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Public and non-public companies in russia


Improvement of the legislation of our country in the sphere of civil relations affects the joint-stock companies (JSCs) largely. The relevance of the topic is strongly connected with the changes made to the Chapter 4 of Part 1 of the Civil Code of the RF, which entered into force on 01.09.2014. Data transformation affected all business entities, dividing them into two categories: public and non-public companies. Naturally, the change of the denomination resulted a structural transformation of the legal status of the entities. The question of how these conversions are cardinal and significant is discussed in this article.

A joint-stock company is a certain legal form of a business entity. The purpose of its creation is getting a profit. This goal is achieved through the centralization of personal stocks, combining them into one fund. The company makes a profit by selling shares and stock issue. In addition, one of the objectives of the joint-stock company is a financial activity.

Joint-stock companies play a huge role in the country’s economy, including the formation of the federal budget. According to the statistics, the budget receives billions of rubles from the payment of dividends. The largest payers are “Gazprom” and “Rosneftegaz”. !The amount of dividends paid to the budget by these companies is accounted for more than 1 billion rubles. The revenues to the federal budget from the dividends have increased record high over the last year.

Prior to 01.09.2014,there were several types of joint-stock companies. The main feature of the division of business entities into types was the nature of the placement of shares. Based on this principle, it was decided to allocate two basic types: open and closed joint-stock companies. The main difference is that the open joint-stock company can carry out open (public) subscription to the issued shares and to make them available for sale.

Shares of closed joint-stock company (CJSC) are distributed only among the founders or other predetermined group. Shareholders of CJSC have the right of the emption of shares. Shares in the CJSC are not disposed by the public subscription. In accordance with the legislation, there are other differences from the OJSC. However,

V.Y. Bakshinskas wrote in his article that these differences are not significant. He pointed out that the shareholders of a CJSC are the most powerless in comparison with members of other associations and business entities.

First of all, this is because the shareholders of the CJSC do not have the right to exit. In addition, they do not have the right to dispose of their shares freely as the shareholders of the OJSC. Therefore, it is necessary to abandon the division of the JSC into open and closed, providing the single legal form of organization: the «Joint- stock Company».

The question of whether such differences between open and closed joint-stock companies are significant has been raised repeatedly in the legal literature. There were numerous debates and discussions on the topic of whether the division of the joint-stock companies is correct. Finally, it was decided to reorganize all types of companies. In our opinion, one of the main reasons was the policy of harmonization of our legal system in the field of the Civil Law. In addition, another reason is unpopularity and, therefore, uselessness of such legal form as the CJSC.

It is caused primarily by the fact that the CJSC has practically all the features that are inherent to limited liability company (LLC). A similar situation is observed with the unpopularity against additional liability company (ALC), whereupon it is equivalent to the OJSC since01.09.2014.

In accordance with the latest edition of the Civil Code, the public company (PC) is characterized by the public nature of the placement and circulation of shares and other securities carried out on the basis of the law. In addition, the PC may be recognized as a public company when its statute contains a reference to it. With respect to non-public companies (NPC), the legislator went for a simpler way and found them all companies that do not meet the criterion of the public ones. Thus, they are all joint-stock companies, which shares and securities are not posted publicly, including the LLC.

Reorganization has a number of negative aspects for legal entities. First, this is due to the increased interest of the state to the activities of the companies, as well as the ability to control their activities more closely.

So one of the innovations requires all business companies, both public and non-public, to hold an annual mandatory external audits in order to confirm its financial statements (para. 5, Art. 67.1 of the Civil Code).The initiative must come from the demands of shareholders, who have the authorized capital 10 percent or more. Earlier, the annual independent audits were typical for companies with a public offering, namely OJSC.

Another innovation, which, in our opinion, is not a positive for business entities, is to determine the cost of non-monetary assets contributed to the authorized capital of the company by an independent appraiser. According to the new edition of the Civil Code of the Russian Federation, members of the public company have no right to determine the size of the monetary value and non-monetary value of their assets, if it will exceed the size of the value that has been set in the independent evaluation (Sec. 2, Art. 66.2 of the Civil Code) .

The reorganization does not occur in a strict order. The legislation does not specify any dates for this process. It will be produced in the event of reorganization of the company and the subsequent amendments to the articles of association and the Unified State Register of Legal Entities (USRLE). However, the delay with the name change may affect the conclusion of transactions with counterparties, which is a reason to speed up the process within a specific company.

No legally binding deadline for changing the form of economic society causes a certain number of problems. Thus, excluding the CJSC, as a form of legislation, does not give us a guarantee of their liquidation and reorganization in the near future. Moreover, this may never happen, because the law is not mandatory. In our opinion, it is necessary to set a fixed term, which will specifically affect the CJSC, as a business entity, which will be 1 year. It would be reasonable in view of the planned transition to a new form of business entity. Thus, we can ensure that the legal requirement to delete the word «closed» from the name of the joint-stock company will be excluded. It is not appropriate to set a deadline for the ALC, because this form of the organization is unclaimed.

There is an innovation to determine the size of the entitlements member of the organization, not only according to their share in the authorized capital of the company, but also by introducing these powers to the charter (Art. 66 of the Civil Code RF). In our opinion, this novelty is not justified, but simplifies the implementation of activities for non-public companies. We consider that the share fraction in the authorized capital of the company is the most objective characteristic to determine the volume of powers.

Summing up, it should be noted that the reorganization of the business entities is not just a formality, which takes place only on paper, but it is one of the most important steps on the way to bridge the gaps, to the unification of Private Law of Russia and improvement of the Civil Law in all its aspects. However, the legislator must apply the necessary measures to control the transition to the new forms of business entities to carry out its goal.



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