Presentation of a company with additional responsibility. Presentation on the topic "Organizational and legal forms of enterprises." Criteria for classifying an enterprise as a small business

Introduction

Since entrepreneurship became possible in Russia, it has already formed in currently a huge amount of various enterprises... They differ in many ways, but the fundamental factor that makes it possible to distinguish one enterprise from another is its organizational and legal form, sometimes the name legal form is used. If you want to organize any structure, you must first establish its legal form. Both the success and the profitability of the business largely depend on how correctly the company is organized.

A company with additional liability in Russia is created quite rarely, since from a practical point of view, this form legal entity does not provide any significant advantages over the related and most common form of commercial organizations - a society with limited liability, but, at the same time, imposes additional property liability on the participants in comparison with the LLC participants.

However, this organizational and legal form also has advantages that attract many people who decide to do business, for example, minimum size authorized capital, set at 10 thousand rubles.

Research problems of business societies and, in particular, a society with an additional responsibility as the organizational and legal form of the enterprise and the features of its legal status was the object of research of such domestic scientists as V.A. Belov, E.V. Pesterev, N.V. Kozlova, E.A. Sukhanov, S.D. Mogilevsky, O.V. Petnikov.

The purpose of this term paper is to consider the features of the legal status of such a rather interesting organizational and legal form of an enterprise as a company with additional responsibility.

- to give a general description of the organizational and legal form of a company with additional responsibility;

- consider the features of the establishment of ALC;

- consider the rights and obligations of participants in the company with additional liability;

- consider the management bodies of the ALC;

- consider the assignment of a share by a member of the company, distribution of profits and exit from the ALC.

It should be noted that when writing a term paper, the author was guided by the norms of the Civil Code of the Russian Federation and the Federal Law "On Limited Liability Companies", since Art. 95 of the Civil Code of the Russian Federation states that the rules of the Civil Code on a limited liability company apply to a company with additional liability insofar as otherwise is not provided for in this article.

1 General Provisions about a company with additional liability under the current legislation

1.1 general characteristics additional liability companies

Fixed h. 1 tbsp. 34 of the Constitution Russian Federation the right to freely use one's abilities and property for entrepreneurial and other activities not prohibited by law serves as the basis for the constitutional and legal status of participants in economic societies. An additional liability company is one of the varieties of business entities created for the purpose of implementing entrepreneurial activity, which is an independent activity carried out at its own risk (Art. 2 of the Civil Code of the Russian Federation).

The legal concept of a society with additional liability is given by the legislator in Art. 95 of the Civil Code of the Russian Federation. An additional liability company is a company founded by one or more persons, authorized capital which is divided into shares of certain constituent documents sizes; the participants of such a company jointly and severally bear subsidiary liability for its obligations with their property in the same multiple for all to the value of their contributions, determined by the constituent documents of the company. ALC is essentially a type of LLC, therefore the Civil Code of the Russian Federation provided that the rules of the LLC Code apply to ALC, unless otherwise established by the Civil Code.

The specificity that distinguishes this form of entrepreneurial activity is the property liability of the ALC participants for the debts of the society. If the property of this company is insufficient to satisfy the claims of its creditors, the members of the company may be held jointly liable by their personal property. At the same time, the amount of this liability is limited - it does not concern all of their personal property (as is typical for general partners), but only part of it in a multiple of the amount of contributions made by the participants to the authorized capital. For example, participants can be held liable three times, five times, etc. the amount of their contributions. Hence, another feature of this business entity follows. In the event of the bankruptcy of one of the ALC participants, his liability for the company's obligations is distributed among the other participants in proportion to their contributions, unless a different procedure is provided for by the constituent documents of the company.

The opinion of V.A. Belova and E.V. Pestereva, as well as E.A. Sukhanov on the very name of this organizational and legal form. In their opinion, it would be more correct to call a company with additional liability a company with the risk of additional (subsidiary) losses of its participants. And if we take into account that the risk of additional losses is expressed in the obligation of the participants to bear subsidiary liability for the obligations of the company, in a certain multiple of the amount of the contribution (limited liability), then it would be more correct to call the company with additional liability a limited liability company. In the Civil Code of the RSFSR in 1922, an additional liability company was called a “limited liability partnership”.

ALC is a commercial organization based on the pooling of capitals - this is its main difference (as well as JSC) from business partnerships that are associations of persons.

The company has general legal capacity: it has the right to conclude transactions necessary for the implementation of any types of activities not prohibited by federal laws. ALC can engage in certain types of activities only on the basis of a license. If the license provides for the activities established by it, as exclusive, the company is entitled to carry out only permitted types of activities and related activities.

ALC has the right to open bank accounts on the territory of the Russian Federation and abroad.

In accordance with paragraph 2 of Art. 87 of the Civil Code of the Russian Federation, an additional liability company has its own corporate name, which must contain an indication of its organizational and legal form.

The charter of a society, which will be discussed below, contains basic information identifying society as a subject of civil turnover: full and abbreviated corporate name, location of the society, its property status, internal relations, etc. With the large number of participants in civil turnover, the individualization of society through its corporate name (firm) is of great importance. According to Art. 4 of the Law on LLC, a company must have a full and abbreviated corporate name in Russian and have the right to have one in other languages. Mandatory element of the corporate name is the word "with additional liability". The law prohibits the inclusion of other terms and abbreviations reflecting its organizational and legal form in the company's corporate name in Russian, including those borrowed from foreign languages(for example, "Ltd", "GmbH"), unless otherwise provided by federal laws and other legal acts Russian Federation.

The company must have a round seal (clause 5 of article 2 of the Law on LLC) and has the right to have stamps, letterheads, a trademark and other means of individualization.

The minimum authorized capital is ten thousand rubles. The authorized capital can be contributed both in cash (opening a savings account to pay for the authorized capital in a bank), and property, property rights, or other rights that have a monetary value. When making a non-monetary contribution in the amount of more than twenty thousand rubles, an assessment is required independent appraiser.

Changing the authorized capital by increasing or decreasing its size is the subject of detailed legal regulation. An increase in the authorized capital of an ALC, which is allowed only after its full payment, is possible in three ways:

- at the expense of the property of the company, i.e. due to the increase in net assets, while the size of the shares of the company's participants remains unchanged, but their face value increases.

- due to additional contributions of the participants to the authorized capital. Additional contributions can be made by all participants in proportion to the size of their shares in the authorized capital, which will lead, as in the first case, only to an increase in the nominal value of the shares while maintaining their proportion. Additional contributions can be made not by everyone, but only by individual participants, which will entail a change in the share ratio in the authorized capital. The consent of the company or other members of the company for the conclusion of such a transaction is not required, unless otherwise provided by the charter of the company.

- at the expense of contributions of third parties accepted in the company, if this is not prohibited by the charter, on the basis of a unanimous decision of all participants.

The authorized capital of an ALC can be reduced in two ways: by reducing the nominal value of the shares of all members of the company in the authorized capital in proportion to the size of their shares and (or) the repayment of shares owned by the company.

The company is obliged to reduce its authorized capital in the following cases: incomplete payment by the participants of their contributions within a year from the date state registration society (the authorized capital must be reduced to its actually paid amount); when the value of the company's net assets falls below the size of its authorized capital starting from the second year of the company's existence.

A decrease in the authorized capital requires a written notification of this to all known creditors of the company within 30 days from the date of the relevant decision. At the same time, creditors have the right to demand early termination or fulfillment of the corresponding obligations and compensation for losses.

1.2 Establishment of ALC

The procedure for establishing a limited liability company is determined by Art. 11 of the LLC Law. Conventionally, two stages can be distinguished - the preparatory and the direct registration of the ALC.

At the first stage of creating a company, the founders develop the constituent documents of the company, open a special savings account in a bank (credit institution) for making contributions to the authorized capital in the form of cash. At the first (constituent) meeting, the members of the company approve the constituent documents, elect the executive bodies of the company and (or) the governing bodies of the company (the supervisory board, if its creation is provided for by the charter of the company), approve the monetary value of the property contributed as a contribution to the charter capital of the company, as well as consider other issues related to the creation of society.

The decision to approve the charter of the company, as well as the decision to approve the monetary value of the contributions made by the founders of the company, is taken by the founders unanimously. Other decisions are made by the founders of the company in the manner prescribed by the Law and the constituent documents of the company.

The decision to create a legal entity must be formalized in the form of a protocol, agreement or other document stipulated by law. The current legislation does not always make it possible to delimit the form of the decision on the creation of a legal entity from the constituent document of this legal entity. A dual character is also inherent in the memorandum of association concluded by several founders of a limited liability company (Article 89 of the Civil Code of the Russian Federation, Article 12 of the Law on LLC).

The constituent documents of the company are the constituent agreement and the charter of the company.

The constituent agreement is a document regulating the creation of a society and the relationship of founders with each other and with the society for the period of its existence. It must meet the general requirements of the Civil Code of the Russian Federation for contracts and transactions (including the rules on the grounds for recognizing transactions as invalid), and also reflect the features provided for by the current legislation for this contract as a constituent document.

In the memorandum of association, the founders of the company undertake to create the company and determine the procedure for joint activities for its creation. The constituent agreement also determines the composition of the founders (participants) of the company, the size of the charter capital of the company and the size of the share of each of the founders (participants) of the company, the size and composition of contributions, the procedure and terms for their introduction into the charter capital of the company during its establishment, the responsibility of the founders (participants) of the company. for violation of the obligation to make contributions, the conditions and procedure for the distribution of profits between the founders (participants) of the company, the composition of the company's bodies and the procedure for the withdrawal of the company's participants from the company (clause 1 of article 12 of the Law).

Unlike a similar document - an agreement on joint activities (a simple partnership agreement (Chapter 55 of the Civil Code of the Russian Federation) - the constituent agreement regulates not only the obligations of obligations that arise between the founders after its conclusion, but also the corporate relations that exist between the founders, a legal entity and by third parties (managers) after state registration of a legal entity.In addition, the memorandum of association performs the function of securing the legal status of the legal entity itself.In fact, the memorandum of association is a kind of corporate transaction.

The Memorandum of Association must be concluded in simple writing by drawing up one document in accordance with paragraph 1 of Art. 89 of the Civil Code of the Russian Federation. The parties can provide for his notarization, although the law does not oblige them to do this. As practice shows, the indication in the memorandum of association of the company inaccurate data on the state registration of one of the founders in itself will not be the basis for the recognition of the agreement as null and void in terms of the entry of this person into the composition of the founders. It is obvious that the memorandum of association can only be concluded if there are at least two founders of the legal entity.

For companies with one founder, one constituent document is established - the charter. A change in the number of members of a company affects the number of constituent documents. With an increase in the number of participants in the company, it becomes necessary to conclude a memorandum of association between them, and with a decrease to one participant, the constituent agreement ceases to be effective, since the basis for the emergence of the contract disappears ("agreement of two or more persons" - Article 420 of the Civil Code of the Russian Federation).

The constituent agreement is valid from the moment of its conclusion until the moment of liquidation of the legal entity.

The founding documents of the ALC also include the charter approved by the founders. If the memorandum of association and articles of association were developed in advance, it is possible to simultaneously adopt them by the meeting of founders, but, as a rule, the conclusion of the memorandum of association begins the formalized process of creating a company. The law does not require a special form for either the contract or the charter.

Requirements for the content of the company's charter are determined by clause 2 of Art. 12 of the Law. The charter should include the following information:

- full and abbreviated company name of the company;

- information about the location of the company;

- information on the composition and competence of the bodies of the company, including on issues that constitute the exclusive competence general meeting members of the company, on the procedure for making decisions by the bodies of the company, including on issues, decisions on which are taken unanimously or by a qualified majority of votes;

- information on the size of the authorized capital of the company;

- information on the size and par value of the share of each participant in the company;

- the rights and obligations of the members of the company;

- information on the procedure and consequences of the withdrawal of a member of the company from the company;

- information on the procedure for the transfer of a share (part of a share) in the authorized capital of the company to another person;

- information on the procedure for keeping the company's documents and on the procedure for providing information by the company to members of the company and other persons;

- other information provided for by this Federal Law.

The company's charter may also contain other provisions that do not contradict the Law and other federal laws.

If, during the consideration of the case, it is established that the charter of the company contains provisions that are contrary to the Law and other federal laws, they should not be applied by the court when resolving the dispute that has arisen.

In the event of a discrepancy between the provisions of the memorandum of association and the provisions of the charter of the company, the provisions of the charter of the company have priority, both for the participants in the company and for third parties (clause 5, p. 12 of the Law). Although, according to the logic of things, the primary document is the constituent agreement, concluded by the founders specifically for the creation of a society and determining the procedure for conducting joint activities of the founders to create a society.

The original articles of association and articles of association are kept in accordance with Art. 50 of the Law at the location of the sole executive body of the company or in another place determined by the participants, and all participants in the company have the right to receive copies of the constituent documents.

It should be noted that the charter defines only corporate relations with the participation of a legal entity and its founders. When the legal entity created is a corporation, i.e. based on a strictly fixed membership, the charter regulates the relations arising between a legal entity, its founders (participants, members) and persons acting as its bodies.

It turns out that corporate relations between a legal entity and its founders are successfully regulated by both the memorandum of association and the charter. Meanwhile, the relations of obligation between the founders of a legal entity, as well as corporate relations between the founders in legal entities - institutions can be established and regulated either by a memorandum of association or by an agreement on joint activities to create a legal entity, but not by the charter.

Considering the functions that the constituent agreement performs in the process of creating and operating a legal entity, its existence in Russian law, according to N.V. Kozlova seems to be superfluous, since it can be replaced, on the one hand, by an agreement on joint activities to create a legal entity, and on the other hand, by a charter.

Amending the constituent agreement is possible only by unanimous decision of the participants, while amendments to the charter of the company are made by a majority of at least two-thirds of the total number of votes of the participants, if the need for a larger number of votes to resolve this issue is not provided for by the charter of the company (clause 8 of Art. . 37 of the Law).

As S.D. Mogilevsky, as a result of such legal regulation, "real possibilities of creating artificial collisions between the provisions of the charter and the agreement arise, when the provisions of the agreement will be questioned through a less stringent procedure for amending the company's charter."

The process of creating a company with additional liability ends with its state registration.

The company is subject to state registration with the body that carries out state registration of legal entities, in the manner prescribed by the federal law on state registration of legal entities (Article 13 of the Law "On LLC").

State registration of a legal entity - acts of the authorized federal executive body, carried out by entering into the Unified State Register legal entities information on the creation, reorganization and liquidation of legal entities, as well as other information about legal entities.

By its nature, the act of state registration of a legal entity is of a civil nature, since a subject of civil law is created. It is with the state registration of a legal entity that the law connects the emergence of a new subject of law. The only proof of the existence of a legal entity is its inclusion in the Unified State Register of Legal Entities.

State registration is carried out federal body executive power (registering body), authorized by the Government of the Russian Federation.

State registration of legal entities during their creation is carried out by the registration authorities at the location of the permanent executive body of the ALC, in the absence of a permanent executive body - at the location of another body or person entitled to act on behalf of the legal entity without a power of attorney (clause 1 of Art. 13 of the Law "On state registration of legal entities and individual entrepreneurs»).

For state registration, a state fee is paid in accordance with the legislation on taxes and fees. During state registration of a legal entity to be created, a number of documents are submitted to the registering authority (Article 12 of the Law "On State Registration of Legal Entities and Individual Entrepreneurs"). Such documents are directly submitted or sent by postal item with a declared value during postage and a list of attachments. Among such documents, the legislator included:

a) an application for state registration signed by the applicant in the form approved by the Government of the Russian Federation. The application confirms that the submitted constituent documents comply with the requirements established by the legislation of the Russian Federation for the constituent documents of a legal entity of this organizational and legal form, that the information contained in these constituent documents, other documents submitted for state registration, an application for state registration is reliable, that when the establishment of a legal entity, the procedure for their establishment established for legal entities of this organizational and legal form, including payment of the authorized capital (authorized capital, contributed capital, share contributions) at the time of state registration, was observed, and in cases established by law, agreed with the relevant state bodies and ( or) local self-government bodies issues of creating a legal entity;

b) the decision to create a legal entity in the form of a protocol, agreement or other document in accordance with the legislation of the Russian Federation;

c) constituent documents of a legal entity (originals or notarized copies);

d) an extract from the register of foreign legal entities of the corresponding country of origin or other equal legal force proof of the legal status of the foreign legal entity - the founder;

e) document confirming the payment of the state fee.

In practice, often between persons wishing to create an LLC, preliminary negotiations are held with the signing of a protocol (such actions are not provided for by law). These written evidence of preliminary activities for the creation of a legal entity should not be submitted to the registration authority.

Requirements for the execution of documents used for state registration of legal entities are approved by the Decree of the Government of the Russian Federation of June 19, 2002 No. 439.

According to Article 12 of the Law on Registration, during the state registration of a legal entity, the constituent documents of the legal entity are submitted to the registering authority.

During state registration of a legal entity, the following individuals can be applicants:

- the head of a permanent executive body of a registered legal entity or another person who has the right to act on behalf of this legal entity without a power of attorney;

- the founder (founders) of a legal entity upon its creation;

- the head of the legal entity acting as the founder of the registered legal entity;

- another person acting on the basis of the authority provided for by federal law, or by an act of a specially authorized state body, or an act of a local self-government body.

Applicant, upon providing all required documents on the same day, a receipt is issued for the receipt of documents indicating the list and the date of their receipt by the registering authority. In case of receipt of documents sent by mail to the registering authority, the receipt is sent during the working day following the day of receipt of the documents by the registering authority to the postal address indicated by the applicant with a receipt acknowledgment.

State registration is carried out within no more than five working days from the date of submission of documents to the registering authority (clause 1 of article 8 of the Law "On state registration of legal entities and individual entrepreneurs").

Refusal of state registration is allowed in the case (clause 1 of article 23 of the Law "On state registration of legal entities and individual entrepreneurs"):

- failure to submit the documents required for state registration;

- submission of documents to an inappropriate registration authority;

- when one of the founders is in the process of liquidation (clause 2 of article 20 of the Law "On state registration of legal entities and individual entrepreneurs").

The decision of the authorized body to refuse registration must be motivated with reference to a rule of law. Such a decision to refuse state registration is sent to the person indicated in the application for state registration, with a notification of delivery of such a decision. The decision to refuse state registration can be appealed against in court.

The decision on the state registration of an ALC, made by the registering body, is the basis for making a corresponding entry in the corresponding state register (clause 1 of article 11 of the Law "On state registration of legal entities and individual entrepreneurs").

2 Participation in the activities of ALC

2.1 Rights and obligations of ALC participants

ALC participants can be legal entities and citizens, including those who are not professionally engaged in entrepreneurial activity. State bodies and local self-government bodies are not entitled to be participants in companies, unless otherwise provided by law (clause 4 of article 66 of the Civil Code of the Russian Federation, clause 2 of article 7 of the Law on LLC). ALC can be established by one person, who becomes its only participant. The society can subsequently become a society with one participant.

The legislation establishes a limitation on the number of participants in ALC - no more than 50. If the number of participants in the company exceeds the established limit, the ALC must be transformed into an open joint-stock company or a production cooperative; otherwise, it is subject to liquidation in court on demand authorized bodies.

The rights of ALC participants are a very interesting subject of research, not only from a scientific but also from a practical point of view. The legal relationship that arises between a society and its participant form the basis of the internal structure of any legal entity, distinguish one legal form from another and, along with other characteristics, determine the choice of founders when creating an organization.

The classification of the rights of ALC participants is made by distinguishing such categories as property, non-property and management; basic and additional; imperatively and dispositively fixed.

In paragraph 1 of Art. 67 of the Civil Code of the Russian Federation imperatively enshrines the minimum rights of participants in business entities, which can be expanded in relation to certain types companies of the Civil Code of the Russian Federation, special laws on business companies, in our case the Law on LLC and constituent documents. On the contrary, it is impossible to restrict the rights of the participants contained in this article by the constituent documents, since this list is imperative. According to this provision, the participants in the company have the right to participate in the management of the affairs of the company; receive information about the activities of the company; get acquainted with the accounting books and other documentation of the company; take part in the distribution of profits; to receive, in the event of liquidation, a part of the property remaining after settlements with creditors, or its value.

If you refer to Art. 8 of the Law on LLC, dedicated to the rights of participants in society, we will see that it repeats the provisions of Art. 67 of the Civil Code of the Russian Federation, adding only the right to free withdrawal from society and the right to alienate one's share (or part of it) to the members of the society. At the same time, this article states that participants have other rights provided for by the Law on LLC. Moreover, if we analyze the norms of this Law, it will be found that the provisions that directly or indirectly regulate the rights of participants are enshrined in many of its articles - Art. 10, 12, 21, 22, 26, 28, etc. Therefore, in order to clearly understand the nature and direction of these rights, many authors, adhering to various criteria, try to give a classification of the rights of participants in society. For example, S.D. Mogilevsky divides the rights of participants in society into additional and basic, the latter of which, in turn, subdivides into unconditional and conditional rights. One can disagree with such a classification, firstly, the basic rights of participants in a company are determined not only by the Law on LLC, as the author points out, but also by the norms of the Civil Code of the Russian Federation. Secondly, the criterion for differentiating the rights of participants to unconditional and conditional rights is not entirely clear. On the one hand, the author rightly notes that conditional rights arise in connection with the presence of certain conditions, on the other hand, he focuses on the fact that unconditional rights are imperative in nature and therefore cannot be excluded and limited by members of the society or its governing bodies. It turns out that all rights with a condition cannot be imperative in nature and, therefore, can be limited and excluded by members of society or by governing bodies. However, how, for example, what about the right of the participants of the company to demand the exclusion of the participant from the company in court? Undoubtedly, this right refers to rights with a condition, since its implementation directly depends on the presence of a number of conditions, but, based on the logic of the author, can the members of society or its governing bodies in any way restrict this right, and even more exclude, taking into account that this provision is mandatory.

The non-property rights of ALC participants in accordance with the Civil Code of the Russian Federation and the Law on LLC include:

- the right to participate in the management of the company;

- the right to receive information about the activities of the company;

- the right to get acquainted with the company's documentation, including accounting books;

- the right to demand an audit;

- the right to take part in the distribution of profits.

The inclusion of the last right of ALC participants in the list of non-property rights, contrary to the prevailing opinion that this is a property right, is justified, first of all, by the fact that it is realized through participation of participants in the work of the general meeting of the company and voting “for” or “against” regarding the issue of distribution of profits. This is also proved by the difference in the legislative formulation of this right - "to participate in the distribution of profits" as opposed to the right "to receive, in the event of liquidation of the company, a part of the property ...". Thus, by directly participating in voting at the general meeting of the ALC on the issue of distribution of the company's profits, the participant exercises his non-property right (participation in the general meeting). If the decision on the payment is made, then the company is obliged to proceed with such a payment and here already arise property relations, if such a decision is not made, then the corresponding relationship will not arise. This situation proves that non-property relations are associated with property relations, and often in the process of exercising the non-property right of a participant in a society, the emergence, change and termination of property legal relations occurs.

Regarding the non-property rights of ALC participants, I would also like to note the following. As a rule, the right to information and the right to familiarize themselves with the documentation of the society are identical, although the purpose and content of these rights are different. If an ALC participant requires the society to obtain some information, then the society, represented by its governing bodies, independently decides what kind of information to provide, in what volume and in what form, and it is not a fact that such information will be reliable. In addition, the ALC participant can obtain information about the activities of the company indirectly, for example, by participating in the work of the general meeting. The requirement to familiarize with the documentation of the ALC assumes that the participant must be provided with exactly the documents that were requested by him. And, accordingly, such a participant, on the basis of the documents received, will independently draw conclusions on issues of interest to him, in contrast to a participant who has requested information and is forced to rely on the reliability of the conclusions drawn by the society itself.

The list of property rights of ALC participants, in comparison with the list of non-property rights, is more extensive, they include:

- the right to participate in the distribution of profits, which arose after the adoption of the appropriate decision at the general meeting of the company;

- right to liquidation value;

- the right to demand the exclusion from the company of one of its participants;

- the right to sell or otherwise alienate a share (its part) to one or several members of the company or third parties;

- preemptive right to acquire a share;

- the right to freely withdraw from society;

- the right to make additional contributions to the authorized capital of the company.

Also, the classification of the rights of ALC participants to imperatively and dispositively fixed ones is highlighted. Imperatively enshrined are those rights that are enshrined in the law and cannot be changed at the will of the ALC participants. Dispositively assigned rights are those that, at the will of the ALC participants, can be changed or canceled.

ALC differs from other organizational and legal forms by the presence of additional rights of ALC participants. Let's consider them in more detail.

Legal entity additional rights of participants is considered as a privilege that can be granted to a specific participant not only by the constituent documents, but also by the decision of any, including an extraordinary, general meeting of the company.

Let us consider the specifics of the rights of an ALC participant based on the functional purpose and characteristic features of this legal form, and also analyze the rights that are characteristic only of the ALC design and make it unique. In addition, we will analyze the features of those rights that members of other associations have.

The legal form of ALC is characterized primarily by the fact that it is a synthesis of capitalist and personal associations. This feature determines both the specifics of the set and the specifics of the content of the rights of its participants. By combining only capital, the ALC participants are endowed with a number of powers that make it possible to significantly strengthen the personal element in the construction of this type of society.

Complementary rights are the clearest example of the category of rights inherent only to ALC. In any organizational and legal form of a legal entity, including ALC, a specific list of the rights of participants is determined by the constituent documents. It can be expanded and supplemented in comparison with the legislatively fixed minimum. The specificity of the additional rights of participants of a limited liability company is as follows.

First, according to the Law, they can be provided not only by the constituent documents, but also by a unanimous decision of the general meeting. Thus, the participants get the opportunity to regulate the scope of their rights in the course of the company's activities, without resorting to amending the constituent documents and the associated re-registration procedure.

Secondly, additional rights are personal in nature. If the rights provided by the law belong to all participants without exception, then additional rights, according to the legislator, can be granted either to all participants, or only to a certain group of participants (for example, having shares of the prescribed size), or personally to one or several participants. And in fact, and in another case, these rights are associated with the personality of their owner, and the endowment of them is due personal decision general meeting regarding several or one participant.

These rights constitute the own privilege of their owner, since in case of alienation of his share, they do not pass to its acquirer, like the usual rights of a participant. Such rights provide participants with the opportunity not only to expand their list, but also to regulate the volume and ownership of rights to a particular participant.

The vesting of a certain person with any special right for personal qualities is characteristic precisely for personal associations. Consequently, there is a specific feature of ALC, indicating that this legal form is nothing more than a synthesis of the association of persons and capitals.

It should be noted that, in accordance with the Law, only the rights granted to a specific member of the company are not transferred to the acquirer of the share. In other words, if the one who is endowed with this or that additional right is determined individually, then this right belongs to him personally and has a personal character. If the participants who receive any privilege in the form of an additional right are defined by generic characteristics (as in the above example - the size of the share), then such a right does not acquire a personal character. (Such privileges can certainly be specially stipulated in the charter or the decision of the general meeting.) The opinion of some researchers that all additional rights are personal in nature seems somewhat controversial. If we follow this point of view, then any right provided by the charter (in addition to the statutory minimum) will become personal. And this means that each new participant who acquires a stake in the society will need to approve the ownership of this personal right by a special decision of the general meeting, adopted by 2/3 of the votes, which is absurd.

2.2 Governing bodies of ALC

The main principle of organizing management in ALC is the principle of separation of powers. At the same time, if the Civil Code of the Russian Federation defined a two-tier system of management bodies of the company, then the Law on ALC provided for the possibility of creating a three-tier management system for ALC: the general meeting of participants, the board of directors (supervisory board), the sole executive and / or collegial executive bodies of the company.

The supreme body of the company is the general meeting of participants. All members of the company have the right to attend the general meeting, take part in the discussion of issues on the agenda and vote when making a decision. Any restrictions on this right are declared null and void by the law. Each participant has a number of votes at the general meeting proportional to his share in the authorized capital of the company. A special feature of the ALC is the ability to provide in the charter at its establishment or to establish by a unanimous decision of the participants a different procedure for determining the number of votes of the company's participants. The general meeting has exclusive competence. Issues related to the exclusive competence relate to the most important areas of organization and activities of the company and cannot be transferred to it for decision by the board of directors, except for cases provided for by law, as well as for decision of the executive bodies. The exclusive competence of the general meeting of the company's participants, in particular, includes: determining the main directions of the company's activities, deciding on participation in associations, other unions of commercial organizations, changing the charter and the constituent agreement of the company, formation and early termination of the powers of executive bodies, the audit commission, approval annual reports and balances, distribution of profits among the participants, making decisions on the reorganization and liquidation of the company.

A feature of the legal regulation of this organizational and legal form of entrepreneurial activity is the need for unanimous decision-making on a number of issues attributed to the exclusive competence of the general meeting provided for in the legislation. These issues include amendments to the memorandum of association, decision-making on the reorganization and liquidation of the company. The number of issues requiring a unanimous decision of the participants can be expanded by the charter of the company.

In the interests of all members of the company, the legislation regulates in detail the procedure for convening and holding a general meeting. The novelty of the Law on LLC is the envisaged procedure for making decisions by the general meeting by absentee voting (by poll). Typical for joint-stock companies with a large number of participants, this procedure in relation to ALC causes controversial assessments of scientists and practitioners.

The company's charter may provide for the formation of a board of directors (supervisory board). The charter of this body may include issues of formation and early termination of powers of executive bodies, convocation and holding of a general meeting of participants, decisions on major transactions and interested-party transactions, if the approval of such transactions by law is not within the competence of the general meeting. Based on the principle of separation of powers, the law provides that members of a collegial executive body cannot constitute more than 1/4 of the composition of the board of directors. A person performing the functions of the sole executive body cannot simultaneously be the chairman of the board of directors.

Executive bodies have residual competence and leadership current activities society. They are accountable to the general meeting of members and the board of directors. The company can only have a sole executive body ( general manager, president) or along with it a collegial executive body - a board, a directorate - can also be created. The functions of the chairman of the collegial executive body of the company are performed, respectively, by the general director or the president. In the case provided for by the charter, the company has the right to transfer the powers of the sole executive body to a managing organization or a manager (Article 42 of the Law on LLC).

In order to control the activities of the company, the general meeting of participants elects for a period determined by the charter, an auditing commission or an auditor. The Auditing Commission has the right at any time to conduct audits of financial economic activity society and have access to all documentation relating to its activities. V mandatory the commission checks the annual reports and balance sheets of the company prior to their submission for approval to the general meeting of participants. To check the activities of the company, by decision of the general meeting, a professional auditor who is not associated with property interests with the company may also be involved. An audit can be carried out by a professional auditor at the request of any member of the company, and the costs of paying for his services, by decision of the general meeting, can be reimbursed to the member at the expense of the company.

2.3 Assignment of a share by a company participant, distribution of profits and withdrawal from ALC

The assignment of a share by a participant in the company or part of it may be carried out to other participants in the company without the consent of the company or other participants, unless otherwise provided by the charter of the company. Sale of a share to third parties is allowed if it is not prohibited by the charter of the company. At the same time, ALC participants have the preemptive right to acquire shares belonging to them, alienated by other members of the company, at a price offered to other persons. This right is exercised by them in proportion to the size of their shares, unless the charter of the company or the agreement of the participants provides for a different procedure for exercising this right. A company participant intending to sell his share (part of it) to a third party is obliged to notify the other participants and the company itself about this in writing. If within 1 month from the date of notification (unless a different period is established by the charter or agreement) the participants of the company and (or) the company do not use their preemptive right, the share (part of the share) can be sold to a third party at a price and on conditions, communicated to the community and its members. When selling a share (part of a share) in violation of the right of pre-emptive purchase, a member of the company, within 3 months from the moment when he learned or should have learned about the transaction, has the right to demand in court the transfer of the rights and obligations of the buyer. The novelty of the Law on LLC is the provision on the possibility of providing in the charter of the company that it is necessary to obtain the consent of the company or other participants in the company for the assignment of a share (part of a share) of a participant to third parties in a different way than sale.

What is the "legal fate" of a share (part of a share) of a participant, if the charter of the company prohibits the assignment of a share (part of a share) by a participant to third parties, and other participants refuse to acquire it, or when the charter of the company provides for the consent of the participants to assign a share (part of a share) to the participants society, and they did not give the appropriate consent? In this case, the company is obliged to acquire, at the request of the participant, the share (part of the share) belonging to him and within no more than 1 year from the date of transfer to the company of the share (if the charter of the company does not establish a shorter period) to pay to the participant the actual cost of this share (part of the share) or from the consent of a member of the company to give him property in kind of the same value. The cost of a share or part thereof is determined based on the data accounting statements society for the last reporting period, preceding the day of the participant's request with such a request. The actual value of the share (part of the share) is paid at the expense of the difference between the value of net assets and the size of the authorized capital of the company. If this difference is not enough, the company is obliged to reduce its authorized capital by the missing amount. Similar legal consequences also occur in the absence of the consent of the company participants to the transfer or distribution of a share in cases of inheritance, reorganization or liquidation of a company participant. To calculate the share, the accounting statements for the last reporting period preceding the death, reorganization or liquidation of the participant, respectively, are taken.

A member of the company has the right to withdraw from the company regardless of the consent of its other members and the company. The norm of clause 1 of Art. 26 of the LLC Law, which regulates the participant's right to withdraw from the company, is imperative. In this regard, the resolution of the Plenums of the Armed Forces and the Supreme Arbitration Court of the Russian Federation of July 1, 1996 No. 6/8 specifically clarified that the conditions of the constituent documents of companies with additional liability, which interfere with the holder of this right or limit it, should be considered as null and void, i.e. not giving rise to legal consequences. When a participant leaves the company, he must be paid the actual value of his share or allotted in kind property of the same value within 6 months from the end of the financial year in which the application for withdrawal from the company is submitted, unless a shorter period is provided for by the charter. The share of the participant leaving the company is transferred to the company from the moment of filing the application for withdrawal. Thus, there is a certain time gap between the time when the participant ceases to be the bearer of corporate rights and obligations, and the receipt of the actual value of the share. Since a participant leaving the company also loses access to information about the activities of the company, this can really make it difficult for him to determine the real value of his share.

Nevertheless, it should be noted that only with the adoption of the Law on LLC for the first time, the procedure for the withdrawal of a participant from the company was directly regulated in the legislation.

There is no unanimity among scholars and legal practitioners in assessing the procedure for paying an outgoing participant the actual value of a share provided by law. Some consider this to be a progressive norm that ensures the free disposal of the participant of his property and, ultimately, the realization of the right to engage in entrepreneurial activity in a form that suits him. Others believe that this approach can destroy a single property complex that provides society with the opportunity for successful entrepreneurial activity. So, S.D. Mogilevsky writes: "The exercise of the right of free withdrawal of a participant from the company with the receipt by him of the actual value of his share makes a limited liability company one of the most risky organizational and legal forms of legal entities provided for by Russian legislation."

The exclusion of a participant from an ALC is possible only in court at the request of the participants, whose aggregate share is at least 10% of the authorized capital of the company. The grounds for exclusion may be a gross violation by a participant of his obligations or actions (inaction) that make it impossible for the company to operate or significantly complicate it (Article 10 of the LLC Law). The excluded participant must be paid the actual value of his share, determined according to the company's financial statements for the last reporting period preceding the date of entry into force of the court decision on the exclusion. Thus, the property consequences of the withdrawal and exclusion of a participant from the company coincide, which means that the exclusion from the company in itself is not a sanction against an unscrupulous participant. Unfavorable legal consequences in relation to him can be provided for, for example, in the memorandum of association in the form of the need to compensate the company by the excluded participant for the damage caused by his actions (inaction) and even the payment of penalties.

The distribution of profits received by the company as a result of entrepreneurial activity is carried out in proportion to the shares of the participants in the authorized capital, unless a different procedure is provided for by the charter of the company, adopted by the unanimous decision of the participants. The possibility of distributing profits in deviation from equity participation in the authorized capital distinguishes an ALC from a JSC, where such an approach is impossible. The decision on the distribution of profits is made by the general meeting of participants on a quarterly basis, once every six months or a year. In order to protect the interests of creditors, members of the company and the company itself in terms of creating and maintaining its property base, the law establishes restrictions on the distribution and payment of the distributed profit of the company between its participants. So, the company is not entitled to make a decision on the distribution of profits between the participants until the full payment of the entire authorized capital, until the necessary payments to the outgoing participants are made, if the company meets the signs of insolvency (bankruptcy), if the value of the company's net assets is less than its authorized capital and reserve fund or becomes less their size as a result of such a decision (Art. 29 of the Law on LLC).

Conclusion

An additional liability company is one of the organizational and legal forms provided for by the legislation of the Russian Federation (Civil Code of the Russian Federation, Art. 95) for commercial organizations.

A company founded by one or more persons, the authorized capital of which is divided into shares of the sizes determined by the constituent documents; the participants of such a company jointly and severally bear subsidiary liability for its obligations with their property in the same multiple for all to the value of their contributions, determined by the constituent documents of the company.

In general, additional liability companies are subject to the provisions of the legislation of the Russian Federation on limited liability companies, with the exception of the subsidiary liability provided for the participants of such a company, which they bear for the company's obligations jointly and severally with all their property in the same multiple for all to the value of their contributions, determined by the constituent documents of the society. Thus, for participants in companies with additional liability, there is no limitation of liability that is provided to participants (shareholders) of other forms of business partnerships and companies.

Compared to a joint-stock company, a company with additional responsibility is a simpler form of entrepreneurship, convenient for the functioning of small and medium-sized capital; the rules governing the creation and operation of a limited liability company are largely discretionary.

The number of ALC participants is from one to fifty. Participants can be capable Russian and foreign citizens (as well as stateless persons) and legal entities.

The authorized capital of a company is made up of the par value of the shares of its participants. The size of the share of a company participant in the charter capital of the company is determined as a percentage or as a fraction. The size of the share of a participant in the company must correspond to the ratio of the par value of his share and the authorized capital of the company.

The supreme governing body in ALC is the general meeting of the company's participants. The general meeting of participants can also decide any other issues if they are referred to the competence of the meeting by the Charter of the company. The management of the company's current activities is carried out by the sole executive body of the company or the sole executive body of the company and the collegial executive body of the company. The executive bodies of the company are accountable to the general meeting of members of the company and the board of directors of the company. The charter of the company may provide for the formation of the board of directors (supervisory board) of the company. The competence of the board of directors (supervisory board) of the company is determined by the charter of the company in accordance with the Law (Article 32 of the Federal Law “On LLC”). The charter of the company may provide for the formation of an audit commission (election of an auditor) of the company. In companies with more than fifteen members, the formation of an audit commission (election of an auditor) of the company is mandatory. A member of the auditing commission (auditor) of a company may also be a person who is not a member of the company.

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As contributions to the property of a business entity in accordance with Art. 48 and clause 2 of Art. 213 of the Civil Code, cash and other material values, as well as property or other rights that have a monetary value, can be contributed. The Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation, in Plenary Resolution No. 6/8, clarified that an intellectual property object cannot be transferred directly as a contribution, but the right to use such an object transferred to the company in accordance with a license agreement can be accepted as a contribution.

At the same time, the society may own the objects of intellectual property created by it in the course of its activities - the right to industrial designs, certain technologies, a trademark, etc.

b) the company can, on its own behalf, acquire and exercise property and personal non-property rights, bear obligations. This is manifested in the implementation of the owner's powers to own, use and dispose of property to meet their own needs, to conduct production and economic activities, for charitable and other purposes. The company can conclude transactions for the alienation of its own property and the acquisition of new property (contracts of purchase and sale, exchange, donation); transfer of their property for rent or for temporary use (under a loan agreement); transfer it as a pledge, make as a contribution to the authorized capital of other business entities, etc.

These rights are exercised by the company freely, except in cases where legislative restrictions are in force. So, Art. 575 of the Civil Code does not allow commercial organizations to donate property to each other and employees of state bodies and bodies municipalities in connection with the performance of their duties (the exceptions are ordinary gifts of small value). Art. 690 of the Civil Code prohibits commercial organizations to transfer property for free use to a person who is a founder, a member of this organization, as well as its director, a member collegial body management or control. Transactions made in violation of these restrictions are void by virtue of Art. 168 GK.

The company bears obligations related to the exercise of the rights of the owner - cares for the maintenance of property belonging to it (Articles 209, 210 of the Civil Code), on the fulfillment of obligations under contracts and other transactions, etc. Moreover, it must exercise its rights without violating the rights and legal interests of other persons (Article 10 of the Civil Code).

c) another sign of a legal entity is the right to be a plaintiff and a defendant in court. The right to judicial protection is provided for by Art. 11 GK. The procedure for appearing in court as a plaintiff and a defendant is determined by the Arbitration and Civil Procedure Codes. The company is independently liable for its obligations, except as otherwise provided by law.

d) society has organizational unity, which manifests itself primarily in a certain hierarchy, subordination of the governing bodies that make up its structure, and in a clear regulation of relations between its participants. Thus, many persons united in a society act in civil circulation as one person, one subject of law.

As a commercial organization, a company in accordance with Art. 49 of the Civil Code and paragraph 2 of Article 2 of the Law on LLC has general legal capacity, that is, it can have civil rights and bear civil obligations necessary to carry out any activities not prohibited by law. Along with this, Article 2 of the Law on LLC notes that the activities of the company should not contradict the subject matter and goals, which are definitely limited in the charter of the company. Such restrictions can be established in the charter by decision of either the founders (when creating a company), or the general meeting of participants (by making amendments and additions to the Charter), based on the goals for the implementation of which this company is created. At the same time, it is necessary that the corresponding restrictions on the types of activities are clearly reflected in the charter - by indicating in it an exhaustive (complete) list or by including a clause in the charter that prohibits certain types of activities, etc. The performance of transactions by a company in contradiction with the objectives of its activities, definitely limited in its constituent documents, is the basis for the court to declare them invalid at the suit of this company, its founder (participant) or the state body supervising the activities of this legal entity, if it is proved that another the party to the transaction knew or knowingly should have known about its illegality (Article 173 of the Civil Code).

2.2. Additional liability company

commercial organization, the authorized capital of which is divided into shares of predetermined sizes, formed by one or more persons jointly bearing subsidiary liability for its obligations in an amount that is a multiple of the value of their contributions to the authorized capital, is called an additional liability company.

The main provisions on companies with additional liability are established by Art. 95 GK. The specificity of the ALC lies in the special nature of the property liability of the participants for its debts:

Liability is subsidiary, claims against participants can be presented only if the property of the company is insufficient for settlements with creditors;

Liability is joint and several in nature, creditors have the right to present claims in full or in any part to any of the participants who is obliged to satisfy them;

The participants bear the same responsibility, that is, equally a multiple of the size of their contributions to the authorized capital;

The total amount of responsibility of all participants is determined by the constituent documents as a multiple (two-, three-fold, etc.) of the size of the authorized capital.

The firm name of a company with additional responsibility must contain the name of the company and the words "with additional responsibility".

In everything that is not specified in Art. 95, the rules of the Civil Code concerning LLC are applied to the ALC. It follows from this that the rules of the Federal Law "On Limited Liability Companies" will also be applied to ALC by analogy, since this will not contradict Art. 95 and the norms of this law.

This organizational and legal form differs from the structure of a limited liability company only in the presence of additional liability of the participants in the company for its debts with their personal property. However, such responsibility does not apply to the entire property of the participants (as in a full partnership), but only to its predetermined part, provided for by the constituent documents of the company. In the event of bankruptcy of one of the participants, its additional responsibility is distributed among the other participants, as if “growing” to their shares (proportionally or in another order, for example, equally). Therefore, the total amount additional guarantees the creditors of the society remains unchanged. Thus, an additional liability company occupies an intermediate position between partnerships (with unlimited liability of their participants) and companies (excluding the liability of participants).

"Partnership and Cooperative" - General Partnership. A partnership of faith. Features of business partnerships. Management is carried out by the general agreement of all participants. General characteristics of business partnerships. Participant rights production cooperative... Exit condition. Rights. Signs of a production cooperative.

"Business Societies" - Decision to establish a CW. At the end of 2011, 1403 enterprises were registered. Register for 1 quarter. Institutions have the right to dispose of shares. Ministry of Education and Science of Russia. List of RID. Budgetary scientific and educational institution... Monitoring indicators innovative activity... Accounting for notifications. The presence of economic interest.

"The concept of non-profit organizations" - Limitations and features of doing business. Non-profit partnership... Legal regulation. Activity. Draft of the Civil Code of the Russian Federation. Investment decision. Autonomous non-profit organization. Use of funds. Registration of documents. Public organization... Business issues.

"Organizational and legal forms of enterprises" - Characteristics of the forms of enterprises. Classification of enterprises in relation to profit. Types of business partnerships. Types of tourism infrastructure enterprises. Consumer cooperative. Organizational and legal forms of entrepreneurship. Classification of enterprises by legal form. Classification of organizations in relation to power.

"Unitary Enterprise" - Organizational and legal forms of commercial organizations. State enterprise. Municipal unitary enterprises. Objects of rights. Property management rules. Enterprise development plan. Right economic management... Head of a unitary enterprise. Content of limited property rights. The federal law.

"Features of non-profit organizations" - Russian economic science. Use of property rights of non-profit organizations. Employment rate in non-profit organizations... State corporation. Trends in the development of the non-profit sphere. Non-profit partnership. Development of the non-profit sphere in Russia. Use of the concepts of "production" and "non-production" sphere.

The constituent agreement is valid from the moment of its conclusion until the moment of liquidation of the legal entity.

Requirements for the content of the company's charter are determined by clause 2 of Art. 12 of the Law. The charter should include the following information:

- full and abbreviated company name of the company;

- information about the location of the company;

- information on the composition and competence of the company's bodies, including on issues that are the exclusive competence of the general meeting of the company's members, on the procedure for making decisions by the company's bodies, including on issues on which decisions are taken unanimously or by a qualified majority of votes;

- information on the size of the authorized capital of the company;

- information on the size and par value of the share of each participant in the company;

- the rights and obligations of the members of the company;

- information on the procedure and consequences of the withdrawal of a member of the company from the company;

- information on the procedure for the transfer of a share (part of a share) in the authorized capital of the company to another person;

- information on the procedure for keeping the company's documents and on the procedure for providing information by the company to members of the company and other persons;

- other information provided for by this Federal Law.

The company's charter may also contain other provisions that do not contradict the Law and other federal laws.

The process of creating a company with additional liability ends with its state registration.

State registration of a legal entity - acts of the authorized federal executive body, carried out by entering information on the creation, reorganization and liquidation of legal entities in the Unified State Register of Legal Entities, as well as other information on legal entities.

State registration is carried out by the federal executive body (registering body) authorized by the Government of the Russian Federation.

State registration of legal entities during their creation is carried out by the registration authorities at the location of the permanent executive body of the ALC, in the absence of a permanent executive body - at the location of another body or person entitled to act on behalf of the legal entity without a power of attorney (clause 1 of Art. 13 of the Law "On State Registration of Legal Entities and Individual Entrepreneurs").

b) the decision to create a legal entity in the form of a protocol, agreement or other document in accordance with the legislation of the Russian Federation;

c) constituent documents of a legal entity (originals or notarized copies);

d) an extract from the register of foreign legal entities of the corresponding country of origin or other equally valid proof of the legal status of the foreign legal entity - the founder;

e) document confirming the payment of the state fee.

Requirements for the execution of documents used for state registration of legal entities are approved by the Decree of the Government of the Russian Federation of June 19, 2002 No. 439.

According to Article 12 of the Law on Registration, during the state registration of a legal entity, the constituent documents of the legal entity are submitted to the registering authority.

During state registration of a legal entity, the following individuals can be applicants:

- the head of a permanent executive body of a registered legal entity or another person who has the right to act on behalf of this legal entity without a power of attorney;

- the founder (founders) of a legal entity upon its creation;

- the head of the legal entity acting as the founder of the registered legal entity;

- another person acting on the basis of the authority provided for by federal law, or by an act of a specially authorized state body, or an act of a local self-government body.

On the same day, the applicant, upon providing all the necessary documents, is issued a receipt for receiving the documents indicating the list and the date of their receipt by the registering authority. In case of receipt of documents sent by mail to the registering authority, the receipt is sent during the working day following the day of receipt of the documents by the registering authority to the postal address indicated by the applicant with a receipt acknowledgment.

Refusal of state registration is allowed in the case (clause 1 of article 23 of the Law "On state registration of legal entities and individual entrepreneurs"):

- failure to submit the documents required for state registration;

- submission of documents to an inappropriate registration authority;

- when one of the founders is in the process of liquidation (clause 2 of article 20 of the Law "On state registration of legal entities and individual entrepreneurs").

2 Participation in the activities of ALC

2.1 Rights and obligations of ALC participants

The classification of the rights of ALC participants is made by distinguishing such categories as property, non-property and management; basic and additional; imperatively and dispositively fixed.

In paragraph 1 of Art. 67 of the Civil Code of the Russian Federation imperatively enshrines a minimum of rights of participants in business entities, which can be expanded in relation to certain types of companies of the Civil Code of the Russian Federation, special laws on business entities, in our case, the Law on LLC and constituent documents. On the contrary, it is impossible to limit the rights of participants contained in this article by constituent documents, since this list is mandatory. According to this provision, the participants in the company have the right to participate in the management of the affairs of the company; receive information about the activities of the company; get acquainted with the accounting books and other documentation of the company; take part in the distribution of profits; to receive, in the event of liquidation, a part of the property remaining after settlements with creditors, or its value.

The non-property rights of ALC participants in accordance with the Civil Code of the Russian Federation and the Law on LLC include:

- the right to participate in the management of the company;

- the right to receive information about the activities of the company;

- the right to get acquainted with the company's documentation, including accounting books;

- the right to demand an audit;

- the right to take part in the distribution of profits.

The inclusion of the last right of ALC participants in the list of non-property rights, contrary to the prevailing opinion that this is a property right, is justified, first of all, by the fact that it is realized through participation of participants in the work of the general meeting of the company and voting “for” or “against” regarding the issue of distribution of profits. This is also proved by the difference in the legislative formulation of this right - "to participate in the distribution of profits" as opposed to the right "to receive, in the event of liquidation of the company, a part of the property ...". Thus, by directly participating in voting at the general meeting of the ALC on the issue of distribution of the company's profits, the participant exercises his non-property right (participation in the general meeting). If the decision on the payment is made, then the company is obliged to proceed with such a payment and property relations already arise here, if such a decision is not made, then the corresponding relationship will not arise. This situation proves that non-property relations are associated with property relations, and often in the process of exercising the non-property right of a participant in a society, the emergence, change and termination of property legal relations occurs.

The list of property rights of ALC participants, in comparison with the list of non-property rights, is more extensive, they include:

- the right to participate in the distribution of profits, which arose after the adoption of the appropriate decision at the general meeting of the company;

- the right to liquidation value;

- the right to demand the exclusion from the company of one of its participants;

- the right to sell or otherwise alienate a share (its part) to one or several members of the company or third parties;

- preemptive right to acquire a share;

- the right to freely withdraw from society;

- the right to make additional contributions to the authorized capital of the company.

ALC differs from other organizational and legal forms by the presence of additional rights of ALC participants. Let's consider them in more detail.

The legal essence of the additional rights of participants is considered as a privilege that can be granted to a specific participant not only by the constituent documents, but also by the decision of any, including an extraordinary, general meeting of the company.

Secondly, additional rights are personal in nature. If the rights provided by the law belong to all participants without exception, then additional rights, according to the legislator, can be granted either to all participants, or only to a certain group of participants (for example, having shares of the prescribed size), or personally to one or several participants. In both cases, these rights are associated with the personality of their owner, and the endowment of them is due to the personal decision of the general meeting regarding several or one participant.

2.2 Governing bodies of ALC

The company's charter may provide for the formation of a board of directors (supervisory board). The charter of this body may include issues of formation and early termination of powers of executive bodies, convocation and holding of a general meeting of participants, decisions on major transactions and related-party transactions, if the approval of such transactions is not within the competence of the general meeting under the law. Based on the principle of separation of powers, the law provides that members of a collegial executive body cannot constitute more than 1/4 of the composition of the board of directors. A person performing the functions of the sole executive body cannot simultaneously be the chairman of the board of directors.

The executive bodies have residual competence and manage the current activities of the company. They are accountable to the general meeting of members and the board of directors. A company can only have a sole executive body (general director, president) or, along with it, a collegial executive body can also be created - a board, a directorate. The functions of the chairman of the collegial executive body of the company are performed, respectively, by the general director or the president. In the case provided for by the charter, the company has the right to transfer the powers of the sole executive body to a managing organization or a manager (Article 42 of the Law on LLC).

In order to control the activities of the company, the general meeting of participants elects for a period determined by the charter, an auditing commission or an auditor. The Audit Commission has the right at any time to carry out inspections of the financial and economic activities of the company and have access to all documentation relating to its activities. On a mandatory basis, the commission checks the annual reports and balance sheets of the company prior to their submission for approval to the general meeting of participants. To check the activities of the company, by decision of the general meeting, a professional auditor who is not associated with property interests with the company may also be involved. An audit can be carried out by a professional auditor at the request of any member of the company, and the costs of paying for his services, by decision of the general meeting, can be reimbursed to the member at the expense of the company.

2.3 Assignment of a share by a company participant, distribution of profits and withdrawal from ALC

What is the "legal fate" of a share (part of a share) of a participant, if the charter of the company prohibits the assignment of a share (part of a share) by a participant to third parties, and other participants refuse to acquire it, or when the charter of the company provides for the consent of the participants to assign a share (part of a share) to the participants society, and they did not give the appropriate consent? In this case, the company is obliged to acquire, at the request of the participant, the share (part of the share) belonging to him and within no more than 1 year from the date of transfer to the company of the share (if the charter of the company does not establish a shorter period) to pay to the participant the actual cost of this share (part of the share) or from the consent of a member of the company to give him property in kind of the same value. The cost of a share or part of it is determined on the basis of data from the company's financial statements for the last reporting period preceding the day the participant applied with such a request. The actual value of the share (part of the share) is paid at the expense of the difference between the value of net assets and the size of the authorized capital of the company. If this difference is not enough, the company is obliged to reduce its authorized capital by the missing amount. Similar legal consequences also occur in the absence of the consent of the company participants to the transfer or distribution of a share in cases of inheritance, reorganization or liquidation of a company participant. To calculate the share, the accounting statements for the last reporting period preceding the death, reorganization or liquidation of the participant, respectively, are taken.

Number of ALC participants from one to fifty. Participants can be capable Russian and foreign citizens (as well as stateless persons) and legal entities.

List of sources used

1. The Constitution of the Russian Federation [of December 12. 1993] // Russian newspaper. - 1993. - No. 237. - S. 3–6.

2. Civil Code of the Russian Federation (part one): [from 30 nov. 1994 №51 - FZ] // SZ RF. - 1994. - No. 32. - Art. 3301.

3. About limited liability companies: Feder. law // Russian newspaper - 1998 - №30.

4.: Resolution of the Plenum of the Armed Forces and the Supreme Arbitration Court of the Russian Federation: // Rossiyskaya Gazeta. - 1996. - No. 90.

5.: Resolution of the Plenum of the Armed Forces and the Supreme Arbitration Court of the Russian Federation // Rossiyskaya Gazeta. - 2000. - No. 19.