Joint-Stock Company- this is a business association (commercial structure), which is registered and operates according to certain rules, and its authorized capital is distributed over a certain number of shares. The main task is the formation of capital for conducting certain business activities.
Joint-Stock Company(JSC), or rather, its activities are regulated by the Civil Code of the Russian Federation, the Arbitration Code of Russia, the Law of the Russian Federation "On Joint Stock Companies" and other acts and laws.
The history of the emergence of a joint-stock company as a structure
It is believed that the origin of joint-stock companies, as a form, began in the 15th century, from the moment the Genoa Bank of St. George was formed. It was with him that the era of such formations began. The task of the newly created institution was to service state loans. At the same time, its founders were maons - formations of creditors who lent money to the state, and the latter paid them off with the right to receive part of the profits from the treasury.
Many principles of operation of the Bank of Genoa coincided with the current features of the JSC:
- capital of a financial institution divided into several main parts, which were distinguished by free circulation and alienability;
- bank management- a meeting of participants who met annually to make important decisions. Each proposal was then put to a vote. The main feature is that the officials of the financial institution did not have the right to participate in the meeting. The role of the executive body was performed by the council of protectors, which consisted of 32 members;
- bank members received interest payments on their shares. At the same time, the amount of dividends directly depended on the level of profitability of the bank.
Since the beginning of the 16th century, new markets have been actively opening up in Europe, the growth of trade volumes is accelerating, and industry is developing. The old forms of communities (guilds, maritime partnerships) could no longer protect the rights of the participants in the transaction and new economic needs. Thus, colonial companies appeared in Holland, England and France. In fact, the colonial states began to attract funds from outside for the further development of the land.
1602- Formation of the East India Company. Its essence is the unification of already existing organizations in Holland. Each company had its own shares, so the number of representatives in the governing bodies also varied. Over time, the shares of each of the participants were called "shares" - documents confirming the right to own part of the share. But massive stock speculation has forced the government to enact some tough restrictions on the misuse of company capital.
Almost simultaneously with the structure described above, the English version of the East India Company arose. Its feature is the annual meeting of participants to resolve key issues by voting. Only those participants who owned capital more than the percentage specified by the charter had a vote. The leadership was entrusted to the council, which consisted of 15 members elected by the meeting.
In the 18th century after several unsuccessful attempts to create his own bank, John Law succeeded. Subsequently, it was he who became one of the active participants in the creation of the West India Company. A few years later, other French organizations joined it. In fact, a powerful monopoly was formed on the market, which ensured a stable inflow of revenues to the treasury and economic growth. But this couldn't go on forever. Low dividends became the impetus for the mass sale of shares of the newly formed structure. The price of securities fell, and then completely collapsed. This caused serious damage to the country's economy.
In 1843 The first JSC law appeared in Germany. From the beginning of the 1860s, the number of such societies amounted to several dozen. Subsequently (in 1870, 1884) new laws were developed regarding the joint-stock company.
In 1856-1857 in England, the first legislative acts appeared that obligated newly registered communities to go through the registration procedure, have their own charter, indicate the goals of their activities, and so on. At the same time, established companies were allowed to issue only registered shares.
In 1862 all the acts and norms of England relating to joint-stock companies were collected in one law. In the future, it has not changed, but only supplemented with new items.
The rest of the countries (including the United States) used the experience already gained when creating joint-stock companies.
The essence of the joint-stock company
A joint stock company is a legal entity, an organization of several market participants. The feature of the structure is as follows:
- JSC participants have limited liability, which does not exceed the amount of their "infusions" into the company's authorized capital;
The joint-stock company bears full responsibility to its shareholders in terms of fulfilling obligations (including the timely payment of dividends);
The entire amount of the authorized capital is equally divided by the number of issued shares of the JSC. At the same time, the participants of the joint-stock company, and not its founders, act as holders;
The formation of the authorized capital occurs at the expense of the participants' investments. At the same time, the contributions made go to the full disposal of the newly created structure;
JSC works without time limits, unless the opposite conditions are spelled out in the charter of the newly created structure;
The joint-stock company has the right to carry out any activities that are not prohibited at the legislative level. At the same time, in some areas, a joint-stock company can operate only on the basis of a license;
A newly created organization is obliged to publish an annual report, loss and income accounts, balance sheet and other data that are provided for by law (all these issues are discussed in Article 92 of the Federal Law “On Joint Stock Companies”);
JSC gets the right to organize representative offices, branches, subsidiaries and so on. At the same time, you can open your branches even outside the state.
Types of Joint Stock Companies
Today, there are two main types of such organizations:
1. Open Joint Stock Companies (JSC)- these are formations in which shareholders have the right to alienate (sell) shares without agreement with other shareholders. At the same time, the JSC itself can distribute the issued shares freely, without any restrictions. The total number of shareholders and founders of a JSC is not limited. If the state (municipal formation, subject of the Russian Federation) acts as the founder of the company, then such a company can only be open - OJSC. The only exceptions are small structures that are formed on the basis of privatized companies.
The salient features of the JSC include:
The number of participants is unlimited;
- the amount of the authorized capital - from 1000 minimum salaries and above;
- shares are distributed by open subscription;
- securities can be freely sold and bought (without prior approvals);
- Education undertakes to issue and publish every year a report, accounts of losses, profitability, balance sheet.
2. Closed Joint Stock Companies (CJSC)- these are formations where issued shares can be distributed only within the formation (among the founders or a strictly defined circle of people). At the same time, an open subscription for CJSC is prohibited. In closed joint stock companies, shareholders have the right to be the first to buy securities.
The distinctive features of the JSC include:
The number of participants should not exceed fifty people;
- the value of the authorized capital should not be more than 100 minimum salaries determined at the legislative level;
- issued shares are distributed only among the founders (placement options are also possible among other persons, but only after agreement);
- current shareholders have the right to be the first to buy CJSC shares;
- a closed society may not publish any reports at the end of each year.
Differences of a joint-stock company
Modern joint-stock companies differ significantly from the following formations:
1. From business partnerships. JSC is an association of the capitals of several participants, and HT is an association of the capitals of participants and a group of persons who implement joint projects within the framework of one association. In addition, in HT, participants assume full responsibility for education obligations. AO does not provide for such liability.
2. From limited liability companies (LLC). The common features of LLC and JSC are the common capital of the participants, which is formed due to their investments in a common cause. But the joint-stock company has several characteristic features:
- the minimum value of the authorized capital for a joint-stock company is established at the legislative level (as well as the number of participants). For an LLC, this value is the "ceiling";
- all JSC participants receive shares in their hands, which can be disposed of at their own discretion (sell or buy on the stock market). In a simple community, the authorized capital is divided into simple contributions;
- the procedure for inclusion and exclusion from an LLC (JSC) is different;
- each shareholder of a joint-stock company has equal rights and obligations regarding the work of the structure. In a simple society, each participant can have his own obligations.
- The management structure of a joint-stock company is much more complicated than that of an LLC.
3. From production cooperatives. Here it is worth highlighting the following features:
- participants of the cooperative are liable for the obligations of the cooperative (that is, joint responsibility). In AO, each participant is responsible within the limits of his contribution;
- members of the cooperative may be expelled for non-fulfillment of obligations or violation of norms. No one in JSC has the right to deprive a participant of shares under any circumstances;
- a cooperative involves the formation of a community of people and their investments, and a joint-stock company is simply an association of investments.
Creation of a joint stock company
To organize your joint-stock company, you need to go through several stages:
1. Economically justify the future structure. That is, first you need to form the idea of the future formation. All members of society must clearly understand the tasks assigned to them, development prospects, potential profitability, and so on. Particular attention should be paid to the following issues:
Is the AO the best form for the chosen line of business. Here it should be taken into account that joint-stock companies are better suited for large businesses;
- is it possible to obtain the necessary funds in other ways (for example, to get a loan from a bank). Here it is necessary to take into account financial feasibility, potential benefits;
- determine the required amount of capital.
2. Organization of JSC. At this stage, the following work is carried out:
A founders' agreement is concluded, which specifies the main activities and characteristics of the business. At the same time, the responsibility of each of the participants directly depends on the amount of investments made. The founders cannot oblige the joint-stock company with any transactions with third parties, they are forbidden to act on behalf of the company;
A meeting of founders is held, where the charter of the joint-stock company is adopted by voting, the appraisal of property is approved, issues of issuing shares are discussed. The governing bodies are also formed by the AO and are elected at the meeting. The applicant passes if more than ¾ of all participants voted “for”;
The authorized capital is formed - the minimum amount of funds of the JSC, which, in which case, will guarantee the protection of the interests of creditors. For a joint-stock company, the size of the authorized capital must be at least 1000 minimum salaries established by laws at the time of registration of the joint-stock company. From the moment of registration, more than half of the shares must be purchased. The rest is during the year.
3. Registration of an institution at the level of state structures.
Any joint-stock company can be liquidated, that is, it ceases to exist as a legal entity. There are several elimination options:
1. Voluntary liquidation. In this case, the relevant decision is made at the meeting of shareholders. At the same time, the desire to liquidate the joint-stock company is accepted directly by the participants. The process takes place in the following order:
The meeting decides on liquidation;
- the decision is transferred to the state registration authority, which makes an appropriate note. From this moment, making any changes to the documents of the JSC is prohibited;
- a liquidation commission is appointed. If one of the participants was a state representative, then there must be a representative;
- the commission makes every effort to identify all creditors and receive the current debt;
- requests of JSC creditors are satisfied;
- the remaining property is distributed among the shareholders.
2. The forced liquidation of a company and the liquidation of a company are similar in nature. In our case, the joint-stock company ceases to exist after the decision of the court. In fact, the termination of the activity of the structure in a general economic format is the will of the market. Reasons for the liquidation of a joint-stock company may be as follows:
Conducting JSC activities that are not prescribed in the license or for which there is no appropriate permit;
- violation of laws in the performance of work;
- performance of activities that are prohibited by law;
- Violations during registration and their detection by the court. In this case, the latter must recognize the invalidity of all registration documents;
- bankruptcy of JSC, which is also recognized in court.
Advantages and disadvantages of a joint stock company
Of the positive features of AO, we can distinguish:
The fact of capital pooling is not limited by any limits. A JSC can have any number of investors (even small ones). This feature allows you to quickly raise funds for the implementation of plans;
When buying a certain number of shares, the future shareholder himself decides on the level of risk that he assumes. At the same time, his risk will be limited solely by the amount of investment. In case of bankruptcy of a joint-stock company, the holder of securities can lose only that part of the funds that he has invested no more than;
Sustainability. As a rule, joint-stock companies are stable formations. If one of the shareholders leaves the JSC, the organization continues its activities;
Professional management. Capital management is a function of professional managers, and not of each shareholder individually. Thus, you can be sure of a competent investment of capital;
The possibility of a refund. Shares can be sold in whole or in part at any time;
different types of profits. Income can be obtained in different ways - from receiving dividends, selling shares, lending securities, and so on;
Kudos. Today, joint-stock companies are respected structures, and their members have a high social and economic significance;
Availability of capital. JSCs always have the opportunity to raise additional funds by obtaining loans at favorable interest rates or by issuing shares.
Cons of a joint stock company:
JSC is an open structure, which obliges to publish annual reports, disclose its profits, and so on. All this is additional information for competitors;
The likelihood of reduced control over the flow of shares. Often, the free sale of securities can lead to drastic changes in the composition of participants. As a consequence, control over the AO may be lost;
Conflict of interest. When managing a company, managers and shareholders may have different views on the further development of the structure. The task of the first is to correctly redistribute income to preserve society, and the task of shareholders is to get the greatest profit.
What is a joint stock company? Without an answer to this question, it is impossible to talk about investing in securities. This article is an introduction to a story about securities - stocks and bonds. And although there are practically no joint-stock companies, it is impossible to talk about investing in shares without understanding the meaning and principle of organizing joint-stock companies. Therefore, this article does not contradict the topic of the site. Moreover, the dream of many small business owners is its growth, development, and information about the joint-stock company will not harm them.
Introduction.
To continue talking about joint-stock companies, we need some definitions and formulations. Therefore, we will start with them.
security paper- this is an official document certifying the property rights of the owner of this document to the property or funds indicated in it. From an economic point of view, a security is a carrier of capital. The issue of securities (called the issue) is usually considered as a tool to attract financial resources. The issuer of a security may be the state, authorities, legal entities and individuals.
Dividends- is the share of the net income of any business received by an individual or legal entity, in the distribution of the profits of this business, remaining after tax. In principle, any kind of profit received from various sources can be attributed to dividends.
Well, now let's proceed directly to the topic of this article.
Joint stock company - what is it?
A joint-stock company (JSC) is a company (business, company), whose capital is divided into a certain number of shares, expressed by a security, which is called a share. From this came the name - joint stock. The participants of a joint-stock company (shareholders) are the holders of its shares. Shareholders are not liable for the obligations of the company and bear only the risk of losses within the value of their shares. Shareholders have the rights to manage the company, to receive part of the profit in the form of dividends, to part of its property in the event of its liquidation.
What is a share. Types of shares.
A share is a piece of paper that secures to its owner the right to own part of the company. For example, if the capital of a company is divided into 1000 shares and a shareholder owns two shares, then he owns 0.2% of the capital of the company. There are two types of shares: ordinary and privileged.
An ordinary share is a security that gives the right to own the property of a business or joint-stock company. The owners of ordinary shares are full shareholders, since each of them has the right to vote at the general meeting of shareholders, which makes it possible to participate in the election of the company's board, take part in the appointment of managers, in determining the direction of the joint-stock company's activities, and approve the company's annual report.
Preferred shares are a special type of company stock that has a higher status. Preferred shares either do not give the shareholder the right to vote in the company, or may give more weight to the voice. Dividends are paid first to holders of preferred shares, and only then to ordinary ones. When a company is liquidated, preferred shareholders receive their share of the assets before ordinary shareholders receive them. The number of preferred shares in companies is limited (usually no more than 25%).
In addition to shares, a joint-stock company can also issue another type of securities - bonds. A bond is a debt security. Buying a bond means that you lend money to the company. A bond is issued for a limited period, after which the company pays the holder of the bond its face value and a mandatory, as a rule, fixed percentage of the face value.
Types of joint-stock companies.
The joint stock company is divided into two types: open (JSC) or closed (CJSC). An open joint stock company is a company whose shareholders may resell or transfer their shares without the consent of other shareholders. An open joint stock company may conduct an open subscription for shares issued by it. JSC is obliged to annually publish for general information the annual report, balance sheet, income statement. Distinctive features of an OJSC are an unlimited number of shareholders and free circulation of shares on the market.
A closed joint stock company is a company whose shares are distributed only among the founders or other predetermined circle of persons. Such a joint-stock company is not entitled to distribute its shares among an unlimited circle of persons. Therefore, only a limited number of persons (usually up to 50) can be shareholders of a CJSC. CJSC shares cannot be freely traded on the market.
Joint-Stock Company. Governing bodies.
The supreme governing body of a joint-stock company is the general meeting of its shareholders. At meetings of shareholders, one share provides one vote. Therefore, the number of votes of each shareholder is determined by the number of ordinary shares owned by him. A group of shareholders owning in the aggregate more than 50% of the shares of a joint-stock company acquires the right to control the activities of the joint-stock company. The General Meeting of Shareholders resolves the following issues:
Changing the charter of the company;
Change in the authorized capital of the company;
Election of the governing bodies of the company - members of the board of directors, the supervisory board of the company and early termination of their powers;
Reorganization and liquidation of the company;
Approval of the annual report, annual balance sheet, annual profit and loss statement of the company and distribution of profits.
In the period between general meetings, the JSC is managed by the executive body. The executive body may be a collegial body (board, directorate) or a sole management (director, general director) of the company, which carries out the current management of the company's activities. The executive body is accountable to the general meeting of shareholders.
The founders of a joint-stock company can be both numerous persons and one person who is the holder of all shares of the company. Information about this must be registered and published for public viewing.
Joint-Stock Company. Authorized capital and assets.
The authorized capital of a joint-stock company is the total nominal value of the company's shares acquired by shareholders. This total value is equivalent to the minimum value of the company's property, which guarantees the interests of the company's investors and owners of preferred shares and bonds. It should be noted that a very important condition is that when a joint-stock company is established, all its shares must be distributed among the founders. Accordingly, an open subscription for shares of a joint-stock company before the full payment of the authorized capital by its founders is not allowed.
If, at the end of the financial year, the value of the net assets of a JSC turns out to be less than its authorized capital, then the JSC is obliged to declare and register, in accordance with the established procedure, the decrease in its authorized capital. Accordingly, by decision of the general meeting of shareholders, the JSC must reduce the size of the authorized capital by reducing the nominal value of shares or by purchasing part of the shares in order to reduce their total number. Moreover, such a decrease is allowed only after notification of the company's investors, who have the right to demand from the company early termination of investment and payment of the invested funds to them.
By decision of the general meeting of shareholders, a joint-stock company has the right to increase the size of the authorized capital by increasing the par value of shares or issuing additional shares. It should be borne in mind that an increase in the authorized capital is allowed only after its full payment, and this increase cannot be used to cover the losses incurred by the company.
At the end of the financial year, the general meeting of shareholders decides on the division of the JSC (naturally, if it exists). The meeting decides which part of the profits to allocate to the development of the joint-stock company, and which part to pay to shareholders in the form of dividends. Dividends are distributed primarily to preferred shares, and the remainder to ordinary shares. JSC does not have the right to pay dividends before the full payment of the entire authorized capital, as well as in the event that the value of the net assets of the company is less than its authorized capital or becomes less than its size as a result of the payment of dividends.
Conclusion.
I hope, after reading this article, dear readers, you have got an idea about one of the popular forms of business organization. In the future, we will continue to talk about investing in stocks. This should be of interest to small business owners, as investing in stocks can be a very good source of income and a profitable investment.
The Federal Law of May 5, 2014 No. 99-FZ "" (hereinafter referred to as the Law), which enters into force on September 1 of the current year, introduces significant amendments to the procedure for the creation, operation and liquidation of legal entities. We examined how the articles of the code containing general provisions on organizations will change. This material will be devoted to those amendments that affect specific organizational and legal forms of legal entities.
Closed list of non-profit organizations
The current version of the Civil Code of the Russian Federation establishes that legal entities that are non-profit organizations can be created in such forms as a consumer cooperative, public or religious organizations (associations), institutions, charitable and other foundations, as well as in other forms provided by law (). In accordance with the Law, this list becomes closed and includes 11 organizational and legal forms of non-profit organizations ():
1
consumer cooperatives. They can be formed, in particular, in the form of housing, housing construction, garage, dacha consumer cooperatives, mutual insurance companies, credit cooperatives, rental funds, etc.
2
Public organizations. At the same time, it is emphasized that political parties, trade unions, and social movements belong to this form of non-profit organizations.
3
Associations (unions). These include, in particular, non-profit partnerships, self-regulatory organizations, associations of employers, associations of trade unions, cooperatives and public organizations, chambers of commerce and industry, notaries and lawyers.
4
Associations of property owners, including HOA.
5
Cossack societies included in the state register of Cossack societies in the Russian Federation.
6
Communities of indigenous peoples of Russia.
7
Foundations (public, charitable, etc.).
8
institutions. These include state, municipal and private (including public) institutions.
9
Autonomous non-profit organizations.
10
Religious organizations.
11
Public law companies.
The Law fixes the definitions of all these forms of organizations, establishes the procedure for their establishment and management, outlines the rights and obligations of their participants. It should be noted that consumer cooperatives, public organizations, associations, partnerships of property owners, Cossack societies and communities of indigenous peoples of the Russian Federation are corporate, and all the rest are unitary non-profit organizations.
In order to engage in income-generating activities, non-profit organizations will need to provide for such a possibility in their charters. According to the current version of the Civil Code of the Russian Federation, for the implementation of entrepreneurial activity, only one condition must be met - this activity must serve the achievement of the goals for which they were created, and correspond to them. This condition is preserved.
Business partnerships and companies
The law does not change the organizational and legal forms of business partnerships - they can still be created in the form of a general partnership or limited partnership (limited partnership). But there will be fewer forms of business entities from September 1 - Law such form as an additional liability company is excluded(will expire September 1). Thus, only limited liability companies (LLC) and joint-stock companies (JSC) can be created. Experts in the field of civil law note that this is a very correct change, since in practice ODO is not widely used.
A number of changes relate to the authorized capital of business entities. Thus, the Law stipulates that the founders of a company are obliged pay at least three-quarters of the authorized capital before state registration of the company, and the rest - during the first year of its activity (). However, laws governing the activities of a particular type of company may establish a different procedure. The same laws, as before, determine the minimum size of the authorized capital of companies. In this case, when state registration of a business company is allowed without such an advance payment, the participants in the company will bear subsidiary liability for its obligations that arise until the moment the authorized capital is paid in full.
Another change concerns the procedure for making non-monetary contributions to the authorized capital. For their monetary valuation of the company (regardless of the value of the participants' shares in the authorized capital) will be required to engage independent appraisers. At the same time, if the appraiser makes a mistake in the calculations and overestimates the property, he, together with the participants whose shares he appraised, will bear subsidiary liability for the obligations of the company within the amount by which the appraisal of the property contributed to the authorized capital is overestimated, within five years from the date of state registration of the company. It should be noted that the provision on such liability will not apply to property appraisers and participants in privatized state unitary enterprises and municipal unitary enterprises. At present, an independent appraiser is necessarily involved in determining the market value of property when paying for JSC shares in non-cash funds (clause 3, article 34 of the Federal Law of December 26, 1995 No. 208-FZ ""). Limited liability companies are required to do this only if the nominal value of the participant's share in the authorized capital paid in non-cash funds is more than 20 thousand rubles. (Clause 2, Article 15 of the Federal Law of February 8, 1998 No. 14-FZ "").
Members of economic companies, according to the Law, will be able to fix a certain procedure for exercising their membership rights in a special document - corporate agreement(The Civil Code of the Russian Federation is supplemented by the corresponding article 67.2). In it, they will be able to indicate that these rights need to be exercised in a certain way, for example: how to vote at a general meeting of participants, at what price to acquire or alienate shares in the authorized capital (shares), etc. (). At the same time, not all participants in the company can conclude such an agreement. In this case, it naturally does not create obligations for persons who are not parties to it.
In addition, the Law establishes the need to confirm the fact that the general meeting of participants in a business company has taken a decision and the composition of the participants in the company present at the same time. So, in relation to a public joint stock company, such confirmation will be carried out by the register of its shareholders, a non-public joint stock company - by notarization or also certification by the registrar of the register of shareholders, a limited liability company - by notarization ().
Joint stock companies
Important amendments also affected joint-stock companies. Law cancels their division into open and closed- they will be replaced by public and non-public companies (a new article will appear in the Civil Code of the Russian Federation - Article 66.3). public shall be a joint-stock company whose shares and securities convertible into them are publicly placed (by open offering) or publicly traded on the terms established by securities laws. In addition, the rules on public companies will apply to JSCs whose charter and company name indicate that the company is public. AOs that do not meet these conditions are non-public. Also LLC () is classified as a non-public company.
It should be noted that the Law regulates the activities of public joint-stock companies in more detail (specific provisions on them are enshrined in a new edition), since their activities affect the property interests of a large number of shareholders and other persons.
We emphasize that the law cancels the restriction the number of shares owned by one shareholder of a public JSC, their total nominal value, as well as the maximum number of votes granted to one shareholder. At present, such restrictions may be provided for by the charter of a joint-stock company (clause 3, article 11 of the Federal Law of December 26, 1995 No. 208-FZ ""; hereinafter - the Law on Joint Stock Companies). At the same time, according to the Law, public JSCs are prohibited from placing preferred shares, the par value of which is lower than the par value of ordinary shares ().
Another significant change concerns the maintenance of the register of shareholders and the performance of the functions of the counting commission - from September 1, these will be dealt with exclusively independent organizations that have a statutory license, – (). However, this rule only applies to public JSCs. Recall that in the existing practice, joint-stock companies either transfer the maintenance of the register to such a registrar, or are themselves its holders (). As for the counting commission, according to the current legislation, it is created in a company in which the number of shareholders - owners of voting shares of the company - is more than 100, and its quantitative and personal composition is approved by the general meeting of shareholders. If the register of joint-stock companies is maintained by the registrar, he may also be entrusted with the performance of the functions of the counting commission. And in companies with more than 500 shareholders - owners of voting shares, the functions of the counting commission are performed exclusively by the registrar ().
In addition, the Law establishes the need for verification and confirmation of the correctness of the annual accounting (financial) statements mandatory external audit for absolutely all JSCs(currently it is carried out only in relation to organizations that are OJSCs, and also for) and in some cases - for LLCs ().
ATTENTION!
No mass re-registration of legal entities in connection with the adoption of the Law is not expected, since it does not establish its obligation. It will be necessary to bring the names of existing organizations and their constituent documents in accordance with the requirements of the Law the first time these documents are changed (). There is no specific time frame for doing this. In addition, JSCs that meet the criteria of public JSCs will not even need to indicate in their company name that they are public.
Experts also note that these amendments to the Civil Code of the Russian Federation are aimed at harmonizing Russian civil legislation with the legislation of foreign countries, which will help in attracting foreign investors to Russian business.
JOINT-STOCK COMPANY (AO)
a business company formed by persons who have combined their property and funds into an authorized capital divided into a certain number of equal shares secured by securities - shares. JSC is a commercial organization that has a corporate character and the status of a legal entity. JSC participants - shareholders have liability rights in relation to JSC, fixed in shares. A shareholder's liability for the obligations of a JSC is limited to the value of its shares (essentially, the value of a share determines the limits of a shareholder's entrepreneurial risk). The subject of ownership of funds and other property contributed by the founders and shareholders to the JSC is the JSC itself as a legal entity.
JSC as an organizational and legal form arose at the turn of the XVII-XVIII centuries. due to the need to concentrate capital for large business projects. One of the first JSCs was the East India Company, formed in England in 1600, and the East India Company in Holland, formed in 1602. In Holland, the top management of the company was appointed by the government of the States General from among the shareholders who had a certain number of shares. Shareholders owned only property rights, personal participation in the management of JSC affairs was not allowed. In 1628, the West India Company was founded in France, and in 1664, the East India Company. In the XVIII century. AO appear in
Germany.
In Russia, the first legislative act providing for the creation of associations with the features of a JSC was the Decree issued on October 27, 1699 by Peter I on the formation of trading companies by merchants. The named and subsequent Decrees of 1706 and 1711 only expressed the idea of the expediency of uniting merchants in companies to expand their business and replenish the treasury, but did not receive practical implementation. The first real operating joint-stock company was the Russian Trading Company in Constantinople, established on February 24, 1757. The company's capital consisted of 200 shares of 500 rubles each. each. 100 shares were distributed among the founders, 100 were sold to everyone. The company was managed by directors, but there was no detailed regulation of their activities.
By the end of the XVIII century. in Russia, the conditions for the functioning of equity capital have developed. But the management system of JSCs has not yet been established by law - issues related to the structure of management bodies, the procedure for expressing the will of shareholders, etc., were decided by the shareholders themselves. As a rule, management was in the hands of the founders of the company. The general meeting of participants determined the procedure for distributing profits, elected and dismissed officials, enjoyed the right to open new offices of the company, make changes and additions to the memorandum of association.
The main features of the joint-stock company were enshrined in the Named Supreme Decree of September 6, 1805. The provisions enshrined in the Decree, with some changes, were included in Ch. 10 "On Partnership" of the Code of Laws of the Russian Empire of 1830. The Manifesto of Emperor Alexander 1 of January 1, 1807 provided for two main types of partnerships - a full partnership and a limited partnership. Joint-stock companies - "partnerships in areas" - were considered as an exception. However, the need for legal regulation of the joint-stock form of combining capitals caused the emergence of the Law "Regulations on Companies on Shares", approved on December 6, 1836 by the Decree of Nicholas I.
The 1836 Law defines the essence of the joint-stock form of business organization: "Companies on shares are formed by combining a certain number of private
contributions of a certain and uniform amount to one common pooled capital, which limits the scope of activities and responsibilities of the members of the company, and may have as their object the activation of any invention or enterprise in the field of science, art, art, craft that is not exclusive to anyone, invention or enterprise , shipping, trade and industry in general. "The law made certain requirements for the articles of association of companies, requiring the indication of the means and purposes of the enterprise, the name of the company, the amount of capital and the number of shares issued, the procedure for compiling capital and the distribution of shares, the duties, rights and responsibilities of the company and shareholders, the procedure for reporting, the distribution of dividends, the procedure for managing the affairs of the company, the structure and competence of the board and the general meeting of shareholders, the procedure for closing and liquidating the company The law provided the company with the opportunity to independently regulate in its charter the rights of shareholders to participate in the general meeting and in its decisions in proportion to the number of of shares, the procedure for participation in the meeting of authorized shareholders. The board could manage the affairs and capital of the company in accordance with the rules of the articles of association, which should indicate the maximum amount by which the board is authorized to "make expenses for the enterprise of the company" without a decision of the general meeting. The law also provided for the procedure for making decisions by the board - by a majority vote of the members present, and if it was impossible to obtain the required majority, the issue was raised before the general meeting. The competence of the general meeting was determined by the charter on the basis of an approximate range of issues attributed by law to the competence of the meeting. This is the appointment of reserve capital, the distribution of dividends, consideration of the report, the election of directors, amendments to the charter, the decision to close the company. Decisions of the general meeting were valid if they were adopted "by at least three-quarters of the shareholders who appeared at the meeting when their votes were counted according to the size of the shares."
The law of 1836 was in effect until 1917. After the October Revolution
1917 and the wide nationalization of the AO industry in Russia by the middle
1918 practically disappeared. However, with the transition to the NEP, interest in various forms of entrepreneurial activity revived again. Prior to the adoption in 1922 of the Civil Code of the RSFSR, the activities of joint-stock companies were practically not regulated. At the same time, separate steps were taken that created the prerequisites for the appearance in the Civil Code of a set of norms on commercial partnerships. These include the decree of the All-Russian Central Executive Committee on foreign trade of March 1, 1922, which granted the People's Commissariat for Foreign Trade the right to organize, with the approval of the Council of Labor and Defense, joint-stock enterprises:
Russian, on foreign capital, mixed. The Decree of the Council of People's Commissars of April 4, 1922 on the establishment of the Main Committee for Concessions and Joint Stock Companies established the procedure for approving the statutes of JSCs. The Law of May 22, 1922 "On Basic Private Property Rights Recognized by the RSFSR, Protected by Its Laws and Protected by the Courts of the RSFSR" provided all legally capable citizens with the opportunity to organize industrial and commercial enterprises, including joint-stock companies.
On January 1, 1923, the Civil Code came into force on the territory of the RSFSR, which contained the basic rules governing the legal status and activities of the joint-stock company. The Civil Code designated them by the terms "joint-stock partnerships" and "share partnerships". JSC was defined as "a partnership (company), which is established under a special name or firm with a fixed capital divided into a certain number of equal parts (shares) and for whose obligations it is liable only with the property of the company." Here, as an independent feature, the division of fixed capital into a certain number of equal parts represented by shares is indicated. The number of founders could not be less than five. The charter, which was submitted for government approval, had to contain an indication of the purpose of the joint-stock company, its name, the size and procedure for the formation of fixed capital, the face value and procedure for paying for shares, a description of the management bodies of the joint-stock company, their competence and reporting procedure. For the formation of a joint-stock company, two meetings of founders were required: preliminary and constituent. The preliminary meeting was convened after the receipt of at least 1/, of the main capital, at which a report was heard on the progress of the establishment of the company and a commission was elected to verify the report of the founders and data related to the valuation of property. Not later than one month, but not earlier than 7 days after the preliminary meeting, the constituent meeting of shareholders was convened.
establishment of a joint-stock company was recognized as valid, provided that it was adopted by a majority vote of the shareholders present, representing at least half of the share capital contributed by the time of the founding meeting. The JSC acquired the rights of a legal entity only after registration. The system of governing bodies of the company included the general meeting of shareholders, the board and the audit commission. However, the AO was given the opportunity to form a council, which occupied an intermediate position between the general meeting and the board and, in the periods between meetings, was called upon to exercise control over the activities of the board. The formation of the council should have been provided for in the charter of the society. The JSC form was also used for organizations whose shares could belong exclusively to the state. The Regulations on joint-stock companies of August 17, 1927 extended general rules to state joint-stock companies regarding all state self-supporting enterprises. In the second half of the 30s. state joint-stock companies were either liquidated or transformed into state associations, trusts, auctions.
In connection with the almost complete nationalization of the national economy, the norms of the Civil Code on commercial partnerships became invalid and were formally excluded from the Civil Code of the RSFSR.
The transition of the Russian Federation to a market economy required the revival of organizational and legal forms capable of ensuring the unhindered movement of goods and services, the rational organization of production, trade, banking, etc. The use of the JSC form has become one of the most important tools for the privatization of state and municipal enterprises. The restoration of the legislation on joint-stock companies began with the approval by the Council of Ministers of the RSFSR on December 25, 1990 of the Regulations on joint-stock companies. In a number of subsequent acts - Law of the Russian Federation of July 3, 1991 No. 1531-1 "On the privatization of state and municipal enterprises in the Russian Federation", Decrees of the President of the Russian Federation "On organizational measures to transform state enterprises, voluntary associations of state enterprises into joint-stock companies" "On the state program for the privatization of state and municipal enterprises in the Russian Federation", etc., a primary regulatory framework was created for the creation of joint-stock companies. Part one GC
RF. adopted in 1994, and the Federal Law of the Russian Federation of December 26, 1995 No. 208-FZ "On Joint-Stock Companies" regulated relations related to the establishment and activities of JSCs.
The law is applicable to all JSCs operating on the territory of the Russian Federation. Features of the creation and legal status of JSCs in the areas of banking, insurance and investment activities, as well as companies formed on the basis of enterprises of the agro-industrial complex, are determined by the Federal Law.
The creation of a joint-stock company is possible either through the establishment of a new company, or through the reorganization of an existing one. A necessary condition for the acquisition by JSC of the rights of a legal entity is its state registration. The creation of a joint-stock company is an act of will, committed by persons with civil legal and legal capacity - the founders. Both citizens and legal entities can act as founders. Owner-funded institutions may become AO members with the permission of the owner. The decision to establish a joint-stock company is taken by the founders jointly and unanimously, but the Law allows the creation of a joint-stock company by one person, and then the will of this person is sufficient. The Constituent Assembly decides on three main issues: the creation of a joint-stock company, the approval of its charter, and the election of management bodies. Decisions on major issues are taken unanimously. The decision to form the governing bodies is made by a majority 3/ of the number of votes belonging to the founders in accordance with the total number of voting shares due to them in accordance with their property contributions. The agreement on the establishment of a JSC concluded by the founders is a simple partnership agreement (an agreement on joint activities) and does not apply to constituent documents. Therefore, like any civil law contract, it can be declared invalid if there are sufficient grounds for this. In addition, an obligatory condition for the normal activity of a JSC is the registration of an issue of securities (shares) of a company with the Federal Securities Commission of the Russian Federation, without which it is impossible to conduct any transactions with JSC securities.
The law distinguishes between two types of JSC - open and closed. Open JSCs (JSCs) have the right to conduct an open subscription for the shares they issue, the number of shareholders in them is unlimited, the shareholders have the right to alienate their shares without the consent of other shareholders. In closed JSCs (CJSCs), the number of shareholders should not exceed 50, shares are distributed among the founders or a limited number of persons, CJSC shareholders have the pre-emptive right to purchase shares sold by other shareholders of the company. The possibility of having an unlimited number of founders and shareholders in an open joint-stock company creates the conditions for mobilizing significant capital, which ensures the solution of major economic problems. Limiting the number of shareholders of a CJSC brings this form of business companies and limited liability companies (000) closer together.
The only founding document of a joint-stock company is its charter. This is a local normative act that regulates the internal relations that develop between shareholders and the management bodies of the JSC. The legal force of the charter, its obligation for all shareholders and bodies of the joint-stock company is based not only on the fact of approval of the charter by the founders, but also on the subsequent state registration of the joint-stock company. The law gives an approximate list of information that should be contained in the charter. The founders have the right to include in it any provisions that do not contradict the law. The charter distinguishes between informational and regulatory provisions. The information that an interested person can obtain from the charter should give a complete picture of the JSC as a subject of civil law, i.e. first of all, to individualize the joint-stock company, to characterize the main directions of its activity, to indicate the state of its property. The charter defines the rights of shareholders for various categories of shares. It fixes the organizational structure of the joint-stock company, determines the structure of its bodies and normalizes the procedure for the formation and activities of these bodies. Protecting the interests of shareholders. The law established that only in the charter adopted unanimously, restrictions on the number of shares owned by one shareholder, or their total nominal value for one shareholder, could be provided. The statutory limitation of the maximum number of votes belonging to one shareholder is also allowed, regardless of the number of shares he has. Amendments and additions are made to the charter of a joint-stock company by decision of the general meeting of shareholders and become effective for third parties from the moment of state registration.
The structure of the JSC bodies provided for by the Law is designed to ensure
the interests of shareholders, the ability to really influence the economic activity of the joint-stock company. A peculiar system of "checks and balances" has been created. The main body is the general meeting of shareholders, which forms the executive and control bodies. The executive body may be the board, the directorate - collegial executive bodies or the director, the general director - the sole executive body. The current activity of these bodies is controlled by the board of directors (supervisory board) and the audit commission (auditor) created by the general meeting of shareholders.
The General Meeting of Shareholders is convened annually on a mandatory basis within the terms determined by the charter on the basis of the Law. An extraordinary general meeting is convened by the board of directors (supervisory board) on its own initiative, as well as at the request of the audit commission (auditor) of the JSC, the auditor of the company, the shareholder (shareholders) who owns at least 10% of voting shares. The meeting can be held both with the presence of shareholders and by absentee voting (by poll). Many issues can be resolved by absentee voting, with the exception of the election of the board of directors, the audit commission (auditor), approval of the company's auditor, consideration and approval of annual reports, balance sheets, profit and loss account, distribution of profits and losses.
Decisions adopted by the general meeting are binding on the shareholders. However, the Law grants the shareholder the right to challenge the decision and demand in court that it be declared invalid in case of: untimely notification (lack of notification) of the date of the general meeting; failure to provide an opportunity to get acquainted with the necessary materials (information) on the issues included in the agenda of the meeting; untimely submission of ballots for absentee voting, etc.
The shareholder may apply to the court to declare the decision invalid if: a) the decision was made in violation of the law, other regulatory legal acts or the charter of the JSC; b) the plaintiff did not take part in the meeting at which the decision was made, or voted against it: c) this decision violated the rights and legitimate interests of the shareholder. In the presence of all three conditions, the claim can be satisfied by the court.
The Law defines the competence of JSC management bodies. The redistribution of competence between bodies is not allowed, except for a limited number of cases provided for by the Law. Thus, the charter may provide that the formation of the executive body and the early termination of its powers fall within the competence of the board of directors (supervisory board). The same applies to resolving the issue of changing the charter in connection with an increase in the authorized capital. For its part, the board of directors is not entitled to transfer its exclusive powers to the executive body. Not all of its powers can be exercised by the general meeting on its own: in some cases, its actions must be initiated by the board of directors (supervisory board). In particular, on the proposal of the council, issues of reorganization of the joint-stock company are resolved - merger, accession, division, separation and transformation, as well as its voluntary liquidation.
The reorganization of a JSC is that its rights and obligations are transferred to other legal entities in the order of succession.
Among the forms of reorganization of a legal entity, the Civil Code of the Russian Federation, and after it the Law on JSC, mention the transformation. AO can be transformed into 000 or into a production cooperative. Transformation into a business partnership (full or limited) or into a consumer cooperative is not allowed. When carrying out the transformation, the rules established by law for the specified types of commercial organizations must be taken into account. It does not contradict the law to transform a joint stock company of one type into another: an open joint stock company into a closed joint stock company, and vice versa. The restrictions here are due to the established maximum number of shareholders in a CJSC - no more than 50, therefore, an OJSC with a larger number of shareholders cannot be transformed into a CJSC. On the other hand, a CJSC is not subject to transformation into an OJSC if the amount of its authorized capital is below the minimum level established for an OJSC.
Termination of a joint stock company in the form of liquidation is subject to the norms of the Civil Code of the Russian Federation, common to all legal entities, and the relevant norms of the JSC Law. A joint-stock company may be liquidated voluntarily by the shareholders themselves or forcibly by a court decision. The Civil Code names only two reasons for which the voluntary liquidation of a joint-stock company occurs - the expiration of the period for which the legal entity was created,
and the achievement of the purpose for which it was created. The decision on liquidation must be immediately submitted in writing to the appropriate body of state registration.
The forced liquidation of a JSC is carried out by a court decision in accordance with the grounds specified in the Civil Code: carrying out activities without a proper permit (license), or activities prohibited by law, or with other gross violations of the law or other regulatory legal acts. The basis for compulsory liquidation is also the insolvency (bankruptcy) of the JSC. The conditions and procedure for declaring a JSC bankrupt, as well as the specifics of the liquidation procedure, are determined by the Federal Law of the Russian Federation dated January 8, 1998 No. 6-FZ "On Insolvency (Bankruptcy)".
The basis of the commercial activity of a joint-stock company is the authorized capital, which is made up of the nominal value of the shares of the company acquired by the shareholders. The authorized capital of a company determines the minimum amount of its property that guarantees the interests of creditors. According to the law, the minimum amount of the authorized capital for an OJSC is at least 1000 times the minimum wage established by the Federal Law, and for a CJSC - at least 100 times. The formation of the authorized capital takes place in the process of establishing a JSC by paying for shares. Shares\"can be paid for in money, securities (bills, checks, warrants, etc.), other things or property rights or other rights having a monetary value, including property rights - the exclusive rights of a citizen or legal entity to the results of intellectual activity and equated to them means of individualization of a legal entity, products, work performed or services (company name, trademark, service mark, etc.) Certain information (trade secret), which is also included in the payment for shares, may also have commercial value. The market price is the price at which the seller, who has complete information about the value of the property and is not obliged to sell it, would agree to sell it, and the buyer, who has complete information about the value of the property and is not obliged to buy it would be willing to buy it.
JSCs must create a reserve fund intended for
to cover the company's losses, redeem its bonds and buy back shares in the absence of other means. Spending of the reserve fund for other purposes is not allowed. The charter may provide for the formation of another special fund - a corporatization fund, spent on the acquisition of shares with their subsequent placement among JSC employees. The law does not name any other funds, but does not prohibit their creation either.
The authorized capital, fixed during the creation of the JSC, may later be subject to change, which is fixed in the charter. The decision to increase the authorized capital is made by the general meeting or the board of directors, if such powers are granted to it by the charter. The decision to reduce can only be taken by the general meeting of shareholders. It is possible to increase the authorized capital by increasing the par value of shares or placing additional shares, and to decrease it by reducing the par value of shares or reducing their total number. A reduction in the total number of shares is allowed, in particular, by purchasing own shares, which are then redeemed. JSC is not entitled to make a decision on the acquisition of a part of the placed shares if, as a result, shares with a total nominal value of less than the level of authorized capital specified by law remain in circulation.
The redemption of shares is carried out not only by a decision to reduce the size of the authorized capital, but also at the request of shareholders in cases provided for by law. The owner of voting shares has the right to demand the repurchase of his shares if a decision is made to reorganize the company or make a major transaction, and he voted against or did not take part in the voting. The same right belongs to the owner of voting shares in the event of a decision to introduce amendments and additions to the charter of the joint-stock company or approve the charter in a new edition, as a result of which his rights were limited.
An essential feature of the new joint-stock legislation is the desire to protect the rights of shareholders, especially the minority, from abuse by persons who are members of the governing bodies of a joint-stock company. Therefore, the JSC Law includes rules on the possibility of challenging decisions of the general meeting, the board of directors, and the executive body. Protection of the rights and interests of the shareholder is carried out in two ways:
boards - protection of his property rights and protection of his right to participate in the management of JSC.
The most important property right of a shareholder is the right to receive dividends from JSC profits. The decision to pay dividends is made by the general meeting of shareholders (annual dividends) or the board of directors (interim dividends - for a quarter, for half a year). The company is obliged to pay only declared dividends. The right to receive dividends arises for a shareholder only after the company makes a decision on their payment, which determines the amount of dividends for various categories of shares. In case of delay in payment, the shareholder has the right to apply to the court with a claim to recover from the JSC the amounts due to him. If dividends for the relevant period are not declared, the right to demand their payment does not arise. The owners of preference shares are not entitled to demand the payment of dividends, the amount of which is provided for in the charter, if the general meeting has decided not to pay dividends on shares of a certain type or to pay them in an incomplete amount. In the absence of such a decision, shareholders - owners of preference shares, the amount of dividends for which is determined in the charter, may file claims for their payment within the prescribed period, and in case of violation of the period, they may apply to the court.
When making a major transaction, which, like other transactions, is associated with entrepreneurial risk, probable losses can seriously undermine the property stability of the JSC. Therefore, the Law requires, in the interests of the JSC itself and the sustainability of civil circulation, special care and compliance with special rules. One or more interconnected transactions for the acquisition or alienation of property or with the possibility of alienation by the company of property, the value of which is more than 25% of the balance sheet value of the assets of the JSC as of the date of the decision to conclude such transactions, are recognized as major ones. This also includes a transaction or several interconnected transactions for the placement of ordinary or preferred shares convertible into ordinary shares, constituting more than 25% of ordinary shares previously placed by the company. The decision to make a major transaction in the amount of 25 to 50% of the book value of assets must be taken by the board of directors (supervisory board) unanimously, and if
unanimity, the issue can be submitted to the general meeting.
For the first time, the category of affiliated persons appeared in the joint-stock legislation of the Russian Federation, which is associated with the problem of interest in the company's transaction. Affiliated persons are usually called persons who, as a result of the acquisition of a certain block of shares in a JSC, either by virtue of their official position in the company (member of the board of directors, executive body), or due to other circumstances, can control the activities of the company to one degree or another. Affiliated persons of a JSC may be the main economic company, in relation to which the JSC is a subsidiary;
a shareholder having the right to dispose of more than 20% of the voting shares of this company; member of the board of directors of the company; a person holding a position in other management bodies of the company, etc.
The Law recognizes a member of the board of directors of a joint-stock company, a person holding a position in other management bodies, a shareholder (shareholders) holding with its affiliate (persons) 20% or more of the voting shares of the company as interested in the transaction, if these persons, their spouses , parents, children, brothers and sisters, as well as all their affiliates: a) are a party to such a transaction or participate in it as a representative or intermediary; b) own 20 or more percent of voting shares (shares, shares) of a legal entity that is a party to the transaction or participates in it as a representative or intermediary; c) hold positions in the management bodies of a legal entity that is a party to the transaction or participates in it as a representative or intermediary. In order to reduce or completely eliminate the negative impact for the JSC of personal or group interest in the transaction and the determination of its conditions. The law has set special rules. If one or more members of the board of directors are interested in the transaction, the decision is made by a majority of votes of non-interested members of the board. If the entire board of directors is interested, the decision must be made at the general meeting by a majority of shareholders who are not interested in this transaction.
JSC can carry out economic expansion in various forms, including through the creation of branches and representative offices, as well as subordination
other companies (partnerships). Branches and representative offices of a joint-stock company are incompetent subdivisions of a joint-stock company acting on behalf of the company that created them. In this regard, a power of attorney to represent the interests of a JSC can only be issued in the name of the head of a branch or representative office.
A subsidiary company is an independent legal entity created by the main economic company (partnership). JSC and 000 can be a subsidiary. Both JSC and 000, as well as business partnerships - full and limited, can act as the main one. Relations between the main and subsidiary companies are formed on the basis of the predominant participation of the first in the authorized capital of the second, or an agreement between them, or the ability to otherwise determine the content of decisions made by the subsidiary. The size of the predominant participation in the authorized capital of a subsidiary is not established by law. Various factors can influence here, and above all, the fragmentation and large number of shareholders of a subsidiary, which makes it possible to exert a decisive influence on its affairs, having 10-15% of the shares. What kind of contracts can serve as the basis for the relationship "main - child", the Law does not establish. Given the fact that the civil legislation of the Russian Federation does not know an exhaustive list of contracts, any contract that does not contradict the Law can become such a base. But at the same time, special attention should be paid to compliance with antimonopoly legislation, since when creating an extensive network of subsidiaries, the main company can take a dominant position in the market, and this is contrary to the task of developing competition. The main company can influence the affairs of the subsidiary in two ways: a) determine the general direction of activity without interfering in specific decisions and transactions; b) give mandatory instructions on specific transactions. In the second case, the main company (partnership) is jointly and severally liable with the subsidiary for the latest transactions concluded. But the right to give mandatory instructions must be provided for in the agreement between them or in the charter of the subsidiary.
A dependent economic company, by its legal nature, is close to a subsidiary. But if the economic partnership may also be the main one in relation to the subsidiary, then the predominant (participating) in relation to the dependent may be
just another business entity. Relations of dependency occur when the dominant company has a 20% stake in the authorized capital of 000 or it has 20% of voting shares in a dependent joint-stock company. The prevailing company is obliged to immediately publish and inform the antimonopoly body about the emergence of dependence relations.
