A full partnership is a business partnership, all participants of which are engaged in joint entrepreneurial activities and bear full joint and several liability for the obligations of the partnership with all their property.
Creation
The general society operates on the basis of memorandum of association. In full partnership forum bylaws. The constituent agreement determines the size of the share of each of the participants in the authorized capital, the composition and procedure for making contributions, the form of participation in the affairs of the company.
Management and responsibility
The management of the affairs of the partnership is carried out by common agreement of all participants. The affairs of the partnership may also be carried out by one or more of them, who act on behalf of the company on the basis of a power of attorney.
The participants in such a company are liable to the creditors of the company with all their property.
The current legislation establishes a list of types of property that cannot be levied. In particular, for persons whose main occupation is Agriculture, these are: a residential building with outbuildings, one cow (in the absence of a cow, respectively, one heifer, goat, sheep, pig) feed for livestock; seeds for the next sowing; inventory; wearables and household items (one item for each family member).
distribution of profits
From the profit received, the company makes mandatory payments to the budget, pays taxes, sends funds to the appropriate funds of the company, repays the losses of the company, makes settlements with creditors, etc. Part of the profit remaining after that is distributed among the members of the company in proportion to their shares in the authorized capital of the company.
Leaving society
A participant in a full partnership has the opportunity to withdraw from the partnership at any time by notifying all other members of the partnership about this no later than 3 months in advance. Withdrawal from a company that has been established for a certain period of time is allowed only if good reasons and provided that a notice to this effect has been received no later than 6 months in advance. The participant is paid a part of the value of the company's property on the day of withdrawal in accordance with its share in the authorized capital, as well as a part of the profit received by the company in the current year. At the request of a participant and with the consent of the company, the part of the company's property belonging to him may be paid in full or in part in kind.
A participant in a general partnership may transfer (sell) his share or part of it in the statutory fund to other participants in this company or to third parties, but only with the consent of all other participants.
Advantages and disadvantages
The advantage of this organizational and legal form is the presence of full responsibility of the participants, which increases the credibility of these enterprises on the part of creditors and other partners.
Limited company
Creation
A limited partnership (CP) is a company that includes, along with one or a majority of participants, who are liable for the obligations of the company with all their property, as well as one or more participants, whose liability is limited to a contribution to the property of the company (contributors). These two groups of founders differ in varying degrees of responsibility for the obligations of the company, the form of participation in the management of its affairs, the procedure for returning contributions to them in the event of liquidation of the enterprise, and the like.
The total size of the shares of contributors should not exceed 50% of the statutory fund. When registering a limited partnership, the investor must pay at least 25% of his contribution.
A limited partnership also operates on the basis of a memorandum of association only.
control
The activities of a limited partnership are managed by participants with full responsibility by common agreement.
In a limited partnership, where there is only one participant with full responsibility, the management of affairs is carried out by this participant independently.
Investors do not have the right to interfere in the actions of participants with full responsibility for managing the affairs of a limited partnership.
a responsibility
Participants with full responsibility are liable to the creditors of the company with all their property, as well as participants in a full partnership.
However, the liability of contributors is limited to their share in the property of the company for the participants of the limited liability company.
distribution of profits
Part of the profit after the fulfillment of obligations to the budget, banks, and other creditors is directed to the payment of dividends, first to depositors, and then to participants with full responsibility. The profit of the enterprise is distributed in proportion to the share of each member of the limited partnership in the statutory fund. That is, participants with full responsibility and investors are paid dividends for each hryvnia of their assessment of their contribution to the authorized fund.
Leaving society
When a participant with full responsibility or a contributor leaves a limited partnership, he is paid a part of the value of the company's property at the exit in proportion to his share in the authorized capital of the company. The withdrawal of a general participant from a limited partnership is carried out in the same way as the procedure for withdrawing from a partnership.
Advantages and disadvantages
Positive when using this organizational and legal form is more effective management company in comparison with other companies, since the decision is made by a limited circle of persons, that is, only participants with full responsibility.
The disadvantage of this form is the existing regulation by the current legislation of the restrictive ratio between the contributions of participants with full responsibility and participants-depositors.
MINISTRY OF EDUCATION OF UKRAINE
Kyiv NATIONAL ECONOMIC UNIVERSITY
CRIMEAN ECONOMIC INSTITUTE
at the rate " Financial activities business entities"
on the topic: "Features of the activities of limited companies."
Completed by a student of the Faculty of Finance and Accounting, specialty "Finance", group F-41-99
Levshuk Natalia
Simferopol 2003
A limited partnership is a company in which, together with one or more participants who carry out entrepreneurial activities on behalf of the company and are liable for the obligations of the company with all their property, there is one or more participants whose liability is limited to a contribution to the property of the company ( contributors).
If two or more participants with full liability participate in a limited partnership, they shall be jointly and severally liable for the debts of the partnership.
A limited partnership, as well as a complete one, according to its legal characteristics, can be attributed to personal associations. A feature of a limited society, which distinguishes it from a full society, is the presence in it of two differing in their legal status categories of participants - full participants (complementary) and contributors (commandists). Full participants are responsible for managing the company, conducting on its behalf entrepreneurial activity, they are responsible with all their property for the obligations of the company. The functions of investors are limited to providing the society with a certain capital in exchange for participation in the profits of the society.
A limited partnership arises in those cases when full participants are not able to form the capital necessary for the activities of the company by their own efforts. To accumulate such capital, investors are allowed to join the company, but without the right to manage the company. Relations between the company and investors are not of a credit, but of an investment nature, which is more beneficial for society (investors do not interfere in its activities, capital income is paid to investors only if the company has a profit, capital is invested in unlimited time).
The limited partnership is characterized by the following legal features:
2) the statutory fund in a limited partnership is not formed, the contributions of the participants constitute the share capital, the size and procedure for the formation of which is determined by the participants themselves. At the same time, the total share of contributors cannot be more than 50% of the capital of the company; by the time of registration of a limited partnership, each of the contributors must make at least 25% of their contribution;
3) a limited partnership does not have management bodies - in relations with third parties, the partnership is represented by its participants with full responsibility;
4) acts on the basis of the memorandum of association, the content of which is determined by art. 76 of the Law "On economic companies".
The memorandum of association is the only document on the basis of which a limited partnership is created and operates.
The memorandum of association is drawn up in writing, and if there are individuals among the participants, then their signature on the contract must be notarized.
The memorandum of association, in addition to the information specified in Art. 4 of the Law "On business companies" (information about the type of company, the subject and goals of its activities, name and location), should include information about:
1) the amount of the share capital of the company;
2) the amount, composition and procedure for making contributions by each of the participants with full responsibility;
3) the size of the share of each of the participants with full responsibility (determined by the ratio of the size of the contribution of the participant to the total amount of the share capital; the share can be expressed as a fractional number or as a percentage);
4) the total amount of the shares of investors in the capital of the company; the amount, composition and procedure for making their contributions;
5) the responsibility of the participants for untimely making a contribution;
6) the form of participation of participants with full responsibility in the affairs of the company (the procedure for managing the activities of the company and conducting entrepreneurial activities on behalf of the company must be regulated);
7) subsidiary, joint and several and unlimited property liability of participants with full liability for the obligations of the company;
8) the rights, duties and responsibilities of depositors (taking into account the provisions of Articles 79 - 82 of the Law "On Business Companies");
9) the procedure for distributing profits or losses of a limited partnership (this procedure is not determined by the current legislation) - according to general rule profits and losses are distributed among the participants in proportion to their shares in the share capital; a different distribution procedure (based on an equal distribution of profits / losses or taking into account the personal contribution of each participant to the company's activities) may be provided for in the memorandum of association or a separate agreement of the participants; it is not allowed to eliminate any of the participants from participation in the distribution of profits or losses.
10) additional grounds for terminating the activities of a limited partnership (subject to the requirements of Article 83 of the Law “On Business Companies”).
In many modern states, the principle of anonymity of the individual contributors operates, which is the main incentive for their entry into society.
The legislation of Ukraine regulates this issue inconsistently, which leads to the non-proliferation of a limited partnership as a form of joint business activity. Thus, in the second part of Article 76, it is stipulated that in the constituent agreement on a limited partnership, in relation to contributors, only the total amount of their shares in the property of the company, as well as the size, composition and procedure for making contributions by them, are indicated. Should this provision be understood as excluding the requirement of Art. 4 of the Law "On economic companies" indicate in the constituent documents the composition of the participants in the company, and if so, what document should confirm the participation of contributors in the company? The current legislation does not yet contain means to resolve these issues.
Abroad, legal relations between participants with full responsibility and investors in a limited partnership are often drawn up as follows. The memorandum of association defines only the total size of the share of contributors in the capital of the company, and information about the personal composition of contributors is not indicated. The memorandum of association is signed only by participants with full responsibility. In parallel with the founding agreement, an agreement on participation in a limited partnership is concluded, which is signed by both participants with full responsibility and investors. This contract is not subject to state registration, is of a confidential nature and determines the personal composition of the contributors of a limited partnership, the size, composition and procedure for making a contribution by each of them.
Another scheme may also be used, according to which an agreement on participation in a limited partnership is concluded by full participants with each contributor separately. This approach facilitates the procedure for making changes to documents related to the movement of contributors (exit, entry, exclusion of a contributor, assignment of a share, succession and inheritance, etc.)
This approach is not the only one used to ensure the anonymity of contributors. In some countries, the memorandum of association is confidential, and public authorities and others interested parties an extract from this agreement, which does not contain information about the identity of the contributors The principle of anonymity is also embodied in the existence of a joint-stock limited company (a limited company with shares), which is known to the legislation of many countries (Germany, France, Italy, Spain, etc.). In this type of limited partnership, the amount of capital to be contributed by the investors is divided into shares, which are then distributed among the investors.
A limited partnership is created and operates on the same principles as a full partnership. Therefore, the legislator, instead of developing special rules governing the activities of a limited partnership, subordinates it to the rules that determine the legal status of a full society (with some exceptions).
The norms contained in Articles 67-74 of the Law "On Economic Companies" must be applied subject to the provisions contained in Articles 78-83 of this Law. The latter reflect the peculiarities of the legal status of contributors in a limited partnership. Based on this rule, Articles 69, 71, 72, 73 of the Law "On Business Companies" apply equally to participants with full responsibility and depositors. Articles 68, 70, 74 do not apply to depositors (they are excluded by the provisions of articles 79-82).
If there are several participants with full responsibility in a limited partnership, then they form a semblance of a full partnership within a limited partnership and their Team work regulated by rules designed to apply to members of a full society.
A contributor may join a limited partnership by making monetary or material contributions.
This norm is
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3. Limited partnership
1. The main features of a limited partnership are: the presence of two categories of participants: full participants and investors; subsidiary liability of full participants for the obligations of the company with all their property, the presence of share capital, in which the fate of contributors cannot exceed fifty percent; memorandum of association as founding document society, lack of governing bodies; the obligation for full participants to participate in the management, business activities of the company; prohibition for investors to participate in the management of the company; an indication of the legal form and names (names) of full participants in the name of the company; certain restrictions for full participants regarding membership in business companies, the presence common features with a general partnership, applying to the limited provisions of the law governing the activities of general partnerships.
Thus, a limited partnership has many features in common with a general partnership, but at the same time differs from it primarily in that, in addition to full participants who have the same status as participants in a general partnership, it includes participants with a special legal status - contributors. The term "full participants" is an innovation in the Civil Code of Ukraine. Before the entry into force of the Civil Code in the new edition
the legislator used the term “participants with full responsibility”, borrowed from the Law of Ukraine “On business companies”, and in the legal literature, the terms “complementary”, “general partners” and others were used. A limited partnership may include one or more full participants and one or more contributors. The minimum number of participants in a limited partnership is two persons, of which one must be a full participant and the other a contributor. The maximum number of full participants and investors of a limited partnership is not limited by law.
One of the main differences in the legal status of full participants and investors in a limited partnership is the amount of liability for the obligations of the company. A full participant bears subsidiary liability for the obligations of the company with all his property (if the company includes two or more full participants, they are jointly and severally liable). Investors in a limited partnership are not liable for the obligations of the company, but bear the risk of losses associated with the activities of the company, within the limits of the amounts of their contributions, except as provided by law (Article 138 of the Civil Code).
The second significant difference between the legal status of full participants and investors in a limited partnership is their participation in the management of the company. Management of the activities of a limited partnership is carried out only by full participants who carry out entrepreneurial activities on behalf of the partnership. Investors of a limited partnership do not have the right to participate in the management of the company's activities (Article 136 of the Civil Code).
2. According to the general rule established by Art. 90 of the Civil Code of Ukraine, a legal entity must have its own name, which contains information about its organizational and legal form. That is, in the name of a limited partnership, the words “limited partnership” must be present. This makes it possible to identify the specified legal entity as a business company established as a business company with the appropriate legal status.
According to Art. 133 of the Civil Code (part 2) in the name of a limited partnership, the names (names) of full participants must be indicated.
The name of a limited partnership may look like this:
1) the words "limited partnership" and a list of names (names) of all full participants;
2) the words "limited partnership", the name (name) of at least one full participant with the addition of the words "and company".
It should be noted that the name of a limited partnership should and may include only the names (names) of full participants, and not contributors. The novelty of the Civil Code of Ukraine is the provision of the commented article, according to which, if the name of the contributor is included in the name, such contributor becomes a full member of the company.
The name of the limited partnership may include other information. In addition to the full name, a limited company may also have an abbreviated name. At the same time, the legislation does not establish the amount of information that should be contained in the abbreviated name.
3. The legal nature of a limited partnership has many features in common with a general partnership. Both of these organizational and legal forms operate according to the same principles (taking into account the specifics associated with the presence of contributors as part of the participants in a limited partnership). In this regard, the legislator extended the provisions of the Civil Code on full partnerships (Articles 119-132) to limited partnerships. The provisions of these articles apply to limited partnerships if
otherwise is not established by this Code or other law (see the commentary to the specified articles).
A limited partnership, or limited partnership, is an alliance of several persons who have made their contribution to the fund. The partnership is formed as a result of the merger of the capitals of 2 or more persons with the registration of a legal entity.
Peculiarities
Main distinguishing feature such an organizational and legal form that:
- in society there are always full comrades, whose responsibility is limited not only by the amount of contributions, they bear it within the framework of their personal property;
- there are necessarily limited partners, that is, investors whose liability is limited to the size of the contribution to the partnership.
As a result, it turns out that the management of the company is completely given to compliments, that is, full comrades, and the rest of the participants are limited partners, you just need to trust these people. Hence the name - partnership on faith.
Outside of our country, such partnerships are a fairly common phenomenon. In our country, probably, there is no such trust between citizens and legal entities to form societies based on trusting relationships. Therefore, such an organizational and legal form of a legal entity is very rare.
Purpose of creation
A limited partnership may exercise any economic activity, which is not prohibited by applicable law, to produce or sell something, to provide services. If the selected type of activity is subject to licensing, then a permit for its implementation must be obtained.
What is a Joint Stock Limited Company?
Unlike an ordinary limited partnership, a joint-stock limited partnership has the right to additionally issue its own shares. In addition to the issue, ACO has the right to place its shares at open auctions. It is also attractive in this organizational and legal form that the dividends paid on shares are not subject to taxation.
Share capital
The minimum and maximum amount of capital at the level of legislation is not established. This is due to the fact that general partners are liable for the obligations of a legal entity with their property.
Profit distribution procedure
As a rule, profits and losses are distributed between the participants of the partnership depending on the size of the share in the share capital. It is impossible to provide in the memorandum of association for the limitation of one or more participants in the receipt of profit or the reduction of liability.
In cases where it was not possible to obtain the planned profit, and the price net assets decreased to the amount of capital, the profit is not distributed among the participants. As soon as the value of the assets becomes higher than the share capital, the distribution of profits between the comrades can immediately be carried out.
Partnership name
Regulatory acts establish certain requirements for a company name, namely:
- the name of the partnership must contain the names of all partners or the phrase: "The surname of one complimentary and the company";
- the name must also contain the organizational and legal form, that is, “limited partnership” or “society on faith”;
- if the name of the limited partner is present in the name, then it automatically becomes a complimentary.
Number of contributors
To register a legal entity, 2 or more persons will be required, while one will act as a limited partner, and the other as a complimentary. As a general partner in an economic limited partnership, there must be at least one individual entrepreneur or a commercial company. There is no such requirement for the rest of the participants, since they do not take part in entrepreneurial activities.
Rights and obligations of compliments
General partners have a fairly wide range of rights, namely:
- take part in the distribution of profits;
- have income as part of their contribution;
- receive part of their share in the event of termination of the partnership;
- receive any information regarding the financial and economic activities of a legal entity.
Responsibilities of general partners:
Rights of limited partners
Since a limited partnership is a limited partnership, then, probably, the most basic obligation of any investor is to trust general partners. Also, contributors are obliged to make their contributions within the terms specified by the founding agreement.
Basic rights:
- receive income from the activities of a legal entity;
- receive information on the activities of the partnership at the end of the year;
- leave the ranks of the participants after fiscal year with full reimbursement of the cost of previously made contributions;
- to dispose of his share at his own discretion, that is, he has the right to transfer his share to any of the participants in the partnership or to a third party;
- when alienating a share to a third party, observe the pre-emptive right of other investors.
At the discretion of the founders of the partnership, additional rights and obligations may be assigned to limited partners.
Partnership Management
The management of a legal entity, as a rule, is carried out by general partners. However, the memorandum of association may provide for cases where a certain decision must be made only by all participants in the company, including limited partners.
Usually one compliment has one vote, unless otherwise provided by the statutory documents. These participants have a wider range of powers, so a general partner, even without taking a direct part in the management, has the right to familiarize himself with the documentation of a legal entity, including accounting and tax reporting. If restrictions on this right are provided for in the statutory agreement, then it is void.
When organizing a society, it is necessary to foresee how business will be conducted. Participants in a limited partnership may act on behalf of the company individually or jointly. If the second option is chosen, then in order to conclude any transaction, it will be necessary to obtain the consent of all compliments. If general partners decide to entrust the conduct of business to one of the participants, then they must draw up a power of attorney indicating a list of powers.
A responsibility
If for any reason the partnership cannot pay off its obligations, then creditors have the right to present claims to one or all general partners at once. In a limited partnership, the liability of a participant who has retired from the company is still valid for 2 years from the moment of withdrawal, but only in that part of the debts that arose before the moment of withdrawal from the legal entity.
Limited partners are solely responsible for the amount of their contribution.
Constituent documents
When establishing a legal entity with the organizational and legal form "limited partnership", a memorandum of association or agreement is drawn up, which all founders are required to sign. The main points of the document:
- Name;
- location;
- the size of the share capital;
- composition of capital, that is, you can contribute to it not only cash but also property;
- the procedure for joining the partnership;
- procedure for leaving the company;
- responsibility, duties and rights of all participants.
Be sure to indicate how the distribution of profits is made, in what period the income received is paid. How a legal entity is managed, types of economic activity.
Title documents must necessarily contain a procedure for making changes to them, in which cases they need to be made. For example, what happens if the composition of participants changes, or what happens if the total capital of a limited partnership has decreased.
It is imperative to prescribe the procedure for making changes in the event of the death of one of the full partners, or in what cases the partnership will be reorganized, what are the conditions for the liquidation of a legal entity.
Reorganization
Like any legal entity, a limited partnership can be transformed into any other organizational and legal form. For example, in LLC general partnership or CJSC, cooperative.
liquidation
Upon liquidation of the partnership, all rights to transfer management to third parties are lost. There are several ways to liquidate a legal entity:
- under duress, through bankruptcy proceedings;
- on a voluntary basis;
- alternative method, i.e. by reorganization.
When all participants leave the partnership, except for one, such a person has the right to transform the legal entity into a full partnership.
The concept and legal signs of full
society.
Problems of the legal personality of full
Features of the legal status of participants
complete societies.
The nature of the responsibility of the participants
of a full company for the obligations of the company.
The issue of recognition of participants in the full
companies by business entities
ness: the approach of domestic and foreign
legislation.
Restrictions on the movement of participants in full
society: causes and content.
Management and conduct of affairs of a complete society.
The concept and legal features of a limited partnership
society. The advantages of this organizational
legal form.
The concept of joint-stock limited partnership.
Features of the legal status of depositors
in a limited society.
1. Legal signs of a full society
Such a society is recognized as complete, all participants
which are engaged in joint venture
activities and are jointly and severally liable for
obligations of the company with all its property (Article 66
identify the following main features of a complete society:
1) consists of two or more participants; In some
countries prohibit participation in the Software by legal entities or
established special rules for such participation - on
Ukraine does not yet have such restrictions; number
PW participants are small - on average from two to four
2) the authorized capital is not formed, the contributions of participants
constitute the share capital, the size and procedure for creating
which is determined solely by the participants themselves
(PCW does not contain provisions on the minimum value
capital of the software, terms of making contributions by participants,
the procedure for changing the size of the share capital);
4) participants in the PO bear subsidiary, joint and several
unlimited liability for obligations
society;
5) Software has no organs - in relations with third parties
the persons of the company are its members;
6) the movement of participants is significantly limited.
The software lacks many important features
legal entity - bodies are not formed in society
management, the participants bear property responsibility
responsibility for the obligations of society - led to the fact that
in many states, software (or other similar
structures) are not recognized as independent legal
personality, they are considered only as a set
individual participants united to implement
commercial activities. This approach does not affect
the ability of software to act as an entrepreneur
parent corporation - associations of entrepreneurs
under a common name, since such associations
are entitled to trade. Lack of software
the status of a legal entity entails:
the requirement that the members of the company have the status
trader, merchant (entrepreneurial
activities);
the possibility of filing a claim by the creditors of the company
directly to the participants of the software, bypassing the society itself;
application of a simplified system of keeping accounts;
no double taxation (POs do not pay
taxes levied on legal entities).
Since PO (partnerships) in a number of countries do not pass
special registration, arbitrage practice often
faced with the problem of establishing relationships
partnerships.
According to the legislation of Ukraine, software has the rights
legal entity, which gives rise to both positive and
negative impact on their performance.
2. Legal status and change
members of a full society
Participants in the SO have property and
non-property corporate rights (the right to
receiving part of the company's profit, for management
society, to receive information about the activities
society, etc.). The content of each of these rights in detail
discussed in the sections of the General Part.
The responsibilities of the participants in the software are quite extensive in terms of
compared with the obligations of a shareholder or member of an LLC,
which is explained by the personal nature of such
associations as software. For the existence of this society
it is not only the investment that matters
participants, but also personal entrepreneurial activity
each of them, carried out on behalf of and in the interests
society. So, in the very definition of software, enshrined in
Article 66 ZHO, states that the participants in the PO.
Members of the software are required to:
contribute basic and additional property
contributions to the company's capital;
participate in the management of society;
carry out business activities from
the name of the society;
comply with the provisions of the memorandum of association;
keep secret trade secret and confidential
social information about the activities of the company;
carry out other duties stipulated by the
solid contract.
Members may be exempt from duty
on operational management society and its management
entrepreneurial activity, if these functions are on
basis common solution all participants are entrusted
several or one of them.
A distinctive feature of the software is that it
Members have unlimited liability to all
property belonging to them under obligations
society.
Article 74 of the WCO establishes that if, during the liquidation of software
it turns out that the existing property is not enough to pay
all debts, for the society in the missing part bear
joint and several liability of its members to all their
property, which, in accordance with the law
Ukraine may be levied. Participant
of the company is responsible for the debts of the company, regardless of whether
they arose after or before his entry into society.
The participant who fully pays the debts of the company,
entitled to file a recourse claim with
of the corresponding part to the rest of the participants, bearing
liable to him in proportion to his share in
society property. Thus, this norm defines
liability of the participant of the software for its debts as:
1) subsidiary;
2) solidarity;
3) with the right of recourse to other participants.
ZHO does not give enough reasons for
liability of participants for obligations
ON. The law only states that the attraction
participants to a direct property response -
sity is possible during the liquidation of the company. On the
practice, based on the provisions of the Law,
participants in the software may be liable for its debts
and without liquidation of the company.
The issue of liability is also not covered in the ZHO
participant in the software after his withdrawal from the company. Foreign
legislation usually provides that a participant
In the event of withdrawal from the company, the software shall be liable for
debts of the company, formed before the release of this
participant, within the time period established by law
(for example, in the Russian Federation this period is 2 years, in France -
5 years). The Civil Code of the Ukrainian SSR of 1922 also included a similar
claim, setting a two-year response time-
of the participant who left the partnership (term
calculated from the date of approval of the report for the year in which
participant has withdrawn from the general partnership).
It should be noted that the responsibility of the software participant
after his withdrawal from society, only
in cases where there is no succession. Otherwise
case, liability for the obligations of the company will be
be borne not by the retired participant, but by his successor.
Speaking about the legal status of a software participant
It should be noted that Ukrainian legislation does not
provides for the mandatory status
business entity. Similar
the requirement is contained in the laws of many foreign countries.
Its inclusion in corporate law
due to non-recognition in many countries of software
legal entity. Is it appropriate to introduce such
norm and in the legislation of Ukraine? It appears that
no, because the software participant is exercising its own
acting on behalf of, at the expense and under the responsibility
society, which is recognized by law as a subject
entrepreneurial activity with all the consequences
of this consequences. So, if the activity
carried out by the whole society, falls under
licensing, then the license will be issued by the
society, and the participants do not need to have it. Complete
society as a business entity
will be responsible for all kinds of violations
of the current legislation, admitted in its
Bothe - participants to self-responsibility
should not be involved.
The law imposes certain
restrictions on their activities. Art. 70 ZHO
establishes that the participants of the company are not entitled from their
on behalf of and in their own interests to implement the agreements,
homogeneous with the goals of the company, as well as
take part in any other societies (except
joint-stock companies) having a homogeneous with full
society the purpose of the activity. Members of the software are required
to compensate the society for the losses caused
violations of this rule.
The activities of the SO participant may be limited to:
firstly, to eliminate the unfavorable for society
competition; secondly, in order to ensure
proper fulfillment by the software participant of his/her personal
(non-property) obligations to society;
thirdly, to ensure the solvency of software.
The current legislation of Ukraine prohibits
only the homogeneous activity of the participant in the software (in its
interests or as a participant in another CW, except
joint stock), i.e. only competition is prohibited
participant with software. The draft Civil Code of Ukraine provides
the introduction of yet another restriction - physical or
a legal entity can be a member of only one
complete society. This limitation is intended to protect
third parties - software creditors. Participation of a person in several
Software may result in the inability to respond to them -
responsibility for the obligations of each company in full
Domestic legislation provides
the possibility of recovering losses from the software participant,
caused to society by competitive activities
participant. The amount of such losses in practice to determine
quite difficult. Legislation in many countries follows
another way: liability is not recoverable
novative, and penal nature - from the participant,
violating the prohibition to compete with society, recovering
all profits received by him from such
activities.
ZHO names the following reasons for the change
composition of PO participants:
1. Assignment of a share (parts 1, 2, article 69 of the Civil Code).
Transfer by a software participant of its share to others
members of this company or third parties may be
carried out only with the consent of all participants. Member
not the whole share, but part of it may be ceded. With share transfer
(parts thereof) to a third party is simultaneously carried out
transfer of all (or part) of rights and obligations,
owned by a participant who retired from the software or
gave up part of his share.
2. Succession (inheritance) of a share (parts 3-4
Art. 69 ZHO).
In the event of the death of a member - individual or
reorganization of a participant - a legal entity, the right-
successors or heirs of these members have
pre-emptive right to join society.
The remaining participants of the software agree to join
new participants, and if such consent is not obtained or
successor (heir) refuses to join the PO, then
he is paid the value of the share owned
reorganized legal entity(heir).
The size of the share in the property of the software is determined by the day
reorganization (death) of a participant. Assignees or
heirs in any case (whether they enter society or
no) are liable for the debts of the participant arising from
during the activity of the company, to the company, as well as
for the company's debts to third parties.
3. Withdrawal of a participant from the company (Article 71 ZHO).
The participant must notify in advance of his withdrawal
from the company: for 3 months - if the company was established on
indefinite period and for 6 months - if the company
created for a specific period. Leaving society
created for an indefinite period is possible at any
reason, and from software created for a certain period -
only in a respectful way. If, when a participant exits the software
society is preserved, then the participant is paid
the value of his contribution in accordance with the balance sheet,
compiled by the day of release. At the request of the participant and
with the consent of the society, the contribution can be returned
wholly or partly in kind. Retired
the participant is paid the part due to him
profit received by the company in a given year. If in
as a result of the participant’s exit from the software, the society breaks up
(such grounds for termination of the SO may
stipulated by the memorandum of association),
its liquidation is carried out in accordance with the law
okay. The share of the participant is not allocated, but
remaining after settlements with all creditors of the company
property is distributed among the participants of the software.
4. Exclusion of a participant from the PO (art. 72 ZHO).
Can be carried out if the software participant
systematically does not perform or improperly
performs duties or by his actions
hinders the achievement of society's goals. With exception
participant, his share in the property is allocated
society and the payment of part of the profits due to him.
The law does not define how decisions are made.
on the exclusion of a participant - this question is related to
the competence of the participants themselves and is subject to consolidation in
memorandum of association (first of all, it must be
the procedure for making a decision on this issue is determined
su - unanimously, qualified or simple
majority).
5. Allocation of a participant's share at his request
creditors (Article 73 ZHO).
The software is not liable for the obligations of its
participants. However, the creditors of the debtor participant
insufficiency of the property of the participant himself to cover
his debts may require the company to allocate a share
participant - the debtor or the liquidation of the SO. If a
participants in the software agree to allocate the share of the participant-
debtor, then creditors are not entitled to insist on
liquidation of society.
6. Entry of new participants.
The procedure for the entry of new participants into the software by law
not regulated. It is determined by the members themselves.
in the memorandum of association. Part 1 Art. 74 states that
a participant in the software is also liable for those debts of the company that
arose prior to his entry into society.
3. Conducting the affairs of a general society
The current legislation of Ukraine is not divided
eliminates such concepts as software management and maintenance
affairs (carrying out business activities from
name of the society).
Software management is the solution to the most
important issues of the company's activities, for example, about
introduction by participants of additional property
contributions, acceptance or exclusion of a participant,
directions of the company's activity, about directions
use of the company's profits, etc. Management
society is carried out by common consent of all
participants (this is what the legislator had in mind in part 1 of article 68
ZHO). Sometimes a similar procedure for resolving issues
adversely affects the management of society, because
participants find it difficult to reach agreement on all issues
software activities. The draft Civil Code offers a dispositive
norm instead of an imperative one, fixing in Art. 101:
Since at present, for the adoption of any
decisions regarding the activities of the company the law requires
according to their share in the property of the company. The GC project is underway
the memorandum of association may provide for another
The conduct of society's affairs is an entrepreneurial
activities carried out\" by a software participant on behalf of
society, representation of society in relations with
third parties.
Doing business in the software can be carried out in various ways.
ways;
1) all participants;
2) several of them;
3) one of the participants.
Part 3, Article 68 establishes that if several
participants conduct the affairs of the society, then each of them can
act on behalf of society independently (for example,
conclude an agreement on behalf of the company). In the founding
the contract may indicate the actions that the participants
can only be carried out jointly.
If the affairs are not conducted by all participants, then the volume
the powers of the participants who are entrusted with the conduct of business,
drawn up by a contract of commission, signed
other members of the society.
The powers of the participant to conduct the affairs of the company
terminated due to:
termination of the activities of the company itself;
refusal of the participant from the order;
cancellation of an order at the request of at least one of
the rest of the participants.
4. Concept and legal features
limited partnership
In accordance with Article 75 of the WPC, limited
a company is recognized that includes, along with one or
more than participants carrying out on behalf of the company
business activities and carriers
responsibility for the obligations of society to all
property, also of one or more participants,
whose liability is limited to contributions to
property of the company (depositors).
KOs are characterized by the following legal features:
full participants (at least one of each category),
the legal status of which differs significantly;
2) the authorized capital in the KO is not formed, contributions
participants are the share capital, size and
the order of which is determined by themselves
participants. At the same time, the total share of depositors does not
may be more than 50% of the capital of the company (part 2 of article 80
ZHO), by the time of registration of the KO, each of the depositors
must pay at least 25% of his contribution (part 3 of article 80 ZHO);
3) acts on the basis of the memorandum of association,
4) KO has no organs - in relations with third parties
persons of the company are represented by its participants with full
responsibility;
5) reorganization in software is possible when everyone leaves
contributors;
6) compulsory liquidation upon leaving the company
all full members.
A feature of the KO is the presence in it of two
categories differing in their legal status
participants - full participants (complementary) and
contributors (limited partners). For full participants
responsible for managing the society
conducting business on his behalf,
they are liable with all their property for
society's obligations. The functions of contributors are limited
are provided by the provision of a certain capital to the society
in exchange for a share in the company's profits. Relations between
society and depositors do not have credit, but
investment nature, which is more beneficial for
society (contributors do not interfere in its activities,
income from capital is paid to investors only when
availability of profit for the company, the capital is invested in
unlimited time). If full participants in the society
several, then they form a kind of software, their activities
governed by rules designed to apply to
this type of society, which follows from Art. 77 ZHO.
KO arises in those cases when full participants
incapable of forming
capital necessary for the operation of the company. For
accumulation of such capital into the company
contributors are allowed, but without management rights
society.
In pre-revolutionary Russia, as well as in many
modern states operate the principle of anonymity
the personality of depositors, which is the main incentive
for their entry into the Society. So, paragraph 2 of Art. 60, art. 76
Russian Trade Charter of 1903 consolidated the possibilities
depositors, if they wish to remain anonymous to
third parties. To register a limited partnership
(today's KO) to the city or merchant council
not the memorandum of association itself was submitted, but an extract from it,
which indicated the names and residences of only those
investors who wish to do so. In this way,
the identity of the depositor was known only in the circle
partnerships, but not to third parties, including bodies
public authority. However, already the Civil Code of the Ukrainian SSR in 1922 established
poured that. And today the Ukrainian ZHO
does not ensure the anonymity of the identity of contributors to the KO.
Abroad, the principle of anonymity is embodied in
the existence of joint-stock limited partnerships (CO with shares),
which is known to the legislation of many countries (Germany,
France, Italy, Spain, etc.). In this variety
KO amount of capital to be deposited
depositors, is broken down into shares distributed
then among contributors.
5. Features legal status
investors in a limited partnership
The legal status of participants with a full answer-
property in a KO is similar to the legal status of participants
Software, which was discussed in 2 of this chapter.
Features of the legal status of depositors in KOs
are fixed in Art. 78 - 83 ZHO.
Contributors can join the society only by
making monetary or material contributions. Full
participants can also contribute various kinds of
intangible assets such as intellectual property
property, various property rights. Before
from the moment of registration of the CB, the depositors must pay not
less than 25% of their contribution, to participants with full
liability is not required.
The rights of depositors differ significantly from
the usual amount of corporate rights of the participants of the CS. So,
contributors do not have the right to manage a CO, but are
right of priority return of the deposit (before
participants with full responsibility) in case of
liquidation of society. This is the position of investors
resembles the status of holders of preferred shares in
AO. Investors may act on behalf of a limited partner
society only if there is an order and in accordance with it.
But the depositor enters into an agreement on behalf of and in
interests of society without appropriate powers, then,
if his actions are approved by the CO, he, together with
participants with full responsibility is responsible for
agreement before creditors with all their property, on
which, in accordance with the law, may be
levied. If approval is not received,
the depositor is liable to third parties independently
with all your property. Thus, if participants
society is fully responsible for
relations with third parties on the basis of the provisions
ZHO and memorandum of association without a power of attorney, which
allows them to be equated with the bodies of KOs, then contributors can
act only as contractual representatives for
on the basis of a power of attorney issued to them by the company. However
consequences of the actions of depositors without a power of attorney
are regulated not by the norms of the Civil Code on representation, but
special norms of the Zkhoz (art. 82).
Investors are entitled to receive a share of the profits
society in proportion to their contribution, but they do not
participate in the decision on the procedure for the distribution of profits
KO. Full participants themselves determine the share of profits,
to be distributed among all participants of the KO.
Contributors have the right to receive information about
company activities: annual reports and balances
documents confirming the correctness of their compilation.
The sole obligation of the depositors is
making basic and additional capital contributions
KO. Personal participation of contributors in management and activities
society is not only not necessarily, but in some
cases is prohibited.
Contributors other than those mentioned above
cases of acts performed on behalf of the company without
powers of attorney shall not be held liable for
obligations of the CO.
More on the topic Chapter 10. General partnership and limited partnership:
- §one. The history of the formation of the joint-stock form of management in Mongolia
- Chapter 1. Corporations and corporate law: past and present
- Chapter 2. Economic company as a corporate business entity
- Chapter 4. Property and property rights in a business company
- Chapter 6. Organization of management and activities of a business entity
- § 3. Founders (participants) as subsidiary debtors for the obligations of commercial organizations
- § 1.4. Development of modern Russian legislation and foreign experience of legal regulation of relations of economic subordination of legal entities