Adoption of the new Civil code

Currently, there is a reform of the civil legislation, which will bring many innovations to the Civil code of the Russian Federation (hereinafter: "the civil code"). The most significant changes affected the corporate part of the code.

It is assumed that such organizational and legal forms as closed and open joint-stock companies, companies with additional liability will cease to exist.

Additional liability companies and closed joint-stock companies will have to be reorganized into limited liability companies or production cooperatives, and open joint-stock companies into public joint-stock companies. 

Currently, the transformation affected a small part of the civil code, so on January 11, 2013 the Law on amendments to some chapters of the civil code was published, on the basis of which from March 1, 2013 some separate provisions concerning the basic principles of civil legislation, the procedure for state registration of rights to property, the procedure for recognizing a citizen as incapacitated and the procedure for establishing guardianship and the performance of guardianship by guardians of their duties, as well as the procedure for creating a peasant (farmer) economy.


Let us briefly touch upon the other provisions of the project:

Legal entity

Corporations and unitary societies

Legal entities will be divided into corporations and unitary companies (article 65.1 of the civil code). Corporations include legal entities, the founders (participants) of which have the right to participate in the management of their activities. These include business partnerships and societies, production and consumer cooperatives, public organizations, associations and unions.

Unitary companies include legal entities whose founders do not become their members and do not acquire membership rights. These include state and municipal unitary enterprises, foundations, institutions, and religious organizations.

Decision to establish a legal entity

In addition to the existing requirements, such as the indication of information on the establishment of a legal entity and the approval of its Charter, the order, size, methods and terms of formation of the property of a legal entity, the election (appointment) of the bodies of a legal entity, the decision to establish a corporate entity is supplemented by new requirements on the procedure for joint activities of the founders to create a legal entity and the results of voting of the founders on the establishment of a legal entity (paragraph 3 of article 50.1 of the civil code).


Constituent document

The Charter is the only document of a legal entity, with the exception of a business partnership, which operates on the basis of the Memorandum of Association (article 52 of the civil code).


The location of the legal entity

New is the consolidation of responsibility in relation to the legal entity of the consequences of non-receipt of legally significant messages, i.e. it is meant, first of all, messages from the Supervisory state bodies, for example, from the tax inspection, etc., received at the place of its location, specified in the unified state register of legal entities, as well as a legal entity bears the risk of absence in the specified place of its body or representative (paragraph 2 of article 54 of the civil code). Now, messages delivered to the address specified in the unified state register of legal entities are considered to be received by a legal entity, even if it is not located at that address. This measure is aimed at reducing the number of legal entities whose authorities are not located at the address specified in the register of legal entities.

It is also specified that if a foreign legal entity has a representative in the territory of the Russian Federation, the messages delivered to the address of such representative are considered to be received by a foreign legal entity.


The role of the unified state register

The parties to the agreement have the right to rely on the data of the unified state register of legal entities, which increases the security of business turnover participants (article 51 of the civil code).


Authorized capital

The minimum Charter capital for OOO remained the same was 10000 RUB, for AO – 100000 RUB But changed the order of making the share capital, and is now before the registration must be paid no less ? the authorized capital and the remaining amount during the first year of the company's activity (article 66.2 of the civil code).


The sole responsibility of the participant

In case of establishment of a business entity by one person, such founder/participant will be liable for subsidiary obligations of the business entity arising as a result of the company's execution of its instructions (article 66 of the civil code).


Public and non-public

The group introduces a new principle of division of business entities into public and non-public (Art. 66.3 of the group), which brings us closer to the norms of the legislation of European countries, including Germany.

Public companies include a joint stock company whose shares and securities convertible into its shares are publicly placed (by open subscription) or publicly traded. Now, the mandatory rule for the JSC will be the indication in the Charter and the company name that the company is public. An annual audit is mandatory for the JSC. It is also necessary to have a Supervisory Board of at least 5 members.

A non-public business company is a limited liability company, the participants of which will have the right to freely determine the structure of the management bodies, the order of convening the General meeting, etc.in fact, the participants will be allowed to create any internal structure of the company.

However, a ban is introduced on cross - management of companies (Art. 67 of the civil code), when a legal entity controlled by the second person participated in the management of the second.


Control

The General meeting of participants remains the Supreme governing body in economic societies.

Also, the participants have the right to elect a Supervisory body for the actions of the Executive bodies. New is that the sole Executive body may consist of several persons, if it is provided by the laws on economic societies.


Scope of eligibility of participants

At present, the scope of powers of participants of a joint-stock company or a limited liability company is determined in proportion to their shares in the authorized capital of the company. It is possible to provide for a different distribution of the scope of powers in the Charter of the company, as well as in the corporate agreement (article 66 of the civil code).


Corporate contract

The novelty is the right for the participants of a business company to conclude an agreement on the exercise of their corporate rights - a corporate agreement(art. 67.2 the civil code), according to which they undertake to exercise these rights in a certain way or to abstain (refuse) from their implementation, including voting in a certain way at the General meeting of the company's participants, to carry out other actions in coordination for the management of the company, to acquire or alienate shares in its authorized capital (shares) at a certain price and (or) in the occurrence of certain circumstances or to refrain from alienating the share (shares) until certain circumstances.

The parties to the agreement are obliged to notify the company of the conclusion of such agreement.

Also, creditors and other persons are allowed to enter into an agreement with the participants, to which the rules of the corporate agreement may apply.


Decisions of meetings of the societies

New is the regulation on the order of decision-making at meetings in economic societies. The order of decision-making, requirements to registration of the minutes of the decision of meeting, the bases of invalidity and a contestability of the decision of meetings is provided.

Thus, the procedure for confirming the decision of the General meeting of participants is provided (clause 3 of article 67.1 of the civil code):

In a public company confirms the person who maintains the register of shareholders and performs the functions of the counting Commission,

for other business companies, a notarial certification of the decision is provided, unless otherwise provided by the Charter of such a company or by the decision of the General meeting of participants, adopted by all participants unanimously.

The grounds for the emergence of civil rights and obligations are expanded, in particular, such occurrence is now possible from the decisions of the assemblies in cases provided by law (article 8 of the civil code).


Responsibility of bodies of legal entities

The requirement to act in the interests of the represented legal entity in good faith and reasonably, which previously existed in respect of the sole Executive body, now applies to members of the collective bodies of the legal entity (Board of Directors, management Board, etc.) (art. For non-compliance with this requirement provides for liability (Art. 53.1 of the civil code).


Affiliation

Introduces the concept of affiliated persons (article 53.2 ha) and the persons controlling a legal person (article 53.3 of the civil code). Previously, these concepts were contained in the Russian Antimonopoly legislation.


Reorganization and liquidation of a legal entity

In order to avoid doubts, the possibility of complex reorganisations involving more than two legal entities with a simultaneous combination of different forms of reorganization (article 57 of the civil code) is expressly provided.

The bases of liquidation of legal entity (article 61 of the civil code) are expanded. For example, a legal entity is considered to have ceased its activities if it has not submitted reporting documents to the tax authorities and has not carried out transactions for at least one Bank account in the last twelve months. Perhaps this measure will help to reduce the number of registered but inactive companies in Russia.


Savings account for the purpose of establishing a company

Also, the corporate theme is the consolidation of the provisions on the procedure for opening a savings account of the created legal entity. The savings account is opened by the Bank for the purposes of forming the authorized capital of the created legal entity and for its opening an application from one of the founders is required with the addition of a decision on the creation and constituent documents of the legal entity.


Let us briefly dwell on other novels that relate to economic activities.

Irrevocable power of attorney

A new type of power of attorney for persons engaged in business. Such a power of attorney is usually issued for the implementation of a certain action and at the end of which can be canceled, even if the validity of the power of attorney has not yet expired.

An irrevocable power of attorney is subject to notarization and is not subject to trust.

Conclusion of contracts

Now in the civil code directly fixed the possibility of exchange of documents at the conclusion of the contract by e-mail.

New types of contracts are also provided, such as

framework-defines the General conditions of the contract, to which individual contracts are attached, specifying the transaction.

option-granting the right to enter into a contract on the terms provided by the option.

subscription – providing for the making of one of the parties of periodical payments.

Also new are the provisions on the negotiation of the contract. The concept of bad faith in the conduct of negotiations and responsibility for the refusal to conclude the contract, as well as responsibility for the disclosure of confidential information obtained in the framework of negotiations are fixed.

The provision on invalidity of the foreign trade agreement shall be cancelled in case of non-compliance with the written form.

The real estate transaction will be subject to notarial certification.


The new civil code establishes a ban on the abuse of rights – i.e. actions to circumvent the law, formally permitted by law, but with the intention of causing harm to another person. This rule is aimed at excluding, among other things, the actions of unscrupulous shareholders in relation to legal entities. 


Also, the civil code introduces a new principle - good faith in the exercise of civil rights and obligations, so it is possible that soon the courts will apply this rule in the resolution of disputes between economic entities.

Nikishenko, Andrey
East-European Consulting LLC"

01.06.2012