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§4.3. System of intracorporate protection and protection of the rights minoritarnyh shareholders.

In the literature orientation of mandatory provisions to protection more weakness of legal relation »1 is fairly marked as one of tendencies of development of system of sources of civil law«.

On the one hand, mandatory provisions reflect necessity of state regulation of market relations, protection of public interests, and, on the other hand, they provide is standard-legal support of weaker economically the parties of the obligation [167 [168]. Inherently corresponding positions provide not only deviation from a principle of optionality dominating in civil-law relations, but also contain some exceptions of principles of legal equality of the parties, freedom of the contract, the legal initiative, an autonomy of will of subjects, pravonadelenija.

Alignment of position of the parties probably from a position as unilateral strengthening of the rights of one party (the weak subject in the obligation), and from a position of strengthening of civil responsibility or increase in duties of other party (a strength in the obligation). Efficiency (optimality) of this or that method depends by nature concrete legal relation, its maintenance, and also on a legal status of subjects of legal relation.

For example, participants of joint-stock relations, in general, having a uniform (patrimonial) legal status of the shareholder of joint-stock company, possess various resources for acceptance by a society of those or other decisions in which they can be personally interested. Proceeding from it, the legislator for the purpose of protection of legitimate interests of weakness in

Certain property and organizational relations departs from a principle of legal equality of participants. One of such cases is the mechanism of "restraint" of fulfilment of joint-stock company of the transaction in which there is an interest of separate officials of controls of joint-stock company, the persons, having the right to give to a society obligatory instructions for it, or the shareholders owning in common with the affiliated persons in twenty or more percent of voting actions of a society. Positions of the item of item 81-84 FZ «About joint-stock company» are directed «on prevention of the conflict of interests between controls joint-stock company... And shareholders, including minoritarnymi the shareholders not capable, at a making deal stage in which fulfilment there is an interest to protect the legitimate interests» 1 Constitutional Court of the Russian Federation characterises minoritarnyh (small) shareholders as weakness in system of corresponding property and organizational relations (item paragraph 4 Z decisions Konstitutsinnogo of Court of the Russian Federation from April, 10th, 2003 №5-П) [169 [170].

According to item 2 of item 45 of the Constitution of the Russian Federation protection of the rights and freedom can be carried out by ways, though and not provided in civil-law normative acts, but not contradicting them; in the ways following from general principles and equity of statute. Thus, the legislator leaves the list of ways of protection opened, i.e. not limited in a quantity indicator (structure). It serves one of the major guarantees of possibility of unobstructed realisation as citizens of the rights and interests protected by the law.

However from materials pravoprimenitelnoj experts appears, that very often civil rights cannot be carried out because of absence of real their effective protection.

In many cases the civil rights remain not protected, so, only, declared by the legislator. Thus, the principle garantirovannosti the state protection of the rights and freedom of citizens (item 45 of the Constitution of the Russian Federation) is broken.

In the literature questions of protection civil прав1 are in detail considered. Mainly there is a search of the optimal ways of protection of the civil rights, their ordering, classifications. However how ways of protection, their quantity in laws were various, they cannot be realised, effectively used without development and fastening in legal acts, in customs of a business turn or contracts of the mechanism of protection of the subjective civil rights.

S.D.Mogilevsky divides guarantees of the rights of shareholders on two groups: 1) guarantees of realisation of the rights of shareholders and 2) guarantees of restoration of the broken rights. It connects the last with possibility of the shareholder judicially to restore already broken права2, that, in our opinion, narrows a palette of measures and ways of protection.

For the theory and practice is of interest, that in Germany protection of the rights of shareholders is understood both as protection, and as maintenance. Its main principles under the German legislation are: granting to each owner at least one action of joint-stock company of a vote on general meeting of shareholders; absence of obstacles in registration of the property rights to actions; possibility of the free

1 See, for example: Vitrjansky V.V. Problemy of arbitrazhno-judicial protection of the civil rights of participants imushchestvennogooborota: Diss.... d.ju.n. M, 1996; Illarionov T.I.system of civil-law conservation measures. Tomsk, 1982; Pauls A.A.award to discharge of duty in nature as a way of protection of the civil rights in debt relationships. SPb., 2001; Sverdlyk G. A, Strauning E.L.protection and self-defence of the civil rights. M, 2002; n's Standing in the Soviet civil law. Sverdlovsk. 1973; Tarhov V. A. Responsibility on the Soviet civil law. Saratov, 1973; contract n's Crests on civil law. Tolyatti, 1997.

2 See: the Mogilyov S.D.legal of a basis of activity of joint-stock companies: Ucheb.-prakt. posob. 4­е izd., the reslave. And dop. M, 2004. S.134-137.

Realisation of the rights connected with possession and the order by actions; participation in formation of board of directors; participation in distribution of profit of the company [171].

We observe the similar approach at the analysis of the legislation of states of the USA, and also charters of the American corporations As mechanisms for protection of the rights and interests of small shareholders in states methods of increase of efficiency of participation minoritarnyh shareholders in management of corporation are applied at realisation of a vote by them. Them concern:

• cumulative voting use at election of members of board of directors (as a rule, under condition of inclusion of corresponding position in the corporate charter);

• agreements of shareholders on voting by actions belonging to them definitely;.

• restriction of quantity of voices which can belong to one shareholder;

• release of not voting actions, actions with the qualified right of a voice or, on the contrary, "many-voiced" actions;

• granting minoritarijam the rights "veto" at acceptance of corporate decisions.

Positions of laws in certain cases can be changed charters of corporations, for example, by an establishment of increased requirements to quorum or quantity of voices of the shareholders necessary for acceptance of this or that decision, in comparison with requirements, statutory staff.

The specified legal tools are recommended also by the Approximate (Modelling) law on enterprise corporations of the USA 1984 (MVSA) (with posledujushch, amendment) 1

Considering protection questions in the broad sense of the word by the Russian right, it is necessary to pay attention to possibility of maintenance and protection by shareholders of the rights through joint-stock company bodies.

Through general meeting of shareholders, the right of participation in which does not depend on number and a category of actions, does not come under to restriction, shareholders, including minoritarnye solve the basic questions:

I existence and joint-stock company activity (for example, podp 1,2, 3, 6, 7, 11 items 1 of item 48 FZ ABOUT joint-stock company »:

• modification and additions in the charter of a society or the statement of the charter of a society in a new wording;

• the statement of annual reports, annual accounts, including reports on profits and on losses (accounts of profits and losses) societies, and also profit distribution (including payment (announcement) of dividends, except for the profit meted as dividends by results of the first quarter, the half-year, nine months of fiscal year) and losses of a society by results of a fiscal year);

II management and the control in joint-stock company (for example, подп.4, 8, 9, 10, 13 items 1 of item 48 FZ ABOUT joint-stock company »:

• definition of quantitative structure of board of directors (supervisory board) of a society, election of its members and the preschedule termination of their powers;

• formation of an executive office of a society, the preschedule termination of its powers if the decision of these questions is not carried by the charter of a society to the competence of board of directors (supervisory board) of a society;

• election of members of a revision committee (auditor) of a society and the preschedule termination of their powers;

• the statement of the auditor of a society;

• election of members of the counting commission and the preschedule termination of their powers);

III it is direct the rights (for example, подп.5, 6, 7, 10-1, 11, 14,19 items 1 of item 48 FZ «About joint-stock company»:

• definition of quantity, a face-value, a category (type) of the declared actions and the rights given by these actions;

• increase in the charter capital of a society by increase in a face-value of actions or by placing of additional actions if according to FZ «About joint-stock company» the increase in the charter capital of a society by placing of additional actions is not carried by the society charter to the competence of board of directors (supervisory board)

Societies (through realisation of rights of priority of acquisition of the additional actions placed by means of opened and closed a subscription according to item 40 FZ «About joint-stock company»);

• reduction of the charter capital of a society by reduction of a face-value of actions, by acquisition by a society of a part of actions with a view of reduction of their total, and also by repayment of the actions got or redeemed by a society (through realisation of norm of item Z item 29 FZ «About joint-stock company» about payment to all shareholders of a society of money resources and (or) transfer of the issue securities belonging to a society placed by other legal body) by it;

• payment (announcement) of dividends by results of the first quarter, the half-year, nine months of fiscal year;

• the statement of annual reports, annual accounts, including reports on profits and on losses (accounts of profits and losses) societies, and also profit distribution (including payment (the announcement) dividends, except for the profit meted as dividends by results of the first quarter, the half-year, nine months of fiscal year) and losses of a society by results of a fiscal year;

• crushing and consolidation of actions;

• the statement of the internal documents regulating activity of bodies of a society;

Protection of the rights through Board of directors (supervisory board) of joint-stock company can be carried out by shareholders only indirectly, through the representatives with observance of some restrictive conditions.

The shareholders (shareholder) who is in aggregate owners not less than 2 % of voting actions of a society (item 53 item 1, item 66 FZ «About joint-stock company»), put forward candidates for board of directors (supervisory board). It is an example of realisation of the right minoritarnyh shareholders on

Participation in joint-stock company management: first, through participation in the management supreme body - general meeting of shareholders; secondly, through formation of the controls which are carrying out the general management by activity of joint-stock company. On classification of the mechanisms applied to maintenance of the rights minoritarnyh of shareholders in Germany, it is the special rights belonging minoritarnym to shareholders, possessing certain number акций1.

If shareholders, including minoritarnye, put forward and select someone in board of directors they have the right raschityvat, that their candidate will be at the decision, questions of management of joint-stock company to express their interests and to provide, protect their rights.

The association on protection of the rights of investors (API) has developed the characteristic of the independent director, expected mutual relations of the independent director with groups of interested persons (9 requirements from 15) [172 [173] thus are most carefully regulated. There are the requirements addressed and is concrete to directors - to representatives minoritarnyh shareholders.

In the general view, API from representatives co-operating with it minoritariev demands to consider wishes of members of Association and others minoritarnyh shareholders, to assist improvement of a financial and information transparency of joint-stock company for other shareholders. Within the limits of the second problem of the director - representatives minoritarnyh shareholders and independent directors operate in one direction.

However, in spite of the fact that in Russia shareholders (in 2000 have started to put forward independent directors basically minoritarnye; for December, 2000 on the informal statistics of Federal Commission on Securities [174] - nearby 60), these 2

Kind of directors are not identical. We will compare characteristics of directors — representatives minoritariev and independent directors.

Both those, and others should be independent (in financial and other sense) of a management (management) of joint-stock company, the owner of a controlling interest (the prevailing shareholder), large counterparts and competitors of the company.

But demands of independence of affiliated persons of joint-stock company are not made to representatives minoritariev. In practice minoritarii pay compensation to the representatives in board of directors (in it there is nothing illegal) that provides some financial dependence.

Differences on subject structure: the state can possess insignificant number of actions and then its representative in board of directors to formal signs should be recognised by the director from minoritariev (the substantial characteristic, specificity of a legal status do not allow us to recognise the state minoritarnym as the shareholder).

Besides the general requirements to members of board of directors (to operate in interests of joint-stock company to carry out the rights and to fulfil duties concerning a society honesty and reasonably - item 1 of item 71 FZ «About joint-stock company») representatives minoritariev should vote against the transactions aggrieving to these shareholders (under version API, also to shareholders-members API).

The institute of the Corporate Right and Management (ICLG) in the definition of the independent director [175], on the one hand, indirectly also allocates distinctions between directors - representatives minoritarnyh shareholders and independent directors, and on the other hand, establishes criteria of reference of shareholders to minoritarijam more accurately. So, the independent director not

Can and should not represent the shareholder supervising more 2 % of voting actions of the company. Thus, communication of the independent director with shareholders is established and the concept minoritarija as owner no more than 2 % of voting actions of joint-stock company reveals.

Meet, in our opinion, and unduly categorical judgements. In the report of Association of managers «From the independent director to a professional member of board of directors» 1 in a counterbalance of the independent director «new definition» is offered to "traditional definition»: really independent director does not depend on anybody (including minoritarnyh shareholders) and reduces interests of various groups together, helping to find it balance and carrying out a role of the professional arbitrator. According to Najdzhela Mobbsa (the chairman of board of directors of the company «Slough Estejts», having long-term experience of "independent representation» as a part of boards of directors of the various companies), the independent director should not be whose conductor that was interests - neither shareholders, nor someone else. It should be the independent supervising factor, called to provide good management, to subject to criticism strategy and work of the company and to offer weighed советы2.

A little bit more softly a variant: «the independent director is understood as the person who is not the official or the employee of the company or affilirovannyh with it of structures or the person, connected with them or somebody else so, that, according to Board of directors, it would interfere with removal of independent judgements at discharge of duties of the director» 3. That is, possibility of representation of interests minoritariev the independent director not

1 See:: «From the independent director to a professional member of board of directors», the Analytical report by results of research of Association of managers and Association on protection of the rights of investors, at support Center for International Private Enterprise and with the assistance of United States Agency for International Development «the Role of independent members of boards of directors in management of the Russian enterprises», April, 2001

2 On: Carol Kennedy. Investors and the board: Managing expectations in the City//Independent Director, summer 2001. №6.

3 NASD By-Laws, Subdivision D, Schedule D, Part THE ITEM

It is denied at all, but its character and consequences come under to an estimation from council директоров1.

In our opinion, concepts «directors - representatives minoritarnyh shareholders» and «independent directors» differ. Besides mentioned above criteria we will allocate the main: directors - representatives minoritarnyh shareholders unlike the independent directors, called to provide, realisation of interests of joint-stock company as a whole and balance of interests of various groups of shareholders, can defend interests exclusively minoritariev.

For execution by the elite from minoritariev members, board of directors of the duties before "principals" probably registration of relations between them the contract providing the rights, duties and a responsibility of the parties, compensation to directors. In this case minoritarnyj the director cannot be independent. Moreover, at the decision of a question with a collision of interests of joint-stock company and minoritarnyh shareholders there can be a situation when the director should break the duties either before a society, or before the principal. To relieve from its responsibility it is necessary to provide hierarchy of requirements to behaviour of directors in internal certificates of joint-stock company, in its charter, and further and in FZ «About joint-stock company».

Division of concepts independent and minoritarnogo directors does not mean a mutually exclusive choice between them. Their coexistence within the limits of board of directors (supervisory board) of one joint-stock company is admissible and it is desirable, since provides maintenance of balance of interests in a society [176 [177].

Through the representatives in board of directors minoritarnyj the shareholder protects the rights, solving following questions:

• increase in the charter capital of a society by placing by a society of additional actions within quantity and categories (types) of the declared actions if according to FZ «About joint-stock company» it is carried by the society charter to its competence (through realisation of rights of priority of acquisition of the additional actions placed by means of opened and closed a subscription according to item 40 FZ «About joint-stock company»);

• recommendations about the size of the dividend about actions and an order

Its payments;

• the statement of internal documents of a society, except for the internal documents which statement is carried by present FZ «About joint-stock company» to the competence of general meeting of shareholders, and also other internal documents of the society which statement is carried by the society charter to the competence of executive powers of a society (подп.5, 11, 13 items 1 of item 65 FZ «About joint-stock company»).

E.I.Nikologorskaja considers, that board of directors in which probably to create the select committee and an individual executive office are the joint-stock company bodies, authorised to resolve corporate конфликты1.

We have already considered possibilities of board of directors (supervisory board). The statement concerning the general director is represented though and not deprived of logic from positions of the law of master and servant and job characteristics of the head, but not finding a legal reinforcement in FZ «About joint-stock company» where the competence of executive powers is planned rather vaguely.

At desire we can find influence levers on offenders and preventive measures in the competence schetnoj

1 See: Nikologorsky E.I.Ukaz.soch.

The commission and a revision committee (auditor), but directly to protect the rights of the shareholder the corporate secretary and service of internal audit (control), in our opinion, should.

As it is marked in KKP, effectively to provide observance of the procedures established by the legislation, the charter and other internal documents (at convocation and general meeting carrying out, information disclosing, etc.) and the rights guaranteeing realisation and interests of shareholders of a society, can the character which is possessing necessary professional qualification and not combining this activity with performance of other functions in joint-stock company in this connection KKP urges to appoint to (select) the corporate secretary of a society only is constant.

The idea of the corporate secretary is borrowed KKP from experience of some foreign countries (mainly Anglo-American legal system). Recently in them the tendency to strengthening of a role of the given institute is clearly observed, and (in the Great Britain and Australia) positions about the special official have found legislative fastening in the separate states.

«In the international practice two similar institutes are presented: the corporate secretary... (In the USA and Canada) and the secretary of the company... (In the Great Britain, Australia, Singapore, Hong Kong, Thailand).... The Main difference of the secretary of the company from the corporate secretary consists that function and a zone of responsibility at the first is a little bit wider, than at the second» 1. Within the limits of continental legal system the named institutes have appeared less demanded [178 [179].

To Russia since 2007 the corporate secretary is included in the Qualifying directory of posts of heads,

Experts and other employees, Ministry of Labor of Russia approved by the Decision from August, 21st 1998 g, №37!.

Into its official duties among the other enter:

- Maintenance of observance with divisions and officials of joint-stock company of requirements of norms of the current legislation; the society charter, and also other documents guaranteeing realisation of the rights> and legitimate interests of shareholders (it is hereinafter allocated by me - Century F);

- Consultation of officials and shareholders of a society, and also members of board of directors concerning the corporate right and management;

- Providing of access of shareholders to documents;

- The organisation of storage of the documents connected with activity of board of directors and shareholder meeting of joint-stock company, and access of shareholders to the information containing in them, manufacturing of copies of documents, the certificate of their authenticity;

- Realisation of the account and consideration of references and the inquiries arriving from shareholders, concerning a corporate governance and realisation of the rights of shareholders;

- Assistance to expansion of the rights of shareholders and to their participation in a corporate governance;

- Maintenance of performance of the established rules and procedures, including the rights of shareholders connected with realisation on placing of actions of a society, other procedures directed on protection of the rights and valuable interests of shareholders;

- Acceptance of measures on prevention of losses of joint-stock company and-or its shareholders [180 [181].

Realisation of the problems put before the corporate secretary is carried out including thanks to such requirement to its qualification as the higher professional (legal or economic) formation.

In joint-stock company with the big number of shareholders creation of the device of the corporate secretary of a society, structure, number can be provided, structure and official which duties of employees it is necessary to define in internal documents of the organisation.

Internal audit or service of the internal control is without fail created in the organisations - professional participants RTSB and in the credit organisations [182].

In Position about the internal control of the professional participant of a securities market narrow value of internal audit is used. From functions of the controller to shareholders are most interesting:

The control by carrying out of random inspections observance by the professional participant of requirements of the legislation of the Russian Federation about RTSB, about protection of the rights and legitimate interests of investors on RTSB, and internal documents of the professional participant (item 4.1.3.);

Consideration of references arriving to the professional participant, statements and the complaints connected with realisation by the professional participant of professional work on RTSB (item 4.1.4.)

The section VII in detail shines the procedural and substantial moments of consideration of references, statements and complaints: their registration, consideration terms, the answer maintenance.

The quarterly account of the controller includes without fail generalised data:

About the checks spent for a quarter revealed at their carrying out infringements of requirements of legal acts and internal documents of the professional participant, the reasons of an assumption revealed infringement;

About the accepted measures on elimination of the revealed infringements, and also the recommendation about the prevention of similar infringements;

About results of consideration of references, statements and complaints (about quantity of the considered references, statements and complaints, about revealed following the results of consideration of references, statements and complaints infringements of requirements of legal acts and internal documents of the professional participant, the reasons of an assumption of corresponding infringements, about the accepted measures on elimination and the prevention of similar infringements in the further activity of the professional participant) (item 6.2.)

Indirectly in this Position functions of executive powers on protection of the rights of shareholders are shined also. As the controller the immediate notice of the head of the professional participant on the revealed infringement by the professional participant of legal acts and internal documents (item 4.1.5) enters. And the head of the professional participant not later than 10 working days from the date of representation to it the controller of the report on check of the revealed infringement or the quarterly account containing data on following infringements by the professional participant of legal acts informs in writing federal enforcement authority on RTSB on corresponding infringements and about the measures accepted by the professional participant, including on elimination of infringements and the prevention of similar infringements in the further activity of the professional participant (item 9.2.).

Position of the Central Bank of the Russian Federation by interestingly communication with certificates of the international organisations (recommendations of Basel committee),

Longer term of application by recommendations to controls on control of the organisation of activity of the legal person (the Appendix 1).

So, to the competence of board of directors (supervisory board) reference of following questions is recommended:

- Creation and functioning of the effective internal control;

- Regular consideration at the sessions of efficiency of the internal control and discussion with executive powers of questions of the organisation of the internal control and measures on increase of its efficiency;

- Consideration of documents on the organisation of system of the internal control, prepared by organisation executive powers, service of the internal control (further - SVK), other structural divisions, the auditor organisation, booking booking audit;

- Acceptance of the measures providing operative performance by executive powers of the organisation of recommendations and remarks SVK, the auditor organisation, booking booking audit, and supervising bodies;

- Timely realisation of check of conformity of the internal control to character, scales and conditions of activity of the organisation in case of their change.

To the competence of executive powers reference of following questions is recommended:

- Establishment of responsibility for performance of decisions of board of directors (supervisory board), realisation of strategy and policy of the legal person concerning the organisation and realisation of the internal control;

- Delegation of powers on working out of rules and procedures in sphere of the internal control to heads of corresponding structural divisions and the control over their execution;

- Check of conformity of activity of the organisation to the internal documents defining a procedure of the internal control, and an estimation of conformity of the maintenance of the specified documents to character and scales of activity of the organisation;

- Distribution of duties of divisions and the employees who are responsible for concrete directions (forms, ways of realisation) the internal control;

- Consideration of materials and results of periodic estimations of efficiency of the internal control;

- Creation of effective systems of transfer and the information interchange, necessary data providing receipt to the users interested in it;

- Monitoring system creation behind elimination of the revealed infringements and lacks of the internal control and the measures accepted for their elimination.

As a whole it is recommended to controls:

- To estimate the risks influencing achievement of objects in view, and to take the measures providing reaction to varying circumstances and conditions with a view of maintenance of efficiency of an estimation of risks;

- To provide participation in the internal control of all employees of the organisation according to their official duties;

- To establish an order at which employees bring to the notice of controls and heads of structural divisions of the organisation the information on all infringements of the legislation of the Russian Federation, constituent and internal documents, cases of abusings, non-observance of norms of a professional etiquette;

- To accept documents concerning interaction SVK with divisions and employees of the organisation and to supervise their observance;

- To exclude acceptance of rules and (or) realisation of practice which can stimulate fulfilment of the actions contradicting the legislation of the Russian Federation, to the purposes of the internal control.

Even in wide (and erroneous, according to a number of researchers) treatment of the internal control in Position of the Central Bank of the Russian Federation there are advantages: item 2.2. Positions offers standard base for putting on on controls, a revision committee (auditor), the chief accountant and specialised services and officials of duties on observance of the legislation and internal documents, in our case, the rights providing realisation and interests of shareholders.

It is remarkable, that KKP offers joint-stock company bodies (their members) to participate in conflict settlement even between shareholders (intermediary between shareholders at conflict settlement): with the consent of the shareholders who are the parties in the corporate conflict to participate in negotiations between shareholders, to give to shareholders available in their order and concerning the conflict the information and documents, to explain norms of the joint-stock legislation and position of internal documents of joint-stock company etc.

In general the considerable role in perfection of mechanisms of protection of the rights and legitimate interests of shareholders is taken away by practice of the best corporate behaviour to development of a corporate (local) order of settlement of corporate conflicts (gl. 10 KKP) which procedure of realisation can be included in the charter and other internal documents of joint-stock company.

In our opinion, participation of bodies and officials of joint-stock company in protection of the rights of shareholders is the same display of processes of self-regulation of business, as well as nejurisdiktsionnaja the form of protection of the rights. We have in detail considered last in the previous paragraph and consequently we will address in summary to one variant of protection and protection of the rights minoritarnyh shareholders internal means of joint-stock company.

Authors (R.J.Ivliev, S.D.Mogilevsky, M.V.Molodtsov [183]) mark necessity for realisation and protection of the rights of one persons a concrete definition of these rights and putting on of corresponding duties on counterparts. For example, S.D.Mogilevsky writes about accurate fixing of certain volume of the rights, shareholders in the law; about a legislative establishment of procedures which allow shareholders to realise their rights; about duties of joint-stock company and its controls and officials.

R.J.Ivliev - about a concrete definition of the rules of law mentioning the rights of shareholders, both in standard legal acts, and in constituent, in internal documents of joint-stock company; about a procedural regulation of process of realisation of the rights of shareholders and fulfilment of legally significant actions for the joint-stock company, capable to affect realisation by shareholders of the rights; about an establishment of interdictions and korrespondirujushchih the duties turned to subjects obliged in relation to shareholders.

M.V.Molodtsov approves: «In a civilised lawful state the mechanism of realisation of the rights should include not only system of guarantees on maintenance of the rights... But also system of guarantees on

To maintenance of execution with other party korrespondirujushchih with these rights of duties »1.

V.S.Anohin and E.J.Astashkina insist on allocation of an organizational (intracorporate) element of special guarantees of the rights of shareholders [184 [185].

Proceeding from these instructions effective, and in some cases (taking into account blanks in the current legislation) it is considered necessary a concrete definition of the rights of shareholders, procedures of their realisation and protection, counter duties of joint-stock company, its bodies and officials, and also their liability of infringement of the rights of shareholders and default (inadequate execution) duties in internal documents of a society [186].

For example, the shareholder has methods of protection of the rights in default board of directors in convocation at the initiative of the first extraordinary general meeting of shareholders, but there are no levers of influence on these controls in a case nevkljuchenija the questions offered it in the agenda of general meeting of shareholders and nominees in members of bodies of joint-stock company.

Overestimate of a payment for copies of the documents given by its inquiry, by unreasonable increase «expenses for their manufacturing» (Position item 3.8 about additional requirements to an order of preparation, convocation and carrying out of general meeting of shareholders, utv became a vivid example of infringement of the rights of shareholders recently. The decision of Federal Commission on Securities of the Russian Federation from May, 31st, 2002 ³17/ps (red. From 07.02.2003) [187]. The price of 1 page of a copy should be fixed not simply in one of decisions of general meeting of shareholders, and in the local

Position about general meeting of shareholders or about access of shareholders and investors to the information on joint-stock company and its activity, for example.

Except accurate registration of the rights it gives the chance to the shareholder to appeal against the decision of general meeting of shareholders in case of acceptance of the local legal acts worsening its position.

As a whole the system vnutrikorporatinoj protection and protection is represented more favourable minoritarnym to shareholders from the economic point of view (economy on court costs), from the point of view of efficiency and confidentiality, and also at the expense of creation of more flexible procedures of consideration of complaints and statements, operative intervention at revealing of offences.

So, the system of intracorporate protection and protection of the rights of shareholders is focused in bolshej degrees on weakness, i.e. minoritarnyh shareholders.

Now in Russia it is expedient by experience of some foreign countries to consider it in a broad sense a word. In this case it is offered to include in it:

Maintenance and protection by shareholders of the rights through bodies and officials of joint-stock company;

Local law-making; self-defence of the rights of shareholders; measures of operative influence;

Intracorporate conciliatory (soglasovatelnyj) a protection order.

In such understanding of norm about protection and protection of the rights of shareholders it is expedient to include in the head «Shareholders and their rights» at re-structuring FZ «About joint-stock company».

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A source: Faleev Vitaly Viktorovich . Minority shareholders: status, rights and their implementation. Thesis for the degree of candidate of legal sciences. Moscow - 2009. 2009

More on topic §4.3. System of intracorporate protection and protection of the rights minoritarnyh shareholders.:

  1. Chapter 4. PROTECTION of RIGHTS MINORITARNYH of SHAREHOLDERS
  2. Protection of interests minoritarnyh shareholders, creditors and workers
  3. § 2. Creation of system of maintenance and protection of the rights and interests minoritarnyh participants of not public society
  4. §4.2. Protection and restoration of the broken rights of shareholders.
  5. § 3. Ways of protection against infringement of the rights and interests minoritarnyh participants of not public society in Russia
  6. 3.1. The penalty as a way of protection of the right in system of ways of protection of the civil rights
  7. CHAPTER 3. WAYS OF PROTECTION OF THE RIGHTS AND INTERESTS MINORITARNYH OF PARTICIPANTS OF NOT PUBLIC SOCIETY
  8. Chapter 2. RIGHTS MINORITARNYH of SHAREHOLDERS
  9. CHAPTER 4. THE CONCEPT OF PERFECTION OF THE RUSSIAN CORPORATE LEGISLATION IN SPHERE OF PROTECTION OF THE RIGHTS AND INTERESTS MINORITARNYH OF PARTICIPANTS NOT PUBLIC SOCIETIES
  10. SECTION 1. PROTECTION of the RIGHTS of INVESTORS In the CONTEXT of the GENERAL PROBLEM of PROTECTION of the RIGHTS of MANAGING SUBJECTS
  11. § 3. Protection of the rights and freedom of the patient in Anglo-Saxon system ugo - lovnogo the rights
  12. § 1. Ways of protection against oppression minoritarnyh participants of the close corporation in the USA
  13. § 2. Ombudsman / the Representative under human rights as new institutsionalnyj an element of system of protection of the rights and freedom of the person and the citizen in the Post-Soviet states
  14. § 2. International legal protection of technological protection frames of the author's and adjacent rights
  15. §. 2. Forms of participation of law-enforcement bodies in protection and protection of real rights
  16. CHAPTER 2. The KONSTITUTSIONNO-LEGAL STATUS of the STATE SPECIALIZED BODIES ON ASSISTANCE to HUMAN RIGHTS And THEIR PROTECTION And THEIR ROLE In the MECHANISM of PROTECTION of the RIGHTS And FREEDOM of the PERSON And the CITIZEN In the UNITARY FOREIGN STATES