The minimum size of the authorized capital of business companies is determined by the laws on business companies. The minimum size of the authorized capital of business companies engaged in banking, insurance or other activities subject to licensing, as well as joint-stock companies using an open (public) subscription for their shares, are established by laws that determine the specifics legal status specified business companies.
Note. The size of the authorized capital of an LLC must be at least 10,000 rubles. (Article 14 of Federal Law No. 14-FZ of February 8, 1998 "On Limited Liability Companies" (hereinafter referred to as Federal Law No. 14-FZ)).
When paying the share capital economic society funds must be deposited in an amount not less than the minimum amount of the authorized capital.
Monetary valuation of a non-monetary contribution to the charter capital of a business entity must be carried out by an independent appraiser. Participants in a business partnership are not entitled to determine monetary value non-monetary contribution in the amount exceeding the assessment amount determined by an independent appraiser.
It was established that when paying shares in authorized capital LLC with other property than cash, the participants of the company and an independent appraiser in case of insufficiency of the property of the company jointly and severally bear subsidiary liability for its obligations within the amount by which the valuation of the property contributed to the authorized capital is overestimated, within five years from the date of state registration of the company or amendments to its articles of association. We note that according to Art. 15 of Federal Law N 14-FZ, the specified period is three years.
A similar rule has been established for a joint-stock company: when contributing to its charter capital not cash, but other property, the shareholder who made such payment, and an independent appraiser in the event of insufficiency of the company's property, jointly and severally bear subsidiary liability for its obligations within the amount by which the valuation is overestimated property contributed to the authorized capital, within five years from the date of state registration of the company or the introduction of appropriate amendments to its charter.
The aforementioned rules on the liability of a company participant and an independent appraiser do not apply to business companies established in accordance with laws on privatization through the privatization of state or municipal unitary enterprises.
Unless otherwise provided by laws on business companies, the founders of a business company are obliged to pay at least 3/4 of its authorized capital before state registration of the company, and the rest of the authorized capital of a business company - during the first year of the company's operation.
Note. In accordance with Art. 16 of Federal Law N 14-FZ, each founder of an LLC must pay in full his share in the authorized capital of the company within the period specified by the agreement on the establishment of the company or (in the case of the establishment of the company by one person) by the decision on its establishment. The term of such payment cannot exceed four months from the date of state registration of the company.
If, in accordance with the law, state registration of a business company is allowed without a preliminary payment of 3/4 of the authorized capital, the participants in the company bear subsidiary liability for its obligations that arose before the moment of full payment of the authorized capital.
Public and non-public societies
In Art. 66.3 of the Civil Code of the Russian Federation stipulates the division of companies into public and non-public.
Public is a joint-stock company, whose shares and securities, convertible into its shares, are publicly placed (by open subscription) or publicly traded on the terms established by securities laws. The rules on public companies also apply to joint-stock companies, the charters and company names of which contain an indication that the company is public.
An LLC and a joint-stock company that does not meet the specified criteria are recognized as non-public.
By decision of the participants (founders) of a non-public company, adopted unanimously, the following provisions may be included in the charter of the company:
1) on the transfer for consideration by the collegial management body of the company or the collegial executive body of the company of issues referred by law to the competence of the general meeting of participants in the economic company, with the exception of issues:
Amendments to the charter of a business company, approval of the charter in new edition;
Reorganization or liquidation of a business company;
Determination of the quantitative composition of the collegial management body of the company and the collegial executive body (if its formation is referred to the competence of the general meeting of participants in the economic society), election of their members and early termination of their powers;
Determining the number, nominal value, category (type) of declared shares and the rights granted by these shares;
Increasing the authorized capital of an LLC disproportionately to the shares of its participants or by accepting a third party as a participant in such a company;
Approval of internal regulations or other internal documents of a business entity that are not constituent documents;
2) on assigning the functions of the collegial executive body of the company to the collegial management body of the company in whole or in part, or on the refusal to create a collegial executive body if its functions are performed by the said collegial management body;
3) on the transfer to the sole executive body of the company of the functions of the collegial executive body of the company;
4) about the absence of an audit commission in the company or its creation only in cases provided for by the charter of the company;
5) on a procedure different from that established by laws and other legal acts for convening, preparing and holding general meetings of participants in a business partnership, making decisions by them, provided that such changes do not deprive its participants of the right to participate in general meeting non-public company and to receive information about it;
6) on requirements different from those established by laws and other legal acts for the quantitative composition, the procedure for the formation and holding of meetings of the collegial management body of the company or the collegial executive body of the company;
7) on the procedure for exercising the pre-emptive right to purchase a stake or part of a stake in the charter capital of an LLC or the pre-emptive right to acquire shares placed by a joint-stock company or securities convertible into its shares, as well as on the maximum share of participation of one member of an LLC in the charter capital of the company;
8) on the assignment to the competence of the general meeting of shareholders of issues that are not related to it in accordance with the Civil Code of the Russian Federation or the law on joint-stock companies;
9) other provisions in cases provided for by laws on business companies.
If these provisions are not among the provisions subject to mandatory inclusion in the charter of a non-public business company in accordance with the Civil Code of the Russian Federation or other laws, they may be provided for by a corporate agreement to which all participants in this company are parties.
Note. According to the Federal Tax Service, the full company name of a public joint stock company in Russian should contain the full name of the company and the words "public joint stock company", and the abbreviated company name in Russian - the full or abbreviated name of the company and the words "public joint stock company" or "PJSC ".
The company name of a non-public joint stock company in Russian must contain the full name of the company and the words "joint stock company", and the abbreviated company name in Russian - the full or abbreviated name of the company and the words "joint stock company" or "JSC" (Letter dated 04.09.2014 N SA-4-14/ [email protected]).
It should be noted that joint-stock companies established before September 1, 2014 and meeting the criteria of public joint-stock companies are recognized as public joint-stock companies, regardless of whether their company names indicate that the company is public.
21. Things as objects civil rights relationship: concept and legal classification.
Object of civil rights they call those material and intangible (ideal) benefits, about which the subjects of civil law interact, the subject to which the activity of the participants in civil legal relations is directed. It should be noted that in the civil law doctrine, traditionally, the object of civil rights is understood as the object of civil legal relations, and the concepts of "object" and "subject" of civil legal relations are not distinguished.
Things have the largest share among the objects of civil legal relations. This type of property has become widespread in legal obligations and property relations (the latter arise only in relation to things). The civil law meaning of the term "thing" does not coincide with its everyday meaning, since it includes not only household items, but also natural resources, living beings, complex material objects (enterprises, property complexes), different kinds energy, liquid and gaseous substances, etc.
Things are called the values of the material world, given by nature and created by man. In order to establish a certain legal regime for the use of things, the legislator and civil law doctrine classify them.
Depending on the sphere of use, things are divided into means of production intended for production use, and consumer goods used for personal consumption. The features of such objects are taken into account when determining the terms of the relevant contracts - retail sale, delivery, etc.
Taking into account the nature of the implementation of consumer properties, things can be consumed, i.e. those that lose their consumer properties when they are used or are embodied in another thing in the process of their processing (building materials, food), and non-consumable - those that are depreciated (equipment, residential buildings). These differences are also taken into account when concluding certain types of contracts (for example, the subject of a lease can only be a non-consumable thing, which the tenant is obliged to return after the expiration of the contract).
According to the characteristics of the features that make it possible to identify an object, things are distinguished individually-defined, differing in specific, only inherent features (I.I. Shishkin's painting "Morning in a Pine Forest"), and certain generic features, characterized by number, weight, measure, etc. d. The latter are considered as a certain number of things of the same kind (nails, money, etc.).
Depending on the connection with the land, things are divided into movable and immovable. The latter include objects that are firmly connected with the land or whose movement without disproportionate damage to their purpose is impossible (plots of land, subsoil, buildings, structures, construction in progress), as well as other objects classified by law into this category on the basis of the similarity of the legal regime (air and seagoing vessels, inland navigation vessels, space objects and other property) (Article 130 of the Civil Code of the Russian Federation).
A special legal regime has been established for immovable things. The right of ownership and other property rights to immovable things, restrictions on these rights, their emergence, transfer and termination are subject to state registration in the Unified State Register of Rights to real estate and transactions with it (EGRP). The following are subject to registration: the right of ownership, the right of economic management, the right of operational management, the right of lifetime inheritable possession, the right of permanent use, mortgage, easement, as well as other rights in cases provided for by law. The procedure for state registration is regulated by the Federal Law of July 21, 1997 N 122-FZ "On State Registration of Rights to Real Estate and Transactions with It".
The law recognizes an enterprise as an immovable thing - a property complex used for the implementation of entrepreneurial activity(Clause 1, Article 132 of the Civil Code of the Russian Federation). The composition of such a property complex includes all types of property intended for its activities, including land plots, buildings, structures, equipment, inventory, raw materials, products, rights of claim, debts, as well as rights to designations that individualize the enterprise, its products, works and services (commercial designation, trademarks, service marks), and other exclusive rights, unless otherwise provided by law or contract. The named types of property are united as part of the property complex on the basis of a single goal of the enterprise. At the same time, the object of transactions can be both the enterprise as a whole and its part. In any case, it is necessary to observe a special procedure for concluding transactions and registering rights to an enterprise as a real estate object.
Of great importance in the course of resolving civil law disputes is the regime of things, which provides for their classification depending on the possibility (as well as the consequences) of division into parts (Article 133 of the Civil Code of the Russian Federation). A thing, the division of which in nature is impossible without changing its purpose, is recognized as indivisible (car, one-room apartment). If any part of the thing, even after the division, can perform the same function as the thing as a whole, then it is considered divisible. Such properties of things are taken into account when dividing property.
An immovable thing participating in turnover as a single object is a single immovable complex - a set of buildings, structures and other things united by a single purpose, inextricably linked physically or technologically, including linear objects ( railways, power lines, pipelines, etc.), or located on the same land plot, if the USRR registered the ownership of the totality of these objects as a whole as one immovable thing. The legal regime of an indivisible thing is applicable to such an object.
With a similar goal - to take into account the possibility of using the object for its intended purpose - complex things are distinguished - a set of heterogeneous things that make up a single whole during their operation (service, furniture set, collected works). Difficult things can be paired (gloves, shoes).
Taking into account the general purpose of the parts, the totality of the individual elements of the whole can be considered as the main thing and belonging (Article 135 of the Civil Code of the Russian Federation). The accessory is connected with the main thing by a general purpose and is intended for its "service" (a picture with a frame, a violin with a bow, a lock with a key). The mode of use of a thing is determined according to the general rule by the formula: belonging follows the fate of the main thing.
The Civil Code of the Russian Federation establishes a special legal regime for things that make up income received as a result of their use (Article 136 of the Civil Code of the Russian Federation). Such objects include fruits (the result of natural increment, separable from a thing), products (artificial increment of property obtained as a result of its productive use) and income (economic increment of property in the form of money, natural products, etc.). As a general rule, they belong to the owner of the thing, regardless of who uses it.
Civil legal relations can develop regarding not only inanimate objects of the material world, but also animate ones. Among the latter, the legislator singles out the legal regime applicable to animals (Article 137 of the Civil Code of the Russian Federation). They are subject to the general rules on property in so far as the law and other legal acts do not provide otherwise. The main exemption from general rule concerns the inadmissibility of cruelty to animals.
The minimum size of the authorized capital of business companies is determined by the laws on business companies.
The minimum size of the authorized capital of business companies engaged in banking, insurance or other activities subject to licensing, as well as joint-stock companies using an open (public) subscription for their shares, are established by laws that determine the specifics of the legal status of these business companies.
When paying for the authorized capital of a business company, funds must be paid in an amount not lower than the minimum amount of the authorized capital (paragraph 1 of this article).
Monetary valuation of a non-monetary contribution to the charter capital of a business entity must be carried out by an independent appraiser. Participants in a business partnership are not entitled to determine the monetary value of a non-monetary contribution in an amount exceeding the amount of the valuation determined by an independent appraiser.
When paying for shares in the charter capital of a limited liability company with other property than cash, the participants in the company and an independent appraiser in case of insufficiency of the company's property jointly and severally bear subsidiary liability for its obligations within the amount by which the valuation of the property contributed to the charter capital is overestimated, in within five years from the date of state registration of the company or the introduction of appropriate amendments to the charter of the company. When contributing to the charter capital of a joint-stock company not cash, but other property, the shareholder who made such payment, and an independent appraiser in the event of insufficiency of the company's property, jointly and severally bear subsidiary liability for its obligations within the amount by which the valuation of the property contributed to the charter capital is overestimated, within five years from the date of state registration of the company or the introduction of appropriate amendments to the charter of the company.
The rules of this paragraph on the liability of a member of a company and an independent appraiser shall not apply to business companies created in accordance with laws on privatization through the privatization of state or municipal unitary enterprises.
Unless otherwise provided by laws on business companies, the founders of a business company are required to pay at least three-quarters of its charter capital before state registration of the company, and the rest of the charter capital of a business company - during the first year of the company's operation.
In cases where, in accordance with the law, the state registration of a business company is allowed without the advance payment of three-quarters of the authorized capital, the participants in the company bear subsidiary liability for its obligations that arose before the full payment of the authorized capital.
The concept of authorized capital (fund) is not a product of a market economy. In the law of the socialist period, the statutory fund was understood as the monetary value of the fixed assets and working capital assigned to the enterprise, fixed on any date during the entire period of the enterprise's operation in the balance sheet of the enterprise, and the concept of the statutory fund was considered as a conditional terminological designation of the totality of working capital and fixed assets in monetary terms. expression, which has mainly accounting and accounting value.
The authorized capital of a business company is made up of the nominal value of shares (shares) of the company acquired by shareholders (participants). The authorized capital is the total value (or monetary value) of the property contributed by all founders (participants) as payment for the acquired right to participate in the company. That is, the amount of the authorized capital indicated in the charter of the company is a nominal, nominal figure, which determines only the aggregate assessment of the participants' contributions at the time they are made.
The authorized capital, in fact, does not reflect the real value of the property owned by the company, which can be either more or less than the authorized capital. The authorized capital is only one of the sources of formation of the property of a business entity.
Authorized capital functions
In the legal literature, there are traditionally three main functions that the authorized capital of a business entity must perform:
Material and security - the property made in payment of the contribution constitutes the material basis for the activities of the company when it arises and during its further functioning;
Guarantee - the company is liable to creditors within the limits of its property, which cannot be less than the authorized capital;
Distribution - through the authorized capital, the share of participation of each shareholder (participant) in the company and its profits is determined.
Consider these functions:
a) financial support function. The authorized capital of a business company is the property basis for the activities of the company, the initial (starting) capital. Therefore, the specific amount of the authorized capital is determined by the founders, depending on the type of activity that the organization being created will be engaged in;
b) warranty function. The authorized capital indicates a certain value of the property owned by the company. That is, the next function of the authorized capital is the guarantee function. The purpose of the authorized capital is to guarantee the obligations of the company to third parties.
The guarantee function of the authorized capital of the company is that the value of the net assets of the company cannot be less than the size of the authorized capital. If at the end of the second or each subsequent fiscal year the value of the net assets of the joint-stock company turns out to be less than the amount of the authorized capital, the company is obliged to reduce the amount of its authorized capital in the prescribed manner. And if the value of the net assets of the company becomes less than the minimum amount of the authorized capital determined by law, the company can be liquidated (clauses 4, 5, article 35 of the JSC Law, clause 3 of article 20 of the LLC Law).
The concept of "net assets"
The concept of "net assets" and the procedure for determining the value of the net assets of joint-stock companies are defined in the legal acts regulating accounting, since the value of the company's net assets is estimated solely on the basis of accounting data.
The net assets of a joint-stock company is a value determined by subtracting from the amount of the company's assets taken into account the amount of its liabilities taken into account. The company's assets consist of the company's cash and property, while liabilities represent the company's obligations to third parties.
Thus, the performance of the guarantee function by the authorized capital of the company does not mean limiting the liability of the company by the size of the authorized capital;
c) distribution function. The formation of the authorized capital makes it possible to determine the share of participation of each shareholder (participant) in the company. Knowing the share (percentage) of participation of a particular shareholder (participant) in the authorized capital, it is easy to determine his influence at the general meeting of shareholders (participants) and the amount of income due to him from the profit of the company, since the number of votes and the amount of his income correspond to the percentage of participation in the authorized capital. As a general rule, each shareholder or member of a limited liability company has a number of votes at the general meeting in proportion to its share in the authorized capital, the same approach is applied when distributing the company's profits. At the same time, exceptions are possible in a limited liability company: the charter of the company, by decision of the general meeting of participants, may establish a procedure other than in proportion to the share in the authorized capital, the procedure for determining the number of votes of the company's participants (paragraph 5, clause 1, article 32 of the Law on LLC ) and a different procedure for distributing profits between participants (clause 2, article 28 of the LLC Law). In addition, participants in a limited liability company may be endowed with additional rights, in addition to the rights provided for by law (clause 2, article 8 of the LLC Law).
Authorized capital
The legislation differentiates the size of the authorized capital for various organizational and legal forms of commercial organizations. The minimum amount of the authorized capital of an open joint stock company must be at least a thousand times the amount of the minimum wage, and a closed joint stock company and a limited liability company - at least a hundred times the amount of the established minimum wage as of the date of submission of the constituent documents to the registering authorities for state registration (Art. 26 of the Law on JSC, paragraph 1 of article 14 of the Law on LLC). At the same time, if in the future the requirements of the legislation to the size of the minimum amount of the authorized capital change, the company is not obliged to change its authorized capital accordingly. Thus, the company cannot be denied registration of changes to the constituent documents due to the discrepancy between the authorized capital and the minimum amount in force on the date of registration of the changes.
The maximum size of the authorized capital of a business company is not limited by law, i.e. a company can have an unlimited authorized capital, which its founders can afford.
The procedure and terms for the formation of the authorized capital
The legislation does not define the concept of "formation of authorized capital", although by interpretation it can be concluded that "formation" occurs not only when a company is established, but also with a subsequent increase in its authorized capital. The procedure for the formation of the authorized capital of a business company is established by its constituent documents. When establishing a company, the founders must resolve the following issues of formation of the authorized capital:
a) determine the circle of persons participating in the formation of the authorized capital;
b) determine how the acquired shares (shares) will be paid for;
c) determine how the property contribution of the founder to the authorized capital of the company will be assessed;
d) determine the time frame for the formation of the authorized capital of the company.
The procedure for the formation of authorized capital in joint-stock companies differs depending on the type of company: open or closed. Only an open company has the right to conduct an open subscription for shares issued by it and to carry out their free sale, while observing the norms of laws and other legal acts. A closed company is not entitled to conduct an open subscription for the shares it issues or otherwise offer them for purchase to an unlimited number of persons, it is obliged to distribute shares only among its founders or other predetermined circle of persons (clause 2, article 7 of the JSC Law).
It should be emphasized that when creating a joint-stock company of any type, an open subscription is not allowed, and all its shares must be placed among the founders. Thus, at present, there are no differences in the establishment of open and closed companies, since when creating an open joint-stock company, the formation of authorized capital through open subscription is not provided. Conducting an open subscription is possible only after the registration of an open company in the process of increasing its authorized capital.
The procedure for paying for the authorized capital of a company is different when a company is established and when its authorized capital is increased by issuing additional shares. The terms of payment for the shares of the company upon its establishment are established by the charter of the company, and the terms of payment for additional shares of the company must be determined in the decision on their placement. It is necessary to pay attention to the fact that the terms of payment for shares can only be changed in the direction of their reduction, and not increase, since the deadlines for the payment of shares are established by law.
Contributions to authorized capital
A contribution to the authorized capital of a business company may be money, securities, other things or property rights or other rights having a monetary value.
Payment for shares distributed among the founders of a joint-stock company upon its establishment, additional shares placed by subscription may be made in money, securities, other things or property rights or other rights having a monetary value. The form of payment for the shares of the company upon its establishment is determined by the agreement on the creation of the company, and for additional shares - by the decision on their placement. Payment for other issue-grade securities can only be made in cash (clause 2, article 34 of the JSC Law). The charter of the company may contain restrictions on the types of property that can be used to pay for the shares of the company.
A contribution to the charter capital cannot be an object of intellectual property (a patent, an object of copyright, including a computer program, etc.) or know-how, since property rights or other rights having monetary value. Therefore, only the right to use such an object, transferred to the company in accordance with a license agreement, which must be registered in the manner prescribed by law, can be recognized as a contribution.
Payment of authorized capital
Timely payment of shares (shares) is the main obligation of the shareholder (participant) of the company, and failure to comply with it entails certain consequences. Thus, the share of a member of a limited liability company who, upon founding the company, did not make his contribution to the charter capital of the company on time full size, passes to the company, while the company is obliged to pay the participant the actual value of a part of his share, proportional to the part of the contribution made by him (clause 3, article 23 of the LLC Law).
In a joint-stock company, in the event of incomplete payment of shares within the established period, the ownership of shares, the placement price of which corresponds to the unpaid amount (the value of property not transferred in payment for shares), passes to the company. Shares, the ownership of which has passed to the company, do not provide voting rights, are not taken into account when counting votes, and dividends are not accrued on them. The specified shares must be sold by the company within one year from the date of their acquisition, otherwise the company is obliged to make a decision within a reasonable time to reduce its authorized capital by redeeming such shares. The legislation does not provide for the imposition of any property liability on shareholders who have overdue payment for shares. But the charter of the company may provide for the liability of a shareholder for failure to fulfill the obligation to pay for shares in the form of a penalty (fine, penalty). Until the moment of full payment, the share does not grant the right to vote at the general meeting of shareholders, unless otherwise provided by the company's charter (clause 1, article 34 of the JSC Law).
In addition, incomplete payment of the company's shares during its establishment entails a restriction of its legal capacity. Before payment of 50% of the shares of the company distributed among its founders, the company is not entitled to make transactions that are not related to the establishment of the company (clause 3, article 2 of the JSC Law). Transactions related to the establishment of a company, in addition to transactions for paying for shares distributed among the founders, may also include transactions for the acquisition (lease) of premises for accommodating the company, office equipment, conclusion of a bank account agreement and others not directly related to commercial (production) economic) activities of the company. Transactions concluded by a joint-stock company during the specified period and not related to the establishment of this company may be declared invalid.
1. Authorized capital - a category characteristic of business entities. Its minimum size is determined not only by the type of organization, but also by the scope of its activities and is regulated by the law on the corresponding type of companies. The minimum amount of the authorized capital of a limited liability company cannot be less than 10,000 rubles, for a joint-stock company - not less than a thousand times the amount of the minimum wage as of the date of registration of the company. These requirements will now be transferred to public and non-public joint-stock companies, respectively. At the same time, if a joint-stock company carries out insurance as its main activity, then the minimum amount of its authorized capital increases many times over. The base in this case is the size of the authorized capital, equal to 30 million rubles, which is adjusted depending on the types of insurance being carried out.
2. The amount of the authorized capital of the company is determined in monetary terms and requires the determination of the monetary equivalent of the value of the in-kind contribution to the authorized capital. The determination of the value of such a contribution should be made on the basis of an independent assessment. The implementation of this requirement is carried out by companies with a share of participation of the state or constituent entities of the Russian Federation, which must annually reassess the value of the contributed property. At the same time, such a revaluation requires economic entities to change the authorized capital. An independent assessment of the market value of the property contributed to the authorized capital indicates that the value of such a contribution must correspond to the results of the assessment and cannot be changed by the participants on their own.
The introduction of a requirement for an independent assessment of a non-monetary contribution acts as one of the indicators of the equality of all participants in a business entity, since it allows you to establish the market value of the property transferred to the authorized capital, thereby determining the size of the share of such a participant. However, it should be borne in mind that the market value is a term category. Over time, it may change to a significant extent, however, the conditions for adjusting the size of the authorized capital in relation to the change in the value of the contribution of the Civil Code of the Russian Federation are not provided. Thus, depreciation (wear and tear) of the transferred property does not affect the size of the share of the participant who transferred the property.
In accordance with the legislation on conducting an independent assessment of the market value, the appraiser is responsible for his conclusions. The value of the property is determined on a specific date - the date of assessment, in the future it can change both upwards and downwards. The possibility of bringing the appraiser to subsidiary liability acts as an additional guarantee of the legality and validity of its conclusion. However, the law indicates the validity of this possibility for five years from the date of state registration of the company or the introduction of appropriate amendments to the charter. As a basis for holding the appraiser liable, one should consider an unreliable assessment at the time of making the contribution, and not a subsequent change in the value of such an object.
The law establishes an exception for property transferred to business entities in the course of privatization of state or municipal unitary enterprises. The cost of such objects is also determined based on the results of an independent appraisal, but given the very fact of the transfer of property from the state to private hands, the Law excludes the liability of the participant who made such a contribution and the appraiser.
3. The authorized capital is a guarantee of creditors for debt repayment. The higher the size of the authorized capital, the more often counterparties agree to debt obligations. A prerequisite is the payment of the authorized capital in the amount of at least three quarters of its size. The authorized capital must be formed in full within one calendar year from the date of state registration of the company.
The specified general provisions of the law can be changed by the participants of the company within the framework of its charter. Increasing the role of dispositive regulation in terms of the formation of the authorized capital of the company does not allow to radically change the current situation with violation of the conditions and procedure for its formation. Of fundamental importance in this case has the introduction of subsidiary liability of participants for the obligations of the company until the full payment of the share in the authorized capital. The unlimited nature of such liability contributes to the stabilization of the company's position and forms the interest of each of its participants in the full payment of the authorized capital, not only by themselves (including by encouraging other participants to fulfill their obligations).
4. Applicable law:
Federal Law No. 208-FZ of December 26, 1995 "On Joint Stock Companies";
Federal Law No. 14-FZ of 08.02.1998 "On Limited Liability Companies".
5. Court practice:
Decree of the Federal Antimonopoly Service of the Moscow District dated 10.10.2011 in case No. F05-10046/2011;
Resolution of the Tenth Arbitration Court of Appeal dated March 2, 2011 in case No. 10AP-3422/2011;
The decision of the Arbitration Court of the Moscow Region dated March 9, 2011 in case N A41-27914 / 2010.
) has not yet been completed, although certain provisions of the amended Civil Code have already been reflected in them. Partial harmonization in practice has led to difficulties arising in the choice of the norm to be applied to specific relations. And the inaccuracies contained in the norms of the Code on the issues of payment of the authorized capital, and the use of terms in them that require special knowledge from the person applying them, add even more confusion.
Here are some of the most frequently asked questions in practice. Is it possible to pay the authorized capital of the company with the rights of claim? Is it possible to pay the authorized capital by promissory note? Is it obligatory to pay in cash the authorized capital in an amount not less than the minimum amount of the authorized capital established by law?
Despite the apparent complexity of the current regulation, finding answers to all these questions is quite simple.
Let's start in order and remember how this issue was regulated before the changes in the Civil Code.
The norm of the Civil Code, which regulated the procedure for paying the authorized capital until September 1, 2014, established the following rule:
“Item 6 of Art. 66.
A contribution to the property of a business partnership or company may be money, securities, other things or property rights or other rights having a monetary value.
The norm of the Federal Law “On Joint Stock Companies” (hereinafter referred to as the JSC Law), which was in force before the amendment of the Code, established the following rule:
"Point 2 Art. 34.
Payment for shares may be made in money, securities, other things or property rights or other rights having a monetary value.
The norm of the Federal Law “On Limited Liability Companies” (hereinafter referred to as the LLC Law), which was in force before the amendment of the Code, established the following rule:
"Point 1 of Art. fifteen.
Payment for shares in the authorized capital of a company may be made in money, securities, other things or property rights or other rights having a monetary value.
We see that the list of objects that could previously be paid for the authorized capital, established by the Civil Code and laws on business entities, was exactly the same and included:
- money;
- securities;
- things;
- property and other rights having a monetary value.
Since September 1, 2014, the rules for payment of the authorized capital of business entities established by the Civil Code have been changed. Article 66 of the Civil Code excluded the provisions on payment of the authorized capital, and at the same time the Code was supplemented by articles 66.1 and 66.2, which established new rules. With regard to objects that can be transferred as payment for the authorized capital, these rules are now as follows:
1. The contribution of a participant in a business partnership or company to its property may be money, things, shares (shares) in the authorized (share) capital of other business partnerships and companies, state and municipal bonds. Such a contribution may also be exclusive, other intellectual rights and rights under license agreements subject to monetary value, unless otherwise provided by law.
2. A law or constituent documents of a business partnership or company may establish the types of property specified in paragraph 1 of this article, which cannot be contributed to pay for shares in the authorized (share) capital of a business partnership or company» .
In this norm, first of all, we are interested in 2 points related to the issue under consideration. The first point is that the list of objects that can be contributed to the payment of the authorized capital has changed; second, such a list can only be reduced by special laws, that is, it cannot be expanded.
At the same time, we must take into account the provisions of paragraph 4 of Art. 3 of Law No. 99-FZ, which establishes that henceforth, before bringing the regulations in force in the territory Russian Federation, in accordance with the provisions of the Civil Code of the Russian Federation, as amended by this law, they are applied insofar as they do not contradict the provisions of the Civil Code of the Russian Federation as amended by this law. That is, the Law on JSC and the Law on LLC since 09/01/2014 are applied in the part that does not contradict the updated Code.
So, from September 1, 2014, due to the change in the Civil Code, the list of objects to be contributed to the payment of the authorized capital has changed, or rather, decreased.
This did not happen by chance and was the implementation of the main provisions contained in the Concept for the Development of the Civil Legislation of the Russian Federation, which formed the basis for reforming the Civil Code (hereinafter referred to as the Concept). I will quote some provisions of the Concept, which should be paid attention to in relation to our issue:
“Clause 4.2.1.
Russian legislation follows the European legal tradition, according to which the presence of a "hard" authorized capital in a business entity is mandatory. At present, there is no sufficient reason to refuse this legal category, but while maintaining it, it should be ensured that it performs the functions for which it was created (providing start-up capital for the company's activities and guaranteeing the rights of creditors). Contemporary legal regulation authorized capital does not solve this problem.
“Clause 4.2.3.
Limits should be placed on non-monetary contributions to the share capital (similar to those provided for in EU directives and in the legislation of a number of foreign countries). Things and rights having a monetary value can act as non-monetary contributions, while the rights to use property (lease rights, etc.) should not be contributed to the authorized capital (lease rights, etc., at the same time, it is possible to introduce rights under a license agreement), as well as some types securities (such as bills of exchange and bonds) and the right of claim of a participant in a business company both to the company itself and to a third party”.
Let's compare the list of objects provided by the Civil Code before and after the change.
We see that the changes affected 2 categories of objects: "Securities" and "Property Rights". The Civil Code has now named specific types of objects belonging to these two categories that can be contributed to the payment of authorized capital, thereby excluding all others.
At first glance, apart from shares and state (municipal) bonds, no securities can be contributed as payment for the authorized capital. Both promissory notes and bonds, as proposed in the Concept, are excluded from the list. But it's not. The reason for this, in my opinion, was the poor-quality study of the text adopted as a result of the project. The result was not what was planned, and at the same time, illogical rules appeared in the Code. The fact is that documentary securities are referred to Art. 128 GK to things. This means that all securities issued in documentary form fall under the category “Things” in this list and, therefore, can be contributed as payment for the authorized capital. Documentary securities, in particular, are a bill, mortgage, check and many others, complete list which it makes no sense to cite, since it is much easier to list a short list of book-entry securities. We will return to it a little later, and now we state that a promissory note can be paid in payment for the authorized capital of a business entity, thereby finding the answer to one of the common questions I raised at the beginning of this article. But what about bonds? Are they excluded from the list, as proposed in the Concept? Neither, but here you need to spend a little more time to clarify the situation. The fact is that, according to Section III “On Equity Securities” of the Federal Law “On the Securities Market” (hereinafter referred to as the Law on the Securities Market), bonds, at the discretion of their issuer, can be issued both in non-documentary and in documentary form. For example, an issuer can issue exchange-traded bonds only in documentary form (Article 27.5-2 of the Law on the Securities Market).
Thus, we see that, contrary to the logic of the legislator, bonds are allowed or not allowed to pay for the authorized capital, not because they are a reliable or unreliable asset, but only depending on their form, which the issuer himself has chosen for them. In practice, in order to understand whether we have the right to contribute specific bonds to pay for the authorized capital, we must establish the form of their issue, having read the text of the decision to issue these securities (the form of securities is indicated in paragraph 2 of section B "Decision on the issue of securities "). It should be noted that documentary bonds are more common today in Russia than non-documentary ones. In fact, documentary bonds are a fiction: you will not find paper documents, as it is written in Art. 143.1 of the Civil Code of the Russian Federation, documentary bonds are just a mechanism for transforming the register accounting of bond holders into a depositary one, which does not affect the content of the security, and even more so its reliability.
- shares in the authorized capital of limited liability companies;
- shares in the share capital of partnerships;
- exclusive and other intellectual rights having a monetary value;
- rights under license agreements that have a monetary value.
It should be noted that such property rights as, for example, lease rights and rights of claim have been removed from the list, as was intended in the Concept. But there are nuances here too: the current legislation allows payment of the authorized capital when it is increased by offsetting claims on the company, that is, the rights of claim on the company itself, although the Concept also proposed to exclude them. For AO, this is provided for by Art. 99 of the Civil Code and Art. 34 of the JSC Law, and for LLC - art. 90 of the Civil Code and Art. 19 of the LLC Law. So, answering another popular question, voiced by me at the beginning of the article, it should be said that it is impossible to pay for the authorized capital with the rights of claim, unless it is the right of claim against the company itself, the authorized capital of which is paid when it is increased.
Having considered all the existing nuances, we can compile a complete list of objects with which today you can pay for the authorized capital of a business entity.
| Objects that can be contributed to the payment of the authorized capital |