period are established also. For maintenance otyokrytosti and general availability the data containing in state reestyore, come under to placing on sites of tax organs of Russia in a network the Internet. The specified data should be updated not less often than an once in a month on osno -

' Laptev In V.Ukaz soch. С.43.

• ’ bandurov DN gosudarstvenna I registration of subjects of business. ∏oh

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A source: Sapina Victoria Sergeevna. the PARITY of the PRIVATE And PUBLIC BEGINNINGS In MANAGEMENT of JOINT-STOCK COMPANIES UNDER the LEGISLATION of Russia. The dissertation on scientific degree competition kandididata jurisprudence. Stavropol - 2004. 2004

More on topic § 1. Features of indirect public influence in the organisation of management of joint-stock companies of Russia:

  1. Chapter 2. A parity of private and public elements in the internal organisation of management of joint-stock companies of Russia
  2. § 2. The basic directions of direct public influence concerning management of joint-stock companies
  3. § 1. Transformation of the state and municipal enterprises to joint-stock companies and entering of the state or municipal property as the contribution to charter capitals of joint-stock companies as the basic ways of privatisation in Russia. Management of the actions which are in the state and municipal property, as one of the main mechanisms of management of the state and municipal property
  4. Sapina Victoria Sergeevna. the PARITY of the PRIVATE And PUBLIC BEGINNINGS In MANAGEMENT of JOINT-STOCK COMPANIES UNDER the LEGISLATION of Russia. The dissertation on scientific degree competition kandididata jurisprudence. Stavropol -,
  5. § 3. Features of management and the control in the joint-stock companies created in the course of privatisation of the state and municipal property, at the transfer of stock, the being in state and municipal property, in confidential management and pledge
  6. the Special attention in the modern legal and economic theory and experts is involved with Federal act chapter 7 "On joint-stock companies" which characterises general meeting of shareholders as the supreme body of management of joint-stock company.
  7. 3.3. Perfection of management of shares of a state ownership in the joint-stock companies.
  8. 1. Joint-stock companies in Russia till 1917
  9. § 2. The legal nature of the organisation of management of joint-stock company
  10. the Chapter I. HISTORY of JOINT-STOCK COMPANIES In Russia
  11. formation of bourgeoisie and development of joint-stock companies in Russia
  12. formation of corporations in the USA and joint-stock companies in Russia
  13. the CHAPTER II. Corporation to the USA and Joint-stock company in Russia as subjects of joint-stock legal relation
  14. § 2. The private and public beginnings in the organisation of activity of board of directors of joint-stock company
  15. Chapter 3. Public influence in the management organisation akyotsionernymi societies of Russia
  16. TSELOVALNIKOV Alexey Borisovich. FEATURES of MANAGEMENT And the CONTROL In the JOINT-STOCK COMPANIES CREATED In the course of PRIVATIZATION of the STATE And MUNICIPAL PROPERTY: EVOLUTION of the MODERN LEGISLATION. The dissertation on competition of a scientific degree of the master of laws. Saratov - 2004, 2004
  17. the Chapter III. Specific lines of management and the control in the joint-stock companies created in the course of privatisation state and municipal Property
  18. the Chapter I. The Joint-stock companies created in the course of privatisation of the state and municipal property: features of creation and a legal status
  19. the Chapter II. Features of formation and activity of controls and the control of the joint-stock companies created in the course of privatisation state and Municipal property
  20. § 1. The special right of the Russian Federation, subjects of the Russian Federation to participation in management of the joint-stock companies created in process Privatisations («the gold action»)