Unitary legal entities, features of their legal status.

A unitary enterprise is a commercial organization whose property remains the indivisible property of its founder.

The only constituent document of a unitary enterprise is its charter, approved by the authorized body of the relevant public legal entity (this role is usually played by the relevant ministries and departments).

To create and operate a unitary enterprise, it is not necessary to conclude any enterprise agreements with the founder-owner. The latter, simultaneously with the decision to create a unitary enterprise, also approve the head (director) of the enterprise, who is its only (sole) body, accountable to the owner-founder.

The founder provides the unitary enterprise with an authorized capital, which cannot be less than the size provided for by the special law on state and municipal unitary enterprises. In this case, the authorized capital of the enterprise must be fully paid by the founder by the time of its state registration. The authorized capital (capital) of an enterprise represents a minimum guarantee of the interests of its creditors. Therefore, if the value of the net assets of an enterprise decreases to a size less than the authorized capital, the latter must be reduced by its founder with mandatory written information about this to all its creditors.

A unitary enterprise does not have the right to create another unitary enterprise as a legal entity by transferring part of its property to it (a subsidiary).

The UE can, on its own behalf, acquire and exercise property and personal non-property rights, bear responsibilities, and be a plaintiff and defendant in court.

UE must have an independent balance.

All types of unitary enterprises are liable for their obligations with all the property assigned to them.

State and municipal enterprises are reorganized and liquidated according to the general rules on the reorganization and liquidation of legal entities. It should, however, be borne in mind that their transformation into other organizational and legal forms of commercial organizations - owners is always associated with the alienation of their property from public property to private property, i.e. is one of the forms of privatization, which must be carried out according to the rules provided for by special legislation. The latter provides for the transformation of state and municipal enterprises only into the form of economic, mainly open joint-stock companies.

Unitary enterprises exist in two varieties:

1. Based on the right of economic management. Unitary enterprises based on the right of economic management can be created by both the federal owner and the subjects of the Federation and municipal entities. Unitary enterprises based on the right of economic management can create subsidiaries. These latter are also unitary enterprises based on the right of economic management, and therefore do not represent a special, independent organizational and legal form. They are created with the permission of the founding owner by transferring part of its property to the economic management of the newly created unitary enterprise by the founding unitary enterprise.

In this case, the parent company assumes the functions of the owner in relation to its subsidiary, i.e. approves its charter and appoints a manager (director), and, if necessary, gives consent to carry out transactions for the disposal of real estate. It, like the owner of an ordinary unitary enterprise, is not liable for the debts of its subsidiary.

The authorized capital of a unitary enterprise based on the right of economic management must be fully formed (paid for) by the owner within 3 months from the date of state registration of such an enterprise. The authorized capital is considered formed from the moment the corresponding sums of money are credited to a bank account opened for these purposes and (or) transfer in the prescribed manner to a state or municipal enterprise of other property assigned to it under the right of economic management in full.

The authorized capital of a state or municipal enterprise cannot be reduced if, as a result, its size becomes less than a certain minimum size of the authorized capital.

disposes of movable property owned by him on the right of economic management independently, except for cases established by current legislation. Thus, it does not have the right to sell real estate belonging to it, lease it, pledge it, make a contribution to the authorized (share) capital of a business company or partnership, or otherwise dispose of such property without the consent of the owner of this property.

A state or municipal enterprise disposes of movable and immovable property within the limits that do not deprive it of the opportunity to carry out activities, goals, objects, the types of which are determined by the charter of such an enterprise. Transactions made by a state or municipal enterprise in violation of this requirement are void.

Without the consent of the owner, the unitary enterprise does not have the right to carry out transactions related to the provision of loans, guarantees, receipt of bank guarantees, other encumbrances, assignment of claims, transfer of debt, as well as enter into simple partnership agreements. The charter of the unitary enterprise may provide for the types and (or) size of other transactions, the conclusion of which cannot be carried out without the consent of the owner of the property of such an enterprise.

2. Based on the right of operational management (state-owned). State-owned enterprises can only be created on the basis of federal property by decision of the federal government in cases provided for by the law on state and municipal unitary enterprises. The number of state-owned enterprises (state-owned factories, state-owned factories, state-owned farms) is relatively small. These include, in particular, enterprises engaged in the production of certain types of defense products, and enterprises of correctional labor institutions.

In a state-owned enterprise, a statutory fund is not formed, and in addition to the general information specified in the charter of the enterprise, the procedure for the distribution and use of income of the state-owned enterprise must be determined.

The owner of the property of a state-owned enterprise has the right to: confiscate from a state-owned enterprise excess, unused or misused property; bring to the government enterprise mandatory orders for the supply of goods, performance of work, provision of services for state and municipal needs; approve the estimate of income and expenses of a state-owned enterprise.

Other powers of the owner of the property of a federal government enterprise are determined by the Government of the Russian Federation or authorized federal executive authorities.

The state-owned enterprise has fewer rights in the field of operational and economic activities. A federal government enterprise has the right to alienate or otherwise dispose of property belonging to it only with the consent of the Government of the Russian Federation or a federal executive body authorized by it. A state-owned enterprise of a subject of the Federation and a municipal state-owned enterprise - only with the consent of the respectively authorized government body of the subject of the Federation and a local government body.

The charter of a state-owned enterprise may provide for the types and (or) size of other transactions, the conclusion of which cannot be carried out without the consent of the owner of the property of such an enterprise.

A state-owned enterprise independently sells its products (work, services), unless otherwise established by federal laws or other regulations of the Russian Federation.

A state-owned enterprise has the right to dispose of the property belonging to it, incl. with the consent of the owner of such property, only to the extent that does not deprive him of the opportunity to carry out activities, the subject and goals of which are determined by the charter of such an enterprise. The activities of a state-owned enterprise are carried out in accordance with the estimate of income and expenses approved by the owner of the property of the state-owned enterprise.

The activities of a state-owned enterprise are planned by an authorized management body, which, 3 months before the start of the planned year, approves and communicates to the executor a mandatory plan-order agreed with the Ministry of Finance of Russia according to the established range of indicators.

Financing associated with the implementation of the order plan, development plan for the production, social sphere and other indicators is carried out from the income of the state-owned enterprise from the sale of products (works, services), and if they are insufficient - by allocating funds from the federal budget by decision of the Government of the Russian Federation.

The state UP is liable for its obligations with the property that is at its disposal. The founder (owner of the property of a state-owned enterprise) bears subsidiary (additional) liability for the obligations of such an enterprise in the event of insufficiency of the latter’s property.

In the event of a transformation of a state-owned enterprise into a state or municipal enterprise, the owner of the property of the state-owned enterprise within 6 months bears subsidiary liability for the obligations transferred to the state or municipal enterprise.

The concept of corporate legal entities is known to the legislation of all developed countries. This division makes it possible to regulate in general not only the management structure and status (competence) of the bodies of corporate commercial and non-profit organizations, but also a number of their internal relations that cause disputes in practice (the possibility of challenging decisions of general meetings and other collegial bodies, conditions for exit or exclusion from number of participants, etc.). The identification of corporations as a special type of legal entity made it possible to consolidate directly in GK general rules concerning the status (rights and obligations) of both the corporations themselves and their participants. It should be noted that there is no similar “general part” concerning unitary legal entities in the Civil Code.

GK The Russian Federation, as one of the new classification criteria for the division of legal entities, proposes the division of legal entities into legal entities of a corporate type, based on the principles of membership (corporations) and non-corporate (unitary). The right of membership in the Civil Code of the Russian Federation means the right of participants of a legal entity to participate in the management of corporations. All commercial legal entities are classified as corporations, with the exception of unitary enterprises.

In the theory and practice of developed countries, general ideas about corporate and unitary legal entities have been developed. Thus, a corporation (from the Latin corporatio - association) is defined as a set of persons united to achieve common goals, carry out joint activities and form an independent subject of law - a legal entity.

Unitary (from the Latin unitus - united, single) is a commercial organization that is not endowed with the right of ownership to the property assigned to it by the owner. The property of a unitary enterprise is indivisible and cannot be distributed among contributions (shares, shares), including among employees of the organization.

Thus, in relation to all corporations (including non-profit ones), uniform rights of their participants and uniform rules for managing them are established. Corporations are contrasted with unitary legal entities, the founders of which do not become participants and do not acquire membership rights in them. In addition, their authorized capital is not divided into parts.

Corporate organizations can be both commercial and non-profit organizations, business entities and partnerships. The fact that non-profit organizations are also considered corporate organizations indicates the influence of European corporate law on Russian legislation (in Anglo-American law, as is known, only business corporations, analogues of business entities, are considered corporations).

The highest body of the corporation in accordance with Art. 65.3 The Civil Code is the general meeting of its participants. In non-profit corporations and production cooperatives with more than one hundred participants, the supreme body may be a congress, conference or other representative (collegial) body determined by their charters in accordance with the law. The competence of this body and the procedure for making decisions are determined in accordance with the Civil Code law and the charter of the corporation.

As noted in the literature, the structure of the bodies of business companies as corporate organizations in the new Civil Code generally remained the same: a meeting of shareholders (participants) as the highest body of the company, a supervisory board (or other council). At the same time, in the logic of the legislator, the supervisory board is increasingly acquiring the functions of a shareholder control body. So, in clause 4 art. 65.3 The Civil Code of the Russian Federation directly states that this collegial body controls the activities of the executive bodies of the corporation and performs other functions assigned to it by law or the corporation’s charter. It is important to emphasize the following restriction on membership in supervisory boards: persons exercising the powers of sole executive bodies of corporations and members of their collegial executive bodies cannot constitute more than one quarter of the composition of collegial management bodies of corporations and be their chairmen. Idea project The law on amendments to the Civil Code of the Russian Federation N 47538-6, adopted in the first reading on April 27, 2012, on the prohibition of membership in the supervisory board of a person exercising the powers of the sole executive body, did not pass, which seems generally correct for medium-sized businesses, where shareholders (participants) often perform the functions of the sole executive body *(20) .

In any corporation, the exclusive competence of the highest body of the corporation includes:

determination of priority areas of the corporation’s activities, principles of formation and use of its property;

approval and amendment of the corporation's charter;

determining the procedure for admission to the corporation's membership and exclusion from its participants, except in cases where such a procedure is determined by law;

formation of other bodies of the corporation and early termination of their powers, if the charter of the corporation in accordance with the law does not include this power within the competence of other collegial bodies of the corporation;

approval of annual reports and accounting (financial) statements of the corporation, if the charter of the corporation in accordance with the law does not include this authority within the competence of other collegial bodies of the corporation;

making decisions on the creation of other legal entities by the corporation, on the participation of the corporation in other legal entities, on the creation of branches and on the opening of representative offices of the corporation, except for cases where the charter of a business company in accordance with the laws on business companies makes such decisions on these issues within the competence of other collegial bodies of the corporation;

making decisions on the reorganization and liquidation of the corporation, on the appointment of a liquidation commission (liquidator) and on approval of the liquidation balance sheet;

election of an audit commission (auditor) and appointment of an audit organization or individual auditor of the corporation.

The law and the founding document of a corporation may assign the resolution of other issues to the exclusive competence of its supreme body. The last provision seems important, since previously the competence of the general meeting of shareholders had to strictly correspond to what is written in Art. 48 Federal Law "On Joint Stock Companies". Thus, it was impossible to go beyond its limits.

In addition to the highest body in the corporation, a sole executive body is created (director, general director, chairman, etc.), and in cases provided for GK, another law or the charter of the corporation - a collegial executive body (board, directorate, etc.), as well as another collegial body reporting to the highest body of the corporation. Their competence includes resolving all issues, except those that fall within the exclusive competence of the general meeting. In addition, along with the above-mentioned bodies, a council may be formed that supervises the activities of these bodies.

Members of the corporation's collegial management body have the right to receive information about the corporation's activities and get acquainted with its accounting and other documentation, and demand compensation for losses caused to the corporation ( Article 53.1), to challenge transactions made by the corporation on the grounds provided for Article 174 Civil Code or laws on corporations of certain organizational and legal forms, and demand the application of the consequences of their invalidity, as well as demand the application of the consequences of the invalidity of void transactions of the corporation in the manner established paragraph 2 of article 65.2 GK.

It is important to note that the charter of a corporation may provide for the granting of the powers of a sole executive body to several persons acting jointly, or the formation of several sole executive bodies acting independently of each other ( paragraph three of paragraph 1 of article 53). Both an individual and a legal entity can act as the sole executive body of a corporation.

In cases provided for GK, another law or the charter of the corporation, a collegial executive body (board, directorate, etc.) is formed in the corporation.

Introduction of the specified articles creates the basis for the emergence of special relationships between members of the corporation, as well as between the corporation itself and its members. These relationships are called corporate. The very emergence of corporate legal entities can be considered as a development of the general provisions of the new edition Art. 2 The Civil Code of the Russian Federation on corporate relations as an independent component of the subject of civil law regulation.

The special role of corporate relations is discussed in clause 1 art. 2 The Civil Code, which established that civil law regulates relations related to participation in or management of corporate organizations (corporate relations). The need for a separate mention of corporate relations as a component of the subject of civil law is due to the fact that corporate legal relations represent a special group of relations. These are legal relations, different from obligatory legal relations, between a corporation and its participants, the content of which boils down to providing the participants of the corporation with a legally guaranteed opportunity in some form to manage the affairs of the corporation and participate in the property results of its activities. Consequently, the object of corporate relations is participation in the corporation itself.

The provisions are important clause 2 art. 65.1 Civil Code, according to which, in connection with participation in a corporate organization, its participants acquire corporate (membership) rights and obligations in relation to the legal entity they created, with the exception of cases provided for by the Civil Code. These rights are in accordance with Art. 65.2 The Civil Code boils down to the following:

participate in the management of the corporation (with the exception of business partnerships, which have a special management procedure)

in cases and in the manner provided for by law and the corporation’s constituent document, receive information about the activities of the corporation and familiarize itself with its accounting and other documentation;

appeal decisions of corporation bodies entailing civil consequences in cases and in the manner prescribed by law;

demand, acting on behalf of the corporation ( paragraph 1 of article 182), compensation for losses caused to the corporation ( Article 53.1);

challenge, acting on behalf of the corporation ( paragraph 1 of article 182), transactions made by her on the grounds provided for Article 174 of this Code or laws on corporations of certain organizational and legal forms, and demand the application of the consequences of their invalidity, as well as the application of the consequences of invalidity of void transactions of the corporation.

Participants in a corporation may have other rights provided for by law or the corporation's founding document.

Particular attention should be paid to the right of a participant in any corporation to appeal decisions of its bodies that entail civil law consequences (that is, not relating to relations beyond the scope of civil law relations (for example, decisions of bodies of public organizations regarding the main sphere of their activities), as well as his right to demand compensation for losses caused to the corporation by persons authorized to act on its behalf, or members of its collegial bodies, or persons who actually determine its actions.This right establishes the mechanism for applying the rules provided for Art. 53.1 The Civil Code of the Russian Federation, which declares the liability of the listed persons for losses caused by them to a legal entity.

One of the unresolved issues is the above-mentioned right of a member of a corporation to information about the activities of the corporation (familiarization with the minutes of general meetings, accounting documents, etc.). It seems that this right should belong to any member of any corporation, regardless of the size of his contribution to the capital of the corporation, however, as stated above, this must be specifically provided for in the charter of the corporation or must be specifically provided for by law. However, the legislator limited this right to cases and procedures established by law or charter. Thus, it is quite possible that the charter will state that only those participants who own a certain number of shares have the right to information.

Responsibilities of a corporation participant in accordance with clause 4 art. 65.2 The Civil Code boils down to the following:

participate in the formation of the corporation’s property in the required amount in the manner, manner and within the time limits provided for by this Code, other law or the corporation's articles of incorporation;

not to disclose confidential information about the activities of the corporation;

participate in making corporate decisions, without which the corporation cannot continue its activities in accordance with the law, if his participation is necessary for making such decisions;

not to commit actions knowingly aimed at causing harm to the corporation;

not to commit actions (inaction) that significantly complicate or make it impossible to achieve the goals for which the corporation was created.

Members of a corporation may also bear other responsibilities provided for by law or the corporation's founding document.

Particular attention should be paid to the provisions clause 4 art. 65.2 The Civil Code provides for the obligation not to commit actions (inaction) that significantly complicate or make it impossible to achieve the goals for which the corporation was created. In the latter case, we can talk about either a goal related to making a profit or one that does not have such a goal.

In accordance with § 2 ch. 4 of the Civil Code of the Russian Federation, legal entities that are commercial corporate organizations can be created in the following organizational and legal forms:

• business partnerships and companies: limited liability company, joint stock company, general partnership, limited partnership;
• peasant (farm) farms;
• business partnerships;
• production cooperatives.

Business partnerships and societies (Article 66-104 of the Civil Code of the Russian Federation). Associations of this kind are usually called companies or firms in European law, and corporations in American law. Partnership is an association of persons; society is an association of persons and capital.

Business partnerships and societies corporate commercial organizations with authorized (share) capital divided into shares (contributions) of founders (participants) are recognized. Property created through the contributions of founders (participants), as well as produced and acquired by a business partnership or company in the course of its activities, belongs by right of ownership to the business partnership or company.

The scope of powers of participants in a business company is determined in proportion to their shares in the authorized capital of the company.

One of the innovations of Law No. 99-FZ is the possibility for participants of a business company to conclude corporate agreement. Participants in a business company who have entered into a corporate agreement are required to notify the company of the fact of concluding a corporate agreement, but its contents are not required to be disclosed. In case of failure to fulfill this obligation, the company's participants who are not parties to the corporate agreement have the right to demand compensation for losses caused to them.

If a corporate agreement determines a different scope of powers of a participant in a non-public joint-stock company than in proportion to his share of participation in the authorized capital, information about the existence of such an agreement and the scope of powers of company participants provided for by it must be entered into the Unified State Register of Legal Entities.

Business partnerships can be created in the organizational and legal form of a general partnership or limited partnership. Participants in partnerships can be individual entrepreneurs and commercial organizations. Investors in limited partnerships can be citizens and legal entities, as well as public legal entities.

Business companies can be created in the organizational and legal form of a joint stock company or a limited liability company. Participants in business entities can be citizens and legal entities, as well as public legal entities.

State bodies and local government bodies do not have the right to participate on their own behalf in business partnerships and companies.

Institutions may be participants in business companies and investors in limited partnerships with the permission of the owner of the institution’s property, unless otherwise provided by law.

Contribution of the participant of a business partnership or company, its property may include: cash, things, shares (shares) in the authorized (share) capital of other business partnerships and companies, state and municipal bonds, exclusive and other intellectual rights subject to monetary valuation.

In accordance with Art. 66.3 Civil Code of the Russian Federation public is a joint stock company whose shares and securities convertible into its shares are publicly offered (by public subscription) or publicly traded under the conditions established by securities laws.

A limited liability company and a joint stock company that does not meet the criteria specified in paragraph 1 of Art. 66.3 of the Civil Code of the Russian Federation are recognized non-public.

The economic company is recognized subsidiaries, if the main business partnership or company, by virtue of a predominant participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise has the opportunity to determine the decisions made by such a company.

The subsidiary is not liable for the debts of the main business partnership or company.

The main business partnership or company is liable jointly with the subsidiary company for transactions concluded by the latter in pursuance of instructions or with the consent of the main business partnership or company, with the exception of certain cases expressly provided for in Art. 67.3 of the Civil Code of the Russian Federation.

In the event of insolvency (bankruptcy) of a subsidiary through the fault of the main business partnership or company, the latter bears subsidiary liability for its debts.

Business partnerships and companies of the same type can transform to business partnerships and other types of societies or to production cooperatives by decision of the general meeting of participants in the manner established by the Civil Code of the Russian Federation and the laws on business societies.

Article 68 of the Civil Code of the Russian Federation contains a direct ban on the reorganization of business partnerships and companies into non-profit organizations, as well as into unitary commercial organizations.

Full partnership a business partnership is recognized, the participants of which, being entrepreneurs (registered in this capacity), firstly, carry out business activities on behalf of the partnership and, secondly, are jointly and severally liable for its obligations with all the property belonging to them.

The entrepreneurial activity of participants (general partners) is considered the activity of the partnership itself. For the obligations of the partnership, any of the participants (entrepreneurs) is liable with all of their property, including those not transferred to the partnership in the form of a contribution. Partnership is based on trust. Personal participation in the affairs of the partnership is assumed. The founding document is the memorandum of association. Simple voting: one participant - one vote.

General partners are liable for the obligations of their partnership only if it lacks its own funds (subsidiary), but in this case the liability of general partners is joint and several.

In a limited partnership (fellowship of faith) there are two groups of participants (Article 82 of the Civil Code of the Russian Federation):

• 1) complete comrades carry out entrepreneurial activities on behalf of the partnership, while being jointly and severally liable with all their personal property for its debts (they, as it were, constitute a general partnership within a limited partnership);
• 2) limited partners (investors) they only make contributions to the property and are liable only to the extent of their contribution (in fact, they only bear the risk of losing the contribution). They do not directly participate in the business activities of the partnership and its management. They retain only the right to receive income (dividends), information about the activities of the partnership and the liquidation quota. In matters of using property, they are forced to rely on their general partners, trusting them, which is why this type of partnership is often called a partnership of faith.

The business name of a limited partnership indicates the name of all or one general partner (with the addition of the words “and company, limited partnership” or “limited partnership”).

Peasant (farm) economy - a voluntary association of citizens on the basis of membership for joint production or other economic activities in the field of agriculture, based on their personal participation and the association of property contributions by members of the peasant (farm) economy.

The property of a peasant (farm) enterprise belongs to him by right of ownership.

A citizen can be a member of only one peasant (farm) enterprise created as a legal entity.

Members of a peasant (farm) enterprise bear subsidiary liability for its obligations (Article 68.1 of the Civil Code of the Russian Federation).

Limited Liability Company(LLC) - association of capitals. Personal participation of its members in the affairs of the society is not required. The authorized capital is divided into shares of participants. There is no liability of the founders for the debts of the company. The property belongs to the LLC on proprietary rights.

The number of participants in an LLC should not exceed 50. Otherwise, it is subject to transformation into a joint-stock company within a year, and after this period, liquidation through court proceedings, unless the number of its participants decreases to the specified limit. The constituent document of an LLC is its charter.

Participants are liable for the debts of the company within the value of their shares.

The supreme body of the company is the general meeting of the company's participants; The director is only an executive body.

The size of the company's authorized capital must be at least 10 thousand rubles.

In more detail, the activities of LLCs are regulated by Federal Law No. 14-FZ of February 8, 1998 “On Limited Liability Companies.”

Joint-Stock Company(JSC) is an association of capital. The authorized capital is divided into a certain number of equal shares, which are expressed in securities - shares. Full equality of shares - all shares are equal in par value.

In accordance with Art. 66.3 of the Civil Code of the Russian Federation, joint stock companies are of two types: public(a joint stock company whose shares are publicly placed by open subscription or publicly traded on the securities market) and non-public.

A public company has the right to place shares through open subscription. Shares of a non-public company cannot be placed through open subscription or otherwise offered for purchase to an unlimited number of persons.

In accordance with Federal Law No. 208-FZ of December 26, 1995 “On Joint-Stock Companies” (hereinafter referred to as the Law on JSC), the minimum authorized capital of a public company must be 100 thousand rubles. The minimum authorized capital of a non-public company must be 10 thousand rubles.

In a public JSC, information about the corporate agreement must be publicly disclosed.

A shareholder's participation in the company is formalized only in shares. This makes the shareholder's participation in the company anonymous. But even in the presence of registered shares, the exercise of shareholder rights and their transfer (assignment) to other persons is possible only by presenting or transferring the shares themselves as securities.

When leaving the JSC, the shareholder cannot demand from the company any payments due to his share - he only receives compensation for the alienated shares from his counterparty - the acquirer, i.e. and the exit from the JSC itself can be carried out only by alienation (for example, sale) of shares to another person.

Thus, the JSC is guaranteed against a decrease in its property due to the withdrawal of its participants.

This is the advantage of joint stock companies compared to other forms of companies.

A JSC must maintain a register of shareholders (Article 44 of the Law on JSC). There are governing bodies - director (directorate); if the number of participants is more than 50, then by law a supervisory board (board of directors) must be created.

A joint stock company is created by the decision of the founders who approve its charter, which is the only constituent document of the joint-stock company (Article 98 of the Civil Code of the Russian Federation, paragraph 1 of Article 11 of the Law on Joint-Stock Companies).

The constituent agreement is concluded, but is valid only at the stage of creating a joint-stock company, before its state registration, and by its nature is an agreement on the creation of a joint-stock company.

The General Meeting of Shareholders has the highest competence, which is determined directly by law (Article 48 of the Law on JSC).

The meeting of shareholders makes decisions on the following issues:

• on changes to the company's charter and the size of the authorized capital;
• on the reorganization and liquidation of the company;
• on the election of the supervisory board, executive body, auditor, etc.;
• on approval of the company’s annual reports and balance sheets and distribution of profits and losses;
• about completing some major transactions.

These issues (by law) cannot be referred to the executive body (supervisory board) for resolution.

A production cooperative (artel) is a voluntary association of citizens on the basis of membership for joint production or other economic activities (processing, sales, work, consumer services), based on their personal labor and other participation and the pooling of property shares by its members (participants) . The law and charter of a production cooperative may provide for the participation of legal entities in its activities. A production cooperative is a corporate commercial organization.

Members of a production cooperative bear subsidiary liability for the obligations of the cooperative.

Article 7 of the Federal Law of May 8, 1996 No. 41-FZ “On Production Cooperatives” allows participation in cooperatives not by personal labor, but exclusively by property contributions. Such “financial” participants help strengthen the property base of the cooperative. But their number cannot exceed 25% of the number of ordinary members.

The main document is the charter. The supreme body is the general meeting, which has exclusive competence. Large (more than 50 members) cooperatives may create supervisory boards. The executive body of the cooperative is the board and its chairman. The capital is divided into shares.

The law limits the transfer of shares to third parties with the mandatory consent of other members of the cooperative. Participation in one cooperative, as a rule, excludes the possibility of participation in another.

Business partnership- is a commercial organization created by two or more persons, in the management of which the partnership participants, as well as other persons, take part within the limits and to the extent provided for in the partnership management agreement.

The activities of business partnerships are regulated by Federal Law No. 380-FZ of December 3, 2011 “On Business Partnerships”.

Partnership participants are not liable for the obligations of the partnership and bear the risk of losses associated with the activities of the partnership, within the limits of the amounts of contributions made by them.

A partnership may have civil rights and bear civil responsibilities necessary to carry out any types of activities not prohibited by federal laws, if this does not contradict the subject and goals of the partnership.

The Partnership does not have the right to issue bonds and other issue-grade securities.

Participants in a partnership can be citizens and (or) legal entities. A partnership cannot be established by one person or subsequently become a partnership with one participant. Otherwise, it is subject to reorganization.

The founding document of a partnership is the partnership charter.

As already noted, the difference between unitary legal entities and corporate ones is that in unitary legal entities the property is not divided into parts and there is no membership in them. These include state and municipal unitary enterprises, foundations, institutions, autonomous non-profit organizations, religious organizations, as well as public law companies.

The question of the need for the existence of such an organizational and legal form as unitary enterprises was one of the most discussed. IN clause 6.3 The concept of the development of civil legislation noted the futility of this organizational and legal form of a legal entity and the desirability of its gradual replacement by other types of commercial organizations, including business entities with 100% or other decisive participation of public legal entities in their property. It was also stated there that “based on the real needs of the federal state, it seems acceptable in the future to retain only federal state-owned enterprises for some particularly important areas of the economy.”

However, the legislator did not make such drastic changes. State and municipal unitary enterprises were retained, but instead of the right of economic management, property was assigned to them on the basis of the right of operational management or economic management.

§ 3. Corporate agreement

In the new GK For the first time, the concept of a corporate agreement was disclosed. Corporate agreements were included in Russian legislation relatively recently, although the need for this has been long overdue. Their inclusion is caused by the need to provide participants in business companies with additional opportunities arising from the fact of owning a block of shares or shares in the authorized capital of business companies.

Among the reasons, one can also note the excessive regulation of relationships between participants in business companies. As correctly noted in the literature, European shareholder legislation, including Russian, is traditionally characterized, on the one hand, by the predominance of mandatory norms, and on the other, by the almost complete absence of any regulation of shareholder relations *(21) .

The need to legislate a corporate agreement was also discussed in the Concept for the Development of Civil Legislation. So, in clause 4.1.11 Section III of the Concept for the Development of Civil Legislation, it was noted that “it seems appropriate to establish in GK general rules on the possibility of participants in business companies concluding mutual agreements, known to many foreign legal systems as “shareholder agreements”. Their subject may include: agreed voting of participants on any issues, including candidates for the management bodies of the corporation; the right or obligation to sell or redeem one participant’s shares of another participant or the pre-emptive right to purchase them; prohibition on transfer of shares (shares) to third parties; the obligation to transfer to other participants in the agreement dividends or other payments received in connection with the right to participate in the corporation."

This was discussed in even more detail in the Concept for the Development of Legislation on Legal Entities. In clause 1.2 of paragraph 3 of subsection 6 of section 2 of the Concept, it was noted that the possibility of participants in corporations concluding “shareholder agreements” is recognized by the law of many foreign countries. At the same time, foreign legal orders present different conceptual approaches to the mentioned agreements. English law has few restrictions on what can be the subject of a shareholders' agreement. In France or Germany, the legislator takes a much stricter approach to regulating shareholder agreements, limiting the discretion of their parties.

At the CIS level, the admissibility of such agreements is provided for clause 4 art. 3 Model legislative provisions for the CIS member states on the protection of the rights of investors in the securities market (adopted on April 14, 2005 by the Interparliamentary Assembly of the CIS member states).

In this regard, in clause 2.1 of paragraph 3 of subsection 6 of section 2 of the Concept, it was proposed to establish GK general rules on the admissibility and content of such agreements between participants in any business companies (corporations), and not just limited liability companies. This will bring Russian legislation closer to the most developed foreign legal systems and, to some extent, will avoid the transfer of some entrepreneurs from Russian to foreign jurisdictions.

Meanwhile, in the absence of legal regulation, contracts that are essentially corporate have become quite widespread in our country. Moreover, in practice, informal corporate agreements are sometimes concluded, i.e. without observing the form established by law and notifying the competent government authorities. The terms they contain may conflict GK RF, Law"On joint stock companies" Law"On limited liability companies" and the charters of relevant legal entities. It can be quite difficult to obtain judicial protection in case of violation of the terms of such contracts in such cases. In particular, B. Berezovsky could be convinced of this, insisting on the existence of a similar agreement with R. Abramovich, but he failed to prove this in the High Court of England and lost the case.

The concept of a corporate agreement is closely related to the concept of corporate relations and corporate legal entities. For the first time in the Civil Code, the legislator established that the subject of civil law also includes relations related to participation in corporate organizations or their management (corporate relations). So, in clause 1 art. 2 The Civil Code in its latest edition states that civil law regulates relations related to participation in corporate organizations or their management (corporate relations).

In accordance with the specified article We are talking about two types of relationships. In particular, we are talking about relations related to the “right of participation” in a corporation (meaning the rights of each member of the corporation, both property and non-property), and the concept of corporate includes the corresponding obligations between the founders (participants) and the corporation itself as a legal entity.

The need for a separate mention of corporate relations as a component of the subject of civil law is due to the fact that corporate legal relations represent a special group of relations. These are legal relations, different from obligatory legal relations, between a corporation and its participants, the content of which boils down to providing the participants of the corporation with a legally guaranteed opportunity in some form to manage the affairs of the corporation and participate in the property results of its activities. Consequently, the object of corporate relations is participation in the corporation itself.

As for corporate legal entities, they are known to the legislation of all developed countries. The division of legal entities into corporate and unitary allows us to regulate in general not only the management structure and competence of the bodies of corporate commercial and non-profit organizations, but also a number of their internal relations that cause disputes in practice (the possibility of challenging decisions of general meetings and other collegial bodies, conditions for exit or exclusions from the number of participants, etc.). Therefore, it is quite natural for them to appear in the new GK. At the same time, the identification of corporations as a special type of legal entity made it possible to consolidate directly in the Civil Code general rules concerning the status (rights and obligations) of both the corporations themselves and their participants.

Thus, the fundamental feature of any corporation is the presence of membership, which gives members of the corporation special rights and creates the basis for the emergence of special relations between the members of the corporation, as well as between the corporation and its members. These relationships are called corporate. As for the corporate agreement, it formalizes the relations between the participants of corporate legal entities.

Before accepting a new one GK the possibility of concluding contracts that are essentially corporate was provided for Art. 32.1 Federal Law of December 26, 1995 N 208-FZ “On Joint Stock Companies”, clause 3 art. 8 Federal Law of February 8, 1998 N 14-FZ “On Limited Liability Companies”, clause 4 art. 3 Model legislative provisions for the CIS member states on the protection of the rights of investors in the securities market. So, according to paragraph 3 of Art. 8 of the Law on Limited Liability Companies, the founders (participants) of the company have the right to enter into an agreement on the exercise of the rights of the company’s participants, according to which they undertake to exercise their rights in a certain way and (or) refrain from exercising these rights, including voting in a certain way at the general meeting of participants company, agree on a voting option with other participants, sell a share or part of a share at a price determined by this agreement and (or) upon the occurrence of certain circumstances, or refrain from alienating a share or part of a share until the occurrence of certain circumstances, as well as carry out other actions related to management in a coordinated manner society, with the creation, activities, reorganization and liquidation of the company.

In the first case, such agreements are called shareholder agreements, and in the second - agreements on the exercise of the rights of participants in a limited liability company. The need to use shareholder agreements is associated with the objective impossibility of regulating many relations that develop between shareholders through the constituent documents of a joint-stock company. Similar problems arise between participants in a limited liability company.

However, there are differences between corporate agreements and shareholders' agreements. Thus, in the shareholder agreement there is no focus on the emergence of legal relations with the participation of third parties, which, as will be shown below, is typical for a corporate agreement.

However, it should be borne in mind that the term “corporate agreement” itself was introduced only by the new GK. By concluding this agreement, the parties usually pursue such goals as acquiring the ability of a person or group of persons to influence the activities of the company, exercise additional control over it, preventing hostile takeovers, raider attacks, etc.

In the Civil Code, a corporate agreement is defined as follows. According to clause 1 art. 67.2 Civil Code participants of a business company or some of them have the right to conclude an agreement among themselves on the exercise of their corporate (membership) rights (corporate agreement), according to which they undertake to exercise these rights in a certain way or to abstain (refuse) from exercising them, including voting in a certain way at the general meeting of the company's participants, coordinately carry out other actions to manage the company, acquire or alienate shares in its authorized capital (shares) at a certain price or upon the occurrence of certain circumstances, or refrain from alienating shares (shares) until the occurrence of certain circumstances.

When concluding a corporate agreement, one should take into account the changes that have occurred in corporate legislation. Federal law dated May 5, 2014 N 99-FZ, it was established that clause 3 art. 32.1 The Law on Joint Stock Companies has become invalid. The said clause stated that the shareholders' agreement must be concluded in respect of all shares owned by the party to the shareholders' agreement. Thus, at present, a shareholder agreement can be concluded not in relation to all, but in relation to a certain number of shares owned by the shareholder.

From the definition of a corporate agreement it follows that the subject of a corporate agreement is an agreement aimed at exercising or refraining from exercising corporate rights in the manner specified in the agreement.

The legal nature of this agreement is not entirely clear. A corporate agreement should be recognized as a type of civil transaction, and in particular an agreement between two or more persons, which presupposes the application of general provisions on the agreement and (contractual) obligations to such an agreement. At the same time, this agreement undoubtedly has its own specifics, arising from the fact that it regulates a special group of civil legal relations - corporate legal relations.

For example, this specificity lies in the fact that the effect of a corporate agreement indirectly extends to the company within which it was concluded, as well as to other participants in the company who are not parties to this agreement. This specificity stems mainly from the multiplicity of persons involved in such relations, and therefore gives rise to extremely specific contractual structures that do not fit into traditional contractual models focused on the emergence of bilateral obligations.

It is impossible not to pay attention to the fact that this agreement is similar to the agreement on joint activities (simple partnership), but does not completely coincide with it. This similarity lies in the fact that, unlike ordinary contracts, the number of its participants can be more than two. In addition, it is envisaged that its participants will undertake joint actions aimed at achieving a common goal.

However, in contrast to a simple partnership agreement, a characteristic feature of a corporate agreement is the presence in it of elements of an agreement in favor of a third party ( Art. 430 Civil Code), which are combined with the possibility of imposing certain obligations on this person. Such persons who did not participate in concluding a corporate agreement, but have certain responsibilities, can be called creditors of the participants in the corporate agreement.

At the same time, in relation to a corporate agreement, we can talk about the absence of property relations associated with making contributions to joint activities. In addition, there is no representation when concluding a corporate agreement. Moreover, in order to carry out joint activities, participation of all shareholders is not necessary, for example, in a general meeting.

A feature of corporate agreements is that they cannot change the corporate structure, the procedure for making corporate decisions and other corporate rules established with the benefit of third parties who are not parties to the shareholders’ agreement. Their terms cannot contradict legislative restrictions, including antimonopoly prohibitions, the nature of the relationship or public interests.

The subject of a corporate agreement, as follows from the above definition, contains a non-exhaustive list of responsibilities of the parties to the agreement, which includes, first of all, such as:

Coordinated implementation of other actions to manage the company;

Acquisition or alienation of a share in its authorized capital (shares) at a certain price and (or) upon the occurrence of certain circumstances, or refraining from alienation of a share (shares) until the occurrence of certain circumstances.

In the same time Article 67.2 The Civil Code provides for a corporate agreement a number of restrictions or, in other words, conditions that cannot be included in a corporate agreement.

So, in accordance with clause 2 art. 67.2 A civil corporate agreement cannot oblige its participants to vote in accordance with the instructions of the company’s bodies, or to determine the structure of the company’s bodies and their competence. The terms of the corporate agreement that contradict the rules of this paragraph are void.

The presence of such a rule is obviously due to the fact that, like any other civil contract, a corporate contract presupposes the absence of subordination between the parties, and compliance with instructions to vote in accordance with the instructions of the company’s bodies indicates the presence of vertical relationships. In the same way, determining the structure of the organs of society and their competence goes beyond horizontal relations.

At the same time, a corporate agreement may provide for the very obligation to take part in voting on certain issues. Yes, according to para. 3 p. 2 art. 67.2 A civil code corporate agreement may establish the obligation of its parties to vote at a general meeting of company participants for the inclusion in the company’s charter of provisions defining the structure of the company’s bodies and their competence, if, in accordance with the Civil Code and the laws on business companies, changes in the structure of the company’s bodies and their competence are allowed by the company’s charter .

A special form has been established for a corporate agreement. In particular, it must be concluded by drawing up one document signed by the parties ( clause 3 art. 67.2 Civil Code of the Russian Federation). The presence of such a clarification is due to the fact that, in accordance with clause 2 art. 434 The Civil Code establishes two types for the written form of an agreement:

by drawing up one document signed by the parties;

by exchanging documents through postal, telegraphic, teletype, telephone, electronic or other communications that make it possible to reliably establish that the document comes from a party to the contract.

In this case, we are talking about only one type of written form. Obviously, this is due to the need to stipulate as accurately as possible all the terms of the contract, and in the case of concluding a contract through the exchange of documents, this is not always possible.

The legislator says nothing about the consequences of non-compliance with the legal form of the transaction. Consequently, we can only talk about such a consequence as the inability to refer to witness testimony.

Certain attention in Art. 67.2 The Civil Code focuses on the information responsibilities of the participants in the corporate agreement. We are talking, in particular, about their obligation to inform society about the very fact of concluding such an agreement.

Disclosure of information in the securities market is necessary so that market participants are informed about each other's actions, so that they make decisions based on their assessments of real facts, and not relying on guesses, rumors and conjectures. In this regard, in clause 4 art. 67.2 The Civil Code establishes that participants in a business company who have entered into a corporate agreement are obliged to notify the company of the fact of concluding a corporate agreement, but its contents are not required to be disclosed. In case of failure to fulfill this obligation, the company's participants who are not parties to the corporate agreement have the right to demand compensation for losses caused to them.

It should be noted that knowledge in itself about the existence of a concluded corporate agreement does not provide much. The main thing is to know its content, and this issue has not been resolved clearly enough by the legislator.

Information obligations for disclosing the content of a corporate agreement will vary depending on whether we are talking about a public joint stock company or a non-public company. According to clause 1 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 laws about securities. The rules on public companies also apply to joint stock companies, the charter and company name of which indicate that the company is public. Accordingly, companies that do not meet these requirements are non-public.

In this case, information about the corporate agreement concluded by the shareholders of a public joint stock company must be disclosed within the limits, in the manner and on the conditions that are provided for by law about joint stock companies. Obviously, we are talking about the fact that appropriate changes will be made to this law, which will provide for such limits, procedures and conditions.

As for corporate agreements concluded by participants in a non-public company, as a general rule, information about the content of a corporate agreement is not subject to disclosure and is confidential. However, otherwise may be established by a special law.

According to clause 5 art. 67.2 A civil corporate agreement does not create obligations for persons not participating in it as parties. In this case, reference is made to Art. 308 Civil Code. According to clause 3 The obligation specified in this article does not create obligations for persons not participating in it as parties (for third parties). In cases provided for by law, other legal acts or agreement of the parties, an obligation may create rights for third parties in relation to one or both parties to the obligation. Thus, in this case the provisions of paragraph 3 of Art. 308 of the Civil Code, however, not completely, since in this case nothing is said about the fact that third parties may have rights.

Third parties mean both persons who act as representatives of the parties and persons who participate on the side of the debtor or creditor. At the same time, the obligation cannot create obligations for third parties, but gives rise exclusively to rights in cases provided for by law,

This rule is specified in Art. 430 GC "Agreement in favor of a third party." We are talking, in particular, about an agreement under which it is established that the debtor is obliged to perform the obligation not to the creditor, but to a third party specified or not specified in the agreement, who has the right to demand from the debtor the fulfillment of the obligation in his favor.

So the difference clause 5 art. 67.2 GK from Art. 308 The Civil Code lies in the fact that the latter still allows for the possibility of creating rights for third parties in relation to one or both parties to an obligation, but only in cases expressly provided for by law.

Sufficiently detailed in clause 6 art. 67.2 The Civil Code talks about the consequences of violating a corporate agreement in cases where, at the time the corresponding decision was made, all participants in the business company were parties to the corporate agreement.

In such cases, its violation may be grounds for invalidating the decisions of the bodies of a business company at the claim of a party to a corporate agreement. This can be considered as an additional sanction that was not provided for either by law about joint stock companies, nor by law about limited liability companies. In practice, the only measure of liability for violation of, for example, a shareholder agreement is attempts to recover proven damages from the violating party.

At the same time, a violation of a corporate agreement, in which not all participants of a business company participate, does not entail the recognition of the corresponding decision of the meeting of participants as invalid.

However, as noted in the same paragraph art. 67.2 Civil Code, the recognition of a decision of a body of a business company as invalid does not in itself entail the invalidity of transactions of the business company with third parties made on the basis of such a decision. A transaction concluded by a party to a corporate agreement in violation of this agreement may be declared invalid by a court at the request of a party to the corporate agreement only if the other party to the transaction knew or should have known about the restrictions provided for by the corporate agreement. It seems that such a novel is aimed at protecting economic turnover.

It is impossible not to pay attention to the fact that this rule coincides with the rule provided for the disposal of joint property by one of the co-owners. Yes, according to clause 3 art. 253 In the Civil Code, each of the participants in joint ownership has the right to enter into transactions for the disposal of common property, unless otherwise follows from the agreement of all participants. A transaction related to the disposal of common property made by one of the participants in joint ownership may be declared invalid at the request of the remaining participants on the grounds that the participant who made the transaction did not have the necessary powers only if it is proven that the other party to the transaction knew or obviously should have know about it.

It is interesting to note that the Law on Joint Stock Companies resolves the issue of the consequences of recognizing a violation of a shareholders’ agreement somewhat differently. According to para. 2 clause 4 art. 32.1 According to the Law on Joint Stock Companies, a shareholder agreement is binding only on its parties. An agreement concluded by a party to a shareholder agreement in violation of the shareholder agreement may be declared invalid by a court at the request of an interested party to the shareholder agreement only in cases where it is proven that the other party to the agreement knew or should have known about the restrictions provided for by the shareholder agreement. At the same time, violation of the shareholders’ agreement cannot be a basis for invalidating the decisions of the company’s bodies.

In some cases, a corporate agreement may contradict the charter of a business company. In such cases. Parties to a corporate agreement do not have the right to refer to its invalidity. Thus, in this case we are talking about ensuring that the provisions of the corporate agreement, first of all, do not contradict the law.

The adoption of such a rule is quite legitimate, since, as noted in the literature, previously there was a completely different practice when the courts absolutely clearly expressed the position that an agreement between participants should not contradict both the law and the charter of a business company *(22) .

Situations are possible when a participant in a business company who has entered into a corporate agreement ceases to be such (for example, sells his shares or interest to third parties). In Art. 67.2 of the Civil Code, the problem of the withdrawal of a participant (party to a corporate agreement) from a business company has been resolved. As stated in clause 8 art. 67.2 According to the Civil Code of the Russian Federation, the termination of the right of one party to a corporate agreement to a share in the authorized capital of a business company (shares) does not entail the termination of the corporate agreement in relation to its remaining parties, unless otherwise provided by this agreement.

It is allowed to conclude special agreements between so-called third parties (primarily creditors of company participants) and participants of a business company, according to which the latter, in order to ensure the legally protected interests of such third parties, undertake to exercise their corporate rights in a certain way or to refrain (refuse) from exercising them, including voting in a certain way at the general meeting of the company’s participants, coordinatedly carrying out other actions to manage the company, acquiring or alienating shares in its authorized capital (shares) at a certain price or upon the occurrence of certain circumstances, or refraining from alienating shares (shares) until the occurrence of certain circumstances.

It is easy to see that such an agreement in its subject matter resembles a corporate agreement. Therefore, the rules on a corporate agreement will apply to it. The difference between the two treaties lies in the composition of its participants.

The law resolves issues of the relationship between agreements on the creation of a business company and corporate agreements. The rules on a corporate agreement are respectively applied to the agreement on the creation of a business company, unless otherwise established by law or follows from the essence of the relationship between the parties to such an agreement ( clause 10 art. 67.2 GK).

The agreement on the creation of a business company is as follows. In accordance with this agreement, the founders undertake to create a legal entity, determine the procedure for joint activities for its creation, the conditions for transferring their property to it and participation in its activities.

Thus, agreements on the creation of a business company and corporate agreements have some common features, but do not completely coincide.

Civil Code, N 51-FZ | Art. 65.1 Civil Code of the Russian Federation

Article 65.1 of the Civil Code of the Russian Federation. Corporate and unitary legal entities (current version)

1. Legal entities, the founders (participants) of which have the right to participate (membership) in them and form their supreme body in accordance with paragraph 1 of Article 65.3 of this Code, are corporate legal entities (corporations). These include economic partnerships and societies, peasant (farm) households, economic partnerships, production and consumer cooperatives, public organizations, social movements, associations (unions), notary chambers, partnerships of real estate owners, Cossack societies included in the state register of Cossack societies in of the Russian Federation, as well as communities of indigenous peoples of the Russian Federation.

Legal entities whose founders do not become participants and do not acquire membership rights in them are unitary legal entities. These include state and municipal unitary enterprises, foundations, institutions, autonomous non-profit organizations, religious organizations, state corporations, and public law companies.

2. In connection with participation in a corporate organization, its participants acquire corporate (membership) rights and obligations in relation to the legal entity they created, with the exception of cases provided for by this Code.

• BB code
• Text

Document URL [copy]

Commentary to Art. 65.1 Civil Code of the Russian Federation

1. The provisions of this article are a novelty in civil legislation and are intended to radically change the existing structure of subjects of civil turnover. Therefore, we will consider these provisions in somewhat more detail, making a short historical and legal excursion to the origins of the formation of the foundations that consolidated the classification of legal entities reflected in the commented article.

While maintaining the traditional division of legal entities into commercial and non-profit organizations, from September 1, 2014, legal entities are also classified according to membership and degree of participation in the formation and activities of the legal entity into:

1) corporate. Legal entities whose founders (participants, members) have the right to participate in the management of their activities (right of membership) are corporate organizations (corporations);

2) unitary. Legal entities whose founders do not become participants and do not acquire membership rights in them are unitary organizations.

The division of legal entities into corporate and unitary forms (based on the nature of the connection between the participants) corresponds to the historically established doctrine of most Western countries and the Russian legal order, which was reflected in the works of the German civilists Heise, F. Savigny, O. Gierke, Bernatsik. This is how the Russian scientist G.F. differentiated between “connections of persons” and institutions. Shershenevich: "... the concept of a legal entity plays, as it were, the role of “brackets”, which contain the homogeneous interests of a certain group of persons for a more simplified definition of the relationship of this collective personality to others. These connections can be of a public nature, such as, for example, a noble society, or of a private nature, such as a joint-stock partnership." Having analyzed the opinions of Russian legal scholars, S.D. Mogilevsky concludes that in the Russian doctrine of the 19th century. the term "corporation", like German concepts, was used as a generic concept for a group of legal entities, within which two types of corporations were distinguished: public and private. Back in 1861, S. Pachman, speaking on the issue of joint-stock reform, proposed dividing joint-stock companies into two types: state-economic (public) and private-economic (private). A distinctive feature of the companies included in the first group was the need for them to solve social problems, for example, the construction of railways, the organization of shipping, etc. Joint-stock companies belonging to the second group did not set themselves the goal of achieving socially useful goals. Private corporations in Russian law were called trading partnerships. At the same time, G.F. Shershenevich wrote that the terminology of our legislation in relation to joint-stock partnerships is completely inconsistent. She calls them partnerships, societies, companies with the addition of expressions: “by shares”, “by participants”, “by shares”.

In modern scientific doctrine, a corporation is traditionally understood as an organization based on the principles of participation (membership), which is created to realize the interests of its participants (members) by organizing its management through a special system of bodies. A corporation organized on the basis of membership, as a rule, is contrasted with unitary organizations or institutions that do not have membership and are created, as a rule, in the interests of an unlimited number of persons for the implementation of socially useful goals.

It should be noted that in Russian and foreign legal systems the word “corporation” is not clearly understood. This situation is explained by two circumstances. Firstly, in most countries this concept is not legally enshrined, but is present only at the doctrinal level. Secondly, the term "corporation" has a different interpretation in the Anglo-Saxon and continental systems of law. In this regard, as quite rightly noted by I.S. Shitkin, the legislative consolidation of the division of organizations into corporate and unitary, introduced into the Civil Code of the Russian Federation, is an advanced idea.

The introduced changes will require the unification of legal regulation of various types of legal entities. It is obvious that further specification of the rights and obligations, for example, of a shareholder or participant in a limited liability company should be reflected in the relevant federal law. This approach to the system of presenting legal norms is typical not only for establishing the rights and obligations of participants in a corporation, but also for other legislative institutions. Thus, the legal regulation of management in a corporation is carried out by Art. 65.3 Civil Code of the Russian Federation; in Art. 66.3 of the Civil Code of the Russian Federation provides for management features in public and non-public companies; Art. 67.1 of the Civil Code of the Russian Federation regulates the features of management in business partnerships and companies, and in Art. 97 of the Civil Code of the Russian Federation provides for special requirements for the management of a public joint-stock company. At the same time, these articles of the Civil Code of the Russian Federation contain numerous mutual references that complicate the application of the relevant norms. There is no clear answer to the question whether this approach is convenient for practical use. According to I.S. Shitkina, it is unlikely that for purposes other than scientific classification, which could be carried out at the level of doctrine, someone will need, for example, to identify the rights and obligations inherent simultaneously in both a public joint-stock company and a garage cooperative.

2. Summarizing numerous studies devoted to the analysis of the legal nature and identification of the essence of the corporation, I.S. Shitkina identifies the following features inherent in a corporation:

1) the corporation is recognized as a legal entity;

2) a corporation is a union of individuals and (or) legal entities that are subjects of law and acquire the status of participant (member) of the corporation;

3) a corporation is a “strong-willed organization.” The will of the corporation is determined by the general interests of its constituent members; the will of the corporation is different from the individual wills of its members;

Judicial practice under Article 65.1 of the Civil Code of the Russian Federation:

• Decision of the Supreme Court: Determination N 306-ES17-11880, Judicial Collegium for Economic Disputes, cassation

  In declaring the debtor bankrupt, the courts were guided by Articles 57, 58, 60.2, 65.1 of the Civil Code of the Russian Federation, Articles 3, 12, 73, 124 of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”, establishing the entire set of necessary conditions . The applicants have not provided sufficient grounds for other conclusions...

• Decision of the Supreme Court: Determination N 310-ES17-3670, Judicial Collegium for Economic Disputes, cassation

  The arguments about the unlawful, in the applicant's opinion, classification of the dispute as a corporate dispute are erroneous and based on an incorrect interpretation of the provisions of Articles 65.1 - 65.3 of the Civil Code of the Russian Federation, special corporate legislation, as well as Article 225.1 of the Code...

• Decision of the Supreme Court: Determination N 305-ES17-2577, Judicial Collegium for Economic Disputes, cassation

  The arguments about the unlawful classification of the dispute as a corporate dispute, in the opinion of the applicant, are erroneous and based on an incorrect interpretation of the provisions of Articles 65.1 -65.3 of the Civil Code of the Russian Federation, special corporate legislation, as well as Article 225.1 of the procedural law...

+More...