What is the difference between public and non-public types of joint-stock companies, partnerships and cooperatives? We understand what it is (JSC and CJSC).

A new criterion for the classification of companies in the Civil Code of the Russian Federation is the criterion of their publicity. According to paragraph 1 of Art. 66.3 A public corporation is a joint-stock company whose shares and securities convertible into its shares are publicly placed (by open subscription) or publicly traded on the terms established by securities laws. The rules on public companies also apply to joint-stock companies, the charter and company name of which contain an indication that the company is public. Accordingly, a company that does not meet the above criteria is recognized as non-public.

Although in law it refers to public companies in general, but in reality we can only talk about the application of this classification to joint-stock companies. It is correctly noted in the literature that only joint-stock companies can be subjected to such a classification, meaning the establishment of more stringent requirements for the status of public JSCs, whose shares are listed on stock exchanges, and whose participants (shareholders) need increased protection from various abuses. But in relation to limited liability companies, it loses its meaning, since under no circumstances can LLCs become public business companies - they have nothing to quote on stock exchanges *(23) .

A public joint-stock company may, by terminating the circulation of shares on the market, become non-public and vice versa. Therefore, the adoption by the majority of shareholders at the general meeting of the decision to change the name of the joint-stock company, namely the inclusion of an indication of its public nature, as well as the decision to make appropriate changes to the charter, allows changing the status of this joint-stock company. paragraph 11 of Art. 3 of Law N 99-FZ, joint-stock companies established before the date of entry into force of this Law and meeting the signs of public "joint-stock companies" are recognized as public, regardless of the indication. At the same time, joint-stock companies established before September 1, 2014 ) and meeting the criteria of public joint-stock companies ( paragraph 1 of article 66.3 Civil Code of the Russian Federation) are recognized as public joint-stock companies, regardless of whether their company name indicates that the company is public.

Information about the public status of a joint-stock company must be known to all third parties directly from the name of this legal entity. Thus, a public joint-stock company is obliged to submit, for inclusion in the Unified State Register of Legal Entities, information about the firm name of the company, containing an indication of its public status. Also, this status should be reflected in the charter approved by the decision of the meeting of shareholders.

The following features of public companies can be distinguished:

First, the responsibility for maintaining the register of shareholders of a public company and performing the functions of its counting commission should be assigned to a professional independent organization. The same organization will have to confirm the authenticity of the minutes of general meetings of public joint-stock companies.

Secondly, in a public joint-stock company, the number of shares owned by one shareholder, their total nominal value, as well as the maximum number of votes granted to one shareholder cannot be limited.

Thirdly, public companies have a duty of public accountability.

As for non-public joint-stock companies, their activities are less regulated by law. Yes, according to paragraph 3 of Art. 66.3 The Civil Code, by decision of the participants (founders) of a non-public company, adopted unanimously, the following provisions may be included in the charter of the company:

1) on transfer for consideration by the collegial management body of the company ( paragraph 4 of article 65.3) or the collegial executive body of the company on issues referred by law to the competence of the general meeting of participants in a business company, with the exception of issues:

amending the charter of a business company, approving the charter in a new edition;

reorganization or liquidation of a business company;

determination of the quantitative composition of the collegiate management body of the company ( paragraph 4 of article 65.3) and the collegial executive body (if its formation is referred to the competence of the general meeting of participants of the economic company), election of their members and early termination of their powers;

determining the number, par value, category (type) of declared shares and the rights granted by these shares;

increasing the authorized capital of a limited liability company disproportionately to the shares of its participants or by accepting a third person as a participant in such a company;

approval of internal regulations or other internal documents that are not constituent documents ( article 52, paragraph 5) economic company;

2) on assigning the functions of the collegial executive body of the company to the collegial management body of the company ( paragraph 4 of article 65.3) in full or in part, or on the refusal to create a collegial executive body, if its functions are carried out by the specified collegial management body;

3) on the transfer to the sole executive body of the company of the functions of the collegial executive body of the company;

4) on the absence of an audit commission in the company or on its creation only in cases provided for by the charter of the company;

5) on a procedure different from the procedure established by laws and other legal acts for convening, preparing and holding general meetings of participants in a business company, making decisions by them, provided that such changes do not deprive its participants of the right to participate in the general meeting of a non-public company and to receive information about him;

6) on requirements that are different from the requirements established by laws and other legal acts for the quantitative composition, the procedure for the formation and holding of meetings of the collegial management body of the company ( paragraph 4 of article 65.3) or collegial executive body of the company;

7) on the procedure for exercising the pre-emptive right to purchase a share or part of a share in the authorized capital of a limited liability company or the pre-emptive right to acquire shares placed by a joint-stock company or securities convertible into its shares, as well as on the maximum share of participation of one participant in a limited liability company in the authorized the capital of the company;

8) on assignment to the competence of the general meeting of shareholders of issues that are not related to it in accordance with this Code or law about joint-stock companies;

9) other provisions in cases provided for by laws on business companies.

The question of the need to separate business entities into public and non-public arose quite a long time ago. In fact, such a division existed before, but it was not legally formalized.

This is due to the fact that the vast majority of open joint-stock companies, despite their organizational and legal form, have always been non-public companies in their essence. They did not publicly subscribe to securities, and their securities were not traded on stock exchanges. However, the largest joint-stock companies could be attributed to public companies, since their shares were publicly subscribed and they were traded on the stock exchange.

However, due to the fact that at one time, as part of the privatization of state and municipal property, the organizational and legal form of an open joint-stock company was essentially imposed on most of them, they were forced to comply with the requirements of the legislation on information disclosure, while incurring various kinds of costs. . Over many joint-stock companies, there was a threat of penalties for violation or improper fulfillment of these requirements by the regulator. And this despite the fact that the information coming from such joint-stock companies in the information field of the securities market was of little interest to its participants, thereby clogging it.

The fundamental difference between public and non-public companies lies in the fact that mandatory regulation is applied to public companies to a greater extent, which excludes discretion for companies that raise funds from an indefinite number of investors. Whereas in relation to non-public companies GC RF, taking into account the changes made law N 99-FZ, allows for dispositive (permissible) regulation, which provides the opportunity to choose one or another option.

There are few public companies in Russia, the vast majority of joint-stock companies are non-public. Together with the legal form of a limited liability company prevailing in Russia (94% of the total number of commercial organizations *(24) ) non-public companies make up the vast majority of legal entities in the business sector. The application of dispositive regulation to all these subjects allows us to conclude that Russian legislation in the field of entrepreneurial activity has been liberalized.

Requests for obtaining information related to the creation and subsequent operation of an OJSC are not the most common on the Internet. Usually people wander into texts about OJSC by mistake, confusing it with LLC or even with the United Arab Emirates. But if you came here specifically to find useful information for business development, then you probably know that OJSC is no longer just a business, but a business in an elegant tuxedo.

A little about the name

First of all, those who are thinking about creating a joint-stock company should erase from memory the very name "JSC", which has not officially existed for almost four years, although it is still used by inertia.

In 2015, Federal Law No. 99 introduced modifications to Chapter IV of the Civil Code of the Russian Federation. The modifications affected many aspects of the creation and operation of legal entities, including joint-stock companies. In particular, joint-stock companies were divided into two types - public and non-public. So OJSCs turned into PJSCs, and CJSCs into NAOs.

PJSC, NAO, OOO

If we imagine the form of doing business in the form of a pyramid or ladder, then its first step will be an LLC. This does not mean that you need to start with an LLC. This means that in the form of an LLC device there are those foundations that can consistently develop into other forms of doing business.

Three pillars of registering a serious business

LLC structure- this is one or more founders (up to 50 people), between whom the authorized capital is divided. The division of profits takes place in accordance with the Charter of the company and the owner of a larger share does not always receive a larger percentage of the profits. Co-founders have the right to alienate their shares, subject to the preemptive right of other co-founders.

Structure of the NAO- up to 50 people of shareholders, who together create the authorized capital. Or vice versa - the authorized capital divided into shares creates up to 50 shareholders. Simply put, the authorized capital is created by a group of people who contribute according to their financial capabilities. In this case, the profit is divided depending on the number and volume of shares. The shareholder has the right to alienate his shares subject to the preferential right of other shareholders.

PJSC structure- this is the free number of founders who create the authorized capital on the same principle as the shareholders of NAO. At the same time, the number of PJSC shareholders can be limited only by common sense, since the main difference between PJSC and LLC and NAO is the right to freely issue and sell shares to the public. Profit in PJSC is distributed depending on the volume and value of shares.

For your information! PAOs, or open partnerships, as they were called immediately after the collapse of the USSR, became the progenitors of the post-Soviet oligarchy. During the period when the Soviet economy was collapsing, former leaders, party workers, secretaries of regional and district committees of the party and other enterprising citizens became the founders of the first open partnerships built on the bones of once prosperous enterprises. Having become, as a result of privatization, the owners of dying plants and factories, they offered former employees to purchase shares, which, as the enterprises were restored, were supposed to bring income. However, plants and factories did not recover, and party bosses calmly created other types of business. Until now, many current pensioners still have shares and certificates for participation in the privatization of once famous industrial facilities.

Who needs what

From the point of view of the Criminal Code, there are not so many differences between the “pyramid” and the PJSC. Both those and others sell pieces of paper, which they promise to turn into money over time. Those who manage to keep the promise become solid entrepreneurs. Those who fail, fall into the zone of interest of law enforcement agencies. Therefore, the limitations of common sense when issuing shares are very important.

Otherwise, PAO is one of the best forms of doing business for both start-up entrepreneurs and market sharks.

There is an opinion that the creation of a PJSC is the prerogative of already established and successful businessmen who do not make sense to study the law and run around with folders to various authorities, registering a PJSC. The best way for them is to conclude an agreement with a company that provides intermediary services for the registration of legal entities.

Of course, this is a very good way, but the fact is that PAOs are created not only by the Rothschilds, but also by third-year students, for whom every ruble is worth its weight in gold. They collect the necessary 100,000 rubles of authorized capital from the world one by one, turning their creditors into shareholders of the future PJSC. Their future income is just an idea, but sometimes a brilliant idea. To put this idea into practice, they need funds that will not pay off immediately, and therefore the option of obtaining a loan is not for them. The best way would be to create a PJSC with the ability to raise funds through the sale of shares.

1. raising funds for business development;
2. the possibility of entering the international market in order to attract foreign shareholders.

Legends and myths of the Internet

It is not known from whose light hand a bike appeared on the Internet that a PJSC can be registered only after the preliminary registration of a NJSC, followed by bringing the documentation and authorized capital to the level of registration of a PJSC. At the same time, the authors of such statements without embarrassment refer to Art. 7.1 of the Law of the Russian Federation on Joint Stock Companies. It is difficult to imagine in what state one should read Article 7.1 in order to see what is not there.

Unfortunately, articles written by semi-professionals or even non-professionals copying each other have proliferated on such a scale that they have come to the attention of acting lawyers. The latter, instead of studying the law, believed the Internet myths, and the courts flooded the lawsuits of the founders of PJSC, demanding to cancel the prohibitions of state bodies on the issuance of shares by them. Appellate proceedings flooded the Supreme Court of the Russian Federation, which over and over again explains in its decisions that such statements are a misinterpretation of the law.

Advice! If you open an article that claims that a PJSC cannot immediately receive the status of a public company, then immediately close it. It was written by a layman from jurisprudence. If the intermediary firm that you contacted for the provision of services related to the registration of a PJSC assures you that you must first register a NAO, immediately refuse its services, and at the same time write a complaint to the Ministry of Justice.

Cons of PAO

The main disadvantage of PJSC was named a little higher - this is the possibility of turning the issue of shares into a method of fraud.

That is why slightly higher requirements are applied to PJSC than to LLC or NAO in terms of being controlled by law enforcement and tax authorities. This reduces the risk of transformation of a joint-stock company into another pyramid scheme.

Forms of control over PJSC activities are:

• annual audits;
• publication of the results of economic and financial activities of PJSC.

Where to begin

In legal terms, you need to start with Ad Ovo, that is, with the name. The legislation provides for certain requirements for the name of PJSC:

1. It must include a mandatory mention of publicity.
2. It must be respectable, must not contain profanity, insults, any mention of racial discrimination, etc.
3. The title must be in Russian.

Having decided on the name, you need to decide on the following:

1. with the contribution of each shareholder;
2. with the appointment of the General Director;
3. with the choice of the legal address of PJSC. It can be either the residence of one of the shareholders or a rented premises.

Authorized capital

The minimum allowable authorized capital of a PJSC is 100,000 rubles. Without this amount, it is pointless to start the registration procedure.
It should be remembered that the origin of the amount of the authorized capital is the shares owned by the participants. Since PJSC is an open organization, not only the founders, but also third parties have the right to acquire shares.

Since the authorized capital is formed at the expense of shares, in the course of its activities, PJSC UK may increase by the amount of acquired shares or profit on them, but cannot fall below 100,000 rubles.

Charter of PJSC

As in an LLC or NJSC, the Charter is the main constituent document of a PJSC, reflecting the direction and forms of its activities. It is the charter that provides for all the characteristics of the issue of shares and the subsequent actions of PJSC for the accrual and payment of dividends.

You don't have to reinvent the wheel. The world is full of typical examples of PJSC charter. If you speak English at the Intermediate level, you can also use foreign templates.

PAO administration

PJSC management is a collective of shareholders. PAO administration is:

1. Board of Directors elected by the general meeting of shareholders.
2. CEO of PAO.
3. Audit Commission of PJSC.

PJSC can carry out any type of activity that is legal in the territory of the Russian Federation. A restrictive condition is the impossibility of PJSC carrying out more than one type of activity. If the chosen type of activity requires mandatory state licensing, then the corresponding license is issued after the registration of the PJSC.

Registration steps

1. Application for registration.
2. Payment of state duty.
3. Documents confirming the existence of a legal address. A house book, an extract from the cadastre or a lease agreement are suitable.
4. Notarized copies of documents proving the identity of each of the founding shareholders.
5. It is advisable to immediately provide the data of the selected accountant, so as not to waste time later on making changes to the constituent documents.

PJSC registration is a rather long and laborious process, so you should be patient. Or still think about an intermediary firm that will do everything for you.

The concept and features of a public society

Public and non-public companies are organized and operate in accordance with the norms of the law.

The activities of organizations are regulated by legal acts and provisions of the Civil Code of the Russian Federation.

The division into public and non-public companies became relevant after the adoption of amendments to the legislation in 2014.

The main differences between public and non-public companies relate to the manipulation of shares.

A public company is a form of functioning of a legal entity, which implies the free circulation of company shares on the market. Shareholders, members of the company, have the right to alienate the shares that belong to them.

Characteristic features of a public society:

• The shares are freely traded on the market.
• There is no need to open a savings account.
• Prior to registration, it is not necessary to deposit funds to form the authorized capital.
• There are no restrictions on the number of shareholders.
• Investment processes are transparent and public.

The governing body of the company is the meeting of shareholders. The meeting can make decisions and regulate the activities of the company within the framework provided for by the norms of the law.

The competence of the meeting of shareholders includes important issues of the activities of a legal entity. Current management is carried out by the director or directorate, which is the executive power of the company.

The board of directors also has the right to resolve all issues, with the exception of problems that are within the competence of the meeting of shareholders.

The audit committee performs the control function.

Feature: members of the board of directors cannot be members of the audit committee.

An annual meeting of shareholders of the company is held - the dates should be indicated in the organization's statutory document.

The concept and features of a non-public society

A non-public company is a form of organization of a legal entity, the distinguishing feature of which is the absence of the possibility of free alienation of shares. Shares are distributed only among the founders.

Signs and features of a non-public society:

• A limited number of members of the society (the number should not exceed 50).
• Capital can be money, securities, property.
• The closed nature of the distribution of shares.
• There is no indication of the publicity of the company in the statutory document.
• A restriction on the authorized capital has been introduced - at least 10,000 rubles.
• Shares cannot be placed on exchanges.

The registrar is in charge of registering the members of the company. Shareholders' decisions must be confirmed by a registrar or a notary.

Features of public and non-public companies

Features of the activity of public and non-public companies are determined by the norms of the law.

The main law regulating the activities of legal entities is the Civil Code.

Recent changes in legislation relate to the organization and features of the work of companies:

• Decision-making by members of the society must be confirmed by a registrar or notary - thus, the procedure has become more complicated, since before the introduction of such changes, confirmation was not mandatory.
• A provision has been introduced requiring an annual audit.
• The liquidation of this legal entity is impossible if the company has not paid all obligations to creditors.
• If a reorganization is carried out in the deed of transfer, it is imperative to fix all the changes - without this, it is impossible to transfer rights and obligations to the successor.
• One organization, by law, may have several directors.
• When registering, members of the company must pay? authorized capital, the remaining amount - within a year after the moment of official registration.
• If the capital is contributed not in money, but in property, it is necessary to use the services of an independent property appraiser. Capital can form securities.
• Financial responsibility lies with the managers - if necessary, creditors may require the manager to cover losses.

The charter of the company, the list of provisions that may be included in it

The charter of the company is the main document on which the activities of the partnership are based, has a regulatory nature and determines the features of the functioning of a legal entity.

The provisions of the document are accepted by shareholders when registering a company.

The document must contain the norms and rules of internal and external relations of the company.

The charter contains a general and a special part.

The first contains the general provisions of activity and their relationship with the laws of the state.

The special part reflects the individual characteristics and characteristics of the activity of a legal entity, therefore this part cannot be identical for two different companies.

The body of the document must include:

• Name of company.
• Address/Metro Registration Society.
• Legal entity type.
• Features of the capital of the organization.
• The rights of members of the society.
• Features and controls.
• Responsibility of participants.

The charter should reflect the features of the election of the audit commission, holding meetings of shareholders, payment of income on shares.

The concept and functions of a corporate agreement

A corporate contract (agreement) is a characteristic feature of a business entity. For the legal field of the Russian Federation, this documentation is an innovation. The purpose of signing a corporate agreement is to fix an agreement on the implementation of certain corporate rights.

The text of the agreement may indicate the actions and methods for exercising corporate rights by legal means. Members of the company who have decided to conclude a corporate agreement must notify the company of which they are members.

A corporate agreement is concluded between the members of the organization and represents the interests of this category of participants in the legal entity.

The information provided in the agreement is publicly available when it comes to public companies. In non-public companies, the information specified in the contract is confidential - this is an important feature of this type of company.

The information specified in the corporate agreement may expand and clarify the provisions of the organization's charter.

The parties to the agreement, by signing this document, can regulate some aspects of the management of the organization, exercise rights or refuse to exercise them, in certain circumstances.

Participants may, according to the agreement, acquire or alienate shares of the authorized capital. The provisions of the contract must not contradict the norms of the law.

A corporate agreement cannot:

• Force a participant to vote in a certain way;
• Determine or change the structure and features of the management of a legal entity;
• Change the competence of the functional units of a legal entity whose functions are defined by the constituent documents;
• Create certain obligations for persons who did not participate in the signing of the document;
• Disclose the information contained in the document, unless otherwise permitted by law.

The presence of contradictions between the text of the contract and the charter of the company does not invalidate the contract.

Also, the contract is not terminated if one of the parties withdraws from this agreement, terminates the right of the party to the contract.

If all members of the company are members of a corporate agreement, a decision that contradicts its provisions may be declared invalid.

An important feature of the document is that it is drawn up in writing, it must be signed by the parties to this agreement.

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Types of joint-stock companies

Comparison Public and non-public joint stock companies

Doner 20.12.2018 21:24

Good afternoon The main difference is the different placement and circulation of shares. PAO: all of its securities and shares are placed by open subscription and are publicly traded in accordance with the current legislation on securities. NAO: operate closed, their shares or securities cannot be placed by open subscription, since they are not publicly traded. Minimum authorized capital PAO: 100 thousand rubles. NAO: 10 thousand rubles. Differences in governing bodies PAO: the board of directors (collegial governing body), which consists of at least 5 members, is required to meet. At the general meeting, only those issues that fall within its competence in accordance with the law are discussed. It is impossible to transfer certain powers of the general meeting to the board of directors. NAO: it is not necessary to have a board of directors. In the case when it is created, it can take over all the functions of the board. The General Assembly is able to independently resolve issues that are not provided for by law. However, it is better to prescribe this in the charter. If any issues relate to the competence of the general meeting, they can be transferred to the board of directors. Scope of disclosure PAO: be sure to disclose information in full, plus they do not have the right to hide the content of the corporate agreement. NAO: are not required to disclose information or may provide incomplete information. The importance of confirming the adoption of a certain decision by shareholders, and is it necessary to indicate which shareholders were present at this? PAO: information can only be confirmed by the registrar, just like the composition of shareholders. NAO: the information is also able to be confirmed by the holder of the register, but his duties can be delegated to a notary. Who usually gives consent to the alienation of a block of shares? PAO: there is no need for anyone's consent, and it is also impossible to establish a rule on the obligatory receipt of it. NAO: no one's consent is required. But sometimes, the charter contains information about obtaining the consent of certain shareholders or the company for the alienation of shares. Who has the right to purchase shares? PAO: shareholders cannot get any advantage to buy shares. But there are exceptions - such a right applies to additionally issued shares, as well as securities convertible into shares. NAO: provides in advance in its charter for the rights of shareholders, incl. for the purchase of shares in the event of their sale by other shareholders. What is the essence of the restriction on the number of shares owned by a certain shareholder? Do such shares have a nominal value, is the limit on the number of votes granted to one shareholder taken into account? PAO: All of the above restrictions are missing. NAO: part of the restrictions can be prescribed in the charter, taking into account the decision of the shareholders, which they took unanimously. What does the name of the AO depend on? PAO: it is impossible to do without the word "public", respectively, the abbreviated name of the company will begin with the word "PJSC". NAO: the concept of “non-public” is not indicated, it is not added anywhere, that is, the phrase “JSC” can be dispensed with. How is the placement of preferred shares? PAO: no preference shares may be placed if their price is lower than the cost of ordinary shares. NAO: on the contrary, they are able to place preferred shares if their price is less than ordinary ones.

Dubrovina Svetlana Borisovna 21.12.2018 14:31

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Zakharova Elena Alexandrovna 22.12.2018 10:00

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Non-public joint-stock companies have appeared in the business community. And all because the sensational amendments to the Civil Code were adopted. What are they? Which, in accordance with them, appeared in Russia? How should the correct name of a non-public joint-stock company sound if we are going to do business within the framework of this organizational and legal form? We will try to answer these questions and at the same time consider the most remarkable nuances that reveal the essence of legislative innovations.

New law

Such a phenomenon as non-public is completely new for Russia. This term has become widespread only after some legislative reforms carried out in September 2014. Then several amendments to the Civil Code of the Russian Federation came into force. According to them, joint stock types as types of organizational and legal form of work of enterprises received a different name. Now other terms are used, namely, "public" and "ordinary" society. What are they?

Public companies now include organizations that own shares and securities that are placed in an open format (or are traded on the market in accordance with the norms of legal acts regulating the circulation of securities). Other types of business companies - CJSC, as well as OJSC - that do not have securities in free circulation, receive the status of "ordinary". Their name sounds like any additions. We also note that such a format for organizing enterprises as ALC, in principle, was not classified and abolished in any way. Thus, firms established before September 2014 should be renamed accordingly. The new ones will function in the status established by law.

Nuances of terminology

There is no term in the new law that would sound exactly like "non-public joint-stock company". Thus, such an organizational and legal form as a CJSC has not received a direct analogue. However, if the organization still has shares, even if not launched into free trade, the use of the term "non-public joint-stock company" in relation to them is quite acceptable in an informal manner. In turn, an LLC in which there are no shares (there is only authorized capital) is still called.

So, the main criterion for "publicity" is open trading in shares and other securities. In addition, experts note that another aspect is no less important. "Publicity" JSC, in addition, should be reflected in its charter.

We also note that under the new law, the re-registration of organizations in order to bring their names in line with the amendments does not need to be carried out urgently. In addition, when implementing the relevant procedure, firms are not required to pay a state duty. An interesting fact is that the amendments to the Civil Code of the Russian Federation in question were initiated by the authorities back in 2012.

LLC is a non-public company?

With regard to such an organizational and legal entity as an LLC, there is a peculiarity in terms of the amendments under consideration to the Civil Code of the Russian Federation. On the one hand, in the new edition of the Code, LLCs now refer to non-public companies, on a par with "former" CJSCs. On the other hand, other provisions of the Civil Code of the Russian Federation do not say anything about changing their status. Thus, an LLC is, as it were, a "non-public company", like a closed joint-stock company, and at the same time, as it were, an independent organizational and legal form of an enterprise.

Three types of societies

So, what do we have on the fact of amending the law? There are three main types of organizations in Russia.

1. Public joint stock companies

These are enterprises that have shares that rotate in free circulation. In any case, these are "former" JSCs.

2. Two subtypes of non-public companies:

JSCs that do not have shares in free circulation (these can be both "former" CJSCs and JSCs with securities not issued for sale), unofficially - "non-public joint-stock company";

LLC without shares.

The former ODOs have been abolished. For those firms that managed to register in this status, the rules specific to LLC will now apply.

Nuances of re-registration

What should registered firms do? Do they need to rename in accordance with the new norms of the Civil Code of the Russian Federation? Lawyers believe that no, based on the content of the norms of the amendments to the Code. The fact is that in the 11th paragraph of the 3rd article of the relevant law on the renaming of companies, organizations that were created before the amendments came into force and have signs of public ones are automatically recognized as such. In turn, a CJSC can also not be re-registered, however, only until the moment when changes are made to the charter - this is what paragraph 9 of the 3rd article of the law on amendments says.

Re-registration algorithm

Let us consider how the re-registration (renaming) of a company should be carried out in practice, if the need for this nevertheless arises. The procedure consists of the following main steps.

First, the company fills out an application on the form number P13001, which is approved by the Federal Tax Service. The firm then attaches the following documents to it:

Minutes of the meeting of founders (shareholders);

New charter of a non-public joint-stock company.

Duty, as we said above, you do not need to pay. The next stage is putting in order. In particular, the abbreviation CJSC and the corresponding term "closed joint-stock company" should be renamed to JSC. After that, it is also necessary to change the structure of seals, make changes to bank documents, and also send information to partners that now such and such a CJSC is a non-public joint-stock company. In this connection, some experts still recommend that a renaming procedure be carried out so that counterparties and potential investors understand more clearly what type of company is or will be cooperating with. Although the law does not require it by default.

Some experts point out, referring to the 1st paragraph of Article 97 of the Tax Code of the Russian Federation, that JSCs that have signs of "publicity" are required to add a corresponding indication to their name. "Non-public" JSCs may, at their discretion, do the same if the shareholders intend to announce that the securities will go on public offering.

Register and registrar

We also note the fact that the amendments to the Civil Code of the Russian Federation were also accompanied by a number of by-laws. These, in particular, include one of the Letters of the Bank of Russia. It reflects the obligation of organizations to transfer to a specialized registrar - whether it be an open or non-public joint stock company - a register of shareholders. This is a binding order for all joint-stock companies, as lawyers note, for execution by the order of the Central Bank. If an open or non-public joint-stock company has not yet transferred the register of shareholders to anyone, then its founders must carry out a number of procedures. Namely:

Select a registrar and discuss the terms of the registry agreement with them;

Prepare relevant documents and information;

Conclude an agreement with the registrar;

Disclose information (if the JSC is required to do so) about the partner firm;

Notify the persons whose data is present in the registration documents;

Transfer the registry to a partner organization;

Enter information about the registrar into the Unified State Register of Legal Entities;

Significance of reforms

What are the practical consequences of reforming CJSCs and OJSCs? Experts believe that now the state can control the work of joint-stock companies more actively than before. In particular, all JSCs will have to undergo a mandatory audit, both public and those whose shares are not freely traded. The status of the JSC's securities does not matter. Even for such a form of business as non-public joint-stock companies, an audit becomes a mandatory procedure.

At the same time, the auditor should not be associated with the interests of the audited joint-stock company or personally with the shareholders of the company. The subject of the audit is accounting and financial statements. Owners of more than 10% of the corporation's assets (shares or authorized capital) can initiate an unscheduled inspection. The criteria for this procedure may be reflected in the charter of the JSC.

We also note that a number of other amendments were made to the Civil Code, supplementing those that we are considering. In particular, several people can now work in the company for the position of general director. However, the charter of a non-public joint-stock company or its "open" analogue must contain information about the powers of each. Interestingly, the position of chief accountant can be exclusively individual. Another significant innovation is that some types of decisions made by shareholders of firms must now be notarized.

Significant changes relate, for example, to such a nuance as the method of confirming the list of persons participating in the shareholders' meeting. For public JSCs, a norm has been established - the corresponding procedure can be carried out by a person who maintains a register of shareholders and at the same time performs the functions characteristic of a counting commission. These are the innovations. In turn, in such a form of business organization as non-public joint-stock companies, the register can also be maintained by an executive, but its function, which is related to determining the composition of the meeting participants, can be performed by a notary. In addition, as some lawyers note, the features of this procedure can also be prescribed in the charter of a non-public company - the law does not directly prohibit this.

Also, the new version of the Civil Code changed the procedure for transforming one society into another. Now the JSC can become an LLC, or a cooperative. However, JSC loses the right to become a non-profit organization.

Corporate agreement

Amendments to the Civil Code also introduced a new term into legal circulation - "corporate agreement". Shareholders of companies can sign it at will. If they do this, then if the JSC is public, the content of the document must be disclosed (however, the current rules governing this procedure have not yet appeared). In turn, if the "corporate agreement" was drawn up by the "former" CJSC, a non-public joint-stock company, then the law does not require disclosure of its details.

Charter changes

There are a number of nuances that it is useful to pay attention to the owners of joint-stock companies who have decided to organize. The new edition of the Civil Code contains a number of new requirements for this constituent document. Consider the clauses that a typical charter of a non-public joint stock company may contain. Knowing them can be useful both when creating a new company, and when re-registering an existing one. So, the form of the charter of a non-public joint-stock company should include the following items:

Company name of the organization;

An indication that it is public (if the actual activity and type of action correspond to this);

The procedure and conditions under which the audit requested by shareholders who own at least 10% of the securities will be carried out;

The name of the locality where the company is registered;

List of rights and obligations of the founders of the company;

Features of the procedure, in which some shareholders notify others that they will apply to the court with independent claims;

The list of rights established for persons forming the collegial structure of the company's management;

Information about the distribution of powers between various internal corporate structures.

What other nuances does the work on the charter include? The following fact can be noted: when a non-public joint-stock company is registered, it is not required to enter information about the sole shareholder in the main constituent document. Or, for example, information about how the composition of participants in joint-stock meetings is determined - the law in this sense gives the owners of non-public companies relative freedom of action.

The approximate model of the charter of a non-public joint-stock company, which we outlined above, can also be supplemented with a number of provisions. True, this requires a unanimous decision of the founders. But if it is received, then it is permissible to include the following provisions in the constituent document:

On the assignment of issues decided at the general meeting to the competence of the collegial structure of the company's management;

On the definition of cases that cause the creation of an audit commission;

How the meeting of shareholders is carried out in a special order;

On the procedure for granting the pre-emptive right to purchase securities that are converted into company assets;

On the procedure for consideration by the general meeting of those issues that, according to the legal acts of the Russian Federation, do not fall within its competence.

This is a very approximate sample of the charter of a non-public joint-stock company. However, we touched on the key nuances that it is useful for entrepreneurs to pay attention to.

In connection with the reform of corporate law, the classification of business entities has changed, which has become familiar over a fairly long period of existence. Now there is no OJSC and CJSC. They were replaced by public and non-public Next, we will consider the changes in more detail.

New categories: first difficulties

So, instead of OJSC and CJSC, public and non-public companies appeared. The law changed not only the definitions directly, but also their essence and features. However, the categories are not equivalent. Thus, a CJSC cannot automatically become non-public, just like an OJSC - public. The adopted wording of the norms can be interpreted in two ways. Explanations today are not enough, and there is no judicial practice at all. In this regard, it is not surprising that companies may encounter difficulties in the process of self-determination.

Goals of the new classification

Why was it necessary to introduce public and non-public companies? The rules for regulating intra-corporate relations that existed for CJSCs and OJSCs, according to the rule-makers, were not clear enough. The new classification is supposed to establish differentiated management regimes for companies that differ in the nature of turnover and shares, as well as the number of participants.

The essence and features of software

A public joint-stock company shall be considered a joint-stock company in which the shares and securities convertible into them are placed through an open subscription or public circulation in accordance with the conditions established by regulatory enactments. The turnover is carried out within an indefinite circle of participants. A public society is distinguished by a dynamically changing and unlimited subject composition. Openness means that the company is focused on a wide range of participants. A public company is characterized by a large number of diverse shareholders. In order to maintain a balance of interests of the participants, activities in such joint-stock companies are regulated mainly by imperative norms. They prescribe standard, unambiguous rules for the behavior of corporate participants. The use of provisions that are not allowed to be changed at the discretion of the dominant subjects of the company guarantees the attraction of investments.

Software activities

Public companies borrow on the stock market among an unlimited number of persons. These corporations cover a wide range of diverse investors. In particular, software interacts with the state, banks, investment companies, collective and pension investment funds, and small individual entities. The activities carried out by public companies, as mentioned above, are regulated by imperative norms. This indicates relatively little freedom of intracorporate organization.

Essence BUT

A non-public company is a company that does not meet the criteria established by law for a public company. These criteria are given in Art. 66.3 of the Civil Code. BUT - corporations that place securities within a predetermined circle of entities. They are not released to the public. In addition, BUT are based on a low-turnover asset - shares of an LLC. Public and non-public companies differ in the mechanisms used to manage internal corporate relations. So, DOs can apply special subject composition of participants. They have greater freedom of internal corporate self-organization.

Features of the functioning of NO

The activities carried out by non-public companies are regulated mainly by dispositive norms. They allow the introduction of individual procedures for the conduct of company participants at their discretion. Non-public companies do not borrow on the share market.

Regulatory division

Today, the border between imperative and dispositive management runs between JSC and LLC. The reform of the Civil Code shifted it somewhat. However, according to some critics who analyze the order in which public and non-public joint-stock companies exist today, there is some confusion of different when they are assigned to any of the categories. However, there is another opinion on this matter. When corporations are included in public and non-public joint-stock companies, the fundamental differences between entities are not called into question. The features of the turnover of securities and shares are quite clearly expressed, which is the main feature for classification. The division into public and non-public societies is reduced solely to an attempt to form common regimes of governance. At the same time, the expansion of the influence of dispositive norms does not apply to the features that distinguish the circulation of securities. Due to insufficient practice and the absence of a number of clear formulations, it is difficult to classify some JSCs as public and non-public companies.

Comparative characteristics

Public and non-public companies mainly differ in the way that is used when placing securities. How these procedures are carried out in DOs and software is described above. Under the public offering of securities understand the alienation through an open subscription. It is a way to increase the share capital of a corporation. The SO carries out paid placement of an additional number of shares in the process of issue among an unlimited number of subjects. The method of alienation of securities is included in the decision on their issue. This document is approved by the Board of Directors and is registered with the state market regulator. Previously, the Federal Financial Markets Service of the Russian Federation and the Federal Commission for Securities of the Russian Federation acted as it. Currently, the state regulator in the market is the Central Bank of the Russian Federation. After registration, the document must be kept by the issuer. According to the text of the decision, it can be established whether an open subscription of an additional number of shares was carried out or not. Public and non-public companies also differ in the way securities are traded. Turnover is a process of concluding civil law transactions. They entail the transfer of ownership of shares (securities) after their first alienation, following their release by the issuer (outside the issue procedure).

The sign is an open call. What does it mean? This term should be understood as the turnover of securities (shares) within organized trading. Public circulation can also be carried out by offering them to an unlimited mass of subjects. Among the ways to implement this feature, there is also advertising. These provisions are established in Art. 2 of the Federal Law No. 93, which regulates the functioning of the securities market. It should be noted that the circulation of shares can be carried out by different methods. In particular, it may be a one-time event. In this case, the appeal has a time limit. This, for example, may be a sale at auction, an auction to a wide range of people. Also, the call can have an unlimited duration. For example, this happens when the turnover is carried out on stock exchanges.