Public companies: new civil law status of joint stock companies. What is the difference between public and non-public types of joint stock companies, partnerships and cooperatives

From September 1, 2014, the types of joint stock companies have changed. Instead of open and closed JSCs, the concepts are now used - public and non-public. Changes were made by Federal Law No. 99 dated 05.05.2014. "On Amendments to Chapter 4 of Part One of the Civil Code of the Russian Federation" (hereinafter - Federal Law No. 99). According to the new definition, the Companies can now be public - the shares of which are placed and circulated in the public domain and (or) in their name and charter there is an indication of publicity (applies to former OJSCs) and non-public - all others, which include LLC and former CJSC ( Art.66.3 of the Civil Code of the Russian Federation).

At the same time, all OJSCs that meet the definition of publicity from September 1 became automatically and changes in the Civil Code made by Federal Law No. 99 are applied to them. As for the CJSC, if the Company decides to remain closed, that is, non-public according to the new rules, then to it until they make changes to the constituent documents, the provisions of the Federal Law No. 208 of December 26, 1995 will apply. about JSC. In general, such a form as a closed JSC is being abolished. However, it will not be necessary to change the name of non-public companies and add the word “non-public” in the future, but it will only be necessary to remove the word “closed”, leaving just JSC.

Today, the most common organizational and legal forms of doing business in our country are the Non-Public (Closed) Joint-Stock Company (formerly CJSC). There is a fairly large amount of information on our website about LLC, thanks to which each of our visitors has probably already figured out many issues related to the establishment of an enterprise in this organizational and legal form. But up to now there has not been a non-public JSC. That is why we decided to correct this misunderstanding, and we bring to your attention a review article that tells about the main points of registration of an enterprise in the form of JSC.

The authorized capital of a non-public JSC (CJSC)

The main difference between a non-public JSC (CJSC) and an LLC is the method of forming the authorized capital: unlike an LLC, where it consists of participants' shares, in a JSC the authorized capital is formed by shares. It is important to note here that shares are securities, while a share in the authorized capital of an LLC is a property right of a participant.

Especially for the formation of the authorized capital, the shareholders of a non-public JSC (CJSC) issue shares, and also make their state registration. This is one of the main points that distinguish JSC from LLC and extends to it the effect of legislation on the securities market and protection of investors' rights. However, there is still a similarity between a JSC and LLC in terms of the authorized capital: both the participants of the LLC have the opportunity to attract additional investments to the Company in the form of additional contributions to the authorized capital, and the shareholders of a non-public JSC can attract investments in the form of an additional issue of shares.

Shareholders of a non-public JSC (CJSC)

There is one more point that significantly distinguishes a non-public joint-stock company (CJSC) from an LLC, and it consists in the fact that the possibility of the appearance of new shareholders cannot be completely ruled out in a joint-stock company. The only limitation in this regard is the preemptive right to purchase shares when selling to a third party. The main purpose of the pre-emptive right to purchase is to enable shareholders to remove a third party from participation in the Company, and this can be achieved only if the sale of shares has not taken place at all; the sale of shares to a third party did not take place, and they were sold to the shareholders of the Company, as well as if the rights and obligations were transferred under the agreement to the person with the preemptive right to purchase.

As recently as July 1, 2009, one of the significant differences between an LLC and a non-public JSC (CJSC) was the ability of a LLC participant to leave the Company at any time, demanding payment of the value of his share in the authorized capital (in money or property). However, the law on LLC, which entered into force on July 1, 2009, establishes a restriction on this previous right, leaving the possibility of free exit from LLC only if it is separately spelled out in the charter of the Company.

As for the rights, in a non-public JSC (CJSC) the system of their distribution among the shareholders of the Company is based on a slightly different principle. Thus, the rights of shareholders in a JSC depend on the category of shares belonging to it, which, in turn, can be ordinary or preferred. But at the same time, the charter of a non-public JSC cannot establish different rights or obligations for the owners of only ordinary shares or only one type of preferred shares, since all ordinary shares (as well as all preferred shares of the same type) provide their owners with the same rights in content ...

Payment of the authorized capital of a non-public JSC (CJSC)

When creating a non-public JSC (CJSC), the payment of the authorized capital before its state registration is not required. However, there is a limitation on its payment: the authorized capital of a JSC must be paid for at least 50% within 3 months from the date of state registration of the Company.

One more nuance. In the event that a JSC pays for its authorized capital with property, it is necessary to evaluate this property in advance by an independent appraiser, which is now required to be done in LLC, regardless of the amount of the property being valued.

Transfer of the register of shareholders to an independent registrar

Also, all JSCs, both public and non-public, should pay attention to the fact that from October 1, 2014, all registers of shareholders must be kept by specialized registrars who have the appropriate license. This obligation was introduced by the Federal Law No. 142 dated 02.07.2013. "On amendments to subsection 3 of section I of part 1 of the Civil Code of the Russian Federation" last year. At the same time, as the Bank of Russia notes in its recent letter, no joint-stock companies have exceptions for the transfer of the register, if previously they were conducted independently. Therefore, be careful and manage to hand over the register of shareholders on time so as not to be fined up to 1 million rubles.

Still have questions about accounting and taxes? Ask them on the accounting forum.

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Which made significant changes in accordance with which joint-stock companies are divided into public and non-public companies, that is, the division of JSC into closed and open ones has been abolished. In other words, the organizational and legal form "joint-stock company" remains, but the types of such business companies change.

Under the new rules, JSCs are divided into two types: public and non-public.

By virtue of clause 1 of article 66.3 of the Civil Code of the Russian Federation public is a joint stock company, the shares and securities of which are publicly placed (by open subscription) or publicly traded under the conditions established by the laws on securities. The rules on public companies apply to JSCs whose articles of association and company name contain an indication that the company is public. Thus, a society that does not meet the corresponding criteria can also become public.

A limited liability company and a joint stock company that does not meet the criteria specified above are recognized non-public.

A legal entity that is a commercial organization must necessarily have a corporate name, which is recorded in the constituent document (in a JSC this is the charter) and the Unified State Register of Legal Entities. The full company name of a public JSC in Russian must contain the full name of the company and the words "public joint stock company", the abbreviated name - the full or abbreviated name of the company and the words "public joint stock company" or "PJSC".

A non-public company becomes (at its discretion) public from the date on which information about the company name is entered into the Unified State Register of Legal Entities, which contains an indication that the company should be considered public. The firm name of a non-public JSC in Russian must contain the full name of the company and the words "joint stock company", abbreviated - full or abbreviated name of the company and the words "joint stock company" or "JSC" ().

As follows from the general rule (paragraph 3, clause 1, article 53 of the Civil Code of the Russian Federation), the constituent document may provide that the authority to act on behalf of a legal entity is granted to several persons acting jointly or independently of each other. Information about this should be included in the Unified State Register of Legal Entities.

On the basis of JSCs, created before 09/01/2014 and meeting the characteristics of public joint-stock companies, are recognized as public, and regardless of the presence in their company name of an indication that the company is public. In this regard, such companies have the right to publicly place shares and securities convertible into shares, although their name may not indicate that the company is public.

In order to inform investors and other interested parties, the Bank of Russia recommended JSCs that meet the characteristics of public JSCs whose securities are in the process of being placed to disclose information on the company's compliance with the characteristics of public companies. The constituent documents (charter) and the names of JSCs created before 09/01/2014 must be brought in line with the norms of the Civil Code of the Russian Federation in the new edition when the constituent documents are changed for the first time. This is a requirement of Federal Law No. 99-FZ.

It was added that the change in the name of a legal entity in connection with bringing it into line with the new norms of the Civil Code does not entail the need to amend the statutory and other documents containing its previous name. Re-registration of legal entities created before 09/01/2014 is also not required. Consequently, all documents of title issued by JSC before 01.09.2014, title, title, termination and other documents retain their legal force, therefore, their replacement is not required without fail. In particular, the above concerns licenses and other permits issued by Rosprirodnadzor and its territorial bodies (Letter of Rosprirodnadzor dated October 14, 2014 No. AA-03-04-36 / 16011).

At the same time, legal entities are not deprived of the right to apply to the relevant authority for making changes to previously issued documents (if the procedure for issuing a document instead of a previously issued one is regulated by the relevant regulatory document). For example, the legislation on taxes and fees does not provide for the procedure for replacing notifications of registration with tax authorities, and when the name of a JSC is brought in accordance with Chapter 4 of the Civil Code of the Russian Federation, the replacement of these notifications on the grounds provided for by the Tax Code of the Russian Federation is not necessary (Letter of the Federal Tax Service of Russia dated September 16, 2014 No. CA-4-14 / 18715).

Re-registration of previously created legal entities specified in Art. 8, 9 FZ dated 05.05.2014 No. 99-FZ, in connection with the entry into force of this Federal Law is not required.

Joint-stock companies created before 09/01/2014 that meet these criteria are considered public JSCs by default (as a general rule, the corporate name of such a company must contain an indication that the company is public). A company, by all indications related to non-public, can become public if an indication of this is recorded in its company name. The charter of companies established before 09/01/2014 and their company names must be brought in line with the new requirements, which must be done when the first change of the charter, carried out on the basis of a decision of the general meeting of shareholders.

It is important to note that when registering changes to the constituent documents of legal entities in connection with the bringing of these documents in accordance with the norms of Chapter 4 of the Civil Code of the Russian Federation, the state duty is not charged.

The essence and characteristics of public and non-public societies

In order to understand how to determine the status of a society, it is necessary to analyze the norms that define these categories.

Public society - a joint stock company, whose shares and securities convertible into its shares:

are publicly posted (by open subscription);

and / or publicly traded under the conditions established by the laws on securities.

The rules on public companies also apply to joint stock companies, the charter and company name of which contain an indication that the company is public (clause 1 of article 66.3 of the Civil Code of the Russian Federation).

Public company - a business company based on shares (securities), which are placed and circulated among an indefinite circle of persons... It is a society with an unlimited and dynamically changing membership. Publicity means that the corporation focuses on an unlimited number of participants (shares are offered for sale to a wide range of people).

Public companies are characterized by a large number of diverse shareholders. In order to ensure a balance of interests of the latter, the activities of such joint-stock companies are predominantly regulated by peremptory norms that prescribe unambiguous, standard rules of conduct for members of the corporation. The use of standards that cannot be changed at the discretion of the prevailing members of the company guarantees the attraction of investors.

Public companies borrow on the securities market among an unlimited number of people, they cover a larger array of diverse investors: institutional (government, banks and investment companies), collective (collective investment funds, pension funds), small individual investors. The activities of public companies are largely regulated by peremptory norms designed to balance the interests of a heterogeneous and dynamically changing mass of investors. Therefore, this type of economic society, in contrast to a non-public one, has little freedom of intra-corporate self-organization.

Non-public society - a business company that does not meet the criteria established by legislation for public companies. This is a limited liability company and a joint stock company that does not meet the criteria specified in clause 1 of Art. 66.3 of the Civil Code of the Russian Federation (clause 2 of Article 66.3 of the Civil Code of the Russian Federation).

Non-public companies are, firstly, business companies, the shares of which are placed among a predetermined circle of persons and do not go public. Secondly, this category includes companies based on a low-turnover asset - a share in the authorized capital of an LLC. Such companies are focused on a limited, small, predetermined membership. They can use special mechanisms to control the personal composition of their members and they have much more freedom of internal corporate self-organization.

The activities of non-public companies are mainly regulated by dispositive legal norms that allow the establishment of individual rules of behavior (interaction) of the corporation participants at their discretion. Non-public companies do not borrow from the open market. More discretionary norms are addressed to them, they have potentially greater freedom of internal corporate self-organization - that is, the ability to establish interaction rules at their own discretion.

Currently, the dividing line between the strong imperative regulation of intracorporate relations and significant dispositive principles is between two types of business companies - joint stock companies and limited liability companies. The reform of the Civil Code of the Russian Federation moved it along the line of public and non-public companies.

Criticism is expressed regarding the merger of various types of business companies into a general type of business company (non-public): joint-stock companies based on shares and limited liability companies based on shares in the authorized capital. According to some experts, this leads to a mixture of these essentially different economic societies.

Paragraph 2 of Chapter 4 of the Civil Code contains general rules on business partnerships and companies. The general rules are contained in Articles 66-68, these articles have been amended from 01.09.14. Article 66 establishes the legal definition economic society - it is a corporate commercial organization with a charter capital divided into shares; property created from the contributions of the founders belongs to him by right of ownership.

Features of a business entity:

1. Availability of membership.
2. The presence of the authorized capital, divided into a certain number of shares or shares.
3. Ownership of property by the company.
4. Members of the company have corporate rights in relation to the company.
5. Management is carried out by forming a general meeting, decisions are made by voting.
6. General legal capacity of a business entity.

Article 66.3 - public and non-public companies.

A new classification for Russian law into public and non-public companies is introduced. The meaning of the classification: to protect joint stock companies, whose shares are not placed publicly, from excessive regulation of joint stock legislation.

Criteria for classifying a business entity as public:

1. The presence in the company name of an indication of the publicity of the company.
2. Public placement of the company's shares on the stock exchange; public offering of securities convertible into shares.

These criteria are to be applied to those JSCs that were created before 09/01/14 and meet the signs of publicity. The law established that only joint-stock companies can be public, limited liability companies and joint-stock companies can be non-public. The nature of legal regulation within public and non-public societies should differ significantly.

Public companies place shares on the stock exchange by open subscription, have the ability to involve any third parties to participate in the company, which means that their actions can violate the rights and interests of an indefinite circle of persons. To prevent such violations, the rules regarding the regulation of corporate relations in public companies should be stricter.

Non-public societies involve close or predetermined circle of people to participate. The Civil Code in the new edition allows non-public companies to change the general rules established by law by special legislation, such changes are made in the constituent document - the charter. The decision to establish rules other than those provided for by the Civil Code must be taken by all members of the company unanimously. The Civil Code only defines the scope of discretion.

The Civil Code provides for the possibility for non-public companies to change the competence of the general meeting of participants - it can be both narrowed, i.e. some of the issues that are considered by the general meeting by law can be transferred to the management of a collegial management body (board of directors), or expanded, that is, such issues that are not considered by the general meeting can be referred to the general meeting. The Civil Code has established a number of issues that cannot be referred to another body. Issues that the general meeting always decides:

1. Amendments to the charter.
2. Reorganization and liquidation.
3. Formation of management bodies (collegial and executive)
4. Determination of the number of par value of the category of declared shares, as well as determination of the rights that are granted by shares.
5. Increase of the authorized capital, disproportionate to the shares of the participants or at the expense of third parties.
6. Approval of internal documents that are not constituent documents.

Article 66.3 does not include the distribution of profits and losses in the list of issues that relate to the consideration of the general meeting. There is no clear-cut opinion in the literature regarding the possibility of transferring the issue of distribution of profits and losses to another authority. The Civil Code contains Article 67.1, Clause 2, and establishes the exclusive competence of the meeting of participants in a business company: exclusion of a participant from the company, distribution of profits and losses. The lecturer believes that here it should be said that there is a contradiction between norms 66.3 and 67.1.

The Civil Code allows the refusal to create a collegial body, provided that all the functions of such a body will be transferred to the collegial management body. In a non-public society, it is possible to exclude the audit commission from the body. The Civil Code allows establishing a different procedure for preparing, convening and holding a general meeting of participants and shareholders.

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