When managing state property, the executive power uses and disposes of the securities of a joint-stock company (JSC) as an owner. In the Russian Federation, for example, federal agencies have been created for these purposes. The main forms of state enterprises are:
- state corporations;
- joint-stock companies;
- unitary enterprises.
emergence
- Enterprises of a unitary type are transformed into joint-stock companies. The executive power resolves the issue (when changing the status of a unitary enterprise) about the organizational and legal form of its further existence. For example, during the reforms of the 2000s. in the Russian Federation, the most common method of privatization was the transfer of unitary enterprises to OJSCs. After this transformation, the state has the right not to sell the shares, but to keep the entire package.
- Formation of new joint-stock companies through the participation of the state in the creation of the authorized capital. The state is a major player in the stock market. By acquiring a stake in a joint-stock company, it becomes a subject of civil law relations.
Categories
The first category is enterprises where the state owns a certain share valuable papers. This share can vary from 25%, i.e. be insignificant, up to 50% plus one share (the so-called controlling stake). Executive authorities can grant the privatized enterprise the rights of management on the basis of the "golden share" type. In this case, a representative to the board of directors is approved, as well as a civil servant - to the audit commission. The state may make recommendations regarding changes to the agenda of the shareholders' meeting held annually, and also has the right to demand the convening of an extraordinary meeting of shareholders. "Golden share" ─ is not a security, it gives the right to its holder to influence management decisions. In Italy, Great Britain, France and other countries, such a golden share right is used by government agencies quite widely, for example, to impose a “veto” on questionable changes to the company's charter.
The second category is a society where the state owns 100% of the shares. For example, OAO Russian railways". The sole owner (shareholder) of Russian Railways is the state. Powers are exercised by the Government, which approves the president of the JSC and forms the board of directors. Such joint-stock companies are close to state-owned enterprises in terms of their type of management.
Advantages of state participation in corporatization
- The state is able to replace private capital where it is unable to cope with major tasks. Sometimes a private trader is unwilling or unable to act. For example, where too large investments are required. The state is able to meet the needs of macroeconomic processes.
- The state is called upon to act for the benefit of the whole society, while private business seeks, first of all, for its profit. This situation is especially evident in the environmental sphere of activity.
- Control over production by the state is necessary at enterprises defense complex. And also where it is necessary to ensure strategic interests.
- The joint-stock company form is more effective than a unitary enterprise, since the latter is not endowed with the right of ownership, property is not divided, it is only assigned to the enterprise. JSC creates an interest among participants in the distribution of profits.
6. Joint stock company
Article 96
1. A joint stock company is a company whose charter capital is divided into a certain number of shares; participants of a joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, to the extent of the value of their shares.
Shareholders who have not fully paid for the shares shall be jointly and severally liable for the obligations of the joint stock company within the limits of the unpaid part of the value of their shares.
2. The corporate name of a joint stock company must contain its name and an indication that the company is a joint stock company.
3. The legal status of a joint stock company and the rights and obligations of shareholders are determined in accordance with this Code and the law on joint stock companies.
Peculiarities legal status joint-stock companies established through the privatization of state and municipal enterprises are also determined by laws and other legal acts on the privatization of these enterprises.
The peculiarities of the legal status of credit institutions established in the form of joint-stock companies, the rights and obligations of their shareholders are also determined by the laws regulating the activities of credit institutions.
Article 97. Open and closed joint-stock companies
1. A joint stock company whose participants may alienate their shares without the consent of other shareholders is recognized as an open joint stock company. Such a joint-stock company has the right to conduct an open subscription for shares issued by it and their free sale on the terms established by law and other legal acts.
An open joint stock company is obliged to annually publish for general information the annual report, balance sheet, profit and loss account.
2. A joint stock company, the shares of which are distributed only among its founders or other predetermined circle of persons, shall be recognized as a closed joint stock company. Such a company is not entitled to conduct an open subscription for shares issued by it or otherwise offer them for purchase to an unlimited number of persons.
Shareholders of a closed joint stock company have the pre-emptive right to acquire shares sold by other shareholders of this company.
The number of participants in a closed joint-stock company must not exceed the number established by the law on joint-stock companies, otherwise it is subject to transformation into an open joint-stock company within a year, and after this period - liquidation in court, if their number does not decrease to the limit established by law .
In cases statutory on joint-stock companies, a closed joint-stock company may be obliged to publish for general information the documents specified in paragraph 1 of this article.
Article 98. Formation of a joint-stock company
1. The founders of a joint-stock company conclude an agreement between themselves that determines the procedure for their implementation joint activities on the establishment of a company, the size of the authorized capital of the company, the categories of shares to be issued and the procedure for their placement, as well as other conditions provided for by the law on joint-stock companies.
An agreement on the establishment of a joint-stock company shall be concluded in writing.
2. The founders of a joint-stock company shall be jointly and severally liable for obligations that arose prior to the registration of the company.
The company is liable for the obligations of the founders associated with its creation, only in the event of subsequent approval of their actions by the general meeting of shareholders.
3. founding document joint-stock company is its charter, approved by the founders.
The charter of a joint-stock company, in addition to the information specified in paragraph 2 of Article 52 of this Code, must contain conditions on the categories of shares issued by the company, their nominal value and quantity; on the size of the authorized capital of the company; about the rights of shareholders; on the composition and competence of the management bodies of the company and the procedure for making decisions by them, including on issues, decisions on which are taken unanimously or by a qualified majority of votes. The charter of a joint-stock company must also contain other information provided for by the law on joint-stock companies.
4. The procedure for performing other actions to create a joint-stock company, including the competence of the constituent assembly, is determined by the law on joint-stock companies.
5. Features of the creation of joint-stock companies during the privatization of state and municipal enterprises are determined by laws and other legal acts on the privatization of these enterprises.
6. A joint-stock company may be created by one person or consist of one person if one shareholder acquires all the shares of the company. Information about this must be contained in the charter of the company, be registered and published for general information.
A joint-stock company cannot have as its sole participant another economic company consisting of one person.
Article 99
1. The authorized capital of a joint-stock company is made up of the nominal value of the company's shares acquired by the shareholders.
The authorized capital of a company determines the minimum size of the company's property that guarantees the interests of its creditors. It cannot be less than the amount provided for by the law on joint-stock companies.
2. It is not allowed to release a shareholder from the obligation to pay for the company's shares, including his release from this obligation by offsetting claims against the company.
3. Open subscription for shares of a joint-stock company is not allowed until the authorized capital is paid in full. When establishing a joint-stock company, all its shares must be distributed among the founders.
4. If at the end of the second and each subsequent fiscal year price net assets company will be less than the authorized capital, the company is obliged to declare and register in in due course reduction of its authorized capital. If the value of the specified assets of the company becomes less than that specified by law minimum size authorized capital (paragraph 1 of this article), the company is subject to liquidation.
5. The law or the charter of the company may establish restrictions on the number, total nominal value of shares or the maximum number of votes belonging to one shareholder.
Article 100
1. A joint-stock company has the right, by decision general meeting shareholders to increase the authorized capital by increasing the par value of shares or issuing additional shares.
2. An increase in the authorized capital of a joint-stock company is allowed after its full payment. An increase in the authorized capital of a company to cover the losses incurred by it is not allowed.
3. In the cases provided for by the law on joint-stock companies, the charter of the company may establish the pre-emptive right of shareholders owning ordinary (ordinary) or other voting shares to purchase additional shares issued by the company.
Article 101
1. A joint-stock company may, by decision of the general meeting of shareholders, reduce the authorized capital by reducing the par value of shares or by purchasing part of the shares in order to reduce their total number.
Reducing the authorized capital of a company is allowed after notification of all its creditors in the manner determined by the law on joint-stock companies. At the same time, the creditors of the company have the right to demand early termination or performance of the relevant obligations of the company and compensation for their losses.
The rights and obligations of creditors of credit institutions established in the form of joint-stock companies are also determined by laws regulating the activities of credit institutions.
2. Reducing the charter capital of a joint-stock company by purchasing and redeeming a part of shares is allowed if such a possibility is provided for in the charter of the company.
Article 102
1. The share of preferred shares in the total volume of the authorized capital of a joint-stock company must not exceed twenty-five percent.
2. A joint-stock company has the right to issue bonds for an amount not exceeding the amount of the authorized capital or the amount of security provided to the company for these purposes by third parties, after the authorized capital has been paid in full. In the absence of collateral, the issue of bonds is allowed not earlier than the third year of the existence of the joint-stock company and subject to the proper approval by this time of two annual balance sheets of the company.
3. A joint stock company is not entitled to declare and pay dividends:
until full payment of the entire authorized capital;
if the value of the net assets of the joint-stock company is less than its authorized capital and reserve fund or becomes less than their size as a result of the payment of dividends.
Article 103. Management in a joint-stock company
1. supreme body management of a joint-stock company is the general meeting of its shareholders.
The exclusive competence of the general meeting of shareholders includes:
1) changing the charter of the company, including changing the size of its authorized capital;
2) election of members of the board of directors (supervisory board) and audit commission(auditor) of the company and early termination their powers;
3) formation of the executive bodies of the company and early termination of their powers, if the company's charter does not refer these issues to the competence of the board of directors (supervisory board);
4) approval annual reports, balance sheets, profit and loss accounts of the company and the distribution of its profits and losses;
5) decision on reorganization or liquidation of the company.
The law on joint-stock companies may also include the resolution of other issues within the exclusive competence of the general meeting of shareholders.
Issues referred by law to the exclusive competence of the general meeting of shareholders cannot be transferred to them for decision by the executive bodies of the company.
2. In a company with more than fifty shareholders, a board of directors (supervisory board) is created.
If a board of directors (supervisory board) is established, the charter of the company in accordance with the law on joint-stock companies must determine its exclusive competence. Issues referred by the charter to the exclusive competence of the board of directors (supervisory board) cannot be transferred to them for decision by the executive bodies of the company.
3. The executive body of the company may be collegiate (board, directorate) and (or) sole (director, CEO). He carries out the current management of the company's activities and is accountable to the board of directors (supervisory board) and the general meeting of shareholders.
The competence of the executive body of the company includes the resolution of all issues that do not constitute the exclusive competence of other management bodies of the company, determined by law or the charter of the company.
By decision of the general meeting of shareholders, the powers of the executive body of the company may be transferred under an agreement to another commercial organization or individual entrepreneur(manager).
4. The competence of the management bodies of a joint-stock company, as well as the procedure for making decisions by them and speaking on behalf of the company, are determined in accordance with this Code by the law on joint-stock companies and the charter of the company.
5. A joint-stock company, which is obliged in accordance with this Code or the law on joint-stock companies to publish for public information the documents specified in paragraph 1 of Article 97 of this Code, must, in order to verify and confirm the correctness of the annual financial reporting attract annually professional auditor not connected by property interests with the company or its participants.
Auditing the activities of a joint-stock company, including those not obliged to publish to the public said documents, must be held at any time at the request of shareholders, whose total share in the authorized capital is ten or more percent.
Order of conduct audits activities of a joint-stock company is determined by law and the charter of the company.
Article 104. Reorganization and liquidation of a joint-stock company
1. A joint stock company may be reorganized or liquidated voluntarily by decision of the general meeting of shareholders.
Other grounds and procedures for the reorganization and liquidation of a joint stock company are determined by this Code and other laws.
2. A joint stock company has the right to be transformed into a company with limited liability or to a production cooperative, as well as to non-profit organization in accordance with the law.
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Civil Code Russian Federation
(parts one, two and three)
(as amended February 20, August 12, 1996, October 24, 1997, July 8, December 17, 1999, April 16, May 15, 2001, March 21, November 14, 26, 2002, January 10 , March 26, 2003)
Joint stock companies with the participation of state capital occupy a vast sector of the Russian economy
According to the criterion of participation in capital and the influence of the state on management, three groups of joint-stock companies can be distinguished: 1) with 100% state capital; 2) with a controlling stake owned by the state; 3) with a state block of shares that is not a controlling one.
1. with 100% state capital
The meaning of the formation of joint-stock companies with 100% state capital lies in the transition to an organizational and legal form that creates wider opportunities for initiative and entrepreneurship than unitary enterprises. The owner of the property is not the state, but a joint-stock company. It bears independent property liability, which creates the possibility of using the property of such an enterprise to pay off its debts. Ownership of property and responsibility for one's debts create objective prerequisites for the "market behavior" of the respective firms.
The shareholder state does not directly manage production, it only periodically orients and evaluates the activities of its representatives in the joint-stock company. The performance of a joint-stock company with 100% state capital in to a large extent depends on the influence of the device government controlled on the governing bodies society.
Of fundamental importance for the functioning of firms with 100% state capital is the legal mechanism of the relationship between the executive authorities and the management bodies of the joint-stock company. The principle that must be implemented in the relationship of the company with the executive authorities is representatives in a joint-stock company with sufficient control over their activities by the body in the sphere of interests of which the company is located.
2. with a state-owned controlling stake
Joint-stock companies, in which the state owns a controlling stake, are companies with mixed ownership and perform at least two tasks. First, in mixed ownership are usually large enterprises with high capital stocks. A significant number of shares enter the securities market, and conditions are created for attracting significant domestic and foreign capital. Secondly, there remains the possibility of influencing the strategy and tactics of joint-stock enterprises in order to ensure the interests of society.
Control joint-stock companies with a state controlling stake is carried out mainly by representatives of the state. In these companies, there is a meeting of shareholders, and certain issues require a qualified majority of votes. In these, as in some other cases, representatives of the state have to reckon with the opinions of other shareholders. The interests of the state can be represented either by civil servants appointed by the competent authorities, or by other citizens on the basis of agreements concluded with the State Property Committee. Sample contract and procedure for concluding and registering contracts
to represent the interests of the state in the management bodies of joint-stock companies ( business partnerships), part of the shares (shares, contributions) of which are fixed in federal ownership, approved by the government. The dimensions of this part have not been established. This means that a representative of the state is appointed to any joint-stock company that has, even the smallest, block of state shares.
3. with a state block of shares that is not a controlling one.
The functions and rights of a state representative managing a non-controlling block of shares have certain differences, since under these conditions the role of other shareholders increases. The decisions proposed by him are not always adopted by the meeting of shareholders or the board of directors.
golden share
A golden share is a conditional share of a joint-stock company that has not yet been established. It gives the state representative the right to the process of the decisive vote of transformation into a joint-stock company state enterprise. Golden share - important document, since the decisive veto makes it possible to regulate the newly formed society in a way that is beneficial to the interests and the state.
A golden share gives the right to veto for up to three years. This period is set at the time of its release.
The golden share is state-owned. It cannot be pledged or trusted. The sale and alienation of a golden share by other means before the expiration of its validity period is allowed only by decision of the body that made the decision to issue it when the joint-stock company was founded. Upon sale and alienation, a golden share is converted into an ordinary share, and the special rights granted to its owners cease.
According to D.V. Murzin, special law - a golden share acts as a means of restricting civil rights (in this case- the rights of other shareholders. Another type of subjective rights related to the functioning of a joint-stock company, which are declared shares, cannot be attributed to securities. Declared shares mean an opportunity for the company to place a specified number of shares in addition to shares already placed and acquired by shareholders (placed shares), the nominal value of which forms the authorized capital itself. Declared shares become securities after being transferred to the category of outstanding shares during the procedure state registration issuance of such shares.
Consider on simple example how gold stocks work. Let's say we represent the Siberian Federal District and decide to sell oil transportation company N. The owner of the company wants to be sure that after the sale the company will move in the right direction. Then he decides to issue a golden share, which, of course, will remain with him.
The company is on the market, that is, now it has many shareholders. But at one of the meetings, the question of closing the company is suddenly understood. We, as owners of the golden share, are blocking this decision. The company, thanks to us, lives on and is actively developing. At a certain point, we realize that there is no longer a need to control the company, and we give away our share.
Now it is not “gold”, but ordinary.
Joint stock companies with state capital have a large share in the Russian economy. This involves solving the problem effective management such societies, taking into account their characteristics, with the support to the maximum extent possible of entrepreneurial activity. According to the criterion of participation in capital and the influence of the state on management, three groups of joint-stock companies are distinguished: 1) with 100% state capital; 2) with a controlling stake owned by the state; 3) with a state block of shares that is not a controlling one.
The meaning of the formation of joint-stock companies with 100% state capital is the transition to an organizational and legal form that expands the possibilities for showing initiative and entrepreneurship. By definition, the form of joint-stock companies provides for greater independence and transformation organizational structure firms.
The owner of the property is not the state, but a joint-stock company. It bears property liability, which allows using the property of such an organization to pay off its debts. Ownership of property and liability for debts create objective prerequisites for the market behavior of the respective organizations.
The shareholder state does not directly manage production, it only directs and controls the activities of its representatives in the JSC. All this makes it possible to commercialize the activities of the JSCs under consideration and, as a result, increase production efficiency.
However, the effectiveness of the activities of JSCs with 100% state capital largely depends on the influence of the state administration apparatus on the governing bodies of the company. Depending on the specific circumstances, the public authority may, for example, insist on investing in projects that are not able to provide a long-term effect, or on the production of low-margin products. At the same time, the competitiveness of such organizations is declining, economic indicators are falling sharply, and the very idea of creating such a joint-stock company is interpreted incorrectly.
More promising are joint-stock companies, where the state has a controlling stake. Such joint-stock companies are represented by organizations with mixed ownership and solve at least two tasks. First, as a rule, large organizations with a large value of fixed assets are in mixed ownership. A large number of shares enter the securities market and prerequisites are created for the massive attraction of Russian and foreign capital into the economy. Secondly, it remains possible for the state to influence the strategy and tactics of the joint-stock company to ensure the interests of society.
The management of joint-stock companies with a state controlling stake is mainly carried out by representatives of the state (civil servants). Organizations have a meeting of shareholders, and certain issues require a qualified majority of votes. In these, as in some other cases, representatives of the state must take into account the opinions of other shareholders. Under Russian law, a state representative can be appointed to any joint-stock company that has even a small block of state shares.
We are a non-public joint-stock company, 100% of whose shares are owned by the municipality. According to part 3 of article 77 federal law 208-FZ "On joint-stock companies", if the owner of 2 to 50 percent inclusive of voting shares of the company is the state and (or) municipality and the determination of the price (monetary value) of the property, the placement price of the issue-grade securities of the company, the price of the repurchase of the shares of the company (hereinafter referred to as the price of objects) in accordance with this article is carried out by the board of directors (supervisory board) of the company, notification is mandatory federal body executive power authorized by the Government of the Russian Federation (hereinafter referred to as the authorized body), on the decision taken by the board of directors (supervisory board) of the company to determine the price of objects. The authorized body is FAUGI Rosimuschestvo. To date, we have a dispute with the owner of the property of the company, i.e. with a municipal entity represented by the local administration, whose representatives claim that the Federal Property Management Agency manages only federal property and we, as municipalities, are not obliged to send them the decision of the board of directors on determining the price (monetary value) of the company's property. Who is right, should information be sent to the Federal Property Management Agency or this issue is resolved only at the local level.
Answer
The municipal entity, if there are grounds provided for by the Federal Law of December 26, 1995 No. 208-FZ, is also obliged to notify the Federal Property Management Agency of the decision taken by the board of directors (supervisory board) of the company to determine the price of objects.
Thus, the municipality, if there are grounds provided for by the Federal Law of December 26, 1995 No. 208-FZ, is also obliged to notify the Federal Property Management Agency of the decision taken by the board of directors (supervisory board) of the company to determine the price of objects. This conclusion confirms and arbitrage practice- see Decree of the FAS PO dated September 21, 2010 No., Decree 18 AAC dated October 21, 2013 No., Decree 7 AAC dated June 8, 2009 No. A67-6773 / 2008.
The rationale for this position is given below in the materials of "Systems Lawyer"
“If the state (municipal formation) owns from 2 to 50 percent inclusive of the voting shares of a JSC, a number of additional requirements must be observed.
In particular, when the board of directors makes a decision on determining the price of property, it must notify the authorized state body about this.
Authorized government agency advocated by the Federal Agency for State Property Management ("On the Federal Agency for State Property Management").
He needs to provide the following documents (“On Joint Stock Companies”; hereinafter referred to as the JSC Law):*
- a copy of the decision of the board of directors on determining the price of property;
- a copy of the appraiser's appraisal report if an appraiser was involved;
- other documents (or copies thereof) containing information on the determination of the price of property, prepared by the company, its shareholders or the company's counterparty, if the appraiser was not involved.
Documents should be sent by registered mail with a description of the attachment and a notice of receipt. This will confirm (if necessary) the fact that the company sent these documents, and they were delivered to the addressee.
The FAUGI, within 20 days from the date of receipt of the documents, reviews them and checks ():
- the decision of the board of directors on determining the price of property - for compliance with the prevailing market prices to similar objects;
- the appraisal report prepared by the appraiser (if the appraiser was nevertheless involved) - for compliance with the appraisal standards and legislation on appraisal activities.
Based on the result of the check, the FAUGI can issue a reasoned opinion, which actually means disapproval of the price.
A reasoned opinion will be sent to the company if the property was assessed by the board of directors without the involvement of an appraiser and the FAUGI decided that this price does not correspond to the prevailing market prices for similar property. In this case, the board of directors must make a decision to refuse to complete the transaction or a decision to involve an appraiser to determine the price of the property.
A reasoned opinion will be sent to self-regulatory organization appraisers (SRO), if the company nevertheless involved an appraiser in the assessment of property, but the FAUGI decided that the appraiser's report did not comply with the appraisal standards and legislation on appraisal activities. A reasoned opinion is sent to the relevant SRO for it to conduct an examination of the appraiser's report. A notice of this is sent to the company, as well as an order to suspend the execution of the decision of the board of directors for the period of the examination and a copy of the reasoned opinion. In this case, the SRO within 20 days from the date of receipt of the opinion must conduct an examination and, based on its results, send the opinion to the FAUGI and the company. If, following the results of the examination, the SRO sends a negative opinion, the price of the objects determined by the board of directors is recognized as unreliable. FAUGI has the right to challenge the results of the examination in court.
The reasoned conclusion of the FAUGI can be challenged in court.
If the FAUGI does not send a reasoned opinion within 20 days, the price of the property is recognized as reliable and recommended for the transaction.
Thus, it is risky to make a deal before the expiration of the specified period (taking into account the period for delivering the letter to the company), because if a reasoned conclusion comes after that, the FAUGI will be able to challenge the deal in court.
The FAUGI will also have the right to challenge the transaction in the event that the company does not send a notification at all ().
This does not mean that the FAUGI will do this, but you need to keep in mind that this can happen.
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