Public companies: a 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

Since September 1, 2014, the types of joint-stock companies have changed. Instead of open and closed joint-stock companies, 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, Companies can now be public - whose shares 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 the rest, which include LLCs and former CJSCs ( article 66.3 of the Civil Code of the Russian Federation).

At the same time, all JSCs that meet the definition of publicity from September 1 became automatically and the changes in the Civil Code made by Federal Law No. 99 apply to them. As for the JSC, if the Company decides to remain closed, that is, non-public under the new rules, then until they make changes to the constituent documents, the provisions of the Federal Law No. 208 of 12/26/1995 will apply. about ZAO. In general, such a form as a closed joint-stock company 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.

To date, the most common organizational and legal forms of doing business in our country are Non-Public (Closed) Joint Stock Company (formerly CJSC). There is a fairly large amount of information about LLC on our website, 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 there has been no mention of a non-public joint-stock company so far. That is why we decided to correct this misunderstanding, and we bring to your attention an overview article that tells about the main points of registering an enterprise in the form of a JSC.

Authorized capital of a non-public JSC (CJSC)

The main difference between a non-public joint-stock company (CJSC) and an LLC is the method of formation authorized capital: Unlike an LLC, where it consists of shares of participants, 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, as well as their state registration. This is one of the main points that is a characteristic difference between a JSC and an LLC and extends to it the effect of legislation on the securities market and the protection of investor rights. However, there is still a similarity between a JSC and an LLC in terms of the authorized capital: just as the participants in an LLC have the opportunity to attract additional investments to the Company in the form of additional contributions to the authorized capital, so 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 lies in the fact that it is impossible to completely exclude the possibility of the emergence of new shareholders in a joint-stock company. The only restriction in this regard is the pre-emptive 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 it can only be achieved if the sale of shares did not take 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 in the event that rights and obligations were transferred under the agreement to a person with a pre-emptive 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 an LLC member to leave the Company at any time, demanding payment of the value of his share in the authorized capital (money or property). However, the law on LLC, which came into force on July 1, 2009, establishes a restriction on this former right, leaving the possibility of free withdrawal from the LLC only if this is separately stated in the Company's charter.

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 it owns, 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 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 rights that are identical in content .

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

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

One more nuance. In the event that a joint-stock company pays its charter capital with property, it is necessary to evaluate this property in advance by an independent appraiser, which is now required to be done in an LLC, regardless of the amount of 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 shareholder registers must be maintained 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 One of the Civil Code of the Russian Federation” last year. At the same time, as the Bank of Russia notes in its recent letter, there are no exceptions for the transfer of the register for any JSC, if they were previously conducted independently. Therefore, be careful and have time to transfer the register of shareholders on time so as not to get fined up to 1 million rubles.

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Which introduced 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 is abolished. In other words, the organizational and legal form of "joint stock company" is preserved, but the types of such business companies are changing.

According to 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 whose shares and securities are publicly placed (by open subscription) or publicly traded on the terms established by securities laws. Rules about public societies apply to joint-stock companies, the charter and company name of which contain an indication that the company is public. Thus, a society that does not meet the relevant 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 company name, which is recorded in the constituent document (in a joint-stock company this is a charter) and the Unified State Register of Legal Entities. The full corporate name of a public joint-stock company in Russian must contain the full name of the company and the words "public joint-stock company", the abbreviated - 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 of entering into the Unified State Register of Legal Entities information about the company name containing an indication that the company should be considered public. The company name of a non-public JSC in Russian must contain the full name of the company and the words "joint stock company", the abbreviated - full or abbreviated name of the company and the words "joint stock company" or "JSC" ().

As follows from the general norm (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 joint-stock companies established before 09/01/2014 and meeting the criteria of public joint-stock companies, they are recognized as public, 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 public placement of 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 criteria of public JSCs, whose securities are in the process of placement, to disclose information about the company's compliance with the criteria of public companies. The constituent documents (charter) and names of joint-stock companies established before 09/01/2014 must be brought into line with the norms of the Civil Code of the Russian Federation in a new edition when the constituent documents are first changed. This is a requirement federal law No. 99-FZ.

It was added that changing 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 make changes to the title and other documents containing its former name. No re-registration required legal entities created before 09/01/2014. Consequently, all title, certifying, terminating and other documents issued by JSC before 09/01/2014 retain their legal force, therefore their replacement is not required. In particular, the above applies to licenses and other permits issued by Rosprirodnadzor and its territorial bodies (Letter of Rosprirodnadzor dated October 14, 2014 No. АА-03-04-36/16011).

At the same time, legal entities are not deprived of the right to apply to the relevant authority for amendments to previously issued documents (if the relevant normative document the procedure for issuing a document in exchange for a previously issued one is regulated). For example, the legislation on taxes and fees does not provide for a procedure for replacing notifications of registration with tax authorities, and when bringing the name of a JSC in accordance with Chapter 4 of the Civil Code of the Russian Federation, 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. SA-4-14/18715).

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

Joint-stock companies established before 09/01/2014 that meet these criteria are by default considered public JSCs (according to general rule the trade name of such a company must contain an indication that the company is public). A company that by all indications is classified as non-public may become public if an indication of this is recorded in its company name. the first change in 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 in the constituent documents of legal entities in connection with bringing these documents in accordance with the norms of Chapter 4 of the Civil Code Russian Federation state duty is not charged.

The essence and features of public and non-public companies

In order to understand how to determine the status of a particular 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 placed (by open subscription);

and/or publicly traded under the terms and conditions of the securities laws.

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, 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. This is a society with an unlimited and dynamically changing membership. Publicity means that the corporation focuses on an unlimited circle 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 balance the interests of the latter, the activities of such joint-stock companies are mainly regulated by imperative norms that prescribe unambiguous, standard rules for the behavior of corporation participants. 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 persons, they cover a large array of diverse investors: institutional (state, banks and investment companies), collective (collective investment funds, pension funds), small individual investors. The activities of public companies are largely regulated by imperative norms designed to ensure a balance of 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 internal corporate self-organization.

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

Non-public companies are, firstly, business companies, whose shares 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 composition of participants. They can apply special mechanisms to control the personal composition of their participants and they have much more freedom of internal corporate self-organization.

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

At present, the watershed between the strong mandatory regulation of intra-corporate relations and significant dispositive principles runs between two types of business companies - joint-stock companies and limited liability companies. The reform of the Civil Code of the Russian Federation shifted it along the line of public and non-public companies.

Criticism is expressed about the unification into a common type of business company (non-public) of various types of business companies: 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 business entities.

Paragraph 2 of Chapter 4 of the Civil Code contains general rules on business partnerships and companies. General rules are contained in Articles 66-68, these articles have been amended since 09/01/14. Article 66 enshrines the legal definition economic society is a corporate commercial organization with an authorized capital divided into shares; the property created at the expense of the contributions of the founders belongs to him by the right of ownership.

Features of the economic company:

1. Membership.
2. The presence of an authorized capital divided into a certain number of shares or shares.
3. Belonging to the society of property on the right of ownership.
4. The presence of corporate rights of the company's participants 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 the 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 publicly placed, from excessive regulation of the joint-stock legislation.

Criteria for classifying a business company as public:

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

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

Public companies place shares on the stock exchange by open subscription, have the opportunity to attract any third parties to participate in the company, and, therefore, their actions can violate the rights and interests of an indefinite number of persons. In order to prevent such violations, the rules regarding the regulation of corporate relations in public companies should be more stringent.

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

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

1. Amendments to the charter.
2. Reorganization and liquidation.
3. Formation of governing bodies (collegiate and executive)
4. Determining the amount of nominal value of the category of authorized shares, as well as determining the rights that are granted by the shares.
5. An increase in the authorized capital, disproportionate to the shares of participants or at the expense of third parties.
6. Approval of internal documents that are not constituent.

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

The Civil Code allows for the refusal to create a collegial body, provided that all functions of such a body are transferred to a collegial governing body. In a non-public company, 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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